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2.
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ARTICLE XIII
LABOR
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Q: What is
information?
A: It shall include:
in
the
phrase
confidential
included
Arbitration
Mediation or conciliation
Mini-trial
Early Neutral Evaluation
Q: What is arbitration?
Q: What is Court-Annexed Mediation?
A: Arbitration means a voluntary dispute resolution process
in which one or more arbitrators, appointed in accordance
with the agreement of the parties, or rules promulgated
pursuant to ADR Act of 2004, resolve a dispute by rendering
an award.
A:
1.
2.
3.
4.
Q: Who is an arbitrator?
Illustration:
A: Arbitrator means the person appointed to render an
award, alone or with others, in a dispute that is the subject of
an arbitration agreement.
Q: What is an award?
A: It means any partial or final decision by an arbitrator in
resolving the issue in a controversy.
Q: When is arbitration considered as commercial?
A: An arbitration is "commercial if it covers matter arising
from all relationships of a commercial nature, whether
contractual or not.
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A:
(a) labor disputes covered by Presidential Decree No.
442, otherwise known as the Labor Code of the
Philippines, as amended and its Implementing Rules
and Regulations;
(b) the civil status of persons;
(c) the validity of a marriage;
(d) any ground for legal separation;
(e) the jurisdiction of courts;
(f) future legitime;
(g) criminal liability; and
(h) those which by law cannot be compromised.
(i) Adoption (added by Atty. Palacios)
MEDIATION
Q: Who is a Mediator?
CONDIDENTIALITY OF INFORMATION
A:
MINI-TRIAL
There is a decision and from
that decision the parties are
compelled to go a mediated
agreement. It will result in
the termination of the
mediation, hence, binding.
EARLY NEUTRAL
EVALUATION
The resolution is merely an
advice; the parties may take
such resolution or not,
hence, not binding
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c.
A: No
d.
Q: Can the mediator voluntarily testify?
A: No, because such situation will violate the rules on
confidentiality
e.
b.
2)
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ARBITRATION
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MEDIATION
ARBITRATION
As to function
Does not render an award The arbitrator acts as an outbut only arranges the facts to of-court judge and settles the
be negotiated so that the dispute extra-judicially.
parties can come to a He makes a determination of
compromise agreement.
the facts to resolve a dispute
He assists the parties in independently of the actual
reaching
a
mutually result desired by the parties.
agreeable settlement of their
dispute
through
direct
negotiations.
As to resolution
There is only mediation There is an arbitral award
settlement. As a rule a
mediator cannot make an
award but the mediation
settlement can be an award
provided that it is reduced
into writing signed by the
parties and their counsel and
the mediator.
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COMMERCIAL ARBITRATION
Q: When is an arbitration considered as commercial?
XPN:
(1) with the consent of the parties, or
(2) for the limited purpose of disclosing to the
court of relevant documents in cases where
resort to the court is allowed herein.
b.
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e.
A: The parties are free to agree on the language or languages
to be used in the arbitral proceedings. Failing such
agreement:
a.
b.
DOMESTIC ARBITRATION
Q: What is the law governing domestic arbitration?
A: Domestic arbitration shall continue to be governed by
Republic Act No. 876, otherwise known as "The Arbitration
Law.
project owner
contractor
subcontractor
quantity surveyor
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thereafter
clause).
arising
between
them
(arbitration
SUBMISSION CLAUSE
It is an agreement in writing
and subscribed by the
parties, and entered into if
they already have a present
dispute and there is no
arbitration clause in their
contract.
Such
admission
for
arbitration is deemed a
consent of the parties to the
jurisdiction of the RTC of the
province or city where any of
the parties reside, to enforce
such contract or submission.
2.
3.
4.
5.
6.
7.
b.
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a)
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3.
Hearing by Court
Q: In case of failure, neglect or refusal of another to comply
with the said agreement, what can the aggrieved party do?
A: He may petition the court for an order directing that such
arbitration proceed in the manner provided for in such
agreement.
NOTE: Five days notice in writing of the hearing of such
application shall be served either personally or by registered
mail upon the party in default.
