SANTOS, Karichi E. Civil Procedure Assignment Page 1 of 6

Table 1 RA 9285 (Alternative Dispute Resolution Act of 2004)

Republic Act No. 9285 (Alternative Dispute Resolution Act of 2004) Alternative Dispute Resolution System – 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 resolution of issues,

which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial or any combination thereof.

General Provisions Mediation Other ADR Forms International Commercial

Arbitration Domestic Arbitration

Arbitration of

Construction Disputes

Judicial Review of

Arbitral Awards Declaration of Policy Definition Referral Governing Rules Governing Rules Governing Rules Domestic Awards

1. Actively promote party autonomy –

the freedom of the party to make

their own arrangements to resolve

their disputes

2. Achieve speedy and impartial justice

3. Declog court dockets

- a voluntary process in which a mediator,

selected by the disputing parties:

[1] facilitates communication and negotiation &

[2] assists the parties in reaching a voluntary

agreement regarding a dispute

Parties may agree to refer:

- one or more or all issues

- arising in a dispute or during its

pendency

• Governed by Model Law on

International Commercial

Arbitration adopted by UN

Commission on Intl Trade Law

(UNCITRAL)

• Governed by Republic Act No. 876,

“The Arbitration Law” as amended

by this Chapter

• The succeeding provisions were

culled from the text of RA 876

• Governed by Executive Order No.

1008, “Construction Industry

Arbitration Law”

Confirmation of Awards

• Governed by RA 876

• See Page

• EFFECT OF CONFIRMATION?

Enforceable in the same manner as

final and executory decisions of RTC

• HOW TO CONFIRM? In the RTC, in

accordance with SC RoC

• CIAC arbitral award: need not be

confirmed by RTC to be executory

(as provided for in EO 1008)

Vacation of Awards

HOW TO QUESTION ARBITRAL

AWARD?

- By any party

- With the appropriate RTC

- In accordance with RoC

- Grounds: enumerated in Sec

25 of RA 876

Exception Scope To other forms of ADR Interpretation of Model Law Subject of Arbitration Coverage of the Law

1. Labor disputes

2. Civil status of persons

3. Validity of a marriage

4. Any ground for legal sep

5. Jurisdiction of courts

6. Future legitime

7. Criminal liability

1. Voluntary mediation – which includes both:

a. Ad hoc

b. Institutional

2. Conciliation

3. Exception: Court annexed – any mediation

process conducted under the auspices of the

court after such court has acquired

jurisdiction of the dispute

(a) evaluation of a 3rd

person

(b) mini-trial

(c) mediation-arbitration

(d) combination thereof

• Regard given to international origin

and need for uniformity in

interpretation.

• Resort to “preparatory works” and

report of UN SecGen of UNCITRAL

• Two or more persons may SUBMIT

to the arbitration of one or more

arbitrators any controversy existing

between them at the time of the

submission and subject of an action

• Parties to a contract may in such

contract agree to settle by

arbitration any future controversy

• Under the jurisdiction of the Const

Industry Arbitration Commission

(CIAC): Between or among parties to

OR who are bound by an arbitration

agreement

• CIAC still has jurisdiction, even if

“commercial” arbitration pursuant to

Section 21

Application and Interpretation Governing rules Referral to Arbitration Limits of Applicability Arbitrators

1. Promote candor of parties and mediator

through confidentiality of the process

2. Foster prompt, economical and amicable

resolution of disputes

3. Integrity of determination by parties

4. Decision making authority rests with the

parties

Use of other ADR forms governed by

Chapter 2 (Mediation)

EXCEPT: Where combined with

arbitration, governed by Chapter 5

(Arbitration)

If the matter is subject of an

arbitration agreement court shall refer

to arbitration if request made by:

• One party, before pre-trial

• Both parties, even after pre-trial

• UNLESS, the court finds arbitration

agreement to be [1] null and void,

[2] inoperative or [3] incapable of

being performed

Not applicable:

• To controversies and to cases which

are subject to the jurisdiction of

Court of Industrial Relations (CIR) or

which have been submitted to it as

provided by CA 103

• If one party to controversy is

[1]infant or [2] judicially declared to

be incompetent

By written agreement of the parties:

• Arbitrator may act as mediator and

mediator may acts as arbitrator

• If mediation is successful � mediator

shall issue settlement agreement in

the form of an arbitral award

Foreign arbitrator: allowed by rules of

CIAC, PROVIDED:

(a) one party is international party

(b) person to be appointed agree to

abide by arb rules and policies of CIAC

(c) either co-arbitrator upon

nomination of international party OR

s/he is the common choice of the 2

CIAC-accredited arbitrators first

appointed one of whom was nominated

by the international party

(d) foreign arbitrator shall be of

different nationality from the

international party

Confidentiality of Information obtained

through Mediation Proceeding

Confidentiality of Arbitration

Proceedings Procedure for Arbitration Foreign Arbitral Awards

See Page 2

[1] Arbitrations proceedings, [2] records, [3] evidence and [4] arbitral award shall

be confidential AND not be published EXCEPT:

• With consent of parties

• Limited purpose of disclosing to the court of relevant docs in cases where

resort to the court is allowed

PROVIDED: Court where action/appeal is pending may issue protective order to

prevent/prohibit disclosure of documents or information containing secret

processes, development, research and other info where it is shown that the

applicant shall be materially prejudiced by an authorized disclosure thereof

See Page 6

• New York Convention shall govern

the recognition and enforcement of

arbitral awards covered by said

Convention

HOW TO FILE FOR RECOGNITION AND

ENFORCEMENT?

• File with the RTC in accordance with

the SC RoC

• Party relying on the award or

applying for its enforcement shall

[1] file with the court: original or

authenticated copy of the award and

the arbitration agreement

- if award/agreement not made in any

of the official languages, party shall

supply duly certified translation

thereof into any such languages

[2] establish that the country in which

foreign arbitration award was made is

party to the NY Convention

• Application for rejection/suspension

of enforcement of an award has

been made � RTC may vacate its

decision and order party to provide

appropriate security

• NOT COVERED BY NY

CONVENTION? SC RoC, on grounds

of comity and reciprocity

• Procedure – See Page 4

Procedure for Mediation Procedure for Arbitration CIAC preferred over Courts

Who may participate in mediation

• Party may designate a lawyer or any other person to provide assistance to him

• Waiver of right of [1] participation OR [2] legal representation:

o Must be in writing

o May be rescinded at any time

Place of mediation

• Parties are free to agree. Failing agreement � any place convenient and appropriate to

all parties

Institutional mediation

• Agreement to submit dispute to mediation by any institution shall include an agreement

to be bound by the internal mediation and administrative policies of such institution.

• In case of conflict between institutional mediation rules and ADR provisions: ADR prevails

Enforcement of Mediated Settlement Agreement

• See Figure 1 on Page 3

Legal representation If conducted in the Philippines � party may be represented

by any person of his choice. PROVIDED, only lawyers (admitted to practice of law in

Phil) are authorized to appear as counsel in any court, or any other quasi-judicial

body WON such appearance is in relation to the arbitration

Action commenced by or against multiple parties and not everyone bound by

arbitration agreement � Civil action may continue as regards those not bound

Place of arbitration

• Free to agree on place. Failing agreement � in Metro Manila UNLESS arbitral

tribunal decide on a different place for arbitration, with regard to circumstances

and convenience of parties

• Arbitral tribunal may meet at any place (UNLESS parties otherwise agreed) for

[1] consultation among its members, [2] hearing witnesses, experts or the

parties, [3] inspection of goods, other property or documents

Language of arbitration

• Free to agree on language. Failing agreement � English in international

arbitration and English/Filipino for domestic arbitration, UNLESS arbitral tribunal

determine different or another language. Applicable to any written statement,

hearing, award, decision or other communication by arbitral tribunal.

