SIAC Manila Conference 2019 | 06 ____ 2019

I. Managing proceedings and Proving your claims

 Prime contract of contractor with the owner.

 Check governing law, documents, evidence.
 Check flowdown provisions for starting a claim.
 Considerations:
o Pre-contractual documentation (specs, data, drawings, etc.)
o Annexes, schedules
o Correspondences
o Schedule documentation,
o Contemporaneous documents
 Simplify as much as possible.
 Document production for arbitration.
 Put room for flexibility for additional documents to be discovered after filing the claim.
 Always check discovery process!!
o Check with the client on how to manage and handle discovery processes.
 Witnesses:
o Factual witnesses
o Expert witnesses
 Consulting expert
 Independent expert
 Also know your tribunal to base the witnesses you will be presenting.
 Quantification of claims
o Substantial completion provisions.
o Check jurisprudence.
o RA 9285, UNCITRAL version of Arbitration.
o Check parallel proceedings and avoidance of abuse of process.
o Relief from local courts only with respect to:
 Interim relief
 (forgot).
 Common construction pitfalls
o Agreement to waive the bond or lien for subcontractors.
o Not documenting change orders and variation orders.
o Liquidated damages
 Limitation interplays with your documentation
o Always give notices in compliance with the contract.
o Fiddiq form of contracts.
o 14- day and 28-day notices.

II. Strategic considerations when pursuing construction disputes

 Tieza case (TIEZA v. Global-V Builders Co, G.R. 219708): CIAC’s jurisdiction conferred
by law, it cannot be subjected to any condition, cannot be waived as long as:
 o Parties agreed to submit to their construction contract dispute to arbitration
o If there is an arbitration clause in the contract.
 Possible ways of avoiding CIAC jurisdiction
o CIAC jurisdiction is implied or deemed written to every contract governed by
Philippine law for as long as that contract contains an agreement to submit
all disputes arising from it to arbitration, even if the parties stipulated another
arbitral institution in their arbitration agreement.
o First possibility: Stipulate a different governing law for the contract or the
arbitration agreement
 Premise is that laws and jurisprudence that impose CIAC are only
applicable with contracts under PH laws.
 A PH court may disregard the parties’ choice of law if it finds that:
 There are no significant contacts or substantive relationship
between the parties/transaction and their chosen law.
 Public policy considerations for applying PH law instead.
o Second possibility: in addition to stipulating another arbitral institution or
body, also stipulate that the parties expressly agree not to commence or
pursue arbitration with CIAC.
 Ensuring compliance with pre-conditions
o Going before DAB is not a precondition before going to CIAC.
 Ensuring ability of parties to terminate the contract notwithstanding an arbitration
agreement
o Parties cannot unilaterally rescind or terminate construction contracts.

 Stays and Anti-Suit Injunctions

o To preserve the Tribunal’s jurisdiction
 Interim Measures
o To preserve the subject matter of the arbitration
 Article 8 of the Model Law: the Court shall refer the parties to arbitration unless the
agreement is null and void, inoperative, incapable of being performed.
o PH: the Court shall refer the parties to arbitration and shall stay the suit.
 Statutory regime anti-suit injunctions
o Interim: the IAA
o Permanent: Section 4(10) of the Civil Law Act and the First Schedule of the
Supreme Court of Judicature Act.
 Interplay between Construction Arbitration and Investment Treaty Arbitraton
o Investment treaty – an agreement concluded 2 or more states to promote
and protect foreign investments in the territories of the state parties
o With substantive and procedural guaranties.
o Typical claims:
 Case 1: construction contract between State and foreign investor,
State breaches the contract, State’s breach amounts to a treat
breach.
  Case 2: State interference with a construction project, legislative or
judicial acts, acts of LGUs or tax authorities.
o Considerations:
o Structuring stage: Can you structure the investment in such a way that the
foreign investor can benefit from the treaty?
o Dispute stage:
 Is the investor a qualified investor?
 Is the investment a qualified investment?
 Is the claim based on a treaty breach or a simple contractual breach?
Can you attribute the breach to the State?
o If investment treaty arbitration is available: contractual claim, treaty claim or
both?
o Grounds to extend arbitration agreements to non-signatories:
 Voluntary participation of third party in the negotiation or
performance of the contract – deemed implicit acceptance of
arbitration agreement. (Swiss Federal Tribunal and group of
companies doctrine developed under Frech law – (ICC Case No. 4131,
The Dow Chemical Company and others v. ISOVER Saint Gobain)
o Common law systems are more hostile to the group of companies doctrine.
IT has been rejected in both England and Singapore.
o Screening mechanisms – several institutional rules frequently provide
screening mechanisms where parties can request the institution to make a
prima facie determination as to whether there is a valid arbitration
agreement binding all parties. (SIAC rules, Rule 28.1)
o Early dismissal – lack of prima faci jurisdiction is grounds for early dismissal
(SIAC Rules, Rule 29)
o Jurisdictional objection: SIAC rules, rule 28 (objection to existence of validity
of arbit agreement or competence of SIAC to administer arbitration)
o Enforcement

III. Demystifying the Commencement of an Arbitration

a. Considerations when commencing an Arbitration
i. Seat/venue of arbitration
ii. Governing law
iii. 9285 ADR (domestic vs. international commercial arbitration)
1. UNCITRAL adopted the 1985 version.
a. Article 1(3) – international arbitration.
iv. Provide for a language.
v. Locate the proper government agency to whom the notice of arbitration will be
sent.
vi. SIAC arbitration for commencement of notice of arbitration (Rule 3)
vii. Familiarize yourself with the arbitral body in your construction agreement.
viii. Nomination of tribunal is important.
1. Independence is the objective test.
 2. Impartiality
3. Gravitas
4. Conflicts check
5. Nationality requirements

b. For respondents:
i. Did you serve the copy to the right party?
ii. When was arbitration commenced? (timeliness)
iii. Does the arbitration have jurisdiction?
c. Joinder of Additional Parties
i. Made by a party or non-party
ii. Either before constitution of a tribunal or after.
d. Expedited procedure
i. Award has to be issued in 6 months (CIAC).
ii. 6M SGD claims – you may still adopt the expedited procedure (Rule 5).
iii. Emergency relief