If the finding be that no agreement in writing providing for
arbitration was made, or that there is no default in the
proceeding thereunder, the proceeding shall be dismissed. If
the finding be that a written provision for arbitration was
made and there is a default in proceeding thereunder, an
order shall be made summarily directing the parties to
proceed with the arbitration in accordance with the terms
thereof.
Stay of civil action
Q: What is the effect to the court proceeding if any suit or
proceeding is brought upon an issue arising out of an
agreement providing for the arbitration thereof?
A: In such case, the court in which such suit or proceeding is
pending, upon being satisfied that the issue involved in such
suit or proceeding is referable to arbitration, shall stay the
action or proceeding until an arbitration has been had in
accordance with the terms of the agreement.
Appointment of arbitrators
Q: How should the appointment of arbitrators be made?
A:
1.
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2.
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a.
b.
c.
d.
a.
b.
to
waive
the
presumptive
disqualifying
circumstances; or
to declare the office of such arbitrator vacant. Any
such vacancy shall be filled in the same manner as
the original appointment was made.
Challenge of arbitrators
Qualifications of arbitrators
Q: What are the qualifications of the arbitrators to be
appointed?
A: Any person appointed to serve as an arbitrator:
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a.
b.
set a time and place for the hearing of the matters submitted
to them, and must cause notice thereof to be given to each of
the parties.
DE FACTO
one who is legally appointed
by the parties
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Powers of an arbitrator
Q:
What
are
the
powers
of
an
arbitrator?
c.
d.
e.
f.
g.
A: At any time within one month after the award is made, any
party to the controversy which was arbitrated may apply to
the court having jurisdiction, as provided in section twentyeight, for an order confirming the award. The court must
grant such order unless the award is vacated, modified or
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d.
e.
b.
c.
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a.
b.
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c.
d.
2.
a.
b.
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A:
a.
b.
c.
d.
e.
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Compensation
Q: How are the members of the CIAC compensated?
A:
Quorum, deliberations
Q: What constitutes quorum?
a.
b.
a Chairman and
two (2) members, all to be appointed by the CIAP
Board upon recommendation by the members of the
PDCB.
A:
Secretariat
Q: What is the function of the CIAC Secretariat?
A:
Sec. 11. Secretariat. The Commission shall have a Secretariat
to be headed by an Executive Director who shall be
responsible for:
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a specific amount of money that an organization gives an individual per day to cover
living and traveling expenses in connection with work done away from home
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a.
b.
c.
d.
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A:
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A:
Execution and enforcement of awards
Sec. 17. Deposit to Cover Arbitration Expenses. The CIAC shall
be authorized to fix the amount to be deposited which must
be equivalent to the expected arbitration expenses. Xxx
Q: To whom shall the deposit be paid?
a.
b.
motu propio, or
on motion of any interested party
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A: Provided, That:
1.
3.
2.
4.
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7.
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Confirmation of award
Q: What is the effect of a confirmed domestic arbitral
award?
A: A domestic arbitral award when confirmed shall be
enforced in the same manner as final and executory decisions
of the Regional Trial Court.
Q: What court has jurisdiction to confirm the award?
A: The confirmation of a domestic award shall be made by
the regional trial court in accordance with the Rules of
Procedure to be promulgated by the Supreme Court.
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Requirements
Foreign arbitral award not a foreign judgment (Sec. 44)
Q: What are the requirements for the application of the
enforcement of the award?
A:
1.
2.
3.
A:
a.
SEC. 43. Recognition and Enforcement of Foreign Arbitral
Awards Not Covered by the New York Convention. - The
recognition and enforcement of foreign arbitral awards not
covered by the New York Convention shall be done in
accordance with procedural rules to be promulgated by the
Supreme Court. The Court may, grounds of comity and
reciprocity, recognize and enforce a nonconvention award
as a convention award.
b.
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c.
d.
e.
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b.
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A:
(a) The duly authenticated original award or a duly
certified copy thereof;
(b) The original agreement referred to in article II or a
duly certified copy thereof.
NOTE: If the said award or agreement is not made in an
official language of the country in which the award is relied
upon, the party applying for recognition and enforcement of
the award shall produce a translation of these documents
into such language. The translation shall be certified by an
official or sworn translator or by a diplomatic or consular
agent.
