Philippine Institute of Arbitrators

Involved in Arbitration / ADR?

We know the different processes.

We can help you dissect and analyze them,

refine and combine them, and create hybrid
procedures to make them suitable for particular
relationships, as well as to develop strategies and
point you to the right direction.
 ORGANIZING THE ARBITRAL
PROCEEDINGS, WITH DEVELOPMENTS,
INNOVATIONS AND PROBLEM AREAS

by

MARIO E. VALDERRAMA LLB, FCIARb, FHKIArb, FPIArb

General Counsel to the Construction Industry Arbitration Commission (CIAC)
CIArb Approved Tutor
CIAC, PDRCI and WESM Accredited Arbitrator

Contact Details
Tel No 367 4001; Telefax 362 1867
Mobile 0917 4114 594
E-mail <marval.law@gmail.com>
PRELIMINARIES

OBJECTIVE: Capacity Building in Organizing the

Arbitral Proceedings.

Note: References to UNCITRAL Model Law (at

times written as MAL) Provisions are to its 1985
version.
PRELIMINARIES

Once upon a time matters were quite simple.

All that have changed because of advances in

technology.

The old problems remain. New problems arise.

PRELIMINARIES: WHAT IS
ARBITRATION?
The French Definition:

Arbitration is a device whereby the settlement of a

question, which is of interest for two or more persons, is
entrusted to one or more other persons – the arbitrator
or arbitrators- who derive their powers from a private
agreement, not from the authorities of a State, and who
are to proceed and decide the case on the basis of such an
agreement – Fouchard, Gaillard, Goldman on
International Commercial Arbitration para 7 citing
several authors.
PRELIMINARIES: ARBITRAL TRIBUNAL AN
INSTRUMENTALITY OF THE PARTIES

In arbitration the parties by contract create their own

tribunal (see Model Law provisions). They appoint, directly or
indirectly, their “judges”; craft the procedure; agree on
several categories of choice. As creators they own the
tribunal; as owners and creators they can shape the tribunal
to what they want it to be. As owners and creators they pay
the expenses of the tribunal that they created. The arbitrators
are akin to temporary employees whose job description is to
resolve the dispute between the parties.

Other choices. Flexibility.

Certiorari jurisdiction of courts does not apply. 6

PRELIMINARIES

In arbitration the parties craft the procedure.

Model Law Article 19(1) – Subject to the

provisions of this Law, the parties are free to agree
on the procedure to be followed by the arbitral
tribunal in conducting the proceedings.
PRELIMINARIES

The alternative is to allow the tribunal to craft the procedure,

in full or in part.

Model Law Article 19(2) – Failing such agreement, the

arbitral tribunal may, subject to the provisions of this Law,
conduct the arbitration in such manner as it considers
appropriate.

Note: Italicized clause gives Tribunal inquisitorial

powers.
PRELIMINARIES

The prevalent practice in Phl is the

alternative approach, that is, to allow
the tribunal to craft the procedure
rather than for the parties themselves
to do so.
Why?

This presentation is intended to, among other

things, “cure” the situation.
AGREEMENT BASED
ARBITRATION: PROCESS MODEL

The following slides are with reference to

agreement based arbitration.

To make any of them applicable to statutory

arbitrations: the applicable law, the rules to be
promulgated by the administering
institution/agency or both should adopt the matter
or component of the process model.
DYNAMICS: PREFERENCE OF
RULES
Mandatory provisions of law / rules prevail over contractual
stipulations.
Contractual provisions govern unless if they come in conflict with
mandatory provisions.
Default provisions take over in the absence or deficiency of
contract.
The Tribunal may exercise its discretion in the absence of
contract/default provisions/mandatory provisions. This was
introduced by the UNCITRAL Model Law.

Refs: Civil Code Art. 1306; PDRCI Rules Art. 1 (4) and (2); MAL
Art. 19 (1) and (2).
DYNAMICS: PREFERENCE OF
RULES
WARNING: The IRR’s Art. 5.23 applicable to domestic
arbitration (but not to international arbitration) provided
detailed procedures “in default of agreement of the parties”.

Most, in fact nearly all, of the procedures have no statutory

support and could be said to be even violative of MAL Art.
19.2 (arbitrator discretion) which also applies to domestic
arbitration.

The better way is to say that the provisions in IRR Art. 523 are
suggested “agenda items” rather than default procedures.
DYNAMICS: PREFERENCE OF
RULES

Cautionary Notes:

 The rules of arbitral institutions may contain

mandatory and default provisions.

