International Commercial arbitration

Registered letter or any other means which provide a record of the attempt to deliver it, to the last known place of business, habitual residence or mailing address. Revised Rules of court->received on the day it is delivered 

CH 5 ICA International -

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Place of business conclusion of the arbitration agreement is in diff states Place of arbitration provided in the arbitration agreement->parties have their places of business->outside the phil Place where substantial part of the oblig is to be performed or the place with which the subject matter of the dispute is most closely connected and in which the parties have their place of business outside the phil Parties have EXPRESSLY agreed that the subject matter of the arbitration agreement relates to more than one country

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Waiver of the right to object in ICA -

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ICA -

Domestic and international in character conducted in the PHILIPPINES Foreign arbitration-> outside the Phil

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IRR -

Default rules(adopted in recognition of party autonomy and self-determination) and only applicable in the absence of o Agreement in force bet. Phil and other states o Agreement bet. The parties on the applicable rules

Rules of interpretation -

ADR act->policy of the law favoring arbitration Model law->international origin and need for uniformity IRR o Interpretation of the ADR act o Party autonomy should be promoted o Freedom of the parties to determine issues o Reference to an agreement of the parties includes arbitration rules o Rules applicable to claims are equally applicable to counterclaims and those applicable to defenses equally applicable to defenses against counterclaims

Rules on Receipt of written communication in ICA -

Play a vital role in ICA. GR: receipt of communication->arbitration agreement o Default:  Delivered to the addressee personally, his place of business, habitual residence or mailing address

The IRR expanded the application of the rules on waiver to include non-compliance w/ the rules or requirements. Objections to non-compliance w/ the rules under arb-agreement->raised w/o undue delay.Otherwise deemed to be WAIVED Rule based on estoppel-admission cannot be denied or disproved as against the person relying on it. Estoppel in pais-intentionally or negligently, induces another to believe certains facts to exist and such other person relies and acts on such belief in a manner that he will be prejudiced if the forms is permitted to deny the existence of such facts. o Ex:proceeding w. the arbitration nothwithstanding the noncompliance w/ the rules or arb agreement

Confidentiality in ICA -

Disclosed o Consent of the parties o Limited purpose of disclosing to the court relevant docu in cases which resort to the court is allowed  Court may issue protective orders to prohibit the disclosure where it is shown applicant shall be materially prejudiced

Due process in ICA -

Parties shall be treated equally and shall be given full opportunity to present their sides Essence:opportuinity to be heard. EVEN if he does not actually avail of such opportunity

Place of ICCA -

GR: parties o Default:Metro manila  Arbitral tribunal decides on a diff place of arbi

Commencement of ICA proceedings -

Parties o

Default:date on which a request for that dispute to be referred to

arbitration is received by the respondent

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Language in ICA -

Parties o

English

Applicable law in ICA -

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Substantive law Absence of agreement:law determined by conflicts of law rules determined by arbitral tribunal

Jurisdiction of Arbitral Tribunal in ICA -

Appointing Authority in ICA -

Make the default appointment of aribitrators or sole arbitrator ICA’s other functions: o Appoint arbitrator o Decide on the challenge against an arbitrator o Consider the quali, impartiality and independence, advisability of appointing arb diff nationality

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Parties are free to determine the number of their arbitrator and procedure for their appointment(principle of party autonomy and self-determination) Default: 3 Any party may request the appointing authority to take measure to appoint an arbitrator. o Quali required by the agreement o Impartial arbitrator o Appointing an arbitrator of a nationality other than those of the parties if party not satisfied CHALLENGE

Grounds for challenge of an arbitrator in ICA -

Doubts about his impartiality or independence o Unless have been previously informed o Possession of the quali agreed upon by the parties  If appointed arbitratorestopped  Unlessw.o the knowledge, actual or constructive of the actual facts

Procedure for the challenge in ICA -

Agreed upon parties Default: Written statement reasons for challenge to the arbitral tribunal w/in 15 days

Right to act or the power and authority to hear and determine a case No jurisdiction: o Lack of jurisdiction-power to rule on objections to its jurisdiction such as those raised against the existence or vaility of the arbagreement o Excess of juris-beyond the scope of its authority becomes apparent  Otherwise will be deemed waived  Unless delay is justified

Judicial Review of Jurisdictional Issue -

Arbitrators and arbitral tribunals in ICA -

If not successful; may request appointing authority w/in 30 days Party may question the decision of arbitrator in Special Rules of Court on ADR

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Consider the challenge as a preliminary question and render a ruling Defer the resolution until the rendition of the arbitral award and the resolution of the jurisdictional issue shall form part of. If arb trib renders ruling elevate sa RTC 30 days

Jurisdiction over parties -

Consent of the parties to submit to arbitration Consent: o Pre-causal consent-agreement to submit arbit o Present causal consent-submission agreement->to submit an existing dispute or controversy to arbit

Interim Measures in ICA -

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After the arb-trib has been constituted, any party may request measures. Written>describing the past relief Relief granted o Irreparable loss o Security for the performance of an oblig o Produce or preserve evid o Compel any other appropriate acts or omissions Order either denying or granting interim measures BINDING upon the parties Party who refuses to comply shall be liable for DAMAGES from non-compliance including all expenses and reasonable atty fees paid Pag BEFORE the constitution of the trib or if constituted NO POWER to act->requested sa court in accordance w/ Special Rules of Court on ADR

Legal reps in ICA

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Only lawyers accredited by the SC Sa ICA, even if a non-lawyer->however will not be authorized to appear as council in any proceeding

ASSISTANCE to the tribunal 6. Conclusion/closure 2 ways

Rules of Procedure in ICA -

GR: parties are free to determine the rules Default: UNCITRAL Arbitration Rules 1. Statement of claims.-state the facts supporting his claim, issues and relief or remedy sought 2. Statement of defenses-respondent shall state his defenses 3. Default of the parties-failure to communicate their statements of claims a. Claimant-termination of the proceedings b. Respondent-shall not terminate. Instead, proceed w.o such failure being considred as an admission of the claimant;s allegation 4. Amendment of claims or defensesmay amend or supplement unless arbitral tribunal considers amendment inappropriate 5. Hearings-tribunal determine whether oral hearings, oral argu only or just require submission of docu during the appropriate stages of the proceeding.Conduct of hearings, arb tribunal can employ the ff processes in taking evidence: a. Court assistance in taking evidence b. Subpoena-may compel the attendance of witnesses(subpoena ad testificandum) and production of docu(subpoeja duces tecum) i. Trib-NO CONTEMPT powers>agrrieved party must invoke judicial intervention to compel compliance w. the subpoena ii. Failure to complycite the refusal party contempt of court c. Expert-similar to amicus curiae or friend of the court diff. sa former field of specializstion is not limited to law -not as a expert witness but to provide

1)Award or settlement-award shall be in writing signed by the sole or a majority of the arbitrators, state the date and place of arbitration and copy delivered to each party 2)Termination a)claimant withdraws his claim. UNLESS res objects on the basis of a legitimate interest in obtaining a final settlement of the dispute b)parties agree to terminate te proceedings c)tribunal finds that the continuation of the proceedings has become unnecessary or impossible if ends by way of an award:  Correct or interpret the award  Set aside an exclusive recourse’  Reserved to the quantification of costs and determination of the party liable Arbitral award becomes final executory -

Rendition of the award Hearing of the quantification of the costs and determination of the party liable Expiration of periods for correction and interpretation of the award Remedies are availed of by the parties

Costs in ICA -

Fees of the arb trib Travel and other expenses Costs of expert advise Travel and other expenses of witnesses Cost for legal rep and assistance Fee and expenses of the appointing authority IN PRINCIPLE->Unsuccessful party bore the expenses.tribunal shall be free to determine which party shall bear such costs

Correction and Interpretation of ICA award -

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ICA award does not become executory UNTIL lapse of the period for its amendment o Said period-agreement of the parties An arbitral award may be amended ff manners

Quantification of the costs and the determination of the party liable therefor, or the division bet. The parties. o Correction of typographical and similar errors initiated by a pertymay ask for correction w/in 30 days GR: final judgements may no longer be modified o Correction of clerical errors o Nunc pro tunc entries which cause no prejudice to any party o Void judgements Interpretation of the award Correction of typographical error initiated by the arbitral tribunal-may motu proprio correct any typographical error Addition award-w/notice to the other pary o

