ADR Midterms Reviewer

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

ALTERNATIVE DISPUTE RESOLUTION By. Atty. Gabriel Robeniol

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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 E–E  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 Lawyer’s 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 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

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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:

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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

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

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

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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

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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

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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

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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

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The party requested Lacks qualifications, training and experience Mediator’s 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 Mediator’s 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

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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

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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

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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

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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

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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