AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

ALTERNATIVE DISPUTE  Requirements of conducting pre-trial

RESOLUTION conference
By. Atty. Gabriel Robeniol  Utilization on different modes of
discovery
 Proscription against forum shopping
Chapter 1: Introduction
The supreme court encourages the
Historical Rule: use of arbitration through Philippine
Mediation Commission or through
Judicial and Legislative trends: Judicial Dispute Resolution (JDR)
 Utilization of alternatie means and
methods implemented in or outside
the court trial system Legislative Action:
 Special domestic legislation passed
Civil Code of the Philippines: the prescription of arbitration,
 30 August 1950 mediation and conciliation.
 Contains provisions of/or on  E.G:
compromise arbitration. o Labor Code of the
 Encourages litigants to agree upon Philippines
fair compromise and authorize o National Labor Relations
arbitration Commissions
Concerning:
19 June 1953  Unfair Labor Practice
 Enactment of arbitration law  Termination of
 Republic Act. 876 Employment
 Conditions of
20 May 1965 Employment
 Convention on the recognition and  Damages arising from
enforcement of foreign arbitration / E–E
arbitral awards  Brgy. Level Arbitration

Philippine law has acknowledged the Executive Branch Contribution:

international arbitration as system of  CIAC – Construction Industry
setting commercial dispute. Arbitration Commission – Enacted
during 4 Feb 1985 concerning
constriction dispute
UNCITRAL  23 August 1998 – rules of procedure
 Model law which the Philippines governing construction arbitration
committed its adherence.  19 November 2005 – CIAC revised
rules of procedure governing
Judiciary Action construction arbitration
 22 March 2010 – rules on ADR for
Response of Judiciary to the Problems of dispute between national government
Delay. agencies: amicable settlement dipute

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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

THE ADR Act of 2004

 Dispute resolution law
 An act to institutionalize use of an Chapter 2: Fundamentals of Alternative
alternative dispute resolution system Dispute Resolution
in the Philippines and to establish the
office for alternative dispute Alternative Dispute Resolution
resolution and for other purpose.  Expeditious and speedy manner
 28 April 2004  Methods of resolving dispute outside
the court trial system
Philippines as the Venue of ICA  Includes similar process in quasi –
judicial agencies
 RTC must refer to arbitration  Any process the used to resolve a
in proper case dispute or controversy
 Foreign Arbitral awards must  Neutral third party
be confirmed by RTC
 The RTC has jurisdiction to State Policy in ADR
review foreign arbitral awards  ADR act of 2004 declared the state
 Grounds for judicial review policy
different in Domestic and  Promote party autonomy resolution
Foreign arbitral awards. of dispute
 RTC Decisions of assailed  Freedom of the party to choose or
foreign arbitral awards make their own arrangement to
appealable: CA, certiorari resolve dispute
 Provides solutions that is less time
consuming, less confrontational
The Lawyer’s Role procedure of goodwill and lasting
 Contribute to the promotion of ADR friendship
 Assist courts in encouraging the  Wave of the future in international
parties to avail of alternative means relationship
of dispute resolution
 Explain the benefits of the ADR Principles of ADR
system.  Promotion of party autonomy and
self – determination in dispute
resolution
 Recognition of ADR as an efficient
tool and an alternative procedure for
the resolution of cases
 Enlisting a private sector
participation

Objectives and Benefits of ADR

 Speedy and impartial justice
 Declogging of court dockets.

Features of ADR
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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015
 ADR means used to resolve a dispute
or controversy
 Exceptions: intention is to cause
delay or suspend the proceeding
 ADR utilize means and methods
allowed by law
 ADR is contractual in nature
 ADR avoids court trial
 ADR usually involves
participation of neutral third party
Sources of ADR
 Domestic Laws and Rules
Constitution
Civil Code
Arbitration Law
 Acts of the Executive Branch
 Decisions of the Supreme Court
 International Law : UNCITRAL
 General principle of Law and Equity
Forms of ADR
 Arbitration – arrangement of the and
abiding by the judgment or selected
person in dispute; binding between
the parties
 Mediation – voluntary agreement
between the parties with the help of
third person to convince them to
come into an agreement; non binding
between eh parties.
 Conciliation – conciliation of dispute
in an unantagonistic manner
 Neutral – lawyers are brought to
present the summary of the case
 Early – Neutral – availed of in pre –
trial case
 Mini – trial – merits of the case ar
argued in front of a panel
 Any combination of the foregoing
 Any other ADR forms
Classification of Forms of ADR
 As to the number of parties:
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o Bi – party – one or two
parties
o Multi – Party – two or more
 AS to the number of issues involve:
o Simple – one issues involve
o Complex – two or more
issues
 As to the extent of conclusion
the o Complete – all issues involve
is resolve
o Partial – only two or three
issues involve are resolved
but not all
 As to the role of evidence in the
proceedings
o Evidentiary
o Non – merit based
 As to the pendency of the court case
o Case – related – when there is
a case involved
o Independent
 AS to the applicable law
o Domestic – when the place of
business and arbitration is in
the Philippines
o International – when the
place of business involved
two states and arbitration is
outside the Philippines
o Foreign – when the place of
business is outside the
Philippines and the
arbitration is outside the
Philippines.
 As to the permanency of the ADR
provider
o AD – HOC – temporary
o Institutional – permanent
Components of ADR
 Contending parties
 Dispute or controversy
 Form of ADR
 ADR provider or practitioner
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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

Subject matter of ADR

 Adversarial dispute and controversy
 Exception:
o Civil Status of persons
o Validity of marriage and any
other forms of legal
separation
o Jurisdiction of courts
o Future legitime
o Criminal Liability
o In general which the law
cannot be compromise
Basic Concepts of ADR
 Concluding Acts or Arguments
o Arbitral Award – final
decision of arbitration on
awarding issue
controversy
o Mediated Settlement
agreement – contract
executed by the parties
o Compromise or compromise
agreement – avoidance of
litigation or to put an end to
the one already existing
o Waiver or quitclaim – a
statement renouncing any
right or claim
 ADR providers or practitioners
 Preferences of ADR
Office for ADR
 ADR – agency attached to DOJ
 Executive Director appointed by the
president upon recommendation of
secretary of justice
Chapter 3: Mediation under ADR Act of
2004
Mediation
 Voluntary process in which a
mediator is selected by the disputing
parties
 Facilitates communication and
negotiation
 Assist the parties in reaching
voluntary agreement
or Court Annexed Mediated
 Mediation conducted under the
auspices of the court
Court Referred Mediation
 Ordered by the court to be conducted
by the agreement of the parties
Mediator
 Person conducting mediation
Mediation Practitioner
 Parties in mediation
Non – Party participants
 Witness, resource person, or expert
Classification of Mediation
 Non – evidentiary or non – merit
based mediated
o Focuses on facilitation or
communication and
negotiation between the
parties in encouraging to
voluntarily settle dispute
 Institutional

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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

o Administered and conducted  The decision making authority rest

by or under the rules of upon the parties
mediation institution
 Ad – Hoc Confidential and Privileged nature of
o Other than institutional Mediation Communication
 All information of evidence is
privileged and confidential in
character
To be bound by the internal
mediation and the administrative Confidential Information
policies of such institution  Any information relative to the
To have such rules govern the subject of mediation or arbitration
mediation of the dispute and for the  Expressly intended not to be
mediator disclosed
Expressly Confidential
Impliedly confidential
Place of Mediation  Creates reasonable expectations
 Two disputing parties are free to
agree the place\ Confidential Information Includes:
 In the absence – default is  Communication
convenient to and appropriate to all  Oral or Written statements
the parties  Pleadings, motions, manifestations
Stages of Mediation Legal effects of Confidential and
 Opening statement of mediator privileged nature
 Individual narration by the parties  A party may refuse to disclose
 Exchange by the parties  Not subject to discovery and
 Summary issues inadmissible in adversarial
 Generalization and evaluation of proceedings
options
 Closure o People cannot be compelled
Mediation shall be held in private to disclose information
Exceptions: Parties consented that there be  Parties to the dispute
other persons  Mediation
 Counsel for the parties
Closed and concluded  Non – Party
 Execution of settlement agreement  Secretary, stenographer, assistants
 Withdrawal of any party from  Any persons who obtains
mediation information
 Written declaration  Continues even the mediator fialed
to act impartially
Advantages of Mediation  Mediator may not be called to testify
 Confidentiality in Mediation Process
 Prompt, economical amicable
dispute resolution
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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

Exceptions based on agreement, Nature of  The party requested

Proceedings, Crime or Social Justice  Lacks qualifications, training and
 Contained in an agreement evidence experience
by a record authenticated by all  Mediator’s impartiality is in question
parties to agreement  Violation of ethical standards
 Made public or required by the  Safety will be jeopardized
courts to make it public  Unable to provide effective services
 A threat or statement of plan to  Conflict of interest
inflict bodily injury  Other instances
 Communication on attempt to
commit a crime Duties and Functions of Mediationr
 Used to approve or disprove neglect,  Prior to Mediation
abandonment or exploitation o Upgrade professional
 Used to sought or complaint against competencies
misconduct o Reasonable inquiry
 Non party base agreement  During the Mediation
o Confidential
Exceptions based on Public Policy o Consent and self
 Court proceeding involving a crime determination
or felony o Promotion of respect and
 Avoid liability on contracts arising control of abuse and process
from mediation
Mediator’s Cost and Fees
Limited use of External Evidence  Ad Hoc – free to make their own
 Only such portion of the arrangement as to the mediation of
communication necessary for the cost and fees
application of the exception can be
admitted in evidence Mediated Settlement Agreement
 Compromise Agreement
Privileged Mediation  Successful Mediation
 Bound by the confidential privileged
 Exception Roles of counsel in Mediation
o Termination of mediation  Collaborative
o Settlement was reached  Encourage
o Permitted to be disclosed  Assist
 Confer
Waiver of Confidentiality
 Expressed
 Implied