Regional Trial Court shall dismiss

construction dispute:

- upon becoming aware before pre-

trial conference that parties had

entered into arbitration agreement to

be conducted by CIAC

- UNLESS both parties, assisted by their

respective counsel, shall submit to the

RTC a written agreement exclusive for

the Court, rather than the CIAC, to

resolve the dispute

Procedure for CIAC See Page 5

SANTOS, Karichi E. Civil Procedure Assignment Page 2 of 6

Confidentiality of Information

PRINCIPLES AND GUIDELINES FOR INFORMATION OBTAINED

THROUGH MEDIATION PROCEEDINGS

1. Information obtained through mediation shall be privileged and

confidential

2. A party, mediator or non-party participant may:

a. refuse to disclose AND

b. prevent any other person from disclosing a mediation

communication

3. Confidential information shall

a. not subject to discovery

b. inadmissible in any adversarial proceeding, whether

judicial or quasi-judi

4. In an adversarial proceeding, the ff people can’t be compelled to

disclose confidential info:

a. Parties to the dispute

b. Mediator/s

c. Counsel for the parties

d. Non-party participants

e. Any person/s hired/engaged in connection with

mediation as secretary, stenographer, clerk or asst

f. Any other person who obtains or possesses confidential

info by reason of his/her profession

5. Protections of this Act shall continue to apply even if a mediator

is found to have failed to act impartially

6. Mediator may not be called to testify to provide information

gathered in mediation.

WAIVER OF CONFIDENTIALITY

A. How to waive privilege arising from confidentiality of

information?

1. By the mediator and mediation parties:

• In a record

• Orally during a proceeding

2. By a non-party participant

• Only if information is provided by such non-party

participant

B. Effects of waiver of confidentiality

• If another person is prejudiced and it becomes necessary

to respond to the representation of disclosure � Party

who discloses is precluded from asserting privilege under

Sec 9 to bar disclosure of the rest of information which

are necessary to a complete understanding of the

previously disclosed information

EXCEPTIONS TO THE PRIVILEGE

A. If mediation communication is:

1. In an agreement evidence by a record authenticated by

all parties to the agreement

2. Available to the public OR That is made during a session

of a mediation which is open OR Required by law to be

open to the public

3. Threat or statement of a:

- Plan to inflict bodily injury

- Commit a crime of violence

4. Internationally used to

- Plan a crime

- Attempt to commit or commit a crime

- Conceal an ongoing crime or criminal activity

5. Sought or offered to prove or disprove

- abuse, neglect, abandonment, or exploitation in a

proceeding in which a public agency is protecting

the interest of an individual protected by law;

Exception does not apply where:

- a child protection matter is referred to mediation by

a court or

- a public agency participates in the child protection

mediation

6. Sought or offered to prove or disprove a claim or

complaint of professional misconduct or malpractice filed

against mediator in a proceeding; or

7. Sought or offered to prove or disprove a claim of

complaint of professional misconduct of malpractice filed

against a party, nonparty participant, or representative of

a party based on conduct occurring during a mediation.

B. Court/admin agency finds [1] after hearing in camera that [2]

party seeking discovery has shown that [3] evidence is not

otherwise available, [3] there is a need for the evidence which

substantially outweighs interest protecting confidentiality and

[4] mediation communication is sought/offered in

1. Court proceeding involving a crime or felony

2. Proceeding to prove claim/defense the under the law is

sufficient to reform/avoid a liability on a contract arising

out of the mediation

C. Mediator may not be compelled to:

- Provide evidence of mediation communication

- Testify in such proceeding

D. If mediation communication not privileged under an exception

in A or B � only portion necessary for the application of the

exception for nondisclosure may be admitted (i.e. limited

purpose of an exception)

• Effect: admission of particular evidence =/ admissible for

any other purpose

Mediator’s Duties and Responsibilities

When may a mediator make a [1] report, [2] assessment, [3]

evaluation, [4] recommendation, [5] finding or [6] other

communication regarding a mediation to a court or agency or other

authority that make a ruling on a dispute subject of a mediation?

