ADR REVIEWER – ATTY. HIGUIT (read at your own risk)
VILLACORTA
What is conflict? What are the methods used in conflict management?
- Conflict is actual or perceived opposition of needs, values and interests. It
can be internal (within oneself) or external (group or organization
dynamics).
The methods used in conflict management are:
a. Avoidance – seeks to put off conflict indefinitely by delaying or avoiding
the conflict.
b. Accommodation – gives the opposing side what it wants.
c. Competition – operates as a zero-sum game, in which one side wins and
other loses.
d. Compromise – calls for both sides of a conflict to give up elements of their
position in order to establish an acceptable, if not agreeable, solution.
e. Collaboration – works by integrating ideas set out by multiple people.
What is the jurisdiction of the International Court of Justice?
- Under Article 36 of the Statute of the International Court of Justice, the
jurisdiction of the Court comprises all cases which the parties refer to it
and all matters specially provided for in the Charter of the United Nations
or in treaties and conventions in force.
The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation, the jurisdiction
of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of
an international obligation;
d. the nature or extent of the reparation to be made for the breach of an
international obligation.
What are the sources of international law?
a. International convention, whether general or particular
b. International custom, as evidenced of a general practice accepted a law
c. General principles of law recognized by civilized nations
d. Judicial decisions and teachings of most highly qualified publicists of
various nations
What are the peaceful means of settlement under the Hague Convention?
a. Good offices and Mediation – when the relationship is already severed
and the states are at variance; a third person offers to mediate and
reconcile the opposing claims which may have arisen
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b. International Commissions of Inquiry – facilitates disputes arising from
difference of opinions on points of facts, neither involving honor or vital
interests through elucidation of facts by means of impartial investigation;
report is limited to statement of facts
c. International Arbitration – Permanent Court of Arbitration; settlement of
dispute by judge chosen by the parties
What is Permanent Court of Arbitration?
- The Permanent Court of Arbitration is created by the 1907 Hague
Convention or the Convention for Pacific Settlement of International
Disputes.
What is the jurisdiction of the Permanent Court of Arbitration?
- The Permanent Court of Arbitration is competent to settle the
“compromis” when the parties have agreed to have recourse to it for the
purpose. It is similarly competent, even if the request is only made by one
of the parties, when all attempts to reach an understanding through the
diplomatic channel have failed, in the case of:
a. A dispute covered by a general Treaty of Arbitration concluded or
rewarded after the present convention has taken effect. Recourse
cannot be had to the court, however, when the other party declares
that in its opinion, the dispute does not belong to the category of
disputes which can be submitted to compulsory arbitration.
b. A dispute arising from contract debts claimed from one Power by
another Power as due to its nationals, and for settlement of which, the
offer or arbitration has been accepted. This arrangement is not
applicable if the acceptance is subject to the condition that the
“compromise” should be settled in some other way.
Who created Permanent Court of Arbitration?
- The Permanent Court of Arbitration is created by the 1907 Hague
Convention for the Pacific Settlement of International Disputes.
Discuss the International Commissions of Inquiry under the Hague Convention.
- The International Commissions of Inquiry facilitates a solution of disputes
of an international nature arising from a difference of opinion on points of
facts, and does not involve neither honour nor vital interests. Said
commission elucidates facts by means of an impartial and conscientious
investigation, and it defines the facts to be examined, determines the
mode ad time in which the commission is to be formed, and the extent of
the powers of the commissioners. It is constituted by special agreement
between parties in dispute.
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What is compromis?
- A compromis is a special agreement between nations submitting to a
dispute resolution and defining the terms of the submission, the powers of
the tribunal to serve as an arbitrator and the procedure to be followed. It
is signed by the Powers which have recourse to arbitration and it includes
the subject of the dispute, the time allowed for appointing arbitrators, the
form, order, time, in which the communication must be made, the amount
of sum to be given in advance to defray the expenses, the manner of
appointing arbitrators, where they shall meet the language, and all the
conditions on which the parties agreed.
What is the International Chamber of Commerce and who are its members?
- ICC is the largest and most diverse business organization in the world. It
has unrivalled authority in making rules that govern the conduct of
business across the borders. Its members are corporations, business
entities, companies, and business executives. It is known as the merchant
of peace and it created the International Court of Arbitration to administer
resolution of disputes.