Article V
Q: Under what instances can the recognition and
enforcement of the award be refused?
A: Recognition and enforcement of the award may be
refused, at the request of the party against whom it is
invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is sought,
proof that:
(a) The parties to the agreement referred to in article II
were, under the law applicable to them, under some
incapacity, or the said agreement is not valid under the
law to which the parties have subjected it or, failing any
indication thereon, under the law of the country where
the award was made; or
Article III
(b) The party against whom the award is invoked was not
given proper notice of the appointment of the arbitrator
or of the arbitration proceedings or was otherwise
unable to present his case; or
Article IV
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(e) The award has not yet become binding on the parties,
or has been set aside or suspended by a competent
authority of the country in which, or under the law of
which, that award was made.
2. Recognition and enforcement of an arbitral award may also
be refused if the competent authority in the country where
recognition and enforcement is sought finds that:
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A:
1.
2.
A:
a.
b.
i.
ii.
c.
1.
2.
3.
International origin;
Uniformity in application; and
Observance of good faith.
ARBITRATION AGREEMENT (Article 7)
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A:
1.
2.
A:
Appointment of 3 arbitrators (Article 11)
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A: No.
Q: What are the considerations in the appointment of
arbitrators?
A: The court or other authority, in appointing an arbitrator,
shall have due regard to any qualifications required of the
arbitrator by the agreement of the parties and to such
considerations as are likely to secure the appointment of an
independent and impartial arbitrator and, in the case of a
sole or third arbitrator, shall take into account as well the
advisability of appointing an arbitrator of a nationality other
than those of the parties.
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A:
R.A. No. 876
(1) When a person is approached in connection with his
possible appointment as an arbitrator, he shall
disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or
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SEC. 28. Grant of Interim Measure of Protection. (a) It is not incompatible with an arbitration agreement for a party to
request, before constitution of the tribunal, from a Court an interim measure
of protection and for the Court to grant such measure. After constitution of
the arbitral tribunal and during arbitral proceedings, a request for an interim
measure of protection or modification thereof, may be made with the
arbitral tribunal or to the extent that the arbitral tribunal has no power to act
or is unable to act effectively, the request may be made with the Court. The
arbitral tribunal is deemed constituted when the sole arbitrator or the third
arbitrator who has been nominated, has accepted the nomination and
written communication of said nomination and acceptance has been
received by the party making request.
(7) A party who does not comply with the order shall be liable for all
damages resulting from noncompliance, including all expenses, and
reasonable attorney's fees, paid in obtaining the order's judicial
enforcement.
A:
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Interim measures:
Modification, suspension, termination (Article 17 D)
Q: May the court or tribunal modify. Suspend or terminate
an interim measure?
A: The arbitral tribunal may modify, suspend or terminate an
interim measure or a preliminary order it has granted, upon
application of any party or, in exceptional circumstances and
upon prior notice to the parties, on the arbitral tribunals own
initiative.
Provision of security (Article 17 E)
Q: Is security required in case of provisional remedies?
2.
3.
b.
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2.
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A:
1.
2.
2.
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2.
3.
b.
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A:
(1) The arbitral tribunal shall decide the dispute in
accordance with such rules of law as are chosen by
the parties as applicable to the substance of the
dispute. Any designation of the law or legal system
of a given State shall be construed, unless otherwise
expressed, as directly referring to the substantive
law of that State and not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral
tribunal shall apply the law determined by the
conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or
as amiable compositeur only if the parties have
expressly authorized it to do so.
(4) In all cases, the arbitral tribunal shall decide in
accordance with the terms of the contract and shall
take into account the usages of the trade applicable
to the transaction.
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b.
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a.
b.
c.
d.
e.
f.
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d.
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4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
factoring;
leasing,
consulting;
engineering;
licensing;
investment;
financing;
banking;
insurance;
joint venture and
other forms of industrial or business cooperation;
carriage of goods or passengers by air, sea, rail or
road
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Q: What are the instances where the court may refuse the
invocation of the arbitration?
1.
2.
3.
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A:
A: A party who does not comply with the order shall be liable
for:
a.
b.
a.
b.
c.
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REFERENCES
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