January 20, 2012 TODAY: Referral of arbitration up to confirmation of arbitral award Absent: Domingo, Guerrero, Lazaro, Macanan, Marangit,

Brownie point. 1.5. Sayang! Alejandre, Lacson, Axalan Challenging an arbitrator: Sir: In one arb case, one party appointed an arbitrator. The other party appo another. The two arb appointed a Chair. Before abr proceeding. Claimant withdrew his nomination. Nagwithdraw naman yung arbitrator kasi tampuhin. Chairman naglabas ng order: Tenure of arbitrator X is no longer within the hands of the one appointing him. Claimant: In the absence of objection, Chairman is showing a bias. Thus, pinapadisqualify niya yung Chair. Is withdrawal right? Sir: No. kasi once constituted, Tribunal nay un. Is that a ground to disqualify Chair? No. Then. Claimant appointed a substitute arbitrator. Respondent challenged the replacement on the ground of bias. Sub arb withdrew. So, claimant asked time to appoint another arb. Hindi nagappoint. Thus, the matter was brought to the appointing authority to appoint in behalf of the claimant. But, appointing authority allowed part ISSUE: Should there be a tribunal ruling on the challenge to Chair or is it sufficient for him to answer/decide the challenge? SIR: In that arb, UNCITRAL arb rules. So yun ang mahirap sa arb. Yung mga preliminary issues. But once the tribunal is completed and hearings are conducted, tuloy tuloy na yun. Zosa: Where there are many parties to the case, the allocation of the power to appoint is based on the interest they represent. Thus, parties having the same interest shall be entitled to only one arbitrator. Competance-Competence Principle: Authority of arbitrator to rule on their jurisdiction. Separability Doctrine: Arbitration clause is independent of the principal contract for which it is referred to. The invalidity of the principal contract does not affect the arbitration clause. Assistance in taking evidence given by court in Arbitration proceedings: Arbitrators have power to issue subpoena. But when it is not complied with, It is the Court which have the power to cite them in contempt. Confidentiality: Coverage: proceedings, evidence, arbitral award; Exception: with consent of the parties, for a limited purpose of disclosing the court of relevant documents where resort to the Court is allowed. What if there is a complaint in court, but there is arb clause? What will happen to the case? Stay of civil action. - If any suit or proceeding be brought upon an issue arising out of an agreement providing for the arbitration thereof, 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: Provided, That the applicant, for the stay is not in default in proceeding with such arbitration. Sec.7 RA 876 y UPON BEING SATISFIED- may discretion ang court!

A court before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if at least one party so requests not later that the pre-trial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. Sec.24 RA 9285 y y UNLESS IT FINDS THAT THE ARBITRATION AGREEMENT IS NULL AND VOID, INOPERATIVE OR INCAPABLE OF BEING PERFORMED portion: discretion yang ng court. SA UNLESS portion impliedly, what is contemplated in Sec. 24, merong arbitration agreement.

When do you invoke arbitration agreement? GR: At least one party should invoke arbitration agreement NOT LATER than pre-trial kung may arb agreement. After Pre-TRIAL, dapat both parties na through a JOINT MOTION or when one party files a motion, and the other does not oppose. Isa pang exception, kung walang arbitration agreement/clause talaga and during the case, nagaree sila (SUBMISSION AGREEMENT). So, un yung isang pinagkaiba ng arbitration agreement sa submission agreement.

Is it ministerial for the Court to determine WON there is arb agreement and to refer it to arb? Two-fold: there is discretion in determining WON there is a valid arbitration agreement. But, once it has determined that there is, it becomes ministerial for the court to refer the matter to the arbitration proceeding (as shown in the case of Fiesta) Fiesta: In arb clause, there is a specific dispute covered: Billing dispute. Other kinds of dispute, not arbitrable. So to determine whether issue is arbitrable or not, then there is discretion. But, once they had determined that the issue was arbitrable, then ministerial na yun. How will you ask the court to refer the case to arb? Through Petition or Motion? Motion kasi may kaso na. How will the court resolve? Summary ba or Non-Summary Proceedings? Summary Proceedings Rule 1.3 SADR. Rule 1.3. Summary proceedings in certain cases.-The proceedings in the following instances are summary in nature and shall be governed by this provision: a. Judicial Relief Involving the Issue of Existence, Validity or Enforceability of the Arbitration Agreement; b. Referral to ADR; c. Interim Measures of Protection; d. Appointment of Arbitrator; e. Challenge to Appointment of Arbitrator; f. Termination of Mandate of Arbitrator; g. Assistance in Taking Evidence; h. Confidentiality/Protective Orders; and i. Deposit and Enforcement of Mediated Settlement Agreements. (A) Service and filing of petition in summary proceedings.-The petitioner shall serve, either by personal service or courier, a copy of the petition upon the respondent before the filing thereof. Proof of service shall be attached to the petition filed in court. For personal service, proof of service of the petition consists of the affidavit of the person who effected service, stating the time, place and manner of the service on the respondent. For service by courier, proof of service consists of the signed courier proof of delivery. If service is refused or has failed, the affidavit or delivery receipt must state the circumstances of the attempted service and refusal or failure thereof. (B) Notice.-Except for cases involving Referral to ADR and Confidentiality/Protective Orders made through motions, the court shall, if it finds the petition sufficient in form and substance, send notice to the parties directing them to appear at a particular time and date for the hearing thereof which shall be set no later than five (5) days from the

