Professional Documents
Culture Documents
Contents
I.
INTRODUCTION
SYSTEM
Alternative Dispute Resolution
(ADR) also known as external dispute resolution in
some countries, such as Australia includes dispute
resolution processes and techniques that act as a
means for disagreeing parties to come to an agreement
short of litigation. It is a collective term for the ways
that parties can settle disputes, with (or without) the
help of a third party.
Despite historic resistance to ADR by many popular
parties and their advocates, ADR has gained
widespread acceptance among both the general public
and the legal profession in recent years. In fact, some
courts now require some parties to resort to ADR of
some type, usually mediation, before permitting the
parties' cases to be tried (indeed the European
Mediation Directive (2008) expressly contemplates socalled "compulsory" mediation; attendance that is, not
settlement at mediation).
The rising popularity of ADR can be explained by the
increasing caseload of traditional courts, the
perception that ADR imposes fewer costs than
litigation, a preference for confidentiality, and the
desire of some parties to have greater control over the
selection of the individual or individuals who will
decide their dispute.
Some of the senior judiciary in certain jurisdictions (of
which England and Wales is one) are strongly in favor
of the use of mediation to settle disputes.1
2
1
http://en.wikipedia.org/wiki/Alternative_dispute_resolution
http://www.businessdictionary.com/definition/alternativedispute-resolution.html#ixzz204cSk0Xz
ADVANTAGES
GOOD FAITH
Those who engage in ADR should do so in an attempt
to reach agreement--not to delay or secure tactical
advantage.
CONFIDENTIALITY
Parties
Control
Outcome
Time -
METHOD
DISADVANTAGE
S
Alternativ
e Dispute
Resolution
(ADR)
Does Not
Establish
Legal
Precedent
http://envdeskbook.org/CH19/Ch19ADR.htm#_Toc3255513
91
http://www.cpuc.ca.gov/PUC/ADR/adrprinciples.htm
Cost Efficient
Confidentia
l
Maintains
Business
Relationshi
ps
NonAdversarial
, Informal
Process
Appropriat
e For Fraud
Or
Criminal
Matters
Can
Adversal
Establish a
Approache
Legal
s
Precedent
Appropriat
e Where
One Party
Has No
Intention
Of
Complianc
e
litigation
arbitration
Not Open
To Public
Scrutiny
Not
Appropriate
For Fraud
Or Criminal
Behaviour
Parties Have
Limited
Control
Over The
Outcome
May Destroy
Business
Relationship
s
AN EXPLANATION OF ALTERNATIVE
DISPUTE RESOLUTION METHODS
ASSISTED NEGOTIATION
The parties engage a professional negotiator or
'go-between' to assist parties reach a desired
result. It is usually informal and the negotiator
can either be appointed by one party or both.
In the latter situation he/she is a joint
negotiator. This method is often helpful in
smaller disputes where parties are still talking
to one another and need help to break an
impasse, and where they have identified all the
issues to be negotiated.
MEDIATION
Mediation is a process where an independent
person is used to assist the parties in dispute
to find a mutually acceptable solution. The
mediator will systematically work through the
issues, help identify alternatives, and facilitate
final agreement. The process is nonadversarial and focuses on the parties'
resolving the dispute themselves using the
skills of a mediator. The key principle of
mediation is that the parties work together to
Lower costs
AN
EXPLANATION
OF
ADVERSARIAL
DISPUTE RESOLUTION METHODS
Durability of agreements
Confidentiality
LITIGATION
Litigation is an adversarial legal process
conducted in a Court of law, in accordance
with strict procedures, where the parties
present legal arguments and evidence to
support their claims before a judge. The judge
applies the relevant law to the evidence,
resulting in a judgement in favour of one of the
parties involved.
ARBITRATION
Arbitration is an adversarial process, agreed by
the parties in dispute, in which each party
presents legal arguments and evidence, in
accordance with formal procedures, to a
mutually agreed arbitrator. The arbitrator
makes a determination in favour of one of the
parties. This determination is usually legally
binding.