• GENERALLY not allowed

• EXCEPTIONS

1. Where the mediation occurred or has terminated

Where a settlement was reached

2. As permitted to be disclosed under Sec 13 (i.e. facts

which are likely to affect impartiality)

PERMITTED DISCLOSURES & CONFLICT OF INTEREST Sec 13

A. Duties before acceptance of mediation

1. Make reasonable inquiry to determine whether there are

any known facts a reasonable individual would consider

likely to affect impartiality of mediator e.g.

a. Financial or personal interest in the outcome

of the mediation

b. Any existing or past relationship with a party

or foreseeable participant in the mediation

2. When to disclose? As soon as practical before acceptance

of mediation

B. If mediator learns fact in A(1) only after acceptance of

mediation � disclose it as soon as practicable

Mediator shall disclose his qualifications � at the request of any

party

• Act does not require any special qualifications by

background or profession UNLESS required by the:

o Mediation agreement OR

o Mediation parties

SANTOS, Karichi E.

Figure 1 Enforcement of a Mediated Settlement Agreement

pre

pa

re

1. If mediation is successful � prepare settlement agreement by: [1] parties with assistance of counsel & [2] mediator.

2. Parties and counsels:

[1] endeavor to make terms and condition complete AND

[2] make adequate provisions for the contingency of bread to avoid conflicting interpretations of agreement.

sig

n a

nd

ce

rtif

y 1. Parties and counsels SIGN the settlement agreement.

2. Mediator CERTIFIES s/he explained the contents of the settlement to the parties in a language known to them

Civil Procedure Assignment

1. Parties and counsels SIGN the settlement agreement.

2. Mediator CERTIFIES s/he explained the contents of the settlement to the parties in a language known to them

de

po

sit

If parties so desire �

DEPOSIT settlement agreement with appropriate Clerk of RTC where the place where one party resides.

en

forc

em

en

t 1. Need to ENFORCE settlement � petition may be filed by of the partieswhich will proceed hear the petition, in accordance with rules as SC may promulgate

2. Treat “settlement agreement” as an “arbitral award”

•HOW? By parties’ agreement that mediator shall become sole arbitrator

•EFFECT? Subject to enforcement under RA 876, despite provisions of EO 1008 for mediated dispute outside CIAC

Page 3 of 6

1. Need to ENFORCE settlement petition may be filed by any

of the parties with same courtwhich will proceed summarily to hear the petition, in accordance with rules as SC may promulgate

2. Treat “settlement agreement” as an “arbitral award”

HOW? By parties’ agreement that mediator shall become sole arbitrator

EFFECT? Subject to enforcement under RA 876, despite provisions of EO 1008 for mediated dispute outside CIAC

SANTOS, Karichi E. Civil Procedure Assignment Page 4 of 6

New York Convention on the

Recognition and Enforcement of

Foreign Arbitral Awards

APPLICABILITY

1. Recognition and enforcement of arbitral awards made

in the territory of a State other than the State where

recognition and enforcement of such awards are

sought AND arising out of differences between persons

2. Arbitral awards not considered domestic awards in the

State where their recognition and enforcement are

sought

PROCEDURE FOR THE STATES

1. Recognize the parties’ agreement in writing

• Differences in respect of a defined legal

relationship, contractual or not, concerning a

matter capable of settlement by arbitration

2. Refer parties to arbitration at the request of one of the

parties

• Unless agreement is null and void, inoperative or

incapable of being performed

3. Recognize arbitral awards as binding

4. Enforce arbitral awards in accordance with the rules of

procedure of territory where it is relied upon

• Also, refrain from imposing substantially more

onerous charges

RESPONSIBILITY OF PARTY APPLYING FOR

RECOGNITION AND ENFORCEMENT

Supply to the court the following at the time of the

application:

1. Duly authenticated original award or a duly

certified copy thereof

2. Original agreement referred to in Art II or a duly

certified copy thereof

If award OR agreement not made in an official language

� produce translation (certified by an official/sworn

translator OR diplomatic/consular agent) of these

documents into such language

REFUSAL TO RECOGNIZE AND ENFORCE AWARD

How done?