 The rule that the agreement of the parties

prevail does not apply to the fees and the terms
of the Tribunal. Note, though, that under ICC
and PDRCI Rules the provisions on arbitrator
fees are mandatory.
DYNAMICS: DEFAULT PROVISIONS
VS. ARBITRATOR DISCRETION

In an arbitration the parties cannot agree on whether the

award should be unreasoned or a reasoned award. May
the arbitral tribunal in the exercise of its discretion opt
for an unreasoned award?

Answer: No. The default provision of law is that the

award should be with reasons (see MAL Art 31.2; also
R.A. 9285 Sec 33).
DYNAMICS: PARTY AGREEMENT
VS. MANDATORY PROVISIONS

In an ICC arbitration the parties agreed that the

award should be unreasoned. Valid?

Answer: No. Under ICC Rules the provision that

the award should be reasoned is mandatory (Art.
31.2).

Note: PDRCI Rules allow unreasoned awards

provided both parties agree (See Art. 3 [3]).
CRAFTING THE PROCEDURE

Primary Instrument: The Arbitration Agreement

Secondary Instrument: The TOR / Corresponding Order

for Directions (if required and on those instances
considered invaluable) that are based on:
 Agreement of the parties or
 Tribunal discretion if parties cannot come to agreement;
and
 Law, by way of public policy safeguards (mandatory) and
as default provisions (directory).
CRAFTING THE PROCEDURE

The following would most likely be the instruments:

1. Arbitration Agreement.
2. Terms of Reference (or equivalent).
3. Procedural Order No. 1.
4. Provisional Time Table.
 PRELIMINARY MEETING /
CONFERENCE
GENERAL

 First meeting between arbitrators and parties/

representatives.

 Time: After the arbitral tribunal was

constituted.
 PRELIMINARY MEETING /
CONFERENCE
GENERAL

 Purposes:
 For the arbitrator to satisfy himself that he
was properly appointed.
 To consider submissions from the parties as
to the procedures required to be completed
before the arbitrator can make his award
and the timetable for those procedures.
 PRELIMINARY MEETING /
CONFERENCE
GENERAL

 Intention

 The drafting and signing of the terms of reference

(normally signed by the parties) or of the
equivalent order for directions / procedural order
(issued by the tribunal reflecting the results of the
preliminary meeting/conference).
Also included: The Provisional Timetable.
 PRELIMINARY MEETING:
NECESSITY
When required – If required by institutional rules, e.g. ICC Rules require
the holding of a case management conference (Art. 24.3).

When invaluable, though not required : When hearings are to be held.

NOTE: UNCITRAL Rules does not require preliminary meeting.

When it may be dispensed with – In “look-sniff” and documents only

arbitrations; also in arbitrations of simple cases.
 PRELIMINARY MEETING /
CONFERENCE
OPTIONS:

• Local
• Quite simple. It is generally face to
face.
• PDRC
• CIAC
• Ad Hoc
 PRELIMINARY MEETING /
CONFERENCE
OPTIONS:

• International

• Face to face.

• Via the web using technology.

 PRELIMINARY MEETING /
CONFERENCE
OPTIONS:

• Use of Technology
• Exchanges using e-mail.
• Teleconferencing or via video link
instead of a face to face meeting.
• First and second may be combined.
• Signature by segments.
 PRELIMINARY MEETING /
CONFERENCE
OPTIONS:
• Signature by segments.

“Subject to any requirement of mandatory law, this terms of

reference as well as other documents may be signed in
counterparts and such counterparts may be scanned and
communicated to the Tribunal by email or other means of
communication that provides a record of the sending thereof.
Each counterpart shall be deemed an original and all those
counterparts signed shall together constitute one and the same
document. Such documents may also be signed electronically
and/or by email transmission of a .pdf format file.”
 PRELIMINARY MEETING /
CONFERENCE
OPTIONS:
• Signature by segments.

WARNING: ICC would not issue a certification

that it has the original of the TOR unless if ICC were
provided “wet ink” copies.
 SIDELIGHT: FULL DRESS
PROCEEDINGS USING TECHNOLOGY?

1. Exchanges by e mail.
2. Signature by segments.
3. Oral evidence via video link.
4. Documents/Pleadings Etc. to be served on CD/USB
memory stick/in Microsoft Word/ searchable/editable
PDF format and, where practicable, hyperlinking any
reference to documentary evidence, pleadings, case
law, experts’ reports and witness testimonies to that
reference.
 PRELIMINARY CONFERENCE:
DISPENSING WITH THE PC

One of the practices in international arbitration is for

the arb to send the agenda items to the parties to get
their – the parties’ – views.

This is usually with a note that the tribunal will hold a

preliminary conference if so desired by any of the
parties.

Rationale.
 DRAFT TOR IN PDRCI

PDRCI Article 26 requires the Tribunal to prepare on the basis

of the parties’ submission (or, if appropriate upon
consultation with the parties) a document defining its Terms
of Reference. Other than the non-controversial matters the
Tribunal may state the particular rules (other than those
provided in the PDRCI Rules which are the defaults).

A cautionary note: the would be stated rules, including the

PDRCI Rules, may be modified or even be taken out by the
parties. It should thus be clearly clarified that they are starting
points, i.e., more like “agenda items”.

In practice, they are tackled during a PC.

 DRAFT TOR IN CIAC

CIAC uses a template which is quite rigid.

 DRAFT TOR IN PDRCI

PDRCI Article 26 requires the Tribunal to prepare on the basis

of the parties’ submission (or, if appropriate upon
consultation with the parties) a document defining its Terms
of Reference. Other than the non-controversial matters the
Tribunal may state the particular rules (other than those
provided in the PDRCI Rules which are the defaults).
A cautionary note: the would be stated rules, including the
PDRCI Rules, may be modified or even be taken out by the
parties. It should thus be clearly clarified that they are starting
points, i.e., more like “agenda items”.
In practice, they are tackled during a PC. And PDRC has a
template that is, substantially, similar to the CIAC template.
The CIAC template is less detailed than the PDRC template.
 PRELIMINARY MEETING:
PRELIMINARIES
Notice to parties setting date, time and place

 Parties provided with agenda items.

 With warning that preliminary conference
will proceed without absent party if so
requested by present party; normally not
carried out because of danger that to
proceed without a party may constitute
violation of right to be heard / due process.
 PRELIMINARY MEETING:
PRELIMINARIES
Dealing with expenses / fees
 ICC – Deposits required
 PDRCI – Initial deposit only (Php 200K at
present). Others computed after the pc
with possible adjustments as required.
 CIAC – Deposit required.
 Ad Hoc settings – Practice is for arbitrator
to have parties agree to terms before
calling meeting
NOTE: Avoid living dangerously with respect
to arbitrators’ fees / expenses
 PRELIMINARY MEETING:
PRELIMINARIES
Dealing with expenses / fees

Note: Normally, parties jointly or the interested

party will have to shoulder the expenses for
venue/facilities.

But practices vary.

• PDRCI.
• CIAC.
• Ad hoc cases.
AGENDA ITEMS
Dealing with Recalcitrants Re Terms and Schedule of Charges, Deposits in
Respect of Costs. Approaches Vary.
• In CIAC: unpaid deposits for counterclaims means that the
counterclaims would only be treated as matters of defense. No
affirmative relief will be granted. Comment.
• In PDRC: more or less the same as CIAC.
• In ICC, the interested party may request for separate assessments. If
the recalcitrant refused to pay the necessary deposit due from it, the
tribunal would be asked to suspend action on the
claims/counterclaims and the recalcitrant would be given a final period
to pay. It no payment were made, then the claims/counterclaims will
be dismissed, without prejudice. If amount deposited by interested
party is inadequate, the party would be required to add to its deposit.
Note difference between PDRC/CIAC & ICC approaches.
AGENDA ITEMS
Dealing with Recalcitrants Re Terms and Schedule of Charges,
Deposits in Respect of Costs. Approaches Vary.

NOTE: No such thing as “default” in arbitration. The defenses

remain; the recalcitrant may still participate in the
proceedings.

In ad hoc cases, the tribunal would have its terms of

engagement.
AGENDA ITEMS
Dealing with Recalcitrants Re Terms and Schedule of Charges,
Deposits in Respect of Costs. Approaches Vary.

• Recalcitrant claimant: cheating arbitrators of their fees by

not properly quantifying the value of their claims.

• In ICC, additional amount may be assessed as the

arbitration proceeds and the correct value of the
claims becomes apparent.
SIDE LIGHT

THIRD PARTY FUNDING

 PRELIMINARY MEETING:
PRELIMINARIES
Dealing with Failures to Appear

• Normally by second notice containing terse

warning that preliminary conference will proceed
without absent party if so requested by the
present party. This time the warning shall be
carried out.
 WHAT WOULD NORMALLY TRANSPIRE
Introductions
Dealing with interlopers
 It is not unusual for the parties /
representatives to take along
“companions” or employees. Tribunal
would normally exclude them at this point
by invoking the privacy and confidentiality
provisions in the law.
 It is lenient in RP if parties agreed to the
presence of non-parties. But this may add
to expenses.
 WHAT WOULD NORMALLY
TRANSPIRE
Disclosures: involve the requirement that the arbs. are impartial and
independent.
 Prior contacts and relationships.
 An arbitrator may be removed not necessarily because the
relationship is a ground for inhibition but because of the failure
to disclose. In ICC: The Tribunal must appear to be
independent/impartial in the eyes of the parties. (Art. 11 [2] and
[3]).
 The duty to disclose is continuing up to the end of the
arbitration.