lapse of the period for filing the opposition or comment. The notice to the respondent shall contain a statement allowing him to file a comment or opposition to the petition within fifteen (15) days from receipt of the notice. The motion filed pursuant to the rules on Referral to ADR or Confidentiality/Protective Orders shall be set for hearing by the movant and contain a notice of hearing that complies with the requirements under Rule 15 of the Rules of Court on motions. (C) Summary hearing. - In all cases, as far as practicable, the summary hearing shall be conducted in one (1) day and only for purposes of clarifying facts. Except in cases involving Referral to ADR or Confidentiality/Protective Orders made through motions, it shall be the court that sets the petition for hearing within five (5) days from the lapse of the period for filing the opposition or comment. (D) Resolution. - The court shall resolve the matter within a period of thirty (30) days from the day of the hearing. Is the stay of the action applicable to both international arb and domestic arb? Yes. SEC. 33. Applicability to Domestic Arbitration. - Article 8, 10, 11, 12, 13, 14, 18 and 19 and 29 to 32 of the Model Law and Section 22 to 31 of the preceding Chapter 4 shall apply to domestic arbitration. RA 9285 Wala pang arb, complaint in court. Def filed Motion to Refer to arb with Motion to stay. While motion is pending, can defendant commence the arbitration with the tribunal? Yes. How do you commence? By filing a request in the institution (if institutional arb), now Defendant is the claimant in the arb. Then, Respondent who is the complainant in the case, answers the Institution that he refuses on the ground that the issue is still pending in the court. What will you do? In case of Sec 7 of RA 876 or Sec 24 of RA 9285. A party files a case in court. Then def files a motion to stay and then files an arb proceeding. Motion to stay is denied. Does not render the arb proceeding moot and academic? No. Case of LM Power LM Power: The arbitral clause in the Agreement is a commitment on the part of the parties to submit to arbitration the disputes covered therein. Because that clause is binding, they are expected to abide by it in good faith. And because it covers the dispute between the parties in the present case, either of them may compel the other to arbitrate. Since petitioner has already filed a Complaint with the RTC without prior recourse to arbitration, the proper procedure to enable the CIAC to decide on the dispute is to request the stay or suspension of such action, as provided under RA 876. An order of the court denying the motion to stay: not subject to appeal BUT subject to MR and pet for certiorari An order of court granting the motion to stay: Not subject to appeal/mr/petition for certiorari, BECAUSE it is immediately executory Def filed a Motion to dismiss. Is that a proper remedy? Is a MTD proper remedy given that Rule 16.1 there is a ground: failure to comply with condition precedent. Is an arbitration clause a condition precedent? Rule 16.1 a condition precedent for filing a claim, ex. Exhaustion of administrative remedy or barangay settlement, earnest efforts to compromise between family members. Hindi kasi condition precedent because it is WAIVABLE if hindi nainvoke! Not that kind of condition precedent conceived by Rule 16.1.j. Bengson vs Chan: Therefore, instead of dismissing the case, the proceedings therein should be suspended and the
parties should be directed to go through the motions of arbitration at least within a sixty-day period. With the consent of the parties, the trial court may appoint a third arbitrator to prevent a deadlock between the two arbitrators. In the event that the disputes between the parties could not be settled definitively by arbitration, then the hearing of the

instant case should be resumed. The trial court's order of dismissal is reversed and set aside. If the parties cannot reach an amicable settlement at this late hour, then the trial court should give them at least sixty days from notice within which to settle their disputes by arbitration and, if no settlement is finalized within that period, it should hold a pre-trial and try the case. Is this a correct ruling? To allow the parties to go to arbitration but limiting the time of sixty days? What principle is violated? The principle of PARTY AUTONOMY.

Citing Pan Malayan Insurance Corporation v. CA,[17] it ruled that the right of respondent insurance company as subrogee was not based on the charter party or any other contract; rather, it accrued upon the payment of the insurance claim by private respondent to the insured consignee. There was nothing in Pan Malayan, however, that prohibited the applicability of the arbitration clause to the subrogee. That case merely discussed, inter alia, the accrual of the right of subrogation and the legal basis therefor.[18] This issue is completely different from that of the consequences of such subrogation; that is, the rights that the insurer acquires from the insured upon payment of the indemnity. Sir: This case gave an obiter that: a party may bound by the arb agreement, even if it was not a party thereto, by subrogation.
California case:

Sealand: When is an arbitration a condition precedent? And when it is not? When the ascertainment of certain facts of the arbitral tribunal is made a condition precedent in filing an action. MULTIPLE PARTIES in an arbitrable dispute: Toyota, Salas, Del Monte Involves dispute pending in court when there are some parties are bound by arb agreement and some are not. Rule: Parties bound by arb agreement must proceed with the arbitration proceedings while those not bound must proceed with the court proceeding. Toyota case: