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AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

ALTERNATIVE DISPUTE
RESOLUTION
By. Atty. Gabriel Robeniol

Requirements of conducting pre-trial


conference
Utilization on different modes of
discovery
Proscription against forum shopping

Chapter 1: Introduction

Historical Rule:
Judicial and Legislative trends:
Utilization of alternatie means and
methods implemented in or outside
the court trial system
Civil Code of the Philippines:
30 August 1950
Contains provisions of/or on
compromise arbitration.
Encourages litigants to agree upon
fair compromise and authorize
arbitration
19 June 1953
Enactment of arbitration law
Republic Act. 876
20 May 1965
Convention on the recognition and
enforcement of foreign arbitration /
arbitral awards
Philippine law has acknowledged the
international arbitration as system of
setting commercial dispute.

UNCITRAL
Model law which the Philippines
committed its adherence.
Judiciary Action
Response of Judiciary to the Problems of
Delay.

The supreme court encourages the


use of arbitration through Philippine
Mediation Commission or through
Judicial Dispute Resolution (JDR)

Legislative Action:
Special domestic legislation passed
the prescription of arbitration,
mediation and conciliation.
E.G:
o Labor
Code
of
the
Philippines
o National Labor Relations
Commissions
Concerning:
Unfair Labor Practice
Termination
of
Employment
Conditions
of
Employment
Damages arising from
EE
Brgy. Level Arbitration
Executive Branch Contribution:
CIAC Construction Industry
Arbitration Commission Enacted
during 4 Feb 1985 concerning
constriction dispute
23 August 1998 rules of procedure
governing construction arbitration
19 November 2005 CIAC revised
rules of procedure governing
construction arbitration
22 March 2010 rules on ADR for
dispute between national government
agencies: amicable settlement dipute

This is done for non commercial use/


Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

THE ADR Act of 2004


Dispute resolution law
An act to institutionalize use of an
alternative dispute resolution system
in the Philippines and to establish the
office for alternative dispute
resolution and for other purpose.
28 April 2004
Philippines as the Venue of ICA

RTC must refer to arbitration


in proper case
Foreign Arbitral awards must
be confirmed by RTC
The RTC has jurisdiction to
review foreign arbitral awards
Grounds for judicial review
different in Domestic and
Foreign arbitral awards.
RTC Decisions of assailed
foreign
arbitral
awards
appealable: CA, certiorari

The Lawyers Role


Contribute to the promotion of ADR
Assist courts in encouraging the
parties to avail of alternative means
of dispute resolution
Explain the benefits of the ADR
system.

Chapter 2: Fundamentals of Alternative


Dispute Resolution
Alternative Dispute Resolution
Expeditious and speedy manner
Methods of resolving dispute outside
the court trial system
Includes similar process in quasi
judicial agencies
Any process the used to resolve a
dispute or controversy
Neutral third party
State Policy in ADR
ADR act of 2004 declared the state
policy
Promote party autonomy resolution
of dispute
Freedom of the party to choose or
make their own arrangement to
resolve dispute
Provides solutions that is less time
consuming, less confrontational
procedure of goodwill and lasting
friendship
Wave of the future in international
relationship
Principles of ADR
Promotion of party autonomy and
self determination in dispute
resolution
Recognition of ADR as an efficient
tool and an alternative procedure for
the resolution of cases
Enlisting
a
private
sector
participation
Objectives and Benefits of ADR
Speedy and impartial justice
Declogging of court dockets.
Features of ADR
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Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

ADR means used to resolve a dispute


or controversy
Exceptions: intention is to cause
delay or suspend the proceeding
ADR utilize means and methods
allowed by law
ADR is contractual in nature
ADR avoids court trial
ADR
usually
involves
the
participation of neutral third party

Sources of ADR
Domestic Laws and Rules
Constitution
Civil Code
Arbitration Law
Acts of the Executive Branch
Decisions of the Supreme Court
International Law : UNCITRAL
General principle of Law and Equity
Forms of ADR
Arbitration arrangement of the and
abiding by the judgment or selected
person in dispute; binding between
the parties
Mediation voluntary agreement
between the parties with the help of
third person to convince them to
come into an agreement; non binding
between eh parties.
Conciliation conciliation of dispute
in an unantagonistic manner
Neutral lawyers are brought to
present the summary of the case
Early Neutral availed of in pre
trial case
Mini trial merits of the case ar
argued in front of a panel
Any combination of the foregoing
Any other ADR forms
Classification of Forms of ADR
As to the number of parties:

o Bi party one or two


parties
o Multi Party two or more
AS to the number of issues involve:
o Simple one issues involve
o Complex two or more
issues
As to the extent of conclusion
o Complete all issues involve
is resolve
o Partial only two or three
issues involve are resolved
but not all
As to the role of evidence in the
proceedings
o Evidentiary
o Non merit based
As to the pendency of the court case
o Case related when there is
a case involved
o Independent
AS to the applicable law
o Domestic when the place of
business and arbitration is in
the Philippines
o International when the
place of business involved
two states and arbitration is
outside the Philippines
o Foreign when the place of
business is outside the
Philippines
and
the
arbitration is outside the
Philippines.
As to the permanency of the ADR
provider
o AD HOC temporary
o Institutional permanent