What are the methods of dispute settlement available to member parties?
a. Mini-Trial – simulated procedure: parties’ counsels argue before
representatives of the parties who are not vested with any jurisdictional
powers.
b. Neutral evaluation – when a neutral provides a non-binding opinion or
evaluation concerning one or more matters such as: an issue of fact,
technical issue of any kind, an issue of law, application of law to the facts.
What are the requisites before any claims may be filed with the ICC?
a. The parties must be members of the ICC
b. The subject matter to the disputes must be within the jurisdiction of the
ICA.
Who created the International Court of Arbitration?
- The International Court of Arbitration is created by the International
Chamber of Commerce as an independent arbitration body. It does not
itself resolve disputes but administers the resolution of disputes by arbitral
tribunals. It is the only body authorized to scrutinize and approve the
awards rendered in accordance with the Rules.
When is arbitration international?
- An arbitration is international when:
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a. The parties to an arbitration agreement have, at the time of the
conclusion of that agreement, their places of business in different
states; or
b. One of the following places is situated outside the state in which the
parties have their place of business
1. The place of arbitration if determined in, or pursuant to,
the arbitration agreement;
2. Any place where a substantial part of the obligation of
the commercial relationship is to be performed or the
place with which the subject-matter of the dispute is
most closely connected; or
c. The parties have expressly agreed that the subject matter of the
arbitration agreement relates to more than one country
What does commercial means?
- “Commercial” covers matters arising from all relationships of a commercial
nature, whether contractual or not. It includes but not limited to: any trade
transaction for the supply or exchange of goods or services, distribution
agreement, commercial representation or agency, factoring, leasing,
construction of work, consulting, engineering, licensing, investment,
financing, banking, insurance, joint venture, and other forms of natural or
business cooperation, carriage of goods or passengers by air, sea, rail, or
road.
What is “kompetenz-kompetenz”?
- It is a jurisprudential doctrine whereby a legal body, such as a court or
arbitral tribunal may have competence or jurisdiction to rule as the extent
of its own competence on an issue before it.
Under the UNCITRAL Model Law, the arbitral tribunal may rule on its own
jurisdiction, including any objections with respect to the existence or
validity of the arbitration agreement. The arbitral tribunal may
independently rule on the question of whether it has jurisdiction, including
any objections with respect to the existence or validity of the arbitration
agreement, without having to resort to a court.
What is an “amiable compositeur”?
- It is one of the basic principles enunciated in Article 28 (3) of the UNCITRAL
Model Law, together with the principle of ex aequo et bono. This is when
the arbitral tribunal may decide the dispute on the basis of principles it
believes to be just, without having to refer to any particular body of law.
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What is an interim measure?
- Under the UNCITRAL Model Law, an interim measure is any temporary
measure, whether in the form of an award or in another form, by which at
any time prior to the issuance of the award by which the dispute is finally
decided, the arbitral tribunal orders a party to:
a. Maintain or restore the status quo pending the determination of the
dispute;
b. Take action that would prevent, or refrain from taking action that is
likely to cause, current or imminent harm or prejudice to the arbitral
process itself;
c. Provide a means of preserving assets out of which a subsequent award
may be satisfied or
d. Preserve evidence that may be relevant or material to the resolution
of the dispute
What is the composition of the Arbitral Tribunal?
- As to the number of the arbitrators, as a general rule, the parties are free
to determine such. Failing such determination, the number of arbitrators
shall be three (3). In an arbitration with 3 arbitrators, each party shall
appoint one arbitrator and the two arbitrators they appointed shall
appoint the third arbitrator. If a party fails to appoint, or fails to agree on
the 3rd arbitrator within thirty (30) days, appointment shall be made upon
request of a party or by the court or other authority.
What is court intervention?
- Under the UNCITRAL Model Law, no court shall intervene except as
provided. The functions of appointment of arbitrator in failure of
agreement, appointment procedure agreed upon by the parties, the
challenge procedure, failure or impossibility to act of an arbitrator, plea
that all tribunal has no jurisdiction, and setting aside an arbitral award shall
be performed by the court, specified by the State as arbitration assistance
and supervision.
What is default?
- Default is when; if, without showing sufficient cause,
a. The claimant fails to communicate his statement of claim including
facts, issue, relief, sought, the arbitral tribunal shall terminate the
proceedings;
b. The respondent fails to communicate his statement of defense within
the period of time agreed by the parties, the arbitral tribunal shall
continue the proceedings without treating such failure in itself as an
admission of the claimant’s allegations;
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c. Any party fails to appear at a hearing or to produce documentary
evidence, the arbitral tribunal may continue the proceedings and
make the award on the evidence before it.