Note: At the time of the PC the arbitrators should have already made their
disclosures. Additional disclosures may be made if found necessary.
 WHAT WOULD NORMALLY
TRANSPIRE
Disclosures: involve the requirement that the
arbs. are impartial and independent.

Note: PDRCI adopted the IBA Guidelines and IBA

Rules of Ethics.

Note: The general rule is the “objective”, rather

than the “subjective”, test or standard.
 WHAT WOULD NORMALLY
TRANSPIRE
Working through the agenda items one by one.

The agenda items are in the following

slides.

Note: The UNCITRAL Notes on Organizing

Arbitral Proceedings enumerated items that may
be taken up during the preliminary conference.
 WHAT WOULD NORMALLY
TRANSPIRE
Resulting decisions would be incorporated in the TOR / Order for
Directions
 TOR normally needs signature of parties.
 ICC requirement in TOR if a party refused / failed to
participate / sign: Tribunal should send TOR to ICC
Headquarters, still unsigned by the members of the
tribunal, for approval.
 Order for Directions need no signature; arbitrator
may have a checklist that he requests parties to sign.
 In PDRCI: TOR signed by a party and members of the
Tribunal will suffice (Art. 26 [3].
ICC TOR/OFD 1

ICC Requirement if a party refused or failed to

participate (see Art. 24.3).

Order for Directions, normally no 1, is the

equivalent of the TOR. Needs no signature of the
parties.

Note: ICC has theTOR; Uncitral Rules has the Notes

on Organizing the Proceedings.
ICC TOR/OFD 1

NOTE: Certain provisions are desirable to be included

in the TOR, e.g.’s a confidentiality provision and a
waiver of arbitrator liability provision.
The problem is that those provisions require the
consent of all parties.
If one refused to participate/sign, a remedy is to
preface the clause/s with the words: “the
undersigned parties”. The problem is that the signing
party may balked because it is the only one who is
bound.
Another remedy is just to take out the clause/s
altogether.
AGENDA ITEMS
Viewing Arbitration Agreement and Notice of
Arbitration
 To see if there was an agreement to arbitrate
and if the arbitration was validly commenced.
 Note: Under PDRCI Rules it is the filing with
PDRCI and the payment of the required filing
fees that will commence the arbitration (Art. 4
[2]).
 Note: In ICC it is the date when the request
was filed with the Secretariat (Art. 4.2).
AGENDA ITEMS
Tribunal’s Appointment, Terms and Schedule of
Charges, Deposits in Respect of Costs
 Problem Areas
 Domestic arbitration: R.A. 876 Sec. 21 –
Arbitrators entitled to Php 50.00 per day if
parties have no written agreement as to
arbitrators’ fees.
 Arbitrations in general: There is no legal
provision allowing a party to advance on
behalf of a recalcitrant the latter’s share in
the required fees / deposits for expenses.
AGENDA ITEMS
Tribunal’s Appointment, Terms and Schedule of Charges,
Deposits in Respect of Costs
 ICC Rule: ICC has a schedule; ICC determines arbitrator’s
fees; ICC rules requires a party to advance on behalf of a
recalcitrant the latter’s share in the required fees /
deposits. Variations possible re deposit on arbitrators’
fees.
 PDRCI rule: PDRCI has a schedule; PDRC rules requires a
party to advance on behalf of a recalcitrant the latter’s
share in the required deposit for costs. Variations possible
re deposit of arbitrators’ fees.
 Ad Hoc arbitration - by arrangement.
AGENDA ITEMS
Seat of Arbitration and Applicable Law to Arbitration Agreement
 In domestic arbitration, the seat is necessarily the Philippines
and Philippine arbitration law the applicable law
 In international arbitration, the seat is important because the
award in a “delocalized” arbitration would most likely be
unenforceable.
 The applicable law to the arbitration agreement is subject to
agreement but stipulating on a law different from that of the
seat may cause complications because the mandatory curial laws
of the seat cannot be superseded by another system of law.
Note: Not all jurisdictions are Model Law jurisdictions.
Note: “Place”, “Venue” and “Seat”.
In ICC: it is the Court that determines the seat absent a stipulation
by the parties (Art. 18 [1]).
In PDRCI: it is the arbitral tribunal (Art. 24[1]).
AGENDA ITEMS
Language of Arbitration
 Subject to agreement.
 Default Rules:
 English or arbitrator discretion in
international arbitration – see R.A. 9285
Sec. 31; PDRCI Rules Art. 25.
 English or Filipino or arbitrator discretion in
domestic – ibid.
Note: The above are local rules.
AGENDA ITEMS
Place (Venue) of Arbitration

 Subject to agreement.
 Default Rule: Metro Manila or arbitrator
discretion ( – see R.A. 9285 Sec. 30; PDRCI
Rules Art. 24).
Note: The above are local rules.
Note: Proceedings may take place
elsewhere (PDRCI Rules Art. 24).
AGENDA ITEMS
Applicable Law to Substance of the Dispute: Equity
Rather Than Law?