Components of ADR
Contending parties
Dispute or controversy
Form of ADR
ADR provider or practitioner

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He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

Subject matter of ADR


Adversarial dispute and controversy
Exception:
o Civil Status of persons
o Validity of marriage and any
other
forms
of
legal
separation
o Jurisdiction of courts
o Future legitime
o Criminal Liability
o In general which the law
cannot be compromise
Basic Concepts of ADR
Concluding Acts or Arguments
o Arbitral Award final
decision of arbitration on
awarding
issue
or
controversy
o Mediated
Settlement
agreement

contract
executed by the parties
o Compromise or compromise
agreement avoidance of
litigation or to put an end to
the one already existing
o Waiver or quitclaim a
statement renouncing any
right or claim
ADR providers or practitioners
Preferences of ADR
Office for ADR
ADR agency attached to DOJ
Executive Director appointed by the
president upon recommendation of
secretary of justice

Chapter 3: Mediation under ADR Act of


2004
Mediation
Voluntary process in which a
mediator is selected by the disputing
parties
Facilitates
communication
and
negotiation
Assist the parties in reaching
voluntary agreement
Court Annexed Mediated
Mediation conducted
auspices of the court

under

the

Court Referred Mediation


Ordered by the court to be conducted
by the agreement of the parties
Mediator
Person conducting mediation
Mediation Practitioner
Parties in mediation
Non Party participants
Witness, resource person, or expert
Classification of Mediation
Non evidentiary or non merit
based mediated
o Focuses on facilitation or
communication
and
negotiation between the
parties in encouraging to
voluntarily settle dispute
Institutional

This is done for non commercial use/


Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

o Administered and conducted


by or under the rules of
mediation institution
Ad Hoc
o Other than institutional

To be bound by the internal


mediation and the administrative
policies of such institution
To have such rules govern the
mediation of the dispute and for the
mediator

Place of Mediation
Two disputing parties are free to
agree the place\
In the absence default is
convenient to and appropriate to all
the parties
Stages of Mediation
Opening statement of mediator
Individual narration by the parties
Exchange by the parties
Summary issues
Generalization and evaluation of
options
Closure
Mediation shall be held in private
Exceptions: Parties consented that there be
other persons
Closed and concluded
Execution of settlement agreement
Withdrawal of any party from
mediation
Written declaration
Advantages of Mediation
Confidentiality in Mediation Process
Prompt,
economical
amicable
dispute resolution

The decision making authority rest


upon the parties

Confidential and Privileged nature of


Mediation Communication
All information of evidence is
privileged and confidential in
character
Confidential Information
Any information relative to the
subject of mediation or arbitration
Expressly intended not to be
disclosed
Expressly Confidential
Impliedly confidential
Creates reasonable expectations
Confidential Information Includes:
Communication
Oral or Written statements
Pleadings, motions, manifestations
Legal effects of Confidential and
privileged nature
A party may refuse to disclose
Not subject to discovery and
inadmissible
in
adversarial
proceedings

o People cannot be compelled


to disclose information
Parties to the dispute
Mediation
Counsel for the parties
Non Party
Secretary, stenographer, assistants
Any
persons
who
obtains
information
Continues even the mediator fialed
to act impartially
Mediator may not be called to testify

This is done for non commercial use/


Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

Exceptions based on agreement, Nature of


Proceedings, Crime or Social Justice
Contained in an agreement evidence
by a record authenticated by all
parties to agreement
Made public or required by the
courts to make it public
A threat or statement of plan to
inflict bodily injury
Communication on attempt to
commit a crime
Used to approve or disprove neglect,
abandonment or exploitation
Used to sought or complaint against
misconduct
Non party base agreement
Exceptions based on Public Policy
Court proceeding involving a crime
or felony
Avoid liability on contracts arising
from mediation
Limited use of External Evidence
Only
such
portion
of
the
communication necessary for the
application of the exception can be
admitted in evidence
Privileged Mediation
Bound by the confidential privileged
Exception
o Termination of mediation
o Settlement was reached
o Permitted to be disclosed
Waiver of Confidentiality
Expressed
Implied

The party requested


Lacks qualifications, training and
experience
Mediators impartiality is in question
Violation of ethical standards
Safety will be jeopardized
Unable to provide effective services
Conflict of interest
Other instances

