ADR | Robeniol 1

Atty. Fajarito

GROUNDS FOR REFUSING RECOGNITION AND PROCEDURE FOR RECOGNITION OF CONVENTION AND AS—IN 4. Rejection/suspension
CONVENTION AWARDS 5. Appeals

In general, the conditions and requisites for the recognition and enforcement of foreign judgment in the PH are: LEGAL EFFECTS OF NON-CONVENTION AWARDS
1. Proof of the foreign judgment Non-convention awards, unless they qualify to be as-in convention awards, are not entitled to recognition or
2. The judgment must be on a civil or commercial matter enforcement under the ADR act.
3. There must be no lack of jurisdiction, no want of notice, no collusion, no fraud, no clear mistake of
law or fact CHAPTER 6: DOMESTIC ARBITRATION
4. The judgment must not contravene a sound and established public policy of the forum
5. The judgment must be res judicata in the state that rendered it DOMESTIC ARBITRATION
 If conducted in the PH
The ADR act and its IRR prescribe a slightly different set of conditions and requirements for the recognition of  If the components of parties’ place of business, place of arbitration, place of performance of a
foreign arbitral awards, including foreign ICA awards, the application of which depend upon the nature of the substantial part of the obligation, and place where the subject matter of the dispute is most closely
proceedings leading to the award, i.e., convention awards, non-convention award, and as-in convention award. connected, are all located in the PH

Convention award: DISPUTES COVERED BY RULES ON DOMESTIC ARBITRATION

 A foreign arbitral award made in a state which is a party to the New York Convention The provisions and rules on domestic arbitration cover both commercial and non-commercial disputes provided
 Its recognition and enforcement shall be governed by the New York Convention as implemented by they are susceptible of arbitration and do not fall within the exclusive original arbitral jurisdiction of quasi-judicial
the IRR agencies.

Non-convention award: DUE PROCESS IN DOMESTIC ARBITRATION

 A foreign arbitral award made in a state which is not a party to the New York Convention The parties are entitled.
 It cannot be recognized or enforced under the ADR Act of 2004 but it may be deemed as a
presumptive evidence of a right as between the parties PLACE OR VENUE OF ARBITRATION
It shall be determined by the parties. If there is no such agreement, then the arbitration shall be conducted in
As-in convention award: Metro Manila.
 One which is made in a state which is not a party to the New York convention but which by reason of
comity and reciprocity, may be recognized and enforced as if it is a convention award LANGUAGE
International and domestic: same
GROUNDS FOR REFUSING RECOGNITION
The proofs and grounds for refusing to grant recognition to convention awards and as-in convention awards are CONFIDENTIALITY
similar to the grounds for the setting aside of an arbitral award in an international commercial arbitration. This is The arbitration proceedings, records, evidence, arbitral award and other confidential information are privileged
because they are all imbed with foreign elements: and shall not be published except:
(i) The New York Convention (i) With the consent of the parties
(ii) The foreign arbitral tribunal which rendered the convention or as-in convention award (ii) For the limited purpose of disclosing to the court relevant documents where resort to the
court is allowed
The grounds for refusing recognition and enforcement to convention and as-in convention awards are as follows:
1. Defect in the arbitration agreement RULES ON RECEIPT OF WRITTEN COMMUNICATIONS
2. Violation of due process Written communications among the parties and the arbitrators shall be delivered personally, by registered mail
3. Lack or excess of jurisdiction on the part of the arbitral tribunal or courier service, and shall be deemed to be received on the date it is delivered at the addressee’s address of
4. Violation of the arbitration agreement record, place of business, residence or last known address.

Or if there is a finding from the court that: Written communications and pleadings intended for a party represented by counsel, should be addressed to his
1. The subject of the dispute is not capable of settlement under the laws of the PH counsel.
2. The award is in conflict with the public policy of the PH
The use of electronic mail, facsimile transmission or other electronic means is permitted as long as there is a
In the case of an as0in convention awards, the applicant shall additionally present proof of comity and reciprocity record of the sending and receipt of the communication at the recipient’s mail box, and such electronic
between the PH and the non-convention state where the arbitral award was rendered. communication shall be deemed to have been received on the same date of its transmittal.
- Any other ground shall be disregarded by the court
WAIVER OF OBJECTIONS
PROCEDURE FOR RECOGNITION OF CONVENTION AND AS-IN CONVENTION AWARDS A party may be estopped from questioning non-compliance or is deemed to have waived his objection thereto if
1. Filing of application he fails to raise the objection without delay or within the time prescribed therefor 30 days if no period is
2. Recognition prescribed, provided he knows of such non-compliance.
3. Consolidation/concurrent hearings