1.4.1
Benefits of ADR
increased settlement
improved satisfaction with the outcome or
manner in which the dispute is resolved
among disputants
http://en.wikipedia.org/wiki/Alternative_dispute_resolution#
Benefits
Perceived
Disputant
Responses
Reason
Want to reduce costs
183
Want speedy resolution
159
Uncertainty of court outcome 142
Preservation
of
ongoing
86
relationship
Desire
for
compromise
82
solution
Desire for more control over
80
process and outcome
Privacy and confidentiality
74
Directed by contract, statute or
61
existing agreement
Desire for creative solution
48
Concerns
about
court
39
procedures [8]
Mediation
Medium-High
High
High
High
High
Medium-High
High
43.9
41.8
40.8
37.8
31.1
24.5
19.9
* Multiple response.
Mediation and negotiation are seen as more likely than
arbitration to generate ADR benefits including:
% of Lawyers
(n=196)
93.4
81.1
72.4
14.8% 21.9%
10.9%
10.7%
14.3% 13.7%
15.6%
14.3%
10.8
17
26.6
12
20.7
2.7
13
20.3
5.2
4.1
3.1
10.3
1.4
0.0
1.7
1.4
1.6
1.7
5.4
12.5
6.9
* Multiple response.
Cheaper resolution
Faster resolution
More control
Informal
process/relaxed/less
stressful
More creative solutions
Other
Preserves relationships
* Multiple response.
Responses
(n=49)*
30
27
8
%
ofInterviewees
61.2
55.1
16.3
12.2
5
5
3
10.2
10.2
6.1
of ADR
Views
on
the
and
Mediation
Limitations
of
Limitations
of
Arbitration
Key
Mediation (n=196)*
(n=196)*
ADRLimitatio
%
of
%
of
n
Response
Response
Lawyer
Lawyer
s
s
s
s
Enforceability
17
8.7
54
27.6
Delaying tactics 35
17.9
74
37.8
Increased Costs 80
40.8
35
17.9
* Multiple response.
Speed:
%
of
Interviewees
20.4
18.4
18.4
14.3
14.3
6.1
4.1
4.1
* Multiple response.
Twelve of 49 disputants stated that they saw only
advantages and no disadvantages associated with
ADR.6
6
http://www.justice.govt.nz/publications/globalpublications/a/alternative-dispute-resolutiongeneral-civil-cases/4-advantages-anddisadvantages-of-adr
DISPUTE RESOLUTION7
Cost:
One of the largest reasons parties choose to resolve
their disputes outside of the courts is cost. Alternative
dispute resolution usually costs much less than
litigation, allowing smaller financial disputes a
financially viable way to be settled.
http://www.ibabc.org/idrsbc/benefits.html
http://general-law.knoji.com/litigation-vsalternative-dispute-resolution-adr/
8
http://www.nadr.co.uk/background/contrast.php
http://wiki.answers.com/Q/What_are_the_disad
vantages_and_advantages_of_Alternative_dispu
te_resolution#ixzz204zUKU00
Modes of ADR
http://www.opm.gov/er/adrguide/section1a.asp
of time for
INTERNATIONAL
ALTERNATIVE
DISPUTE
RESOLUTION/
PEACEFUL
SETTLEMENT OF
INTERNATIONAL
DISPUTE
1.8 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW AND
PRIVATE INTERNATIONAL
LAW
Private
international
law,
or
conflict of laws, which addresses the questions of (1)
which jurisdiction may hear a case, and (2) the law
concerning which jurisdiction applies to the issues in
the case.12
Conflict of laws (or private international law) is a set of
procedural rules that determines which legal system
and which jurisdiction's applies to a given dispute. The
rules typically apply when a legal dispute has a
"foreign" element such as a contract agreed to by
parties located in different countries, although the
"foreign" element also exists in multi-jurisdictional
countries such as the United Kingdom, the United
States, Australia and Canada.
which
governs the relationship between provinces and
international entities. It includes these legal fields:
treaty law, law of sea, international criminal law, the
laws of war or international humanitarian law and
international human rights law.
http://en.wikipedia.org/wiki/International_law
territorial integrity
border inviolability
1.8.1.2Universal jurisdiction14
is a principle of international law that allows states to
investigate and prosecute a national of any state found
within their borders who is alleged to have committed
certain international crimes.
This principle is premised upon the idea that crimes
under international law such as war crimes, crimes
against humanity, airplane hijacking and genocide as
well as torture, extrajudicial killings, and forced
disappearances are so serious and reprehensible that
any state may prosecute the offender regardless of
nationality because they are in essence an enemy of
mankind.
In exercising universal jurisdiction, the investigating
and prosecuting state represents the interests of the
13
http://en.wikipedia.org/wiki/Sovereignty
14
http://www.judicialmonitor.org/archive_1007/generalprincipl
es.html
1.8.1.3Independence of the
Judiciary16
In Brief
International law requires that cases presented in
international tribunals and cases
presented in
domestic tribunals where international law is
applicable be resolved by tribunals that are
independent and that are composed of independent
judges.
In Theory
Asserting that the above is a principle of international
law may seem strange, because it is not usually
included in the litany of principles of international law
15
http://en.wikipedia.org/wiki/Universal_jurisdiction
16
http://www.judicialmonitor.org/archive_0506/generalprincipl
es.html
includes
the
Annex
on
The
Qualifications of Belligerents, Chapter
II: Prisoners of War
17
http://en.wikipedia.org/wiki/Hague_Conventions_of_1899_an
d_1907
Finance Committee
The Finance Committee advises the Executive Board
on all financial matters. On behalf of the Executive
Board, it prepares the budget and regularly reports to
the board. It reviews the financial implications of ICC
activities and supervises the flow of revenues and
expenses of the organization.
Executive Board
Strategic direction for ICC is provided by its Executive
Board, consisting of up to 30 business leaders and exofficio members. It is elected by the World Council on
the recommendation of the Chairmanship. Meeting
three times a year, the Executive Board oversees the
establishment of ICCs strategic priorities and the
implementation of its policies.
International Secretariat
The ICC International Secretariat, based in Paris, is the
operational arm of ICC. It develops and carries out
ICCs work programme, feeding business views into
intergovernmental organizations on issues that directly
affect business operations. The International
Secretariat is led by the Secretary General, who is
appointed by the World Council.
National Committees
In 90 of the worlds nations, members have established
formal ICC structures called national committees. In
countries where there is no national committee,
companies and organizations such as chambers of
commerce and professional associations can become
direct members.
part of international
unwritten, including
customary rules of
general principles of
The
United
Nations
Commission
on
International Trade Law (UNCITRAL) was
established by the United Nations General Assembly
by its Resolution 2205 (XXI) of 17 December 1966 "to
promote the progressive harmonization and
unification of international trade law".
UNCITRAL carries out its work at annual sessions held
alternately in New York City and Vienna.
History
When world trade began to expand dramatically in the
1960s, national governments began to realize the need
for a global set of standards and rules to harmonize
national and regional regulations, which until then
governed international trade.
Membership
UNCITRAL's original membership comprised 29
states, and was expanded to 36 in 1973, and again to
60 in 2002. Member states of UNCITRAL are
representing different legal traditions and levels of
economic development, as well as different geographic
regions. States includes 14 African states, 14 Asian
states, 8 Eastern European states, 10 Latin American
and Caribbean states, and 14 Western European states.
The Commission member States are elected by the
General Assembly. Membership is structured so as to
be representative of the world's various geographic
regions and its principal economic and legal systems.
Members of the commission are elected for terms of
six years, the terms of half the members expiring every
18
http://en.wikipedia.org/wiki/International_Centre_for_Settle
ment_of_Investment_Disputes
the
United
Nations
Convention
International
Bills
of
Exchange
International Promissory Notes (1988)
the
United
Nations
Convention
on
Independent Guarantees and Stand-by Letters
of Credit (1995)
on
and
Model laws
A model law is a legislative text that is recommended
to States for enactment as part of their national law.
