Alternative Dispute Resolution Reviewer Midterms

September 10, 2017 | Author: Aaliyah | Category: Mediation, Alternative Dispute Resolution, Arbitral Tribunal, Arbitration, Dispute Resolution
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Alternative Dispute Resolution Reviewer for Midterms Reference: Robeniol...


1 ADR Reviewer

Alternative Dispute Resolution Reviewer

Response of Judiciary to the Problems of





conference 

Chapter 1: Introduction Historical Rule:

Requirements of conducting pre-trial Utilization on different modes of discovery

Proscription against forum shopping

Judicial and Legislative trends: 

Utilization of alternatie means and methods implemented in or outside the court

The supreme court encourages the

trial system

use of arbitration through Philippine

Civil Code of the Philippines: 

30 August 1950

Contains provisions of/or on compromise arbitration.

Encourages litigants to agree upon fair

Mediation Commission or through Judicial Dispute Resolution (JDR) Legislative Action: 

Special domestic legislation passed the prescription of arbitration, mediation and

compromise and authorize arbitration


19 June 1953 

Enactment of arbitration law


Republic Act. 876

Labor Code of the Philippines

National Labor Relations Commissions

20 May 1965


Convention on the recognition and

Unfair Labor Practice

enforcement of foreign arbitration / arbitral

Termination of Employment


Conditions of Employment

Damages arising from E – E

Level Arbitration

Philippine law has acknowledged the international arbitration as system of setting commercial dispute.

Executive Branch Contribution: 

CIAC – Construction Industry Arbitration


Commission – Enacted during 4 Feb 1985

concerning constriction dispute

Model law which the Philippines committed its adherence.

Judiciary Action

23 August 1998 – rules of procedure governing construction arbitration

2 ADR Reviewer

19 November 2005 – CIAC revised rules of procedure governing construction arbitration

22 March 2010 – rules on ADR for

The Lawyer’s Role

dispute between national government

Contribute to the promotion of ADR

agencies: amicable settlement dipute

Assist courts in encouraging the parties to avail of alternative means of dispute

THE ADR Act of 2004


Dispute resolution law

An act to institutionalize use of an

Chapter 2: Fundamentals of Alternative

alternative dispute resolution system in the

Explain the benefits of the ADR system.

Dispute Resolution

Philippines and to establish the office for

alternative dispute resolution and for other

Alternative Dispute Resolution


Expeditious and speedy manner

Methods of resolving dispute outside the

28 April 2004

court trial system Philippines as the Venue of ICA

Includes similar process in quasi – judicial agencies


RTC must refer to arbitration in

proper case ·

Foreign Arbitral awards must be

confirmed by RTC

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


The RTC has jurisdiction to review

foreign arbitral awards

dispute 


Freedom of the party to choose or make their own arrangement to resolve dispute

Grounds for judicial review

different in Domestic and Foreign arbitral

Promote party autonomy resolution of


Provides solutions that is less time consuming, less confrontational procedure of goodwill and lasting friendship


RTC Decisions of assailed foreign

Wave of the future in international relationship

arbitral awards appealable: CA, certiorari

Principles of ADR 

Promotion of party autonomy and self – determination in dispute resolution

3 ADR Reviewer

person to convince them to come into an

Recognition of ADR as an efficient tool

agreement; non binding between eh parties.

and an alternative procedure for the resolution of cases 

an unantagonistic manner

Enlisting a private sector participation  Speedy and impartial justice

Declogging of court dockets.

Features of ADR  

Exceptions: intention is to cause delay or suspend the proceeding

ADR utilize means and methods allowed by law

Early – Neutral – availed of in pre – trial case

Mini – trial – merits of the case ar argued in front of a panel

ADR means used to resolve a dispute or controversy

Neutral – lawyers are brought to present the summary of the case

Objectives and Benefits of ADR 

Conciliation – conciliation of dispute in

Any combination of the foregoing

Any other ADR forms

Classification of Forms of ADR 

As to the number of parties:

Bi – party – one or two parties

ADR is contractual in nature

Multi – Party – two or more

ADR avoids court trial

AS to the number of issues involve:

ADR usually involves the participation of

Simple – one issues involve

Complex – two or more issues

As to the extent of conclusion

Complete – all issues involve is resolve

Partial – only two or three issues involve

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

are resolved but not all 

As to the role of evidence in the proceedings


Non – merit based

As to the pendency of the court case

Case – related – when there is a case involved


AS to the applicable law

Domestic – when the place of business and arbitration is in the Philippines

4 ADR Reviewer

International – when the place of

business involved two states and arbitration

– avoidance of litigation or to put an end to

is outside the Philippines

the one already existing

Foreign – when the place of business is

outside the Philippines and the arbitration is outside the Philippines. 

Compromise or compromise agreement

As to the permanency of the ADR provider

Waiver or quitclaim – a statement renouncing any right or claim

ADR providers or practitioners

Preferences of ADR

Office for ADR

AD – HOC – temporary

ADR – agency attached to DOJ

Institutional – permanent

Executive Director appointed by the president upon recommendation of secretary of justice

Components of ADR 

Contending parties

Dispute or controversy

Form of ADR

ADR provider or practitioner

Subject matter of ADR 

Adversarial dispute and controversy


Civil Status of persons

Validity of marriage and any other forms of legal separation

Jurisdiction of courts

Future legitime

Criminal Liability

In general which the law cannot be compromise

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 under the auspices of the court

Court Referred Mediation 

Basic Concepts of ADR

Ordered by the court to be conducted by the agreement of the parties

Concluding Acts or Arguments


Arbitral Award – final decision of

arbitration on awarding issue or controversy 

Mediated Settlement agreement – contract executed by the parties

Person conducting mediation

Mediation Practitioner 

Parties in mediation

Non – Party participants 

Witness, resource person, or expert

5 ADR Reviewer

Classification of Mediation

Closed and concluded

Execution of settlement agreement

Withdrawal of any party from mediation

Written declaration

Non – evidentiary or non – merit based mediated

Focuses on facilitation or communication and negotiation between the

Advantages of Mediation

parties in encouraging to voluntarily settle

Confidentiality in Mediation Process

Prompt, economical amicable dispute

dispute 


Administered and conducted by or under

resolution 

the rules of mediation institution

The decision making authority rest upon the parties

Ad – Hoc

Confidential and Privileged nature of

Other than institutional

Mediation Communication

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

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 Place of Mediation 

Two disputing parties are free to agree the place\

Impliedly confidential 

Creates reasonable expectations

Confidential Information Includes: 


Oral or Written statements

Stages of Mediation

Pleadings, motions, manifestations

Opening statement of mediator

Legal effects of Confidential and privileged

Individual narration by the parties


Exchange by the parties

A party may refuse to disclose

Summary issues

Not subject to discovery and

Generalization and evaluation of options


In the absence – default is convenient to and appropriate to all the parties

inadmissible in adversarial proceedings 

People cannot be compelled to disclose information

Mediation shall be held in private Exceptions: Parties consented that there be

Parties to the dispute

other persons


Counsel for the parties

6 ADR Reviewer

Non – Party

Settlement was reached

Secretary, stenographer, assistants

Permitted to be disclosed

Any persons who obtains information

Waiver of Confidentiality

Continues even the mediator fialed to



act impartially 

Mediator may not be called to testify

Exceptions based on agreement, Nature of

The Mediator 

Proceedings, Crime or Social Justice 


Contained in an agreement evidence by a record authenticated by all parties to

Withdrawal Requirements


The party requested

Lacks qualifications, training and

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

OADR – list and freedom to select

Non party base agreement

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

Upgrade professional competencies

Reasonable inquiry

During the Mediation


Limited use of External Evidence

Consent and self determination

Promotion of respect and control of

Exceptions based on Public Policy 

Court proceeding involving a crime or felony

Avoid liability on contracts arising from mediation Only such portion of the communication

abuse and process

necessary for the application of the exception can be admitted in evidence Privileged Mediation

Mediator’s Cost and Fees 

Ad Hoc – free to make their own

Bound by the confidential privileged

arrangement as to the mediation of cost and



Termination of mediation

Mediated Settlement Agreement 

Compromise Agreement

7 ADR Reviewer

Successful Mediation


Roles of counsel in Mediation

Person appointed to render an award


May use his own discretion in the



Arbitration agreement


Agreement by the parties

Chapter 4: Arbitration in General

In respect of legal relationship


Essential elements

Consent of the parties freely given

appointed in accordance with the agreement

Cause of consideration

of the parties

Lawful object

Process which one or more arbitrators

It is the arbiter that decides the dispute

Two modes in submitting dispute

and renders an arbitral award to conclude in

Agreement to submit in arbitration

arbitral proceedings

Submission agreement

Kinds of Arbitration 


Reference of a dispute to an impartial body

performance of his function

Arbitration Agreement 

parties to be charged 

Members are chosen by the parties themselves

Compulsary arbitration

Settlement of labor dispute by the

May be included in arbitration clause or compromise

Arbitration Clause 

Must be liberally construed consistent with the policy of encouraging alternative

government agency which has the authority to investigate

Shall be in writing and subscribed by the

dispute resolution method Doctrine of Separability



the main contact even if it contained in


Arbitration clause

Arbitration agreement is independent of

Same concept lang naman to nung nasa

Due process in Arbitral proceedings

chapter two na foreign domestic at international

equally apply to arbitral proceedings

dapat alam nyo nay un. 

Commercial Arbitration – matters arising

Principles of administrative due process

Judicial Review and Court intervention 

Proper RTC

Review Court of Appeals Rule 43 ROC

Policy on Arbitration

Certiorari proper court Rule 65 ROC

Interim Measures in Arbitration

from all relationship of commercial in nature

Speedy and inexpensive methods

8 ADR Reviewer

exercise of their privileged of party –

Allows the application of a party to a

autonomy and self – determination

judicial authority for interim conservatory 

Allows filing of provisional interim

Default Rules

measures with regular courts whenever the

provisions of the IRR

arbitral tribunal has no power to act

Applicable only in the absence of or in


default contained in the ff: (1) an agreement

Chapter 5: International Commercial

in force between the Philippines and other

Arbitration under the ADR Act of 2004 and its

state; (2) an agreement between the parties


on the applicable rules

International Commercial Arbitration

Rules of Interpretation

Interpretation of the ADR act

due regard to the policy of law favouring

Instances of Occurrence of International Arbitration

Parties and Places of business is in different state

Place of arbitration provided in the agreement where parties have their business is outside the Philippines

Substantial part of obligation is to be performed outside the Philippines

Subject matter of agreement relates to more than one parties

Commercial Arbitration

Commercial relationship in nature

Contractual or not

Foreign Arbitration

International commercial arbitration is outside the Philippines

Coverage of IRR Provisions of ICA 

Applicable only to international

arbitration 

Interpretation of the model Law

need for uniformity of its interpretation

Interpretation of the IRR

Same policy

Party autonomy

Freedom of the parties

Reference to an agreement

Rules applicable to claims and counter claims

Rules of Receipt of Written Communication in ICA 

be located in different stage Rules communication is deemed received 

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 parties in the

Delivered to the address personally or at his place of business, habitual residence or

commercial arbitration 

The subject matter of the dispute may

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

9 ADR Reviewer

Arbitration is different from mediation in

Limited purpose of disclosing to the

that the latter is not merit or evidence based

court relevant documents in cases where

and therefore not procedurally driven

resort to the court is allowe


Due Process in ICA

ADR act and its IRR is limited to the application of rules on the waiver in the

treated equally and shall be given full

mediation proceedings to wavier of


confidentiality and privilege only 

IRR mandates that the parties shall be

IRR expands the application of the rules on waiver to include non – compliance with

Reasonable opportunity

Due Process 

the rules or requirements

Complied if parties are given opportunity to be heard and present evidence

Doctrine of Estoppel

Place if ICA

Default place – MANILA

Place chosen by Parties

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,

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

intentionally or culpable negligence, induces

Applicable Law in ICA

another to believe certain facts to exist and

Governing law generally is substantive law

such belief in a manner that he will be prejudiced if the former is permitted to deny

Substantive Law

the existence of such facts

Law or legal system applicable to complete resolution of dispute

Conflicts of Law/Private International Law Confidentiality in ICA

Part of municipal law or state which

General Rule

directs courts and administrative agencies,

when confronted with a legal problem

In the case of mediation, proceedings, records, evidence, and arbitral awards are

involving a foreign element, where they


should apply a foreign law


Appointing Authority in ICA

Consent of the Parties

He person or institution named in the arbitration agreement

10 ADR Reviewer


Procedure incase the Arbitrator fails to act in

Take necessary measurements


Decide on the challenge

Mandates terminates

Consider the qualifications


Parties agrees in the termination

The default appointment of an arbitrator

Jurisdiction of Arbitral Tribunal in ICA

shall be made by the National President of


The right to act whether or the power to

the Integrated bar of the Philippines.

and authority to hear and determine cause

Arbitrators and Arbitral Tribunal in ICA 

Default number of arbitrators is three and is due to their appointment

Jurisdiction over subject matter 

Subject matter of the controversy is conferred by law

Default Procedure 

3 arbiter – each party shall appoint one

Two Instances

Sole arbiter – shall be appointed by the

Lack of jurisdiction

Excess of jurisdiction

parties 

The decision of the appointing authority on this matter shall be immediately executor

Jurisdictional review of Jurisdictional Issue 

and shall not be subject to a motion for reconsideration or appeal

Consider challenge as preliminary question

Defer resolution

Factors in Appointing Arbitrators 


Jurisdiction over the pArties


Advisability of appointing an arbitrator of

Interim Measures in ICA

a nationality

Grounds for changeling an Arbitrator in ICA 


Possession of the qualifications

Default procedure

Sending of written agreement 15 days after becoming aware of the constitution of

The parties may request the appointing authority within 30 days to challenge tribunals

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

arbitral tribunal 

Request shall be in writing transmitted by reasonable means

Procedure for the challenge in ICA 

Pre – causal agreement

Determination of Rules of Procedure 

Statement of claims

Statement of Defence

11 ADR Reviewer

Default of the parties

Default in the arbitration agreement

Amendment of claims or defences

Violation of due process

Hearings (1) court assistance in taking

Lack or excess of jurisdiction on the part

evidence (2) subpoena (3) expert 

Conclusion / closure

of the arbitral award 

Violation of the arbitration agreement

Requisites for an Arbitral Award to be Final


Rendition of the arbitral award

Hearing on the qualification

Expiration of the periods



Cost in ICA

Place of arbitration

Fees on arbitral tribunal

Assessed, reviewed or enjoinment is


Cost of expert advice

Residence ir place of business

Travel and other expenses of witness


Cost for legal representation

Fees and expenses of appointing authority


Time for filing the petition for Setting Aside 

3 mos

90 days

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

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 

Execution and implementation

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