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Alternative Dispute Resolution Reviewer

Midterms.
April 2, 2015yourladylawyerLeave a comment
ALTERNATIVE DISPUTE RESOLUTION
By. Atty. Gabriel Robeniol
Chapter 1: Introduction
Historical Rule:
Judicial and Legislative trends:

Utilization of alternatie means and methods implemented in or outside the court trial
system

Civil Code of the Philippines:

30 August 1950

Contains provisions of/or on compromise arbitration.

Encourages litigants to agree upon fair compromise and authorize arbitration

19 June 1953

Enactment of arbitration law

Republic Act. 876

20 May 1965

Convention on the recognition and enforcement of foreign arbitration / arbitral awards

Philippine law has acknowledged the

international arbitration as system of setting
commercial dispute.
UNCITRAL

Model law which the Philippines committed its adherence.

Judiciary Action

Response of Judiciary to the Problems of Delay.

Requirements of conducting pre-trial conference

Utilization on different modes of discovery

Proscription against forum shopping

The supreme court encourages the use of arbitration through Philippine Mediation
Commission or through Judicial Dispute Resolution (JDR)
Legislative Action:

Special domestic legislation passed the prescription of arbitration, mediation and

conciliation.

G:

Labor Code of the Philippines

National Labor Relations Commissions

Concerning:

Unfair Labor Practice

Termination of Employment

Conditions of Employment

Damages arising from E E

Level Arbitration

Executive Branch Contribution:

CIAC Construction Industry Arbitration Commission Enacted during 4 Feb 1985

concerning constriction dispute

23 August 1998 rules of procedure governing construction arbitration

19 November 2005 CIAC revised rules of procedure governing construction arbitration

22 March 2010 rules on ADR for dispute between national government agencies:
amicable settlement dipute

THE ADR Act of 2004

Dispute resolution law

An act to institutionalize use of an alternative dispute resolution system in the Philippines

and to establish the office for alternative dispute resolution and for other purpose.

28 April 2004

Philippines as the Venue of ICA

RTC must refer to arbitration in proper

case

Foreign Arbitral awards must be

confirmed by RTC

The RTC has jurisdiction to review

foreign arbitral awards

Grounds for judicial review different in

Domestic and Foreign arbitral awards.

RTC Decisions of assailed foreign

arbitral awards appealable: CA, certiorari

The Lawyers Role

Contribute to the promotion of ADR

Assist courts in encouraging the parties to avail of alternative means of dispute resolution

Explain the benefits of the ADR system.

Chapter 2: Fundamentals of Alternative Dispute Resolution

Alternative Dispute Resolution

Expeditious and speedy manner

Methods of resolving dispute outside the court trial system

Includes similar process in quasi judicial agencies

Any process the used to resolve a dispute or controversy

Neutral third party

State Policy in ADR

ADR act of 2004 declared the state policy

Promote party autonomy resolution of dispute

Freedom of the party to choose or make their own arrangement to resolve dispute

Provides solutions that is less time consuming, less confrontational procedure of goodwill
and lasting friendship

Wave of the future in international relationship

Principles of ADR

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

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 the 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:

Bi party one or two parties

Multi Party two or more

AS to the number of issues involve:

Simple one issues involve

Complex two or more issues

As to the extent of conclusion

Complete all issues involve is resolve

Partial only two or three issues involve are resolved but not all

As to the role of evidence in the proceedings

Evidentiary

Non merit based

As to the pendency of the court case

Case related when there is a case involved

Independent

AS to the applicable law

Domestic when the place of business and arbitration is in the Philippines

International when the place of business involved two states and arbitration is outside
the Philippines

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

AD HOC temporary

Institutional permanent

Components of ADR

Contending parties

Dispute or controversy

Form of ADR

ADR provider or practitioner

Subject matter of ADR

Adversarial dispute and controversy

Exception:

Civil Status of persons

Validity of marriage and any other forms of legal separation

Jurisdiction of courts

Future legitime

Criminal Liability

In general which the law cannot be compromise

Basic Concepts of ADR

Concluding Acts or Arguments

Arbitral Award final decision of arbitration on awarding issue or controversy

Mediated Settlement agreement contract executed by the parties

Compromise or compromise agreement avoidance of litigation or to put an end to the

one already existing

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

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

Focuses on facilitation or communication and negotiation between the parties in

encouraging to voluntarily settle dispute

Institutional

Administered and conducted by or under the rules of mediation institution

Ad Hoc

Other than institutional

To be bound by the internal mediation and the

administrative policies of such institution
To have such rules govern the mediation of the
dispute and for the mediator
Place of Mediation