Model laws are generally finalized and adapted by
UNCITRAL, at its annual session, while conventions
requires the convening of a diplomatic conference.
UNCITRAL Model
Commerce (1996)
UNCITRAL Model
Signatures (2001)
Law
Law
on
on
Electronic
Electronic
3.
The General Council shall convene as
appropriate to discharge the responsibilities of the
Dispute Settlement Body provided for in the Dispute
Settlement Understanding. The Dispute Settlement
Body may have its own chairman and shall establish
such rules of procedure as it deems necessary for the
fulfilment of those responsibilities.
4.
The General Council shall convene as
appropriate to discharge the responsibilities of the
Trade Policy Review Body provided for in the TPRM.
The Trade Policy Review Body may have its own
chairman and shall establish such rules of procedure as
it deems necessary for the fulfilment of those
responsibilities.
5.
There shall be a Council for Trade in Goods, a
Council for Trade in Services and a Council for TradeRelated Aspects of Intellectual Property Rights
(hereinafter referred to as the Council for TRIPS),
which shall operate under the general guidance of the
General Council. The Council for Trade in Goods shall
oversee the functioning of the Multilateral Trade
Agreements in Annex 1A. The Council for Trade in
Services shall oversee the functioning of the General
Agreement on Trade in Services (hereinafter referred
to as GATS). The Council for TRIPS shall oversee the
functioning of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (hereinafter
referred to as the Agreement on TRIPS). These
Councils shall carry out the functions assigned to them
by their respective agreements and by the General
Council. They shall establish their respective rules of
procedure subject to the approval of the General
Council. Membership in these Councils shall be open
to representatives of all Members. These Councils shall
meet as necessary to carry out their functions.
6.
The Council for Trade in Goods, the Council for
Trade in Services and the Council for TRIPS shall
establish subsidiary bodies as required. These
subsidiary bodies shall establish their respective rules
of procedure subject to the approval of their respective
Councils.
7.
The Ministerial Conference shall establish a
Committee on Trade and Development, a Committee
on Balance-of-Payments Restrictions and a Committee
on Budget, Finance and Administration, which shall
carry out the functions assigned to them by this
Agreement and by the Multilateral Trade Agreements,
and any additional functions assigned to them by the
General Council, and may establish such additional
Committees with such functions as it may deem
appropriate. As part of its functions, the Committee on
Trade and Development shall periodically review the
special provisions in the Multilateral Trade
Agreements in favour of the least-developed country
(b)
the measures to be taken in respect of Members
in arrears.
The financial regulations shall be based, as far as
practicable, on the regulations and practices of GATT
1947.
1.
There shall be a Secretariat of the WTO
(hereinafter referred to as the Secretariat) headed by
a Director-General.
3.
The General Council shall adopt the financial
regulations and the annual budget estimate by a twothirds majority comprising more than half of the
Members of the WTO.
2.
The Ministerial Conference shall appoint the
Director-General and adopt regulations setting out the
powers, duties, conditions of service and term of office
of the Director-General.
4.
Each Member shall promptly contribute to the
WTO its share in the expenses of the WTO in
accordance with the financial regulations adopted by
the General Council.
3.
The Director-General shall appoint the members
of the staff of the Secretariat and determine their
duties and conditions of service in accordance with
regulations adopted by the Ministerial Conference.
4.
The responsibilities of the Director-General and
of the staff of the Secretariat shall be exclusively
international in character. In the discharge of their
duties, the Director-General and the staff of the
Secretariat shall not seek or accept instructions from
any government or any other authority external to the
WTO. They shall refrain from any action which might
adversely reflect on their position as international
officials. The Members of the WTO shall respect the
international character of the responsibilities of the
Director-General and of the staff of the Secretariat and
shall not seek to influence them in the discharge of
their duties.
1.