Unless otherwise agreed by the parties, the foregoing are considered
default and is equal to a waiver of right to participate in the proceedings.
What are the grounds to terminate arbitral proceedings?
- When the claimant withdraws; when there is mutual withdrawal; or when
there is compromise
Under the UNCITRAL Model Law, the arbitral proceedings are terminated
by the final award or by an order of the arbitral tribunal issued for the
termination of the arbitral proceedings when the claimant withdraws his
claim; unless the respondent objects thereto and the arbitral tribunal
recognizes a legitimate interest on his part in obtaining a final settlement
of the dispute; the parties agree on the termination of the proceedings;
the arbitral tribunal finds that the continuation of the proceedings has for
any other reason become unnecessary or impossible.
What is the confidentiality rule?
- The ICC Arbitration Rules provided that the work of the Court is of
confidential nature which must be respected by everyone who participates
in that work with whatever capacity. Under Article I, the sessions of the
Court, whether plenary or those of a Committee are open only to its
members and to the Secretariat. However in exceptional circumstances,
the President of the Court may invite other persons to attend. Such
persons must respect the confidential nature of the work of the Court.
Covered by the confidentiality rule are the documents submitted to the
Court or drawn up by which it shall be communicated only to the members
of the Court and to the Secretariat and to persons authorized by the
President to attend court sessions. The president may also authorize
researchers for academic purposes provided the respective confidential
nature or character of the documents. Finally, only documents or
communications submitted may be destroyed unless a request was made.
What is the law governing the substance of dispute?
- Under Article 28(1) of the UNCITRAL Model law, the arbitral tribunal shall
decide the dispute in accordance with such rules of law as are chosen by
the parties as applicable to the substance of the dispute. Any designation
of the law or legal system of a given State shall be construed, unless
otherwise expressed, as directly referring to the substantive law of that
State and not to its conflict of laws rules.
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What is the law applicable to arbitration agreement?
- As a general rule, the legal principles to be applied are those used in
determining the validity of an ordinary commercial contract.
The arbitration agreement is an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether
contractual or not. It may be in the form of an arbitration clause in a
contract or in the form of a separate agreement.
What is the law applicable to arbitration procedure?
- The parties are free to agree on the procedure to be followed by the
arbitral tribunal in conducting the proceedings, subject to a few mandatory
provisions on procedure and empowers the arbitral tribunal, failing
agreement by the parties to conduct the arbitration in such a manner as it
considers appropriate. In international commercial arbitration, it is also
considered important for parties who intend to submit their dispute to
arbitration to focus upon the arbitration law prevailing at the place of
arbitration since said law regulates the internal procedures of the arbitral
process such as rules for the disclosure of documents, evidence of
witnesses, and provides directives for the conduct of arbitration
proceedings.
What is arbitration?
- Arbitration is another jurisdictional means of settling commercial disputes.
It is a private method of settling disputes, based on parties’ agreement.
The general rule is no agreement to arbitrate, no arbitration. Apart from a
few exceptions, parties must agree by contract to resort to this type of
proceedings, and determine in detail the rules governing the procedure, or
refer to existing arbitration rules under the administration of an arbitral
institution.
What are the differences between litigation and ADR?
- As to finality, court decisions are subject to various appeals while arbitral
awards are not subject to appeal. They may be challenged before the
courts only on very limited grounds. As to international recognition, a
court judgment will be recognized generally by application of a bilateral
treaty or by rather strict rules. While in arbitration, awards are recognized
through various international conventions. As to neutrality, although
national judges may be impartial, they apply the language and procedural
rules of their country and are often of the same nationality as one of the
parties. However in arbitration, parties can place themselves on an equal
footing with regard to: the place of arbitration, language, procedural rules,
nationality, of arbitrators, and legal representation. In litigation, not all
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judges are specialized. In arbitration, parties may select highly specialized
arbitrators of their choice, provided they are independent. As to flexibility,
national courts are strictly bound by their national rules of procedure while
most arbitral rules allow for great flexibility in defining the arbitral
procedure, hearings, time, location, and etc.
What are the differences between ad hoc arbitration and institutional arbitration?