 Implied default rule in domestic arbitration: Equity – See R.A.

876 Secs. 13 and 20 (arbitrators’ “[A]ward may grant any remedy
or relief which they deem just and equitable and within the
agreement of the parties xxx”. But parties may stipulate
otherwise.

 Cautionary Note: IRR Art. 5.28 (a): Award is law based.

Applicable law is that chosen by the parties; default is Philippine
law.
AGENDA ITEMS
Applicable Law to Substance of the Dispute: Equity Rather Than
Law?
 Rule in international arbitration (Model Law) – law
 Applicable system of law a matter of stipulation –
See MAL Art. 28.1.
 Conflict Rules – Parties may stipulate (instead of
stipulating on the applicable law); arbitrator
discretion in case there was no agreement – see
MAL Art. 28.2.
 Amiable compositeur or ex aequo et bono – Only if
parties authorized arbitral tribunal to do so – see
MAL Art. 28.3.
 Terms of the Contract and usages of trade to be
taken into account – see MAL Art. 28.4.
AGENDA ITEMS
Procedural Rules; Administration

 Per agreement between the parties

AGENDA ITEMS
Outline of the Issues in Dispute:
Claim/Defense/Counterclaim

ICC Rule: Arb. Discretion. (This is

provisional).
Note: Parties to inform tribunal of the
issues that they want the Tribunal to resolved.

In PDRCI – default is by the arbitral tribunal.

AGENDA ITEMS
Type of Arbitration
 Types: Enumeration not exhaustive
 Look sniff – Normally requires expertise. Arbitrator uses his
senses e.g. class of coffee, rice, other commodities.
 Documents only – Similar to small claims procedure in MTC’s.
 Short procedure – Similar to present court procedures:
prospective witnesses submit their statements, which shall
be their direct, but subject to cross, re-direct and re-cross.
 Full dress – Similar to old procedure in RTC.
 Others e.g. “hot tubbing”; “pendulum” arbitration; last offer
arbitration .
AGENDA ITEMS
Type of Arbitration
 Approaches:
 Adversarial – Tribunal is more or less passive and
relies on presentations of parties, but tribunal (if
not prohibited) may ask clarificatories.
 Inquisitorial – Tribunal generates its own evidence
and takes active part in ferreting out the truth.
It is recommended that whether tribunal can take an active
part in ferreting out the truth, and if so the extent thereof, be
made part of the agenda.
PROCEEDINGS:
ADVERSARIAL APPROACH
Party calls his witness.
Witness takes his oath of affirmation and affirms his
statement.
Party ask the witness to confirm his name, address
and involvement in the subject matter.
Direct examination or examination in chief follows
(ordinarily omitted as the witness had already filed
his statement) .
PROCEEDINGS: ADVERSARIAL
APPROACH (CON’T)

Cross examination by adverse party.

Redirect examination.
Recross examination.
Tribunal makes its own examination. Depending,
however, on the nature of questions asked by the
tribunal, the parties may be allowed to ask
supplementary questions on the issues raised by the
tribunal’s questions.
Witness thereafter excused.
PROCEEDINGS:
INQUISITORIAL MODEL
Initial Examination by Tribunal

 Tribunal calls the witness to be examined.

 Witness takes usual oath or affirmation.
 Tribunal confirms name and address of
witness; also that the content of his witness’s
statement is true and is the evidence witness
wishes to give.
PROCEEDINGS: INQUISITORIAL
MODEL (CON’T).

Initial Examination by Tribunal (con’t)

 Tribunal asks the witness such questions as

the former considers appropriate.
PROCEEDINGS: INQUISITORIAL
APPROACH (CON’T).
Examination by Parties

 Witness turned over to the parties for examination for

the usual direct (if necessary), cross, re-direct and
recross.

 Parties may ask witness to clarify his answers to the

questions of the Tribunal.
PROCEEDINGS:
INQUISITORIAL APPROACH

It is said that, normally, the tribunal may end up

asking about 70% of the total number of questions
directed to a witness.

In other words, the tribunal under normal

circumstances may end-up asking more questions
than the total number of questions asked by the
party representatives.
SIDE NOTE: COMBINING
APPROACHES WITH OTHERS
Note that the approaches described in the previous
slides may be combined with other types of
arbitration proceedings such as in the so-called
witness conferencing (or “hot tubbing”).

