refine and combine them, and create hybrid procedures to make them suitable for particular relationships, as well as to develop strategies and point you to the right direction. JURISDICTION, POWERS AND DUTIES OF AN ARBITRAL TRIBUNAL by
MARIO E. VALDERRAMA LLB, FCIARb, FHKIArb, FPIArb
ADR Adviser to the Construction Industry Arbitration Commission CIArb Approved Tutor CIAC, PDRCI & WESM Arbitrator Contact Details Tel No 367 4001; Telefax 362 1867 Mobile 0917 4114 594 E-mail <marval.law@gmail.com> SOURCES OF THE POWERS OF AN ARBITRAL TRIBUNAL
Agreement (Powers Conferred by the Parties)
Law (Powers Conferred by Law)
Implied Powers (Powers that may be Implied from
Law and/or Agreement) SOURCES OF THE POWERS OF AN ARBITRAL TRIBUNAL: LAW
Law governing the arbitration agreement
Law governing the arbitration (lex arbitri)
SOURCES OF THE POWERS OF AN ARBITRAL TRIBUNAL: AGREEMENT
Express Agreement (Direct Conferment) in
arbitration agreement, terms of appointment.
Agreement as to Procedure (Indirect Conferment)
Ad Hoc Rules, e.g. the Uncitral Rules
Institutional Rules POWERS COMMONLY GIVEN TO AN ARBITRAL TRIBUNAL
To direct the procedure for the arbitration and to
decide that procedure in the event of disagreement between the parties (MAL Art. 19). To determine the applicable law and the seat (MAL Arts. 20 and 28) To determine the place (venue) (R.A. 9285 Sec. 30). To determine the language of the arbitration (MAL Art. 22, R.A. 9285 Sec. 31). To require the production of documents (and draw adverse inferences if they are not produced) POWERS COMMONLY GIVEN TO AN ARBITRAL TRIBUNAL
To require the presence of witnesses (and draw
adverse inferences if they do not attend)
To administer oaths
To examine the subject matter of the dispute
To appoint experts (MAL Art. 26).
POWERS COMMONLY GIVEN TO AN ARBITRAL TRIBUNAL To issue orders intended to preserve evidence and/or assets (interim measures of protection; MAL Art. 9; R.A. 9285 Secs. 28 and 29).
To order security for the costs of the arbitration
(MAL Art. 17).
NOTE: The parties may deny most of those powers
from the tribunal.
NOTE: An arbitral tribunal has no imperium
DUTIES OF ARBITRATORS: SOURCES
Duties imposed by the parties
Duties impose by law
DUTIES OF ARBITRATORS: THOSE IMPOSED BY THE PARTIES Safe way: Look at the specific duties in the terms of appointment, including any particular rules applicable to the appointment.
Examples: time frame to issue award; site
inspections; signing declarations of independence; period within which the tribunal must meet for its first session; drawing up of terms of reference and time frame to do so. DUTIES OF ARBITRATORS: THOSE IMPOSED BY LAW Duty to act with due care
Duty to act promptly (MAL Art. 14)
Duty to act judicially
Ethical duties
Others: to decide all procedural and evidentiary matters;
to treat the parties fairly; make the award in a particular form REMEDIES
Query: Are rules/provisions providing for immunity
valid? REMEDIES
Use of Arbitration to Further Criminal Purposes, e.g.
money laundering, bribery (active if instigated by an individual or passive if instigated by an arbitrator) and corruption.
What the arbitrator should do.
JURISDICTION OF AN ARBITRAL TRIBUNAL
Source: agreement between the parties. Also, the
tribunal may only validly resolve those disputes that the parties agreed that it should resolved.
Challenges to jurisdiction:
Partial Challenge
Total Challenge CHALLENGES TO THE JURISDICTION OF AN ARBITRAL TRIBUNAL
Autonomy of Arbitration Clause (MAL Art. 16)
Who decides? Kompetenz kompetenz (MAL Art. 16)
Court Control (Concurrent control)
CHALLENGES TO THE JURISDICTION OF AN ARBITRAL TRIBUNAL Options of the Tribunal (MAL Art. 16). Decide that it has no jurisdiction
Note: This is appealable under the Special Rules Rule
3.12). Issue an interim award on jurisdiction Note: Party should request for a full dress hearing on the issue of jurisdiction. A summary hearing may result to a finding that the tribunal has, prima facie, jurisdiction. In the latter case, it may be necessary to adduce evidence to prove otherwise. Defer decision and join the issue to the merits Note: No MR, no appeal allowed (Special Rules Rule 3.20). CHALLENGES TO THE JURISDICTION OF AN ARBITRAL TRIBUNAL Options of the Respondent Boycott the arbitration generally not adviseable
Raise the objections in the tribunal (observe the
time line in MAL Art. 4: w/out undue delay)
Go to court (MAL Art. 8 re arbitrations that are null
and void, inoperative or incapable of being
performed. But see Rule 3.8). Challenge the award (MAL Arts. 34 and 36; Convention Art. 5). CHALLENGES TO THE JURISDICTION OF AN ARBITRAL TRIBUNAL Suggested Course of Challenger
Raise the objections in the tribunal
If unsuccessful: make the necessary reservation
and participate in the arbitration
If unsuccessful on the merits: challenge the award
by using either the active or passive remedies. CHALLENGES TO THE JURISDICTION OF AN ARBITRAL TRIBUNAL Warnings:
Per Special Rules: Failure to avail of active remedy
may bar passive remedy (see Rule 12.2). For one reason or another, elevating a positive ruling re jurisdiction to the court would likely be unsuccessful as the Special Rules prescribes deferment to the competence of the arbitral tribunal (Rule 3.8) and would most likely apply the prima facie rule (Rule 3.11). JURISDICTION, POWERS AND DUTIES OF AN ARBITRAL TRIBUNAL QUESTIONS? Comments and suggestions, critical, adverse or otherwise, welcomed. I would love to hear from you if you noticed any error or omission, or if you have any suggestion on how to improve, this presentation. E-mail to marval.law@gmail.com. Visit our website at <www.philippinearbitrators.org>. WANT TO KNOW MORE? Attend our courses and seminars Contact us for schedules. Visit us at [www.philippinearbitrators.org]
Philippine Institute of Arbitrators
c/o Atty. Mario E. Valderrama Tel. No. (632) 367 4001 Mobile 0917 4114 594 E-mail: marval.law@gmail.com