- An ad hoc arbitration means that the arbitration’s not conducted pursuant
to the rules of an arbitral institution. Since the parties are not obliged to
submit their arbitration to the rules of an arbitration institution, they may
largely stipulate their own rules of procedure. On the other hand,
institutional arbitration means that the parties choose to conduct their
arbitration procedure in accordance with the rules of, and with the
assistance of an arbitral institution. Because of the foregoing, parties
generally tend to opt for ad hoc arbitration to avoid the extra costs and
possible delays associated with the application of the rules of certain
arbitral institutions. However, ad hoc arbitration does not necessarily lead
to more rapid and less expensive arbitration proceedings.
Rule 1.1. Subject matter and governing rules.-The Special Rules of Court on
Alternative Dispute Resolution (the "Special ADR Rules") shall apply to and govern
the following cases:
a. Relief on the issue of Existence, Validity, or Enforceability of the
Arbitration Agreement;
b. Referral to Alternative Dispute Resolution ("ADR");
c. Interim Measures of Protection;
d. Appointment of Arbitrator;
e. Challenge to Appointment of Arbitrator;
f. Termination of Mandate of Arbitrator;
g. Assistance in Taking Evidence;
h. Confirmation, Correction or Vacation of Award in Domestic Arbitration;
i. Recognition and Enforcement or Setting Aside of an Award in
International Commercial Arbitration;
j. Recognition and Enforcement of a Foreign Arbitral Award;
k. Confidentiality/Protective Orders; and
l. Deposit and Enforcement of Mediated Settlement Agreements.
What is an Alternative Dispute Resolution System?
- Alternative Dispute Resolution System means any process or procedure
used to resolve a dispute or controversy, other than by adjudication of a
presiding judge of a court or an officer of a government agency, as defined
in this Act, in which a neutral third party participates to assist in the
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resolution of issues, which includes arbitration, mediation, conciliation,
early neutral evaluation, mini-trial, or any combination thereof.
What is Arbitration?
- Arbitration means a voluntary dispute resolution process in which one or
more arbitrators, appointed in accordance with the agreement of the
parties, or rules promulgated pursuant to this Act, resolve a dispute by
rendering an award
What is the difference between Court Annexed Arbitration and Court Referred
Mediation?
- Court-Annexed Mediation means any mediation process conducted under
the auspices of the court, after such court has acquired jurisdiction of the
dispute. While Court-Referred Mediation means mediation ordered by a
court to be conducted in accordance with the Agreement of the Parties
when as action is prematurely commenced in violation of such agreement.
What is Early Neutral Evaluation?
- Early Neutral Evaluation means an ADR process wherein parties and their
lawyers are brought together early in a pre-trial phase to present
summaries of their cases and receive a nonbinding assessment by an
experienced, neutral person, with expertise in the subject in the substance
of the dispute.
What is Mediation?
- Mediation means a voluntary process in which a mediator, selected by the
disputing parties, facilitates communication and negotiation, and assists
the parties in reaching a voluntary agreement regarding a dispute.
What is Mediation-Arbitration?
- Mediation-Arbitration or Med-Arb is a two step dispute resolution process
involving both mediation and arbitration.
What is Mini-Trial?
- Mini-Trial means a structured dispute resolution method in which the
merits of a case are argued before a panel comprising senior decision
makers with or without the presence of a neutral third person after which
the parties seek a negotiated settlement.
What are the limitations under R.A. 876?
- R.A. 9285 provides that the provisions of this Act shall not apply to
resolution or settlement of the following:
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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.
Who is an Appointing Authority?
- Appointing Authority as used in the Model Law shall mean the person or
institution named in the arbitration agreement as the appointing
authority; or the regular arbitration institution under whose rules the
arbitration is agreed to be conducted. Where the parties have agreed to
submit their dispute to institutional arbitration rules, and unless they have
agreed to a different procedure, they shall be deemed to have agreed to
procedure under such arbitration rules for the selection and appointment
of arbitrators. In ad hoc arbitration, the default appointment of an
arbitrator shall be made by the National President of the Integrated Bar of
the Philippines (IBP) or his duly authorized representative.
Role of Lawyers:
Role of Counsel. (a) The lawyer shall view his/her role in the mediation as a
collaborator with the other lawyer in working together toward the common goal of
helping their clients resolve their differences to their mutual advantage.
(b) The lawyer shall encourage and assist his/her client to actively
participate in positive discussions and cooperate in crafting an agreement
to resolve their dispute.
(c) The lawyer must assist his/her client to comprehend and appreciate the
mediation process and its benefits, as well as the client’s greater personal
responsibility for the success of mediation in resolving the dispute.