The Mediator
 OADR – list and freedom to select
mediators

Withdrawal Requirements
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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

 Person appointed to render an award

 May use his own discretion in the
performance of his function

Arbitration agreement
 Agreement by the parties
 In respect of legal relationship

Essential elements
 Consent of the parties freely given
 Cause of consideration
 Lawful object

Chapter 4: Arbitration in General Two modes in submitting dispute

 Agreement to submit in arbitration
Arbitration  Submission agreement
 Process which one or more
arbitrators appointed in accordance Arbitration Agreement
with the agreement of the parties  Shall be in writing and subscribed by the
 It is the arbiter that decides the parties to be charged
dispute and renders an arbitral award  May be included in arbitration clause or
to conclude in arbitral proceedings compromise

Arbitration Clause
Kinds of Arbitration
 Must be liberally construed consistent
 Voluntary with the policy of encouraging
o Reference of a dispute to an alternative dispute resolution method
impartial body
o Members are chosen by the Doctrine of Separability
parties themselves  Arbitration agreement is independent of
 Compulsary arbitration the main contact even if it contained in
o Settlement of labor dispute Arbitration clause
by the government agency
which has the authority to Due process in Arbitral proceedings
investigate  Principles of administrative due process
equally apply to arbitral proceedings
 Domestic
 International
 Foreign Judicial Review and Court intervention
Same concept lang naman to nung nasa chapter  Proper RTC
two na foreign domestic at international dapat
alam nyo nay un.  Review Court of Appeals Rule 43 ROC
 Commercial Arbitration – matters  Certiorari proper court Rule 65 ROC
arising from all relationship of
commercial in nature Interim Measures in Arbitration
 Allows the application of a party to a
Policy on Arbitration judicial authority for interim
 Speedy and inexpensive methods conservatory
 Allows filing of provisional interim
Arbitrator measures with regular courts whenever
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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

the arbitral tribunal has no power to act parties in the exercise of their privileged
effectively of party – autonomy and self –
determination

Default Rules
 provisions of the IRR
 Applicable only in the absence of or in
default contained in the ff: (1) an
agreement in force between the
Philippines and other state; (2) an
agreement between the parties on the
applicable rules

Rules of Interpretation
Chapter 5: International Commercial  Interpretation of the ADR act
Arbitration under the ADR Act of 2004 and o due regard to the policy of law
its IRR favouring arbitration
 Interpretation of the model Law
International Commercial Arbitration o need for uniformity of its
 Instances of Occurrence of International interpretation
Arbitration  Interpretation of the IRR
o Parties and Places of business is o Same policy
in different state o Party autonomy
o Place of arbitration provided in o Freedom of the parties
the agreement where parties o Reference to an agreement
have their business is outside o Rules applicable to claims and
the Philippines counter claims
o Substantial part of obligation is
to be performed outside the Rules of Receipt of Written Communication
Philippines in ICA
o Subject matter of agreement  The subject matter of the dispute may be
relates to more than one parties located in different stage
 Commercial Arbitration
o Commercial relationship in Rules communication is deemed received
nature  Delivered to the address personally or at
o Contractual or not his place of business, habitual residence
 Foreign Arbitration or mailing address
o International commercial  If there is none, delivery by registered
arbitration is outside the mail or attempt to deliver to last know
Philippines place of business
Coverage of IRR Provisions of ICA Waiver of the Rights to Object in ICA
 Applicable only to international  Arbitration is different from mediation
commercial arbitration in that the latter is not merit or evidence
 The rules of procedure for international based and therefore not procedurally
commercial arbitration provided for driven
under the ADR act or its IRR may also
be applied for international commercial Limitations
arbitration outside the Philippines if they
are adopted as rules of procedure by the
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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

 ADR act and its IRR is limited to the  Complied if parties are given
application of rules on the waiver in the opportunity to be heard and present
mediation proceedings to wavier of evidence
confidentiality and privilege only
 IRR expands the application of the rules Place if ICA
on waiver to include non – compliance  Default place – MANILA
with the rules or requirements  Place chosen by Parties

Doctrine of Estoppel Commencement of ICA proceedings

 Objectives to non compliance with the  Date – requested by the parties
rules or any requirements under the  Default date – date of request for that
arbitration agreement must be raised dispute
without undue delay or within the time
prescribed therefore, failing which, the Language in ICA
right to object is deemed waived  Parties shall determine the language
 Default – English
Estoppel in pais
 Happens when one, by his acts,
representation, or admissions, or by his Applicable Law in ICA
own silicon when he ought to speak out,  Governing law generally is substantive
intentionally or culpable negligence, law
induces another to believe certain facts
to exist and such belief in a manner that Substantive Law
he will be prejudiced if the former is  Law or legal system applicable to
permitted to deny the existence of such complete resolution of dispute
facts
Conflicts of Law/Private International Law
Confidentiality in ICA  Part of municipal law or state which
directs courts and administrative
General Rule agencies, when confronted with a legal
 In the case of mediation, proceedings, problem involving a foreign element,
records, evidence, and arbitral awards where they should apply a foreign law
are confidential
Appointing Authority in ICA
Exceptions:  He person or institution named in the
 Consent of the Parties arbitration agreement
 Limited purpose of disclosing to the
court relevant documents in cases where Functions
resort to the court is allowed  Take necessary measurements
 Decide on the challenge
Due Process in ICA  Consider the qualifications
 IRR mandates that the parties shall be
treated equally and shall be given full
opportunity
 Reasonable opportunity The default appointment of an
arbitrator shall be made by the
Due Process National President of the Integrated
bar of the Philippines.

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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

 Subject matter of the controversy is

Arbitrators and Arbitral Tribunal in ICA conferred by law
 Default number of arbitrators is three
and is due to their appointment Two Instances
 Lack of jurisdiction
Default Procedure  Excess of jurisdiction
 3 arbiter – each party shall appoint one
 Sole arbiter – shall be appointed by the Jurisdictional review of Jurisdictional Issue
parties  Consider challenge as preliminary
 The decision of the appointing authority question
on this matter shall be immediately  Defer resolution
executor and shall not be subject to a
motion for reconsideration or appeal Jurisdiction over the pArties
 Pre – causal agreement
Factors in Appointing Arbitrators
 Qualifications Interim Measures in ICA
 Considerations  Request shall be in writing transmitted
 Advisability of appointing an arbitrator by reasonable means
of a nationality  Relieve may be granted to prevent
irreparable loss, security, preserve
Grounds for changeling an Arbitrator in ICA evidence, compel
 Impartiality
 Possession of the qualifications Legal Representation in ICA
 A person may be represented by any
Procedure for the challenge in ICA person of his choice
 Default procedure
o Sending of written agreement Determination of Rules of Procedure
15 days after becoming aware of  Statement of claims
the constitution of arbitral  Statement of Defence
tribunal  Default of the parties
o The parties may request the  Amendment of claims or defences
appointing authority within 30  Hearings (1) court assistance in taking
days to challenge tribunals evidence (2) subpoena (3) expert
 Conclusion / closure
Procedure incase the Arbitrator fails to act in
ICA Requisites for an Arbitral Award to be Final
 Mandates terminates  Rendition of the arbitral award
 Withdraws  Hearing on the qualification
 Parties agrees in the termination  Expiration of the periods
Jurisdiction of Arbitral Tribunal in ICA Cost in ICA
 Fees on arbitral tribunal
 Jurisdiction  Travel
o The right to act whether or the  Cost of expert advice
power to and authority to hear
 Travel and other expenses of witness
and determine cause
 Cost for legal representation
Jurisdiction over subject matter  Fees and expenses of appointing
authority

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 AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm – 3:00 pm /AUSL-2014 - 2015

 Execution and implementation

Correction and Interpretation of ICA award
 Quantification of the cause and the
determination of the party liable
therefore or the division between the
parties
 Correction of typographical and similar
errors initiated by a parties
 Interpretation of the awards
 Correction of typographical error
initiated by the Arbitral Tribunal
 Additional award

Setting Aside an ICA AWARD

Requirements
 Default in the arbitration agreement
 Violation of due process
 Lack or excess of jurisdiction on the part
of the arbitral award
 Violation of the arbitration agreement

Venue:
 RTC

Requirements
 Place of arbitration
 Assessed, reviewed or enjoinment is
located
 Residence ir place of business
 NCR

Time for filing the petition for Setting Aside

 3 mos
 90 days

Recognition and Enforcement of Foreign

Arbitral Awards

Recognition
 Means by which a Philippine courts give
legal acknowledgment to a foreign
arbitral award

Confirmation
 Judicial affirmation of a domestic
arbitral award

Enforcement
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