• At the request of party against whom it is invoked

• Said party furnishes to competent authority proof

that:

a. Parties to agreement were

[1] incapacitated under the applicable law OR

[2] agreement not valid under the law to which parties

have subjected it

b. Adverse party was

[1] not given proper notice of the appointment of

arbitrator OR

[2] was otherwise unable to present his case

c. Award

[1] deals with a difference not contemplated by or not

falling within the terms of the submission to arbitration

OR [2] contains decisions on matters beyond the scope

of the submission

PROVIDED decision on matters submitted can be

separated from not so submitted, there may be partial

recognition as to the former

d. Composition of the arbitral authority or the arbitral

procedure was

[1] not in accordance with the agreement of the parties

OR [2] failing such agreement, was not in accordance

with the law of the country where arbitration took place

e. Award

[1] has not yet become binding on the parties OR

[2] has been set aside or suspended by a competent

authority of the country, in which under the law of

which, that award was made

f. Competent authority in the country where recognition

and enforcement is sought finds that:

[1] subject matter of the difference is not capable of

settlement by arbitration under the law of that country

[2] recognition or enforcement of the award would be

contrary to public policy of that country

EFFECTS OF APPLICATION TO SET ASIDE OR

SUSPEND AWARD � In relation to Art V 1 (e) “set aside or suspended”

Authority before which the award is sought to be relied upon

may, if it considers it proper:

• Adjourn the decision on the enforcement of the

award

• On the application of party claiming enforcement

award: order adversarial party to give suitable

security

SANTOS, Karichi E. Civil Procedure Assignment Page 5 of 6

Executive Order No. 1008

CREATION OF ARBITRATION MACHINERY

IN THE CONSTRUCTION INDUSTRY OF THE

PHILIPPINES

I. Policy

A. Encourage the early and expeditious settlement of

disputes in the Philippine construction industry

II. Jurisdiction

A. Construction Industry Arbitration Commission

(CIAC) shall have original and exclusive jurisdiction

over disputes arising from or connected with

contracts entered into by parties involved in

construction.

B. Whether the dispute arises: 1. BEFORE or AFTER completion of the contract 2. AFTER the abandonment or breach thereof

C. Disputes may involved

D. Requisite for acquisition of jurisdiction – parties to

a dispute must agree to submit the same to

voluntary arbitration

E. What may be included within jurisdiction of CIAC

1. Violation of specifications for materials and

workmanship

2. Violation of terms of agreement

3. Interpretation and/or application of

contractual time and delays

4. Maintenance and defects

5. Payment, default of employer or contractor

6. Changes in contract cost

F. What is excluded in the coverage – disputes arising

from employee-employer relationships (covered by

Labor Code)

III. Arbitrators

A. May have one or three arbitrator

B. If parties agree that dispute be settled by sole arb

� By agreement, nominate from list of accredited

arbitrators by CIAC for appointment and

confirmation

C. If parties fail to agree on sole arbitrator

� CIAC has option to appoint single OR Arbitral

Tribunal, taking into consideration complexities

and intricacies of the dispute/s

D. If CIAC appoints Arbitral Tribunal

� Each party may nominate 1 arbitrator from the

list of accredited arbitrators

� 3rd

arbitrator to be appointed by CIAC

E. Qualifications

1. Men or distinction in whom the business

sector and government can have confidence

2. Not permanently employed with CIAC

3. Render services only when they are called to

arbitrate

F. Expert arbitrators

1. Only if requested by any of the parties OR by

the Arbitral Tribunal

2. If done by either or both of the parties

a. Appointment of expert to be confirmed

by the Arbitral Tribunal

b. Parties shoulder the expert’s fees and

expenses

c. Deposit with Secretariat half of the said

fees before commencement of service

d. If only one party request � he shall

deposit the whole amount required

IV. Awards

A. Binding upon the parties

B. Final and inappealable EXCEPT on questions of law

which shall be appealable to the Supreme Court

C. Final and executory

D. Issuance of writ of execution may be motu propio

OR on motion of any interested party

SANTOS, Karichi E. Civil Procedure Assignment Page 6 of 6

Republic Act No. 876

“THE ARBITRATION LAW”