Duties and Functions of Mediationr


Prior to Mediation
o Upgrade
professional
competencies
o Reasonable inquiry
During the Mediation
o Confidential
o Consent
and
self
determination
o Promotion of respect and
control of abuse and process
Mediators Cost and Fees
Ad Hoc free to make their own
arrangement as to the mediation of
cost and fees
Mediated Settlement Agreement
Compromise Agreement
Successful Mediation
Roles of counsel in Mediation
Collaborative
Encourage
Assist
Confer

The Mediator
OADR list and freedom to select
mediators
Withdrawal Requirements
This is done for non commercial use/
Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

Person appointed to render an award


May use his own discretion in the
performance of his function

Arbitration agreement
Agreement by the parties
In respect of legal relationship
Essential elements
Consent of the parties freely given
Cause of consideration
Lawful object

Chapter 4: Arbitration in General


Arbitration
Process which one or more
arbitrators appointed in accordance
with the agreement of the parties
It is the arbiter that decides the
dispute and renders an arbitral award
to conclude in arbitral proceedings
Kinds of Arbitration
Voluntary
o Reference of a dispute to an
impartial body
o Members are chosen by the
parties themselves
Compulsary arbitration
o Settlement of labor dispute
by the government agency
which has the authority to
investigate
Domestic
International
Foreign

Same concept lang naman to nung nasa chapter


two na foreign domestic at international dapat
alam nyo nay un.

Commercial Arbitration matters


arising from all relationship of
commercial in nature

Policy on Arbitration
Speedy and inexpensive methods
Arbitrator

Two modes in submitting dispute


Agreement to submit in arbitration
Submission agreement
Arbitration Agreement
Shall be in writing and subscribed by the
parties to be charged
May be included in arbitration clause or
compromise
Arbitration Clause
Must be liberally construed consistent
with the policy of encouraging
alternative dispute resolution method
Doctrine of Separability
Arbitration agreement is independent of
the main contact even if it contained in
Arbitration clause
Due process in Arbitral proceedings
Principles of administrative due process
equally apply to arbitral proceedings

Judicial Review and Court intervention


Proper RTC
Review Court of Appeals Rule 43 ROC
Certiorari proper court Rule 65 ROC
Interim Measures in Arbitration
Allows the application of a party to a
judicial
authority
for
interim
conservatory
Allows filing of provisional interim
measures with regular courts whenever
This is done for non commercial use/
Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.

Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

the arbitral tribunal has no power to act


effectively

parties in the exercise of their privileged


of party autonomy and self
determination
Default Rules
provisions of the IRR
Applicable only in the absence of or in
default contained in the ff: (1) an
agreement in force between the
Philippines and other state; (2) an
agreement between the parties on the
applicable rules

Chapter 5: International Commercial


Arbitration under the ADR Act of 2004 and
its IRR
International Commercial Arbitration
Instances of Occurrence of International
Arbitration
o Parties and Places of business is
in different state
o Place of arbitration provided in
the agreement where parties
have their business is outside
the Philippines
o Substantial part of obligation is
to be performed outside the
Philippines
o Subject matter of agreement
relates to more than one parties
Commercial Arbitration
o Commercial relationship in
nature
o Contractual or not
Foreign Arbitration
o International
commercial
arbitration is outside the
Philippines
Coverage of IRR Provisions of ICA
Applicable only to international
commercial arbitration
The rules of procedure for international
commercial arbitration provided for
under the ADR act or its IRR may also
be applied for international commercial
arbitration outside the Philippines if they
are adopted as rules of procedure by the

Rules of Interpretation
Interpretation of the ADR act
o due regard to the policy of law
favouring arbitration
Interpretation of the model Law
o need for uniformity of its
interpretation
Interpretation of the IRR
o Same policy
o Party autonomy
o Freedom of the parties
o Reference to an agreement
o Rules applicable to claims and
counter claims
Rules of Receipt of Written Communication
in ICA
The subject matter of the dispute may be
located in different stage
Rules communication is deemed received
Delivered to the address personally or at
his place of business, habitual residence
or mailing address
If there is none, delivery by registered
mail or attempt to deliver to last know
place of business
Waiver of the Rights to Object in ICA
Arbitration is different from mediation
in that the latter is not merit or evidence
based and therefore not procedurally
driven
Limitations

This is done for non commercial use/


Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

ADR act and its IRR is limited to the


application of rules on the waiver in the
mediation proceedings to wavier of
confidentiality and privilege only
IRR expands the application of the rules
on waiver to include non compliance
with the rules or requirements