If Mr. Justice Roberto A. Abad (Ret.) were to have

his way, the first and second level courts will go
inquisitorial in the so-called “run of the mill” cases
excluding small claims.
SIDE NOTE: GOING
INQUISITORIAL

Needs strength of character.

More so in Phl where there is prejudice against the
inquisitorial model.
Danger of apparent or perceived bias (so arb must
exercise caution).
Requires more preparation on part of tribunal.

NOTE: Most Phl lawyers/arbs would most likely

want to veer away from it. But combinations
may be seen in practice.
PROCEEDINGS: “HOT
TUBBING”
The usual way is sequential presentation.

“Hot Tubbing” is concurrent presentation of

experts.

Notes: “Hot tubbing” is also possible in the

presentation of witnesses of fact.
In “hot tubbing” experts can put questions to
each other.
AGENDA ITEMS
Type of Arbitration (con’t) Re Inquisitorial
Approach: Coaching Parties Re Procedure:
 ICC Rule – usually by counsel in charge of the file.
No prohibition for arbs to do so. But see below.

 PDRCI Rule – same as ICC Rule?

 May arbitrator do so? Yes, unless if inquisitorial

power were curtailed by agreement. Tribunal may
provide information and inform parties of its
expectations but should refrain from giving advise.
Warning: SC opinion may differ.
AGENDA ITEMS
Preliminary Issues
 Questions of jurisdiction – procedures.
 Matters that may be involved:
 Milestones.
 Need for a hearing.
 When arbitrator to decide; deferment?
 Suspension of proceedings if a party were
to go to court?
 Determination of issues.
AGENDA ITEMS
Preliminary Issues

 Questions of jurisdiction – procedures

 If positive ruling to be elevated to court, should the

proceedings continue in the meantime? (Note:
Negative rulings seems to be final but arguments
are now being raised to also allow their elevation to
court. SP Rules allow parties to do so).
 Problem in domestic arbitration: Domestic
tribunals have no kompetenz kompetenz. Special
Rules, however, “corrected” the deficiency.
AGENDA ITEMS
Preliminary Issues

 Need for interlocutory proceedings –

Procedures; may chairman decide by
himself?

 Examples of interlocutory proceedings:

Extensions, cancellations, resettings.
AGENDA ITEMS
Reasoned or Unreasoned Award?

 Default rule in domestic and international

arbitrations: Reasoned award if without
stipulation – See MAL Art. 31.2.; also R.A.
9285 Sec. 33 for the application of the MAL
Art. to domestic arbitration
 NOTE: ICC Rule – reasoned award is
mandatory.
AGENDA ITEMS
Forms of Case Submissions
 Pleadings – The type of written statements
required in court proceedings: Points of
claim, points of defense and counterclaim
(if any) and points of reply.
 Statements of the case/defense –
Narratives listing documents relied on and
setting out arguments on points of law
arising and a summary of evidence to be
adduced.
AGENDA ITEMS
Programme / Timetable for Submissions; Chess Clock
(Guillotine)?
 The programme / timetable would most likely be
provisional, subject to resettings, extensions and
cancellations.
 In ICC, the rule is to set the programme / timetable on an
instrument separate from the TOR.
 In a chess clock / guillotine type, the parties are allotted
limited times to present their evidence, and cannot exceed
the allotted time. Requires agreement between the
parties.
 Variations, e.g. sharing of limited time.
AGENDA ITEMS
Disclosure of Documents
 Before the hearing?
 More or less similar to what we do in court
when we file our Pre-Trial Briefs.
 During the hearing?
 Similar to what we used to do before the
change in the Rules re Pre-Trial
Proceedings.
 Discovery Procedures. Focus should be on
control.
AGENDA ITEMS
Representation
 R.A. 9285 Sec. 22; also Sec. 33 – In
arbitration, a party may be represented by
any person of his choice (but lawyers retain
their exclusive right of audience if any
matter were elevated to court or
administrative agency).
 Tribunal inquires if lawyer/expert are
merely assisting, or representing the
parties. If representing, tribunal requires
submission of a written power of attorney.
AGENDA ITEMS
Hearing: Venue, Duration, Date

 No need to elaborate.
AGENDA ITEMS: EXPERTISE

So-called issues of law are generally evidentiary – in

the words, issues of fact – in law based awards;
reason.
Tribunal may not use its expertise (or so-called
“secret evidence”). For the tribunal to do so is a due
process/right to be heard issue that may provide a
ground to vacate / non-recognition of the award.
Duty of expert is to educate the tribunal and not to
decide the dispute. See the CIArb Protocol.
EXCEPTION TO NON-USE OF
EXPERTISE

By agreement of the parties, but tribunal still

cannot use “secret evidence”.