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Setting aside an ICA award -

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Done by the RTC, THERE WAS: o Defect in arb agreement-may incapacity yung party o Violation of due process-not given proper notice o Lack or excess of jurisdiction on the part of the arb tribunal-the dispute not contemplated terms of the submission agreement o Violation of the arb-agreement-not in accordance w. the agreement UNLESS such agreement was in conflict w. a provision of the ADR acts o Or court finds that:  Not capable of settlement  Conflict w. public policy RTC proceedings o Arbitration proceedings took place o Asset to be attached or levied upon or the act to be enjoined is located o Parties reside or his place of business o NCR at the option of applicant

Foreign arbitration Not requiring recognition -ICA award rendered outside the Phil is not and can only be recognized or refused recognition -if recognized by RTC; shall be enforced in the same manner as final and executory decisions of courts of law

Jurisdiction , Venue and Nature of Proceedings -

3 mos from the date on which the party making the application received the award

Recognition and Enforcement of Foreign Arbitral Awards -

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Recognition-Phil court gives legal acknowledgement to a foreign arbitral award Confirmation-judicial affirmation of a domestic arbitral award Enforcement-execution and implementation of the foreign arbitral award thru Phil legal processes. Foreign arbitral awards-one made in a country other than the Phil->recognition:in order to be entitled to the enforcement in the Phil

Jurisdiction-vested by the adr act on the rtc Venue: o Conducted o Asset to be attached or levied upon o Party resides or place of business o NCR

Grounds for Refusing Recognition and Procedure for Recognition of convention as-in convention awards: -

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Time for filing the the petition for setting aside -

Domestic arb Go throught the process of confirmation -no need for Phil courts to give arbitral awards rendered -legal recognition under Phil law apart from confirmation -ICA award rendered in the Phil susceptible of vacation by phil court

Proof of foreign judgement Judgement-civil or commercial matter No lack of jurisdiction, no want of notice, no collusion, no fraud, no clear mistake of law or fact Must not contravene a sound and established public policy of the forum Res judicata Slightly diff requirements recognition of foreign arbitral awards-> depends upon the nature of the proceedings Convention awards-foreign arbitral award made in a state which is a party to the New York convention Non-convention award-foreign arbitral award rendered in a state which is not a party to the NYconvention As in convention award-not a party to the new York convention by reason of comity and reciprocity may be recognized and enforced as if it is a convention award

Grounds for Refusing Recognition -

Defect in the arb agreement Violation of due process Lack or excess of jurisdiction on the part of the arb tribunal Violation of the arb agreement As in convention awards-additionally proof of existence of comity and reciprocity bet. The Phil and the non-convention state where the arb award

Procedure for recognition of convention and As-in Convention awards

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Filing of application-file w/ RTC if not official language->supply a duly certified translation Confirmation-once confirmed shall be enforced Consolidation/concurrent hearings; parties and tribunal may agree o Consolidation of proceedings o Conduct of concurrent hearings Rejection/suspension-if as-in convention award, court may also remit the award to the arb tribunal if the objections raised may be cured or rectified Appeals-decision of RTC recognizing, enforcing, vacating or setting aside an arb award->appealed to CA in accordance w/ the special rules on adr->require the appealing party to post a counter-bond in favor of the prevailing party in the amount of the award->right to appeal may be validly waived by the agreement or stipulation of the parties w/o prejudice to judicial review by certiorari under rule 65

Legal Effects of Non Convention Awards -

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UNLESS they qualify as-in convetion awards, are not entitled to recognition or enforcement under ADR act May be given legal effect in the Phil under the rules of civ pro

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Effect of foreign judgements or final orders  Final order upon a specific thing-Conclusive upon the title to the thing  Final order against a person-presumptive evidence of a right as bet. The parties and their successors in interest by subsequent title Non convention award  Conclusive upon the title to a thing  Presumptive evidence of a right as bet. The parties and their successors in interest by subsequent title  Provided no want of jurisdiction, no want of notice, no collusion, no fraud and no clear mistake of fact or law.