Two disputing parties are free to agree the place\

In the absence default is convenient to and appropriate to all the parties

Stages of Mediation

Opening statement of mediator

Individual narration by the parties

Exchange by the parties

Summary issues

Generalization and evaluation of options

Closure

Mediation shall be held in private

Exceptions: Parties consented that there be other persons

Closed and concluded

Execution of settlement agreement

Withdrawal of any party from mediation

Written declaration

Advantages of Mediation

Confidentiality in Mediation Process

Prompt, economical amicable dispute resolution

The decision making authority rest upon the parties

Confidential and Privileged nature of Mediation Communication

All information of evidence is privileged and confidential in character

Confidential Information

Any information relative to the subject of mediation or arbitration

Expressly intended not to be disclosed

Expressly Confidential
Impliedly confidential

Creates reasonable expectations

Confidential Information Includes:

Communication

Oral or Written statements

Pleadings, motions, manifestations

Legal effects of Confidential and privileged nature

A party may refuse to disclose

Not subject to discovery and inadmissible in adversarial proceedings

People cannot be compelled to disclose information

Parties to the dispute

Mediation

Counsel for the parties

Non Party

Secretary, stenographer, assistants

Any persons who obtains information

Continues even the mediator fialed to act impartially

Mediator may not be called to testify

Exceptions based on agreement, Nature of Proceedings, Crime or Social Justice

Contained in an agreement evidence by a record authenticated by all parties to agreement

Made public or required by the courts to make it public

A threat or statement of plan to inflict bodily injury

Communication on attempt to commit a crime

Used to approve or disprove neglect, abandonment or exploitation

Used to sought or complaint against misconduct

Non party base agreement

Exceptions based on Public Policy

Court proceeding involving a crime or felony

Avoid liability on contracts arising from mediation

Limited use of External Evidence

Only such portion of the communication necessary for the application of the exception
can be admitted in evidence

Privileged Mediation

Bound by the confidential privileged

Exception

Termination of mediation

Settlement was reached

Permitted to be disclosed

Waiver of Confidentiality

Expressed

Implied

The Mediator

OADR list and freedom to select mediators

Withdrawal Requirements

The party requested

Lacks qualifications, training and experience

Mediators impartiality is in question

Violation of ethical standards

Safety will be jeopardized

Unable to provide effective services

Conflict of interest

Other instances

Duties and Functions of Mediationr

Prior to Mediation

Upgrade professional competencies

Reasonable inquiry

During the Mediation

Confidential

Consent and self determination

Promotion of respect and control of abuse and process

Mediators Cost and Fees

Ad Hoc free to make their own arrangement as to the mediation of cost and fees

Mediated Settlement Agreement

Compromise Agreement

Successful Mediation

Roles of counsel in Mediation

Collaborative

Encourage

Assist

Confer

Chapter 4: Arbitration in General

Arbitration

Process which one or more arbitrators appointed in accordance with the agreement of the
parties

It is the arbiter that decides the dispute and renders an arbitral award to conclude in
arbitral proceedings

Kinds of Arbitration

Voluntary

Reference of a dispute to an impartial body

Members are chosen by the parties themselves

Compulsary arbitration

Settlement of labor dispute by the government agency which has the authority to
investigate

Domestic

International

Foreign

Same concept lang naman to nung nasa chapter two na foreign domestic at international dapat
alam nyo nay un.

Commercial Arbitration matters arising from all relationship of commercial in nature

Policy on Arbitration

Speedy and inexpensive methods

Arbitrator

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

Two modes in submitting dispute

Agreement to submit in arbitration

Submission agreement

Arbitration Agreement

Shall be in writing and subscribed by the parties to be charged

May be included in arbitration clause or compromise

Arbitration Clause

Must be liberally construed consistent with the policy of encouraging alternative dispute
resolution method

Doctrine of Separability

Arbitration agreement is independent of the main contact even if it contained in

Arbitration clause

Due process in Arbitral proceedings

Principles of administrative due process equally apply to arbitral proceedings

Judicial Review and Court intervention

Proper RTC

Review Court of Appeals Rule 43 ROC

Certiorari proper court Rule 65 ROC

Interim Measures in Arbitration

Allows the application of a party to a judicial authority for interim conservatory

Allows filing of provisional interim measures with regular courts whenever the arbitral
tribunal has no power to act effectively

Chapter 5: International Commercial Arbitration under the ADR Act of 2004 and its IRR
International Commercial Arbitration

Instances of Occurrence of International Arbitration

Parties and Places of business is in different state

Place of arbitration provided in the agreement where parties have their business is outside
the Philippines

Substantial part of obligation is to be performed outside the Philippines

Subject matter of agreement relates to more than one parties

Commercial Arbitration

Commercial relationship in nature

Contractual or not

Foreign Arbitration

International commercial arbitration is outside the Philippines

Coverage of IRR Provisions of ICA

Applicable only to international commercial arbitration

The rules of procedure for international commercial arbitration provided for under the
ADR act or its IRR may also be applied for international commercial arbitration outside
the Philippines if they are adopted as rules of procedure by the parties in the exercise of
their privileged 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