When tribunal may use expertise without need of

agreement – e.g., in determining the admissibility,
relevance, materiality and weight of the evidence
offered.
PARTY EXPERTS

An arbitration with complicated issues will most likely

have the following:
1. Definition of the issues.
2. Exchange of provisional expert opinions (which
are privileged; not to be filed with arbitrator).
3. Experts conclave, when the experts set out
their opinions where there was agreement, where they
disagree, and the reasons for their disagreement. The
result is the Joint Expert Statement, to be submitted to
the arbitrator.
PARTY EXPERTS

Complicated issues (con’t)

4. Final Report – here the experts will separately
defend their opinions that were subject to objections and
will expound on their respective objections and reasons
for objecting.
5. Reply Report – here the experts will separately
deal with new matters stated in the Final Report.
6. Hearing – when experts will be cross
examined.
Note: IBA Rules of Evidence follows the above but uses
different terms.
EXPERTS: DEFINING LEGAL
ISSUES

Wrong way: “Whether or not Claimant is in

Estoppel.” This will make the expert decide
the issue.

Right way: “Is there estoppel under Philippine

law? If so, what is its concept and how does it
work?”
EXPERTS: DEFINING LEGAL
ISSUES

NOTE: Tribunal would most likely want the parties to

submit (a) the expert issues where agreement exists and
(b) the issues where there is disagreement.
AGENDA ITEMS
Experts/Tribunal Appointed Experts: Tribunal May
Use Its Expertise in Resolving the Dispute?

 Tribunal appointed experts

 May exercise, unless curtailed, powers of
tribunal.
 TOR of expert – Subject to agreement
between the parties.
AGENDA ITEMS: EXPERTS

“Tribunal does not understand the legal / technical

basis of claimant’s / respondent’s claim” – the
implication is that the expert failed in his /her
obligation to “educate” the arbitral tribunal.

Note: Or simply – there is insufficiency or no

evidence at all involving the issue. Includes hard to
understand expert presentations.
AGENDA ITEMS: EXPERTS

“It is not the obligation of the Tribunal to choose

the applicable provision of law from the list
quoted by the claimant/respondent” – the
implication, again, is that the expert failed in
his/her obligation to “educate” the arbitral
tribunal.
AGENDA ITEMS
Experts/Tribunal Appointed Experts: Tribunal May
Use Its Expertise in Resolving the Dispute?
 Tribunal may not use expertise in deciding
dispute; to do so is considered “bias” and is
a due process issue.
 What to do if tribunal has strong feelings on
a matter: Inform the parties (but being
careful not to sound “partial”) and ask
relevant witnesses/parties about their
position on it.
AGENDA ITEMS
Experts/Tribunal Appointed Experts: Tribunal May
Use Its Expertise in Resolving the Dispute?
 WARNING: In RCBC v BDO & BDO v CA
and RCBC, G.R. Nos. 196171 and 199238,
10 Dec. 2012, SC characterized as manifest
partiality the act of the arb in doing what
he was supposed to do (to avoid using
“secret evidence”).
 Note: Parties settled. See Resolution
dated January 2014.
AGENDA ITEMS
Experts/Tribunal Appointed Experts: Tribunal May Use Its
Expertise in Resolving the Dispute?

 Limited instance when tribunal may use expertise – Weighing of

evidence.

 Note: In the IRR, UNCITRAL Arbitration Rules 1976 is the default

procedure/rule unless if arbitral tribunal considers it
inappropriate (Art. 4.19 (b). This has no statutory support and
would most likely complicate matters.

 Note: Party autonomy – parties may provide for different rules /

procedures.
AGENDA ITEMS
Witnesses of Fact

 No need to elaborate.

NOTE: The two usual classes of witnesses in

an arbitration are (a) the witnesses of fact
and (b) the expert witnesses.
AGENDA ITEMS
Bundles of Correspondence
 Bundles of documents are to be restricted to those to be
referred to at the hearing.
 Procedure in “bundling” usually as follows: Claimant
prepares draft bundles in chronological order with older
documents at the top, at this stage unnumbered, and
forwards it to the respondent; respondent to interleave
additional documents it requires to be added and to return
it to claimant; claimant to number and copy bundles and
to deliver copies to the arbitrator and respondent; storage
and retrieval protocols.
 Use of separate bundles.
AGENDA ITEMS
Transcript / Record of the Hearings

 Needs agreement more so because of

expenses involved.