Doctrine of Estoppel
Objectives to non compliance with the
rules or any requirements under the
arbitration agreement must be raised
without undue delay or within the time
prescribed therefore, failing which, the
right to object is deemed waived
Estoppel in pais
Happens when one, by his acts,
representation, or admissions, or by his
own silicon when he ought to speak out,
intentionally or culpable negligence,
induces another to believe certain facts
to exist and such belief in a manner that
he will be prejudiced if the former is
permitted to deny the existence of such
facts
Confidentiality in ICA
General Rule
In the case of mediation, proceedings,
records, evidence, and arbitral awards
are confidential
Exceptions:
Consent of the Parties
Limited purpose of disclosing to the
court relevant documents in cases where
resort to the court is allowed
Due Process in ICA
IRR mandates that the parties shall be
treated equally and shall be given full
opportunity
Reasonable opportunity
Due Process

Complied if parties are given


opportunity to be heard and present
evidence

Place if ICA
Default place MANILA
Place chosen by Parties
Commencement of ICA proceedings
Date requested by the parties
Default date date of request for that
dispute
Language in ICA
Parties shall determine the language
Default English

Applicable Law in ICA


Governing law generally is substantive
law
Substantive Law
Law or legal system applicable to
complete resolution of dispute
Conflicts of Law/Private International Law
Part of municipal law or state which
directs courts and administrative
agencies, when confronted with a legal
problem involving a foreign element,
where they should apply a foreign law
Appointing Authority in ICA
He person or institution named in the
arbitration agreement
Functions
Take necessary measurements
Decide on the challenge
Consider the qualifications

The default appointment of an


arbitrator shall be made by the
National President of the Integrated
bar of the Philippines.

This is done for non commercial use/


Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

Arbitrators and Arbitral Tribunal in ICA


Default number of arbitrators is three
and is due to their appointment
Default Procedure
3 arbiter each party shall appoint one
Sole arbiter shall be appointed by the
parties
The decision of the appointing authority
on this matter shall be immediately
executor and shall not be subject to a
motion for reconsideration or appeal
Factors in Appointing Arbitrators
Qualifications
Considerations
Advisability of appointing an arbitrator
of a nationality
Grounds for changeling an Arbitrator in ICA
Impartiality
Possession of the qualifications
Procedure for the challenge in ICA
Default procedure
o Sending of written agreement
15 days after becoming aware of
the constitution of arbitral
tribunal
o The parties may request the
appointing authority within 30
days to challenge tribunals
Procedure incase the Arbitrator fails to act in
ICA
Mandates terminates
Withdraws
Parties agrees in the termination
Jurisdiction of Arbitral Tribunal in ICA

Jurisdiction
o The right to act whether or the
power to and authority to hear
and determine cause

Jurisdiction over subject matter

Subject matter of the controversy is


conferred by law

Two Instances
Lack of jurisdiction
Excess of jurisdiction
Jurisdictional review of Jurisdictional Issue
Consider challenge as preliminary
question
Defer resolution
Jurisdiction over the pArties
Pre causal agreement
Interim Measures in ICA
Request shall be in writing transmitted
by reasonable means
Relieve may be granted to prevent
irreparable loss, security, preserve
evidence, compel
Legal Representation in ICA
A person may be represented by any
person of his choice
Determination of Rules of Procedure
Statement of claims
Statement of Defence
Default of the parties
Amendment of claims or defences
Hearings (1) court assistance in taking
evidence (2) subpoena (3) expert
Conclusion / closure
Requisites for an Arbitral Award to be Final
Rendition of the arbitral award
Hearing on the qualification
Expiration of the periods
Cost in ICA
Fees on arbitral tribunal
Travel
Cost of expert advice
Travel and other expenses of witness
Cost for legal representation
Fees and expenses of appointing
authority
This is done for non commercial use/
Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.

Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory

AlternativeDisputeResolution/Gabriel Robeniol/Sunday/1:00pm 3:00 pm /AUSL-2014 - 2015

Execution and implementation

Correction and Interpretation of ICA award


Quantification of the cause and the
determination of the party liable
therefore or the division between the
parties
Correction of typographical and similar
errors initiated by a parties
Interpretation of the awards
Correction of typographical error
initiated by the Arbitral Tribunal
Additional award
Setting Aside an ICA AWARD
Requirements
Default in the arbitration agreement
Violation of due process
Lack or excess of jurisdiction on the part
of the arbitral award
Violation of the arbitration agreement
Venue:
RTC
Requirements
Place of arbitration
Assessed, reviewed or enjoinment is
located
Residence ir place of business
NCR
Time for filing the petition for Setting Aside
3 mos
90 days
Recognition and Enforcement of Foreign
Arbitral Awards
Recognition
Means by which a Philippine courts give
legal acknowledgment to a foreign
arbitral award
Confirmation
Judicial affirmation of a domestic
arbitral award
Enforcement
This is done for non commercial use/
Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory