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POINTERS TO REVIEW IN ALTERNATIVE DISPUTE RESOLUTION
I. Procedures on Arbitration Process (Procedures to adapt when the arbitrator cannot make a definitive ruling?)
II. Disclosure (What matters are to be disclosed to the parties?)
-‐ Arbitrators are required to disclose prior contacts and relationships. Hence, involves the requirement that arbitrators are impartial and independent. It is also important to note that arbitrators may be removed not necessarily because the relationship is a ground for inhibition but because of the failure to disclose.
-‐ Matters touching on relationships and events, other than casual, that are related to the arbitration; the parties to the arbitration, including directors, important officers and significant stockholders; the other arbitrators, party representatives (or counsel for the parties), even important witnesses.
-‐ in case of doubt, the unwritten rule is to disclose
III. Party Autonomy vs Statutory Arbitration
-‐ Party autonomy is a choice of law doctrine that permits parties to choose the law of a particular country or sovereignty to govern their contract that involves two or more jurisdictions.
-‐ On the other hand, statutory arbitration pertains to
matters that are ordered in more or less detail by a statute. Unlike in party autonomy, statutory arbitration does not require agreement but a stipulation to commence to arbitration.
IV. Classification of Courts which intervene in the Arbitration
V. Cognizance of International Arbitration agreement /awards outside the Philippines
VI. Issues as to the appointing authority in arbitration in the presence or absence of a ���provision in the arbitration agreement (Who can appoint?)
VII. Basis of right not to be appointed as an arbitrator
VIII. Crafting the Arbitration Procedure
- In arbitration, it is the parties that craft the procedure. However, Model Law 19(2) allows an alternative for the tribunal to craft the procedure in case such agreement fails.
-‐ Since arbitration allows the parties to control many more aspects of the dispute resolution process than the traditional litigation, drafting precise arbitration clauses would help parties to achieve such specific proceeding as on how they’d want it to occur. In line with this, the following topics are fundamental to prepare an arbitration provision that captures the intent of the parties and avoids needless litigation and costs: 1. Conditions Subsequent to the Arbitration
-‐ Beneficial to require the parties to comply with certain requirements before a formal demand for
arbitration is made. 2. Seat of Arbitration
-‐ To be able to understand the specific rules and practices of potential forums, which will govern how the arbitration will proceed.
3. Timing Provisions -‐ Parties can agree the time frame of the arbitration. 4. Quality and Number of Arbiters -‐ Parties can agree beforehand the number and qualifications of the arbiters participating in the arbitration. 5. Confidentiality -‐ As opposed to court filings, arbitrations are conducted outside the public record thus allowing for greater confidentiality. 6. Language 7. Domestic or International -‐ Some countries have specific laws that deal with domestic vs. international categorization of arbitrations, and this can have a significant effect on both the process and outcome of the arbitration. 8. Costs and Attorney’s Fees -‐ Allocation is at the discretion of the arbiter or the arbitration tribunal. 9. Concurrent, Subsequent and Final Proceedings -‐ A well-‐drafted arbitration clause should be understood as the exclusive or final resolution of a dispute. While there are inherent risks and costs in any transaction, these can be lessened if parties take the small affirmative
step of preparing detailed arbitration provisions.
IX. Schedule of fees
X. Parties failed to attend preliminary conference; refuse to sign the Terms of ���Reference (TOR). (Under the ICC Arbitration as counsel for the corporation what are ���the steps to take if you want to continue or go on with the arbitration process?)
XI. Rules of confidentiality
XII. If there’s no disclosure
- It is also important to note that arbitrators may be removed not necessarily because the relationship is a ground for inhibition but because of the failure to disclose.
XIII. Non-‐lawyer serving as arbitrator
XIV. Remedies when the client avoid arbitration (whether or not arbitration process in ���pathological?)
XV. What to do if the tribunal rule that it has no jurisdiction?
XVI. Suspension of arbitration during the pendency of a prior case
XVII. Independent autonomy of panel of arbitrators.
XVIII. May the party/parties withdraw the arbitrator’s
appointment? (Grounds for ���disqualification)
XIX. What to do when the arbitrator does not understand the legal basis/law of the ���contract?
XX. What the arbitrator should do if there are two wrong legal theories?
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