Mediation v arbitration

Facilitation v Adjudication
Settlement agreement v arbitral award

ARBITRATION AGREEMENT

Principle of competence competence – arbitrator has the preference to decide whether he or she has
jurisdiction over the case (SM and person), courts will not question that

Principle of separability – Arbitration clause is in itself a separate and distinct agreement from the main
contract
- Reason: important in situations when the issue in arbitration related to the validity of the
contract
- If the contract is void, it does not follow that the arbitration is also void
- Arbitration clause is a contract on its own

Party autonomy principle – parties are free to put everything in the arbitration clause so long as it
follows the basic principles of contracts (not contrary to public policy etc)
- Number of arbitrators, where to hold hearings, qualifications of arbitrator
- Mandatory: Arbitrator should be independent (free from any relevant relationship with the
parties, objective) or impartial (not biased, subjective)

Applicable laws in arbitration

- You can put all it in your AC
1. Seat of arbitration – place of arbitration, not the venue of arbitration; seat is a legal concept
a. Significance:
i. The applicable arbitration law is the law of the seat of arbitration
ii. It is only in the courts of the seat of arbitration that a party can have an arbitral
award can be set aside, meaning you can no longer enforce the arbitral award in
any country
2. Law of the arbitration agreement – the law of the arbitration agreement can be different from
the law applicable to the contract; you may state it in the arbitration agreement CHECK
READINGS!!!!! FINALS
3. Law of the place of enforcement – In the NY Convention, it is stated there that the court of the
place of enforcement will not enforce an arbitral award if it is against their public policy
4. Law of the place where interim measure of protection is sought – injunction, garnishment; not
an award, but an order issued by a tribunal to preserve the rights of the parties; similar with
provisional remedies of the court
a. Where do you go? Depends on the remedy you are seeking

RULES IN AN ARBITRATION
ARBITRATION LAW RA 9285
- Adopts the UNCITRAL model law

Law  Arbitration rules – set of rules adopted by the parties govern their proceedings (eg. Rules of the
Philippine dispute resolution center/PRDCI Rules)

Institutional arbitration v adhoc arbitration

Institutional Arbitration – parties agree on specific set of rules to administer arbitration in an institution,
giving the institution certain power
- Supervised by an institution
- Relevant because other countries does not recognize adhoc arbitration (eg. China)

Adhoc arbitration – adopts the default provisions under the law

- Not supervised by any institution
- OR adopts UNCITRAL administration rules

Advantages and disadvantages of arbitration

Advantages:
1. Enforcement abroad – easier to enforce a foreign arbitral award abroad because the grounds
are the same (NY Convention)
2. Party autonomy – parties are free to provide in the contract how to decide their disputes
compared to the courts, you are bound by the ROC
3. Speed – easier or faster to conclude the resolution of the dispute as well as the enforcement of
the arbitral award in arbitration

Disadvantages:
1. More costly – It’s a private dispute resolution settlement. You will have to pay the arbitrators,
stenographer, and a translator. You will have to rent a hearing room.
2. Arbitrators do not have contempt powers. Arbitrators cannot force a party to comply with an
award. You will have to go to the court to enforce the award.
a. But arbitrators can allocate the award  serves as penalty to the recalcitrant party
b. Arbitrators can do adverse inference to compel parties to follow their orders for awards

May 12, 2020

Different Types of Arbitration

1. Domestic arbitration – not international
a. Domestic arbitral award cannot be enforced abroad
b. The grounds to refuse enforcement of domestic arbitral award are much stricter.
2. International arbitration – definition provided in UNCITRAL Model Law, Article I, Section 3
a. RA 9285 shall govern
b. The grounds to refuse enforcement are limited to procedural grounds.
3. Commercial arbitration – UNCITRAL Model Law, all disputes arising from a contract concerning
commercial issues. Construction of works is considered commercial arbitration
a. Applicable Law: EO 1008, CIAC
4. Investment arbitration – not at all times commercial arbitration;
a. Arise from a commercial contract – ex. GOCC enters into procurement contract
b. Arise from an investment treaty(investment treaty arbitration) – entered into by various
states (usually bilateral)
i. State will guarantee the protection over an investor coming from another state

Other arbitrations that are not commercial arbitration

1. Labor disputes
 2. Consumer disputes
3. Katarungang pambarangay
4. Court-annexed mediation
5. Judicial dispute resolution (form of ADR)

Different arbitration laws

1. RA 9285 (ADR Act) – adopted UNCITRAL Model Law
a. If you have an international arbitration, you will follow UNCITRAL
b. If you have domestic arbitration, the law that will govern is RA 876 as amended by RA
9285
c. For construction arbitration, EO 1008
i. Difference with commercial? 1. CIAC has exclusive and original jurisdiction in
construction arbitration. 2. Commercial: only recourse to an arbitral award: set
aside or refuse enforcement, go to RTC; CIAC: quasi-judicial body, go to CA
under Rule 43. If you have an arbitral award from CIAC, appealable to CA under
Rule 43 without distinction as to who made the award.
d. It has its own IRR
2. Special Rules of Court on alternative dispute resolution
a. Applicable set of rules if you’re invoking ROC in relation to arbitration
3. UNCITRAL MODEL LAW – only applies to international arbitration
a. Adopted by RA 9285 in order to apply in the Philippines
4. New York Convention – applies for the enforcement of foreign arbitral awards

Two types of award

1. International commercial arbitration award – being enforced in the Philippines where the seat
of arbitration is the Philippines, meaning Philippine courts have the power to set aside such
award
2. Enforcement of foreign arbitral award – being enforced in the Philippines, but the seat of
arbitration is not the Philippines, meaning Philippine courts does not have the jurisdiction to set
aside the award

ADR Act
Chapter 4 of IRR: International arbitration
Article 4.5 – extent of court intervention

Rule 2: arbitration agreement

May 19, 2020

Arbitration is a form of ADR, it must have a contract.

OPTIONS OF PARTIES

1. Settlement agreement – provide own dispute resolution agreement

2. Ask the arbitrator to suspend the arbitration while the parties are negotiating coming up with a
settlement agreement. If unsuccessful, they can ask the arbitrator to commence arbitration
again. If successful, they can ask the arbitrator to issue an arbitral award. That is beneficial for
purposes of enforcement.
 3. Arbitrator may issue an award – an award is a final disposition of an issue raised in an
arbitration. You can have several awards. Three awards:
a. Jurisdictional award
b. Substantive award – award on liability; disposes of the issues raised (merits)
c. Final award – award on cost and quantum, who will pay for the cost of arbitration

1.
2. Interpretation of the award
3. Additional award

Exclusive recourse if you have an arbitral award

ENFORCING AN ARBITRAL AWARD

1. Provide a copy of the arbitration agreement or arbitral award

FINDINGS ARE FINAL. THE COURT CANNOT OVERTURN THE SUBSTANTIVE VIEW OF AN ARBITRAL
AWARD.

GROUNDS TO HAVE IT SET ASIDE

1. The parties to the agreement were under some incapacity. The agreement is invalid under the
law which it subjected itself to.
2. The party was not given sufficient notice that there was an arbitration.
3.