© Celyn Palacol
 ADR | Robeniol 2
Atty. Fajarito

ARBITRATORS AND ARBITRAL TRIBUNALS

EXTENT OF COURT INTERVENTION
Also, interim measures may be requested or enforced through the courts.
NUMBER OF ARBITRATORS
If the arbitral tribunal, in the exercise of its authority to resolve or defer the resolution of the preliminary issue of Unless the parties have agreed otherwise, there shall be 3 arbitrators for domestic arbitration.
its jurisdiction over the arbitration agreement, decides to defer the resolution thereof until the rendition of the
arbitral awards, none of the parties can seek judicial relief from the deferment. Motions for reconsiderations, QUALIFICATIONS AND DISQUALIFICATIONS
appeals and petitions for certiorari are not available to challenge the decision of the arbitral tribunal to defer the An arbitrator must:
resolution of the preliminary jurisdictional issues. 1. Be of legal age
2. Be in full enjoyment of his civil rights
Moreover, an arbitral award may be vacated if made with “manifest disregard of the law.” 3. Know how to read and write

REPRESENTATION No person shall serve as an arbitrator in any proceeding if:

A party may appear by himself or be represented or assisted by any person of his choice, provided that such 1. He is related by blood or marriage within the 6th degree to either party to the controversy
representative, unless admitted to the practice of law in the PH, shall not be authorized to appear as counsel in 2. He has or has had financial, fiduciary or other interest in the controversy or cause to be decided, or
any PH court or quasi-judicial body. in the result of the proceedings
- A party desiring to be represented by counsel shall notify the other party or parties of such intention 3. He has personal bias which might prejudice the right of any party to a fair and impartial award
at least 5 days prior to the hearing 4. He has been selected to act as champion or to advocate a party’s cause

PROCEDURE FOR THE APPOINTMENT OF ARBITRATORS

ARBITRATION AGREEMENT The parties in a domestic arbitration are free to agree on the procedure for the appointment of arbitrators except
“Pre-causal consent and present causal consent that, in order to prevent undue advantage, an agreement or clause giving party the power to choose more
arbitrators than the other is void.
Where one of the parties to the controversy is an infant, or a person judicially declared to be incompetent, the
dispute is not capable of arbitration, unless the referral to arbitration is made by a general guardian or guardian If there is no agreement for the appointment, the ff. are the default rules:
ad litem. And the incapacity of a party cannot be invoked by a party who knowingly entered into an arbitration 1. Appointment by the parties
agreement with an incapacitated party. 2. Default appointment by appointing authority
3. Request for appointment
DETERMINATION OF APPLICABLE RULES OF PROCEDURE 4. Acceptance of appointment
The parties are free to agree on the applicable rules of procedure, in the absence of which, the arbitral tribunal 5. Oath of arbitrators
may conduct the arbitration in the manner it considers appropriate.
GROUNDS FOR CHALLENGE
COMMENCEMENT OF ARBITRAL PROCEEDINGS An arbitrator may be challenged only if:
In general, the commencement of arbitral proceedings is determined by the prior arbitration agreement between (i) Circumstances exist that give rise to a justifiable doubt as to his impartiality or independence
the parties. (ii) He does not possess the qualifications provided for under the law or agreed to by the parties
(iii) He is disqualified to act as an arbitrator
The ff. are the specific rules for the commencement of domestic arbitration: (iv) He refuses to respond to questions by a party regarding the nature and extent of his
1. In an institutional arbitration where there is no prior arbitration agreement, it is commenced in professional dealings with a party or his counsel
accordance with the arbitration rules of the institutional arbitrator.
2. In an ad hoc arbitration where there is a prior arbitration agreement, it is commenced upon the If an arbitrator so appointed discovers the existence of any circumstance that would create a presumption of bias
delivery by the claimant to the respondent of a demand for arbitration. or would render him a partial arbitrator, he shall immediately disclose such information to the parties.