 Current preference in international

arbitration: tsn available at the end of the
hearing day.
AGENDA ITEMS
Administrative Services That May Be Needed for the Tribunal
to Carry Out its Functions
 Normally an administrative assistant, who is subject
to the confidentiality rules.
 ICC requires that Chairman or Sole Arbitrator be
responsible for appointed administrative assistant;
fees of assistant to be shouldered by tribunal from
their fees but expenses are part of costs.
 In PDRCI administrative services are usually carried
out by the secretariat. Fees and expenses are
considered part of costs.
 Development in HK: arbitral secretary.
AGENDA ITEMS
Interpreter?

 Expenses shouldered by the party who

presents witness.
AGENDA ITEMS
Amendments and Additional Submissions (Art. 29)
• May be made in the course of the arbitral
proceedings.
• At this point (during the PC) the rule is leniency,
subject only to the limits of the jurisdiction of the
Tribunal.
• Admission may become strict depending on the
stage of the arbitration. Possible delay, prejudice
to the other parties and similar circumstances may
be considered by the Tribunal.
AGENDA ITEMS
Opening and Closing Addresses to be in Writing?

 Local practice is for parties to file written

memoranda.

Note: Some arbs. refer to these as pre-

hearing and post hearing memorials,
respectively.
AGENDA ITEMS
List of Items in Dispute

No need to elaborate.
AGENDA ITEMS
Communication with Tribunal; Routing of Written
Communications Among the Parties and the
Tribunal
 Usual procedure is for a party to serve
communication to adverse party before
filing with the tribunal.
 Normally, no direct communication with
members of the tribunal.
 In PDRCI: copies to be furnished PDRCI
(Art. 23 [4]).
AGENDA ITEMS
Agreement of Figures, Plans, Drawings,
Photographs, Correspondence, Facts, Etc.

 These are simply stipulations of fact.

PRE-HEARING REVIEW (CASE
MANAGEMENT CONFERENCE)
• Recommended in medium and large cases that
will take several months to prepare.

• Purpose is to air all procedural issues and

making detailed arrangement regarding the
hearing and the run-up to it.

• Note: See PDRCI Rules Art. 34. Supposed to be

mandatory, but . . .
PRE-HEARING REVIEW (CASE
MANAGEMENT CONFERENCE)
Case Management Techniques (ICC)

• Bifurcate the proceedings or render one of more partial awards on key

issues.
• Identify the issues that may be resolved by agreement or by experts.
• Identify issues that may be decided solely on the basis of documents.
• Recommendations re production of documents: documents to
accompany submissions; avoid requests for production when
appropriate; limit requests to those that are material/relevant to the
outcome; establish reasonable time limits for production; use
schedule of document production to facilitate resolution of issues in
relation to production of documents.
PRE-HEARING REVIEW (CASE
MANAGEMENT CONFERENCE)
Case Management Techniques (ICC) (con’t)

• Limiting length and scope of written submissions and

written and oral evidence to avoid repetition and maintain
focus on key issues.
• Using telephone or video conferencing and use of IT.
• Organizing pre-hearing review conference re schedules
and when tribunal can indicate to parties issues on which
tribunal would like the parties to focus.
• Inform parties that they can settle their disputes. Where
appropriate, the tribunal can take steps to facilitate
settlement (careful here, more so in domestic arbitration).
AGENDA ITEMS

Any Other Business e.g., time when award to be

published, physical evidence other than documents,
bifurcation of proceedings, post trial orals, possible
settlement negotiations and their effect on
scheduling proceedings.
NOTES
The enumeration is not exhaustive. A
recommended standard agenda was made by the
UN in its UNCITRAL Notes on Organizing Arbitral
Proceedings.
The foregoing enumeration of the agenda items
assumes that the arbitration is on a purely ad hoc
setting. Some of the above need not be discussed if
the arbitration is institutional and covered by
institutional rules.
NOTES
The TOR/OFD will define the proceedings / rules
governing the proceedings applicable to the
arbitration.

 TOR/OFD is more akin to Rules of Court

rather than to a Pre-Trial Order.
FINAL NOTES
A former Secretary General of the HKIAC observed:
Jurisdictions that have upgraded their arbitration
law passed through that phase of development
when cowboys are arising and what they do is to
mess things up.

A former President of CIArb has this cautionary

note: Experience shows that in many cases on the
job training will not suffice. It is a recipe for disaster.
 ORGANIZING THE ARBITRAL
PROCEEDINGS
QUESTIONS?
Comments and suggestions, critical, adverse or
otherwise, welcomed.
I would love to hear from you if you noticed any
error or omission, or if you have any suggestion
on how to improve, this presentation.
E-mail to marval.law@gmail.com. Visit our
website at <www.philippinearbitrators.org>.
ORGANIZING THE ARBITRAL
PROCEEDINGS

THANK YOU!

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