(d) In preparing for participation in mediation, the lawyer shall confer and
discuss with his/her client the following:
(i) The mediation process as essentially a negotiation between the
parties assisted by their respective lawyers, and facilitated by a
mediator, stressing it its difference from litigation, its advantages
and benefits, the clients heightened role in mediation and
responsibility for its success and explaining the role of the lawyer
in mediation proceedings,
(ii) The substance of the upcoming mediation such as;
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(aa) The substantive issues involved in the dispute and
their prioritization in terms of importance to his/her
client’s real interests and needs.
(bb) The study of other party’s position in relation to the
issues with a view to understanding the underlying
interests, fears, concerns and needs;
(cc) The information or facts to be gathered or sought
from the other side or to be exchanged that are
necessary for informed decision-making;
(dd) The possible options for settlement but stressing the
need to be open-minded about other possibilities; and
(ee) The best, worst and most likely alternative to a non-
negotiated settlement.
What are the qualifications of an arbitrator under R.A. 876?
- Any person appointed to serve as an arbitrator must be of legal age, in full-
enjoyment of his civil rights and know how to read and write. No person
appointed to be served as an arbitrator shall be related by blood or
marriage within the sixth degree to either party to the controversy. No
person shall serve as an arbitrator in any proceeding if he has or has had
financial, fiduciary or other interest in the controversy or cause to be
decided or in the result of the proceeding, or has any personal bias, which
might prejudice the right of any party to a fair and impartial award.
How are Arbitrators selected?
- Art. 10 of the UNCITRAL Model Law. Number of Arbitrators.
1. The parties are free to determine the number of arbitrators.
2. Failing such determination, the number of arbitrators shall be three
- Art. 11. Appointment of Arbitrators:
1. No person shall be precluded by reason of his nationality from acting
as an arbitrator, unless otherwise agreed by the parties.
2. The parties are free to agree on a procedure of appointing the
arbitrator or arbitrators, subject to the provisions of paragraphs (4)
and (5) of this article.
3. Failing such agreement, (a) in an arbitration with three arbitrators,
each party shall appoint one arbitrator, and the two arbitrators thus
appointed shall appoint the third arbitrator; if a party fails to appoint
the arbitrator within thirty days of receipt of a request to do so from
the other party, or if the two arbitrators fail to agree on the third
arbitrator within thirty days of their appointment, the appointment
shall be made, upon request of a party, by the court or other authority
specified in article 6; (b) in an arbitration with a sole arbitrator, if the
parties are unable to agree on the arbitrator, he shall be appointed,
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upon request of a party, by the court or other authority specified in
article 6.
4. Where, under an appointment procedure agreed upon by the parties,
(a) a party fails to act as required under such procedure, or (b) the
parties, or two arbitrators, are unable to reach an agreement expected
of them under such procedure, or (c) a third party, including an
institution, fails to perform any function entrusted to it under such
procedure, any party may request the court or other authority
specified in article 6 to take the necessary measure, unless the
agreement on the appointment procedure provides other means for
securing the appointment.
5. A decision on a matter entrusted by paragraph (3) or (4) of this article
to the court or other authority specified in article 6 shall be subject to
no appeal. The court or other authority, in appointing an arbitrator,
shall have due regard to any qualifications required of the arbitrator
by the agreement of the parties and to such considerations as are
likely to secure the appointment of an independent and impartial
arbitrator and, in the case of a sole or third arbitrator, shall take into
account as well the advisability of appointing an arbitrator of a
nationality other than those of the parties
Type of Interim Measure of Protection that a court may grant under Special Rules
of Court on Alternative Dispute Resolution:
The following, among others, are the interim measures of protection that a
court may grant:
a. Preliminary injunction directed against a party to arbitration;
b. Preliminary attachment against property or garnishment of funds in the
custody of a bank or a third person;
c. Appointment of a receiver;
d. Detention, preservation, delivery or inspection of property; or,
e. Assistance in the enforcement of an interim measure of protection
granted by the arbitral tribunal, which the latter cannot enforce
effectively.
Interim Measure of Protection under R.A. 9285:
The following rules on interim or provisional relief shall be observed:
(1) Any party may request that provision relief be granted against the
adverse party:
(2) Such relief may be granted:
(i) to prevent irreparable loss or injury:
(ii) to provide security for the performance of any obligation;
(iii) to produce or preserve any evidence; or
(iv) to compel any other appropriate act or omission.
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