The demand for arbitration shall be in any form and shall: The parties may agree in writing to either:
- State the name, address and description of each of the parties (i) Waive the presumption disqualifying circumstance
- The description of the nature and circumstances of the dispute giving rise to the claim (ii) Declare the office of such arbitrator vacant and appoint a substitute arbitrator in the same
- The relief sought including the amount of the claim manner as to the original appointment
- The relevant agreements including the arbitration agreement, a copy of which shall be attached
Where the presumptive evidence of bias consists of prior professional or financial dealings with a party or his
The default rule in the case of international commercial arbitration is that it is commenced on the date on which counsel, the arbitrator shall disclose such fact to the parties and shall respond promptly and in good faith to
a request for the dispute to be referred to arbitration is received by the respondent, while that for domestic questions from a party regarding the nature, extent and age of such dealings.
arbitration where there is no prior arbitration agreement is reckoned from the date when the other party agreed
to submit the dispute to arbitration. PROCEDURE FOR THE CHALLENGE:
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© Celyn Palacol
 ADR | Robeniol 3
Atty. Fajarito

PROCEDURE IN CASE THE ARBITRATOR FAILS TO ACT FEES AND COSTS

As in the case of international commercial arbitration, if an arbitrator in a domestic arbitration becomes de jure It shall be determined by the agreement of the parties.
or de facto unable to perform his functions or fails to act without undue delay, his mandate terminates if:
(i) He withdraws
(ii) The parties agree on the termination CORRECTION, INTERPRETATION AND ADDITIONAL AWARD
“No motion for reconsideration, correction and interpretation of award or additional award shall be filed with the
If the controversy remains, any party may request the appointing authority to decide on the termination of the arbitral tribunal.” This is premised upon the principle that when the arbitral tribunal renders its final award, it
arbitrator, which decision shall be immediately executory, and shall not be subject to a motion for loses jurisdiction over the dispute and the parties to the arbitration.
reconsideration or appeal. - However, section 17 of RA 876 specifically allows the continuation of the arbitral proceedings motu
propio by the arbitrators or upon motion of a party, upon good cause shown.
The appointment of a substitute arbitrator, whether on account of a challenge procedure, or on account of his
failure or impossibility to act, shall be governed by the same rules applicable in the appointment of the replaced Thus, the IRR provided for the amendment or modification of the arbitral award by the arbitral tribunal in
arbitrator. the ff. instances as exceptions to the general rule:
1. Under the arbitration agreement
ARBITRAL PROCEEDINGS 2. Failure to resolve an issue
1. Statement of claims 3. Qualification of costs
2. Statement of defenses 4. Correction of typographical and similar errors initiated by a party
3. Amendment of claims or defenses 5. Correction of typographical error initiated by the arbitral tribunal
4. Hearing and written proceedings 6. Interpretation of the award
a. Pre-hearing conference 7. Additional award
b. Threshold issue
c. Hearing dates and postponements SETTING ASIDE AN ARBITRAL AWARD
d. Default of a party A domestic arbitral award may be set aside through the courts only on the ff. grounds:
e. Decision on interlocutory matters 1. The arbitral award was procured by corruption, fraud or other undue means
f. Consolidation or concurrent hearings 2. There was evident partiality or corruption in the arbitral tribunal or any of its members
g. Closure of hearing 3. The arbitral tribunal was guilty of misconduct or any form of misbehaviour that has materially
prejudiced the rights of any party
5. Rules on taking evidence 4. One or more of the arbitrators was disqualified to act as such
a. Testimonial evidence 5. The arbitral tribunal exceeded its powers, or so imperfectly executed them
b. Documentary evidence
c. Subpoena *til page142
d. Expert
e. Court assistance in taking evidence

6. Decision
7. Form and content of the award
8. Settlement
9. Termination of proceedings
a. Withdrawal of the claim
b. The agreement of the parties
c. The proceeding has become unnecessary or impossible
d. Non-payment of the required deposits in full

INTERIM MEASURES
The parties in a domestic arbitration may seek from the arbitrator or arbitral tribunal interim measures including
preliminary injunction, appointment of receivers, detention of property, and preservation and inspection thereof.
Either party may also secure assistance from the courts for the implementation of interim measures.

The same procedure as in international commercial arbitration obtains from interim measures.

MULTI-PARTY ARBITRATION
The arbitral tribunal is empowered to implement procedural modifications as it shall deem appropriate to
address the complexities of the multi-party arbitration.

© Celyn Palacol