Interpretation of the ADR act

due regard to the policy of law favouring arbitration

Interpretation of the model Law

need for uniformity of its interpretation

Interpretation of the IRR

Same policy

Party autonomy

Freedom of the parties

Reference to an agreement

Rules applicable to claims and counter claims

Rules of Receipt of Written Communication in ICA

The subject matter of the dispute may be located in different stage

Rules communication is deemed received

Delivered to the address personally or at his place of business, habitual residence or

mailing address

If there is none, delivery by registered mail or attempt to deliver to last know place of
business

Waiver of the Rights to Object in ICA

Arbitration is different from mediation in that the latter is not merit or evidence based and
therefore not procedurally driven

Limitations

ADR act and its IRR is limited to the application of rules on the waiver in the mediation
proceedings to wavier of confidentiality and privilege only

IRR expands the application of the rules on waiver to include non compliance with the
rules or requirements

Doctrine of Estoppel

Objectives to non compliance with the rules or any requirements under the arbitration
agreement must be raised without undue delay or within the time prescribed therefore,
failing which, the right to object is deemed waived

Estoppel in pais

Happens when one, by his acts, representation, or admissions, or by his own silicon when
he ought to speak out, intentionally or culpable negligence, induces another to believe
certain facts to exist and such belief in a manner that he will be prejudiced if the former is
permitted to deny the existence of such facts

Confidentiality in ICA
General Rule

In the case of mediation, proceedings, records, evidence, and arbitral awards are
confidentia

Exceptions:

Consent of the Parties

Limited purpose of disclosing to the court relevant documents in cases where resort to the
court is allowe

Due Process in ICA

IRR mandates that the parties shall be treated equally and shall be given full opportunity

Reasonable opportunity

Due Process

Complied if parties are given opportunity to be heard and present evidence

Place if ICA

Default place MANILA

Place chosen by Parties

Commencement of ICA proceedings

Date requested by the parties

Default date date of request for that dispute

Language in ICA

Parties shall determine the language

Default English

Applicable Law in ICA

Governing law generally is substantive law

Substantive Law

Law or legal system applicable to complete resolution of dispute

Conflicts of Law/Private International Law

Part of municipal law or state which directs courts and administrative agencies, when
confronted with a legal problem involving a foreign element, where they should apply a
foreign law

Appointing Authority in ICA

He person or institution named in the arbitration agreement

Functions

Take necessary measurements

Decide on the challenge

Consider the qualifications

The default appointment of an arbitrator shall

be made by the National President of the

Integrated bar of the Philippines.

Arbitrators and Arbitral Tribunal in ICA

Default number of arbitrators is three and is due to their appointment

Default Procedure

3 arbiter each party shall appoint one

Sole arbiter shall be appointed by the parties

The decision of the appointing authority on this matter shall be immediately executor and
shall not be subject to a motion for reconsideration or appeal

Factors in Appointing Arbitrators

Qualifications

Considerations

Advisability of appointing an arbitrator of a nationality

Grounds for changeling an Arbitrator in ICA

Impartiality

Possession of the qualifications

Procedure for the challenge in ICA

Default procedure

Sending of written agreement 15 days after becoming aware of the constitution of arbitral
tribunal

The parties may request the appointing authority within 30 days to challenge tribunals

Procedure incase the Arbitrator fails to act in ICA

Mandates terminates

Withdraws

Parties agrees in the termination

Jurisdiction of Arbitral Tribunal in ICA

Jurisdiction

The right to act whether or the power to and authority to hear and determine cause

Jurisdiction over subject matter

Subject matter of the controversy is conferred by law

Two Instances

Lack of jurisdiction

Excess of jurisdiction

Jurisdictional review of Jurisdictional Issue

Consider challenge as preliminary question

Defer resolution

Jurisdiction over the pArties

Pre causal agreement

Interim Measures in ICA

Request shall be in writing transmitted by reasonable means

Relieve may be granted to prevent irreparable loss, security, preserve evidence, compel

Legal Representation in ICA

A person may be represented by any person of his choice

Determination of Rules of Procedure

Statement of claims

Statement of Defence

Default of the parties

Amendment of claims or defences

Hearings (1) court assistance in taking evidence (2) subpoena (3) expert

Conclusion / closure

Requisites for an Arbitral Award to be Final

Rendition of the arbitral award

Hearing on the qualification

Expiration of the periods

Cost in ICA

Fees on arbitral tribunal

Travel

Cost of expert advice

Travel and other expenses of witness

Cost for legal representation

Fees and expenses of appointing authority

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

Execution and implementation