The WTO shall have legal personality, and shall
be accorded by each of its Members such legal capacity
as may be necessary for the exercise of its functions.
2.
The WTO shall be accorded by each of its
Members such privileges and immunities as are
necessary for the exercise of its functions.
3.
The officials of the WTO and the representatives
of the Members shall similarly be accorded by each of
its Members such privileges and immunities as are
necessary for the independent exercise of their
functions in connection with the WTO.
4.
The privileges and immunities to be accorded by
a Member to the WTO, its officials, and the
representatives of its Members shall be similar to the
(b)
A request for a waiver concerning the
Multilateral Trade Agreements in Annexes 1A or 1B or
1C and their annexes shall be submitted initially to the
Council for Trade in Goods, the Council for Trade in
Services or the Council for TRIPS, respectively, for
consideration during a time-period which shall not
exceed 90 days. At the end of the time-period, the
relevant Council shall submit a report to the
Ministerial Conference.
4.
A decision by the Ministerial Conference
granting a waiver shall state the exceptional
circumstances justifying the decision, the terms and
conditions governing the application of the waiver, and
the date on which the waiver shall terminate. Any
waiver granted for a period of more than one year shall
be reviewed by the Ministerial Conference not later
than one year after it is granted, and thereafter
annually until the waiver terminates. In each review,
the Ministerial Conference shall examine whether the
exceptional circumstances justifying the waiver still
exist and whether the terms and conditions attached to
the waiver have been met. The Ministerial Conference,
on the basis of the annual review, may extend, modify
or terminate the waiver.
5.
Decisions under a Plurilateral Trade Agreement,
including any decisions on interpretations and waivers,
shall be governed by the provisions of that Agreement.
5.
No reservations may be made in respect of any
provision of this Agreement. Reservations in respect of
any of the provisions of the Multilateral Trade
Agreements may only be made to the extent provided
for in those Agreements. Reservations in respect of a
provision of a Plurilateral Trade Agreement shall be
governed by the provisions of that Agreement.
6.
This Agreement shall be registered in accordance
with the provisions of Article 102 of the Charter of the
United Nations.
DONE at Marrakesh this fifteenth day of April one
thousand nine hundred and ninety-four, in a single
copy, in the English, French and Spanish languages,
each text being authentic.
60 days
Consultations, mediation, etc.
45 days
Panel set up and panellists appointed
6 months
Final panel report to parties
Location
New York, US
Effective
7 June 1959
Condition
3 ratifications
Signatories
24
Parties
146
Depositaries
Languages
Chinese,
Spanish
English,
French,
Russian
and
Contents
[hide]
1 Background
2 Summary of provisions
3 Parties to the New York Convention
4 States which are Not Party to the New York
Convention
5 United States Issues
6 External links
Summary of provisions
Under the Convention, an arbitration award issued in
any other state can generally be freely enforced in any
other contracting state (save that some contracting
states may elect to enforce only awards from other
contracting states - the "reciprocity" reservation), only
subject to certain, limited defenses. These defenses
are:
7 References
Background
In 1953, the International Chamber of Commerce
(ICC) produced the first draft Convention on the
Recognition and Enforcement of International Arbitral
Awards to the United Nations Economic and Social
Council. With slight modifications, the Council
submitted the convention to the International
Conference in the Spring of 1958. The Conference was
chaired by Willem Schurmann, the Dutch Permanent
Representative to the United Nations and Oscar
Schachter, a leading figure in international law who
later taught at Columbia Law School and the Columbia
School of International and Public Affairs, and served
as the President of the American Society of
International Law.
2.
3.
4.
5.
8.
6.
7.
1.11.3 2. Mediation
In mediation, a neutral third party mediator facilitates
the negotiation of a solution by the parties involved.
LEADR NZ mainly deals with mediation. Explore our
mediation section for full details.
1.11.4 3. Conciliation
This is used to refer to a number of different
processes. The most common are:
where a third party acts as a conduit,
transmitting offers of settlement
between the parties but taking a much
less active role in the negotiation than
a mediator, or
the processes used in agencies that
administer legislative rights, in which
case participation may be mandatory
and the conciliator may be obliged to
ensure that the solution reached
adheres to the relevant legislation.
1.11.5 4. Arbitration
[edit] Arbitrability
By their nature, the subject matter of some disputes is
not capable of arbitration. In general, two groups of
legal procedures cannot be subjected to arbitration:
Procedures which necessarily lead to a determination
which the parties to the dispute may not enter into an
agreement upon:[8] Some court procedures lead to
judgments which bind all members of the general
public, or public authorities in their capacity as such, or
third parties, or which are being conducted in the
public interest. For example, until the 1980s, antitrust
matters were not arbitrable in the United States.[9]
Matters relating to crimes, status and family law are
generally not considered to be arbitrable, as the power
of the parties to enter into an agreement upon these
matters is at least restricted. However, most other
disputes that involve private rights between two parties
can be resolved using arbitration. In some disputes,
parts of claims may be arbitrable and other parts not.
For example, in a dispute over patent infringement, a
determination of whether a patent has been infringed
could be adjudicated upon by an arbitration tribunal,
but the validity of a patent could not: As patents are
subject to a system of public registration, an arbitral
panel would have no power to order the relevant body
to rectify any patent registration based upon its
determination.
Some legal orders exclude or restrict the possibility of
arbitration for reasons of the protection of weaker
members of the public, e.g. consumers. Examples:
German law excludes disputes over the rental of living
space from any form of arbitration[10], while arbitration
agreements with consumers are only considered valid
if they are signed by either party,[11] and if the signed
document does not bear any other content than the
arbitration agreement.[12]
Arbitration agreement
See also: Arbitration clause
In theory, arbitration is a consensual process; a party
cannot be forced to arbitrate a dispute unless he
agrees to do so. In practice, however, many fine-print
arbitration agreements are inserted in situations in
which consumers and employees have no bargaining
power. Moreover, arbitration clauses are frequently
placed within sealed users' manuals within products,
within lengthy click-through agreements on websites,
and in other contexts in which meaningful consent is
not realistic. Such agreements are generally divided
into two types:
agreements which provide that, if a dispute should
arise, it will be resolved by arbitration. These will
Litigation
This is the system in which the courts impose a binding
decision on the parties. It is formal, with strict rules of
evidence, and adversarial. The legal framing, analysis
and argument, together with the adversarial nature of
the process, means that the system has little scope for
reconciling or accommodating the parties' interests. It
also produces 'winners and losers'.
1.11.6
5. INQUIRY AND FACT
FINDING
1.11.7
6. GOOD OFFICES
DOMESTIC
ARBITRATION
1.12 INTRODUCTION TO
DOMESTIC COMMERCIAL
DISPUTE RESOLUTION
means
person
who
conducts
SEC. 4. Electronic Signatures in Global and ECommerce Act. - The provisions of the Electronic
Signatures in Global and E-Commerce Act, and its
implementing Rules and Regulations shall apply to
proceeding contemplated in this Act.
SEC. 5. Liability of ADR Provider and Practitioner. The ADR providers and practitioners shall have the
same civil liability for the Acts done in the
performance of then duties as that of public officers as
provided in Section 38 (1), Chapter 9, Book of the
Administrative Code of 1987.
SEC. 6. Exception to the Application of this Act. - The
provisions of this Act shall not apply to resolution or
settlement of the following: (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.
CHAPTER 2 - MEDIATION
record
(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.
SEC. 32. Law Governing Domestic Arbitration. Domestic arbitration shall continue to be governed by
Republic Act No. 876, otherwise known as "The
Arbitration Law" as amended by this Chapter. The
term "domestic arbitration" as used herein shall mean
an arbitration that is not international as defined in
Article (3) of the Model Law.
SEC. 33. Applicability to Domestic Arbitration. Article 8, 10, 11, 12, 13, 14, 18 and 19 and 29 to 32 of
or
be
or
to
Section 2. Persons and matters subject to arbitration. Two or more persons or parties may submit to the
arbitration of one or more arbitrators any controversy
existing between them at the time of the submission
and which may be the subject of an action, or the
parties to any contract may in such contract agree to
settle by arbitration a controversy thereafter arising
between them. Such submission or contract shall be
valid, enforceable and irrevocable, save upon such
grounds as exist at law for the revocation of any
contract.
the
presumptive
disqualifying
PART II
SPECIFIC COURT RELIEF
Rule
3.7.
Comment/Opposition.-The
comment/opposition of the respondent must be filed
within fifteen (15) days from service of the petition.
c. Appointment of a receiver;
examination
and
copying
of
RULE
10:
ORDERS
CONFIDENTIALITY/PROTECTIVE
CORRECTION OR
IN
DOMESTIC
confirmation,
through
Rule 12.11. Suspension of proceedings to set aside. The court when asked to set aside an arbitral award
may, where appropriate and upon request by a party,
suspend the proceedings for a period of time
determined by it to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to
take such other action as in the arbitral tribunals
opinion will eliminate the grounds for setting aside.
The court, in referring the case back to the arbitral
tribunal may not direct it to revise its award in a
particular way, or to revise its findings of fact or
conclusions of law or otherwise encroach upon the
independence of an arbitral tribunal in the making of a
final award.
The court when asked to set aside an arbitral award
may also, when the preliminary ruling of an arbitral
tribunal affirming its jurisdiction to act on the matter
before it had been appealed by the party aggrieved by
such preliminary ruling to the court, suspend the
proceedings to set aside to await the ruling of the court
on such pending appeal or, in the alternative,
consolidate the proceedings to set aside with the
earlier appeal.
Rule 12.12. Presumption in favor of confirmation. - It is
presumed that an arbitral award was made and
released in due course and is subject to enforcement by
the court, unless the adverse party is able to establish a
ground for setting aside or not enforcing an arbitral
award.
Rule 12.13. Judgment of the court. - Unless a ground to
set aside an arbitral award under Rule 12.4 above is
fully established, the court shall dismiss the petition.
If, in the same proceedings, there is a petition to
recognize and enforce the arbitral award filed in
opposition to the petition to set aside, the court shall
recognize and enforce the award.
In resolving the petition or petition in opposition
thereto in accordance with the Special ADR Rules, the
court shall either set aside or enforce the arbitral
award. The court shall not disturb the arbitral
TO
CONSTRUCTION
RECONSIDERATION,
d. Mediation-arbitration;
f. Refusing to grant assistance in taking evidence;
e. A combination thereof; or
f. Any other ADR form.
Rule 18.2. Applicability of the rules on mediation. - If
the other ADR form/process is more akin to mediation
(i.e., the neutral third party merely assists the parties
in reaching a voluntary agreement), the herein rules on
mediation shall apply.
Rule 18.3. Applicability of rules on arbitration.-If the
other ADR form/process is more akin to arbitration
(i.e., the neutral third party has the power to make a
binding resolution of the dispute), the herein rules on
arbitration shall apply.
Rule 18.4. Referral. - If a dispute is already before a
court, either party may before and during pre-trial, file
a motion for the court to refer the parties to other ADR
forms/processes. At any time during court
proceedings, even after pre-trial, the parties may
jointly move for suspension of the action pursuant to
Article 2030 of the Civil Code of the Philippines where
the possibility of compromise is shown.
Rule 18.5. Submission of settlement agreement. Either party may submit to the court, before which the
B. GENERAL
CERTIORARI
PROVISIONS
ON
APPEAL
AND
Rule 19.12. Appeal to the Court of Appeals. - An appeal
to the Court of Appeals through a petition for review
PhP 50,000.00
100,000,000.00
if
the
award
exceeds
PhP
which
by
law
cannot
be
FOR
ALTERNATIVE
DISPUTE
his/her
record
(c) The award shall state its date and the place of
arbitration as determined in accordance with
paragraph (a) of this Article. The award shall be
deemed to have been made at that place.
presumptive
disqualifying
(vii) A party who does not comply with the order shall
be liable for all damages, resulting from
noncompliance, including all expenses, and reasonable
CHAPTER 7
OTHER ADR FORMS
RULE 3 Mini-Trial
Article 7.7. Mini-Trial. (a) A mini-trial shall be
governed by the rules and procedure agreed upon by
the parties. In the absence of said agreement, this Rule
shall apply.
(b) A mini-trial shall be conducted either as: (i) a
separate dispute resolution process; or (ii) a
continuation of mediation, neutral or early neutral
evaluation or any other ADR process.
(c) The parties may agree that a mini-trial be
conducted with or without the presence and
participation of a neutral third person. If a neutral
third person is agreed upon and chosen, he/she shall
preside over the mini-trial. The parties may agree to
appoint one or more (but equal in number per party)
senior executive/s, on its behalf, to sit as mini-trial
panel members.
(d) The senior executive/s chosen to sit as mini-trial
panel members must be duly authorized to negotiate
and settle the dispute with the other party. The
appointment of a mini-trial panel member/s shall be
communicated to the other party. This appointment
shall constitute a representation to the other party that
the mini-trial panel member/s has/have the authority
to enter into a settlement agreement binding upon the
principal without any further action or ratification by
the latter.
(e) Each party shall submit a brief executive summary
of the dispute in sufficient copies as to provide one
copy to each mini-trial panel member and to the
adverse party. The summary shall identify the specific
factual or legal issue or issues. Each party may attach
to the summary a more exhaustive recital of the facts
of the dispute and the applicable law and
jurisprudence.
(f) At the date time and place agreed upon, the parties
shall appear before the mini-trial panel members. The
lawyer of each party and/or authorized representative
shall present his/her case starting with the claimant
followed by the respondent. The lawyer and/or
representative of each party may thereafter offer
rebuttal or sur-rebuttal arguments.
Unless the parties agree on a shorter or longer period,
the presentation-in-chief shall be made, without
interruption, for one hour and the rebuttal or surrebuttal shall be thirty (30) minutes.
At the end of each presentation, rebuttal or surrebuttal, the mini-trial panel member/s may ask
clarificatory questions from any of the presentors.
RULE 4 Mediation-Arbitration
Article 7.8. MediationArbitration (a) A MediationArbitration shall be governed by the rules and
procedure agreed upon by the parties, In the absence
of said agreement, Chapter 5 on Mediation shall first
apply and thereafter, Chapter 5 on Domestic
Arbitration.
(b) No Person shall having been engage and having
acted as mediator of a dispute between the parties,
following a failed mediation, act as arbitrator of the
same dispute, unless the parties, in a written
agreement, expressly authorize the mediator to hear
and decide the case as an arbitrator
(c) The mediator who becomes an arbitrator pursuant
to this Rule shall make an appropriate disclosure to the
parties as if the arbitration proceeding had
commenced and will proceed as a new dispute
resolution process, and shall, before entering upon
his/her duties, executive the appropriate oath or
affirmation of office as arbitrator in accordance with
these Rules.
CHAPTER 8
MISCELLANEOUS PROVISION
Article 8.1. Amendments. These Rules or any portion
hereof may be amended by the Secretary of Justice.
Article 8.2 Separability Clause. If any part, article or
provision of these Rules are declared invalid or
unconstitutional, the other parts hereof not affected
thereby shall remain valid.
Article 8.3 Funding. The heads of department and
agencies concerned, especially the Department of
Justice, insofar as the funding requirements of the
OADR is concerned, shall immediately include in their
annual appropriation the funding necessary to
implement programs and extend services required by
the ADR Act and these Rules.
Article 8.4 Transitory Provisions. Considering the
procedural character of the ADR Act and these Rules,
the provisions of these Rules shall be applicable to all
pending arbitration, mediation or other ADR forms
covered by the ADR Act if the parties agree.
APPROVED.
December 4, 2009