The following laws and rules govern arbitration in the domestic arbitration, there are a few vital distinctions Philippines, to wit: between the two regimes. The reason for this is that the Alternative Dispute Resolution Act of 2004 (ADR Republic Act No. 876 (known as the Arbitration Law) Act of 2004) has grafted several of the UNCITRAL Congress enacted R.A. No. 876 in 1953 and R.A. No. Model Law provisions onto Republic Act No. 876. 9285 in 2004. On the other hand, the Supreme Court promulgated the Special ADR Rules in September All types of commercial disputes may be referred to 2009. arbitration. The word “commercial” is broadly defined as “matters arising from all relationships of a R.A. No. 876 applies to domestic arbitration, while commercial nature, whether contractual or not.” R.A. No. 9285, which adopted the UNCITRAL Model Law, applies to international arbitration. The following disputes may not be submitted to arbitration: Arbitration is considered international if any of the following conditions apply: (a) labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor Code of the (a) the parties to an arbitration agreement have, at the Philippines, as amended, and its Implementing Rules time of the conclusion of such agreement, their places and Regulations; of business in different states (countries); or (b) the civil status of persons; (b) one of the following places is situated outside the (c) the validity of a marriage; state in which the parties have their places of business: (d) any ground for legal separation (of married persons); (e) the jurisdiction of courts; Republic Act No. 9285 (known as the Alternative (f) futurelegitime; Dispute (g) criminal liability; and Resolution Act of 2004) Implementing Rules and (h) those disputes which by law cannot be Regulations of the ADR Act (ADR Act IRR) compromised. Executive Order No. 1008 (known as Construction Industry Arbitration Law, for construction disputes) Domestic Arbitration Special Rules of Court on Alternative Dispute Resolution (Special ADR Rules). Form of arbitration agreement
the place of arbitration if determined in, or pursuant to, The arbitration agreement must be in writing and the arbitration agreement; or any place where a subscribed by the party sought to be charged, or by his substantial part of the obligations of the commercial lawful agent. An agreement that incorporates by relationship is to be performed or the place with which reference a document that contains an arbitration the subject matter of the dispute is most closely clause gives rise to a valid arbitration agreement. connected; or Third parties (c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more Where a civil action is commenced in court by or than one country. against multiple parties, one or more of whom are parties to an arbitration agreement, the court shall refer On the other hand, domestic arbitration is simply to arbitration those parties who are bound by the defined as arbitration that is not international. Thus, if arbitration agreement, although the civil action may the dispute is between parties who have their place of continue as to those who are not bound by such business in the Philippines, and their obligations are to arbitration agreement. be performed in the Philippines, and there is no stipulation in their arbitration agreement that the Qualifications of an arbitrator subject matter of the arbitration agreement relates to another country, the arbitration will be considered domestic. An arbitrator must possess the following which the arbitrators may make a decision shall be qualifications: of legal age, in full enjoyment of his deemed applicable to the new arbitration and to civil rights, and can read and write. Furthermore, the commence from the date of the court’s order. arbitrator should not be related by blood or marriage up to the sixth degree to either party to the The petition to vacate a domestic arbitral award must controversy. Neither should he have a financial, be filed with the appropriate Regional Trial Court fiduciary, or other interest in the controversy, or any within 30 days from receipt of the award. personal bias, which might prejudice the right of any party to a fair and impartial award. Confirmation of domestic arbitral award
The law prohibits an arbitrator from “championing” or An arbitral award is not selfexecutory. In order to “advocating” the cause of either party. convert the domestic arbitral award into an enforceable judgment, the winning party has to file Interim measures with the appropriate Regional Trial Court a petition for confirmation of the arbitral award. The court A party may apply for provisional relief or interim should, as a matter of course, grant the petition, unless measures to the courts prior to the constitution of the there are grounds to vacate the award. arbitral tribunal or even during the arbitration A party may petition the court to confirm the award at proceedings to the extent that the arbitral tribunal has any time after the lapse of 30 days from receipt of the no power to act or is unable to act effectively. arbitral award.
Grounds for vacating/setting aside a domestic International Arbitration arbitral award Interpretation of the UNCITRAL Model Law A domestic arbitral award could be vacated on the (Model Law) following grounds: The provisions on domestic arbitration are more or (a) The award was procured by corruption, fraud, or less similar to the provisions on international other undue means. arbitration. The one area where the two arbitration (b) There was evident partiality or corruption in the regimes may possibly part ways is in the interpretation arbitrators or any of them. of the applicable laws, Republic Act No. 876 (for (c) The arbitrators were guilty of misconduct in domestic arbitration) and the Model Law (for refusing to postpone the hearing upon sufficient cause international arbitration). shown, or in refusing to hear evidence pertinent and material to the controversy; or one or more of the The ADR Act of 2004 provides that, in interpreting arbitrators were disqualified to act as such under the Model Law, there must be regard to its Section 10 of Republic Act No. 876 and willfully international origin and to the need for uniformity in refrained from disclosing such disqualifications; or its interpretation, and resort may be made to the were guilty of any other misbehavior by which the travaux preparatories and the report of the secretary rights of any party were materially prejudiced. general of the United Nations Commission on (d) The arbitrators exceeded their powers, or so International Trade Law dated 25 March 1985, entitled imperfectly executed them, that a mutual, final and “International Commercial Arbitration: Analytical definite award upon the subject matter submitted to Commentary on Draft Text identified by reference them was not made. number a/CN. 9/264.”
Where an award is vacated, the court, in its discretion, For example, since other jurisdictions tend to interfere may direct a new hearing either before the same less with international arbitral awards, domestic arbitrators or before a new arbitrator or arbitrators to arbitration and international arbitration will most be chosen in the manner provided in the submission or likely diverge with respect to the scope of judicial contract for the selection of the original arbitrator or review. While domestic arbitration awards may be arbitrators, and any provision limiting the time in reviewed on appeal on both questions of fact and law, Philippine courts, having regard to the international arbitration, or contains decisions on matters beyond origin of the Model Law and to the need for the scope of the submission to arbitration, provided uniformity in its interpretation, should limit the scope that, if the decisions on matters submitted to of its review to the grounds to set aside an arbitral arbitration could be separated from those not so award under the Model Law. submitted, only that part of the award which contains Form decisions on matters not submitted to arbitration could be set aside; or The arbitration agreement shall be in writing. The (d) the composition of the arbitral tribunal or the definition of “writing” under the Model Law is arbitral procedure was not in accordance with the broader than the definition of “writing” under agreement of the parties, unless such agreement was in Republic Act No. 876. The Model Law considers an conflict with a provision of the Model Law from agreement to be in writing “if it is contained in a which the parties could not derogate, or, failing such document signed by the parties or in an exchange of agreement, was not in accordance with the Model letters, telex, telegrams, or other means of Law. telecommunication which provide a record of the agreement, or in an exchange of statements of claim An international arbitral award could also be set aside and defense in which the existence of an agreement is if the court finds that alleged by one party and not denied by another. The reference in a contract to a document containing an (a) the subject matter of the dispute is not capable of arbitration clause constitutes an arbitration agreement settlement by arbitration under the law of this state provided that the contract is in writing and the (the Philippines); or reference is such as to make that clause part of the (b) the award is in conflict with the public policy of contract.” this state.
Interim measures An application for setting aside an international arbitral award has to be filled within three months As with domestic arbitration, a party in an from receipt of the award. international arbitration may apply for provisional relief or interim measures to the courts prior to the Recognition and enforcement of international constitution of the arbitral tribunal or even during the arbitral award arbitration proceedings to the extent that the arbitral tribunal has no power to act or is unable to act An international arbitral award, irrespective of the effectively. country in which it was made, shall be recognized as binding and, upon application in writing to the Grounds for setting aside/vacating an international competent court, shall be enforced unless there exists arbitral award any of the grounds to set aside/vacate the award. The petition for enforcement and recognition of an An international arbitral award may be set aside by the arbitral award may be filed any time from receipt of courts only if the party making the application the award. furnishes proof that: (a) a party to the arbitration agreement referred to in Special ADR Rules Article 7 of the Model Law is under some incapacity; or the said agreement is not valid under the law to The Special ADR Rules govern the various stages of which the parties have subjected it or, failing any court participation in arbitration proceedings: indication thereon, under the law of this state; challenge to the existence, validity, and enforceability (b) the party making the application was not given of arbitration agreements; referral to arbitration; proper notice of the appointment of an arbitrator or of interim measures of protection; appointment, the arbitral proceedings or was otherwise unable to challenge, and termination of arbitrators; assistance in present his case; taking evidence; confidentiality/protective orders; (c) the award deals with a dispute not contemplated confirmation, correction, or vacation of award in by or not falling within the terms of the submission to domestic arbitration; recognition and enforcement or setting aside of an international commercial arbitration award; recognition and enforcement of foreign arbitral A petition for an interim measure of protection may be award; and appeals to the Court of Appeals and the made Supreme Court. (a) before arbitration is commenced, (b) after arbitration is commenced but before the The Special ADR Rules reiterate the state policy of constitution of the arbitral tribunal, or promoting arbitration: “It is the policy of the State to (c) after the constitution of the arbitral tribunal and at actively promote the use of various modes of ADR any time during arbitral proceedings but, at this stage, and to respect party autonomy or the freedom of the only to the extent that the arbitral tribunal has no parties to make their own arrangements in the power to act or is unable to act effectively. resolution of disputes with the greatest cooperation of and the least intervention from the courts. To this end, Any court order granting or denying interim measure/s the objectives of the Special ADR of protection is issued without prejudice to subsequent Rules are to encourage and promote the use of ADR, grant, modification, amendment, revision, or particularly arbitration and mediation, as an important revocation by the arbitral tribunal as may be means to achieve speedy and efficient resolution of warranted. An interim measure of protection issued by disputes, impartial justice, curb a litigious culture and the arbitral tribunal shall, upon its issuance, be deemed to declog court dockets.” to have ipso jure modified, amended, revised, or The following are some of the salient provisions of the revoked an interim measure of protection previously Special ADR Rules: issued by the court to the extent that it is inconsistent with the subsequent interim measure of protection A party may challenge before the courts the existence, issued by the arbitral tribunal. validity, and enforceability of an arbitration agreement. The The court shall assist in the enforcement of an interim challenge may be done either before or after the measure of protection issued by the arbitral tribunal commencement of the arbitration. which it is unable to enforce effectively.
Despite the pendency of the petition for judicial Assistance may be sought at any time during the determination of the existence, validity, and/or course of the arbitral proceedings when the need enforceability of an arbitration agreement, the arbitral arises. proceedings may nevertheless be commenced and continue to the rendition of an award while the issue is Any party to an arbitration, whether domestic or pending before the court. foreign, may request the court to provide assistance in taking evidence. In resolving the petition, the court must exercise judicial restraint, deferring as much as possible to the A party, counsel, or witness who disclosed or who was competence or jurisdiction of the arbitral tribunal to compelled to disclose information under rule on its competence or jurisdiction. circumstances that would create a reasonable expectation, on behalf of the source, that A party to a pending action filed in violation of the the information shall be kept confidential has the right arbitration agreement may request the court to refer to prevent such the parties to arbitration in accordance with such information from being further disclosed without the agreement. The request for referral shall be made not express written consent of the source or the party who later than the pretrial conference. After the made the disclosure. pretrial conference, the court will act upon the request for referral only if it is made with the agreement of all A party could request a protective order any time there parties to the case. is a need to enforce the confidentiality of the information obtained, or to be obtained, in the Despite the pendency of the court action, the arbitral arbitration proceedings. proceedings may nevertheless be commenced or continued, and an award may be made, while the The order enjoining a person or persons from action is pending before the court. divulging confidential information shall be immediately executory and could not be enjoined award other than those specified in the New York while the order is being questioned at the appellate Convention. courts. 4 This provision effectively overturns previous court Any person who disobeys the order of the court to decisions holding that an arbitral award may be cease from divulging confidential information shall be questioned by directly filing a petition for review (on given the proper sanction by the court. questions of fact and law) or petition for certiorari (on a question of jurisdiction) with the Court of Appeals. In deciding the petition to vacate a domestic arbitral award, the court shall disregard any grounds other than The court shall give due priority to hearings on those specified in Republic Act No. 876. petitions under this rule. The decision of the court recognizing and enforcing a If the court finds that there is a need to conduct an oral foreign arbitral award is immediately executory. hearing, the court shall set the case for hearing. This In resolving the petition for recognition and case shall have preference over other cases before the enforcement of a foreign arbitral award in accordance court, except criminal cases. with the Special Rules, the court shall either (a) recognize and enforce or (b) refuse to recognize and Unless a ground to vacate an arbitral award is fully enforce the arbitral award. The court shall not disturb established, the court shall confirm the award. An the arbitral tribunal’s determination of facts and/or arbitral award shall enjoy the presumption that it was interpretation of law. made and released in due course of arbitration and is subject to confirmation by the court. An agreement to refer a dispute to arbitration shall mean that the arbitral award shall be final and binding. The court may set aside or refuse the enforcement of Consequently, a party to the international arbitral award only on grounds under an arbitration is precluded from filing an appeal or a the Model Law. petition for certiorari questioning the merits of an arbitral award. The court shall disregard any grounds to set aside or enforce the arbitral award other than those specified in As a general rule, the court may vacate or set aside the the Model Law. decision of an arbitral tribunal only upon a clear Recourse to a court against an arbitral award shall be showing that the award suffers from any of the made only through a petition to set aside the arbitral infirmities or grounds for vacating an arbitral award award and on grounds prescribed by the law that under Section 24 of Republic Act No. 876 or under governs international commercial arbitration. Any Rule 34 of the Model Law in a domestic arbitration, or other recourse from the arbitral award, such as by for setting aside an award in an international appeal or petition for review or petition for certiorari arbitration under Article 34 of the Model Law, or for or otherwise, shall be dismissed by the court.4 such other grounds provided under these Special Rules. The prevailing party shall be entitled to an award of costs, which shall include reasonable attorney’s fees of The court shall not set aside or vacate the award of the the prevailing party against the unsuccessful party. arbitral tribunal merely on grounds that the arbitral The court shall determine the reasonableness of the tribunal committed errors of fact, or of law, or of fact claim for attorney’s fees. and law, as the court may not substitute the arbitral tribunal’s judgment with that of its own. A Philippine court shall not set aside a foreign arbitral award but may refuse it recognition and enforcement An appeal to the Court of Appeals shall not stay the on any or all of the award, judgment, final order, or resolution sought to grounds under Section V of the New York be reviewed unless Convention. the Court of Appeals directs otherwise upon such terms as it may deem just. The court shall disregard any grounds for opposing the recognition and enforcement of a foreign arbitral The Court of Appeals shall render judgment within 60 arbitration or in an international commercial days from the time the case is submitted for decision. arbitration shall be as follows:
If the decision of the Regional Trial Court refusing to PhP10,000.00 – if the award does not exceed recognize and/or enforce, vacating, and/or setting PhP1,000,000.00 aside an arbitral award is premised on a finding of PhP20,000.00 – if the award does not exceed fact, the Court of Appeals may inquire only into such PhP20,000,000.00 fact to determine the existence or nonexistence of the PhP30,000.00 – if the award does not exceed specific ground under the arbitration laws of the PhP50,000,000.00 Philippines relied upon by the Regional Trial Court in PhP40,000.00 – if the award does not exceed refusing to recognize and/or enforce, vacate, and/or set PhP100,000,000.00 aside an award. Any such inquiry into a question of PhP50,000.00 – if the award exceeds fact shall not be resorted to for the purpose of PhP100,000,000.00 substituting the court’s judgment with that of the arbitral tribunal as regards the latter’s ruling on the The prevailing party shall be entitled to an award of merits of the controversy. costs with respect to the proceedings before the court, which shall include the reasonable attorney’s fees of The Court of Appeals shall require the party appealing the prevailing party against the unsuccessful party. from the decision or a final order of the Regional Trial Court either confirming or enforcing an arbitral award, 5 Prior to the passage of the Special Rules, there was or denying a petition to set aside or vacate the arbitral no standard or schedule for computing the filing fees. award, to post a bond equal to the amount of the award Some courts charged fixed filing fees; others based executed in favor of the prevailing party. Failure of the the computation of the filing fees on the amount found petitioner to post such bond shall be a ground for the in the arbitral award. Court of Appeals to dismiss the petition. At the time the case is submitted to the court for When the Regional Trial Court, in making a ruling decision, the party praying for confirmation or under the Special ADR Rules, has acted without or in vacation of an arbitral award excess of its shall submit a statement under oath confirming the jurisdiction, or with grave abuse of discretion resulting costs he has incurred only in the proceedings for in lack or excess of jurisdiction, and there is no appeal confirmation or vacation of an arbitral award. The or any plain, speedy, costs shall include the attorney’s fees the party has and adequate remedy in the ordinary course of law, a paid or is committed to pay to his counsel of record. party may file a special civil action for certiorari to annul or set aside a ruling The court shall determine the reasonableness of the of the Regional Trial Court. claim for attorney’s fees.
The Court of Appeals shall not, during the pendency Construction Industry Arbitration Commission of the proceedings before it, prohibit or enjoin the commencement of arbitration, the constitution of the Executive Order No. 1008 established the arbitral tribunal, or the continuation of arbitration. Construction Industry Arbitration Commission (CIAC). The CIAC has original and exclusive A party desiring to appeal by certiorari from a jurisdiction over construction disputes, which shall judgment or final order or resolution of the Court of “include those between or among parties to, or who Appeals issued pursuant to the are otherwise bound by, an arbitration agreement, Special Rules may file with the Supreme Court a directly or by reference whether such parties are verified petition for review of certiorari. The petition project owner, contractor, subcontractor, fabricator, shall raise only questions of project manager, design professional, consultant, law. quantity surveyor, bondsman or issuer of an insurance policy in a construction project.” The fee5 for filing a petition to confirm or enforce, vacate, or set aside an arbitral award in a domestic The CIAC is a hybrid of voluntary arbitration and compulsory arbitration.
If the parties do not enter into an arbitration agreement, then the construction dispute between them shall be resolved by the courts. On the other hand, the Philippine Supreme Court has held that “as long as the parties agree to submit their dispute to voluntary arbitration, regardless of what forum they may choose, their agreement will fall within the jurisdiction of the CIAC, such that, even if they specifically choose another forum, the parties will not be precluded from electing to submit their dispute before the CIAC because this right has been vested by law.” Thus, for example, if the parties to a construction contract designate Singapore arbitration as the venue of any dispute that may arise between them, either party may still elect to file a request for arbitration with the CIAC, notwithstanding the agreement of the parties to submit their dispute to arbitration in Singapore, and the CIAC shall assume jurisdiction over the dispute.
The CIAC is known for its efficiency. It takes the CIAC an average of around six months from the time of filing of the request for arbitration to hear the case and render an award. See more at: http://www.conventuslaw.com/report/thephilippines disputeresolutionguide 2016/#sthash.UVD6vBDz.dpuf