Table 1 RA 9285 (Alternative Dispute Resolution Act of 2004)

Republic Act No. 9285 (Alternative Dispute Resolution Act of 2004)

Alternative Dispute Resolution System – any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as defined in this Act, in which a neutral third party participates to assist in the resolution of issues,
which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial or any combination thereof.

International Commercial Arbitration of Judicial Review of

General Provisions Mediation Other ADR Forms Arbitration
Domestic Arbitration
Construction Disputes Arbitral Awards
Declaration of Policy Definition Referral Governing Rules Governing Rules Governing Rules Domestic Awards
1. Actively promote party autonomy –
- a voluntary process in which a mediator, • Governed by Model Law on • Governed by Republic Act No. 876,
the freedom of the party to make Parties may agree to refer: Confirmation of Awards
selected by the disputing parties: International Commercial “The Arbitration Law” as amended • Governed by Executive Order No.
their own arrangements to resolve - one or more or all issues • Governed by RA 876
[1] facilitates communication and negotiation & Arbitration adopted by UN by this Chapter 1008, “Construction Industry
their disputes - arising in a dispute or during its • See Page
[2] assists the parties in reaching a voluntary Commission on Intl Trade Law • The succeeding provisions were Arbitration Law”
2. Achieve speedy and impartial justice pendency • EFFECT OF CONFIRMATION?
agreement regarding a dispute (UNCITRAL) culled from the text of RA 876
3. Declog court dockets Enforceable in the same manner as
Exception Scope To other forms of ADR Interpretation of Model Law Subject of Arbitration Coverage of the Law final and executory decisions of RTC
1. Voluntary mediation – which includes both: • Two or more persons may SUBMIT • Under the jurisdiction of the Const • HOW TO CONFIRM? In the RTC, in
1. Labor disputes accordance with SC RoC
a. Ad hoc to the arbitration of one or more Industry Arbitration Commission
2. Civil status of persons rd • Regard given to international origin • CIAC arbitral award: need not be
b. Institutional (a) evaluation of a 3 person arbitrators any controversy existing (CIAC): Between or among parties to
3. Validity of a marriage and need for uniformity in confirmed by RTC to be executory
2. Conciliation (b) mini-trial between them at the time of the OR who are bound by an arbitration
4. Any ground for legal sep interpretation. (as provided for in EO 1008)
3. Exception: Court annexed – any mediation (c) mediation-arbitration submission and subject of an action agreement
5. Jurisdiction of courts • Resort to “preparatory works” and
process conducted under the auspices of the (d) combination thereof • Parties to a contract may in such • CIAC still has jurisdiction, even if
6. Future legitime report of UN SecGen of UNCITRAL Vacation of Awards
court after such court has acquired contract agree to settle by “commercial” arbitration pursuant to
7. Criminal liability HOW TO QUESTION ARBITRAL
jurisdiction of the dispute arbitration any future controversy Section 21
AWARD?
Application and Interpretation Governing rules Referral to Arbitration Limits of Applicability Arbitrators - By any party
If the matter is subject of an Not applicable: By written agreement of the parties: - With the appropriate RTC
1. Promote candor of parties and mediator arbitration agreement court shall refer • To controversies and to cases which • Arbitrator may act as mediator and - In accordance with RoC
through confidentiality of the process Use of other ADR forms governed by to arbitration if request made by: are subject to the jurisdiction of mediator may acts as arbitrator - Grounds: enumerated in Sec
2. Foster prompt, economical and amicable Chapter 2 (Mediation) • One party, before pre-trial Court of Industrial Relations (CIR) or • If mediation is successful
mediator 25 of RA 876
resolution of disputes EXCEPT: Where combined with • Both parties, even after pre-trial which have been submitted to it as shall issue settlement agreement in
3. Integrity of determination by parties arbitration, governed by Chapter 5 • UNLESS, the court finds arbitration provided by CA 103 the form of an arbitral award
4. Decision making authority rests with the (Arbitration) agreement to be [1] null and void, • If one party to controversy is
parties [2] inoperative or [3] incapable of [1]infant or [2] judicially declared to Foreign arbitrator: allowed by rules of
being performed be incompetent CIAC, PROVIDED:
(a) one party is international party
Confidentiality of Information obtained Confidentiality of Arbitration
Procedure for Arbitration (b) person to be appointed agree to Foreign Arbitral Awards
through Mediation Proceeding Proceedings abide by arb rules and policies of CIAC
[1] Arbitrations proceedings, [2] records, [3] evidence and [4] arbitral award shall (c) either co-arbitrator upon • New York Convention shall govern
be confidential AND not be published EXCEPT: See Page 6 nomination of international party OR the recognition and enforcement of
• With consent of parties s/he is the common choice of the 2 arbitral awards covered by said
• Limited purpose of disclosing to the court of relevant docs in cases where CIAC-accredited arbitrators first Convention
See Page 2 resort to the court is allowed appointed one of whom was nominated HOW TO FILE FOR RECOGNITION AND
PROVIDED: Court where action/appeal is pending may issue protective order to by the international party ENFORCEMENT?
prevent/prohibit disclosure of documents or information containing secret (d) foreign arbitrator shall be of • File with the RTC in accordance with
processes, development, research and other info where it is shown that the different nationality from the the SC RoC
applicant shall be materially prejudiced by an authorized disclosure thereof international party • Party relying on the award or
applying for its enforcement shall
Procedure for Mediation Procedure for Arbitration CIAC preferred over Courts [1] file with the court: original or
Legal representation If conducted in the Philippines
party may be represented authenticated copy of the award and
by any person of his choice. PROVIDED, only lawyers (admitted to practice of law in Regional Trial Court shall dismiss the arbitration agreement
Who may participate in mediation Phil) are authorized to appear as counsel in any court, or any other quasi-judicial construction dispute: - if award/agreement not made in any
• Party may designate a lawyer or any other person to provide assistance to him body WON such appearance is in relation to the arbitration - upon becoming aware before pre- of the official languages, party shall
• Waiver of right of [1] participation OR [2] legal representation: Action commenced by or against multiple parties and not everyone bound by trial conference that parties had supply duly certified translation
o Must be in writing arbitration agreement
Civil action may continue as regards those not bound entered into arbitration agreement to thereof into any such languages
o May be rescinded at any time Place of arbitration be conducted by CIAC [2] establish that the country in which
Place of mediation • Free to agree on place. Failing agreement
in Metro Manila UNLESS arbitral - UNLESS both parties, assisted by their foreign arbitration award was made is
• Parties are free to agree. Failing agreement
any place convenient and appropriate to tribunal decide on a different place for arbitration, with regard to circumstances respective counsel, shall submit to the party to the NY Convention
all parties and convenience of parties RTC a written agreement exclusive for • Application for rejection/suspension
Institutional mediation • Arbitral tribunal may meet at any place (UNLESS parties otherwise agreed) for the Court, rather than the CIAC, to of enforcement of an award has
• Agreement to submit dispute to mediation by any institution shall include an agreement [1] consultation among its members, [2] hearing witnesses, experts or the resolve the dispute been made
RTC may vacate its
to be bound by the internal mediation and administrative policies of such institution. parties, [3] inspection of goods, other property or documents decision and order party to provide
• In case of conflict between institutional mediation rules and ADR provisions: ADR prevails Language of arbitration Procedure for CIAC appropriate security
Enforcement of Mediated Settlement Agreement • Free to agree on language. Failing agreement
English in international See Page 5 • NOT COVERED BY NY
• See Figure 1 on Page 3 arbitration and English/Filipino for domestic arbitration, UNLESS arbitral tribunal CONVENTION? SC RoC, on grounds
determine different or another language. Applicable to any written statement, of comity and reciprocity
hearing, award, decision or other communication by arbitral tribunal. • Procedure – See Page 4

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Confidentiality of Information EXCEPTIONS TO THE PRIVILEGE Mediator’s Duties and Responsibilities

PRINCIPLES AND GUIDELINES FOR INFORMATION OBTAINED A. If mediation communication is: When may a mediator make a [1] report, [2] assessment, [3]
THROUGH MEDIATION PROCEEDINGS 1. In an agreement evidence by a record authenticated by evaluation, [4] recommendation, [5] finding or [6] other
all parties to the agreement communication regarding a mediation to a court or agency or other
1. Information obtained through mediation shall be privileged and 2. Available to the public OR That is made during a session authority that make a ruling on a dispute subject of a mediation?
confidential of a mediation which is open OR Required by law to be • GENERALLY not allowed
2. A party, mediator or non-party participant may: open to the public • EXCEPTIONS
a. refuse to disclose AND 3. Threat or statement of a: 1. Where the mediation occurred or has terminated
b. prevent any other person from disclosing a mediation - Plan to inflict bodily injury Where a settlement was reached
communication - Commit a crime of violence 2. As permitted to be disclosed under Sec 13 (i.e. facts
3. Confidential information shall 4. Internationally used to which are likely to affect impartiality)
a. not subject to discovery - Plan a crime
b. inadmissible in any adversarial proceeding, whether - Attempt to commit or commit a crime PERMITTED DISCLOSURES & CONFLICT OF INTEREST Sec 13
judicial or quasi-judi - Conceal an ongoing crime or criminal activity
4. In an adversarial proceeding, the ff people can’t be compelled to 5. Sought or offered to prove or disprove A. Duties before acceptance of mediation
disclose confidential info: - abuse, neglect, abandonment, or exploitation in a 1. Make reasonable inquiry to determine whether there are
a. Parties to the dispute proceeding in which a public agency is protecting any known facts a reasonable individual would consider
b. Mediator/s the interest of an individual protected by law; likely to affect impartiality of mediator e.g.
c. Counsel for the parties Exception does not apply where: a. Financial or personal interest in the outcome
d. Non-party participants - a child protection matter is referred to mediation by of the mediation
e. Any person/s hired/engaged in connection with a court or b. Any existing or past relationship with a party
mediation as secretary, stenographer, clerk or asst - a public agency participates in the child protection or foreseeable participant in the mediation
f. Any other person who obtains or possesses confidential mediation 2. When to disclose? As soon as practical before acceptance
info by reason of his/her profession 6. Sought or offered to prove or disprove a claim or of mediation
5. Protections of this Act shall continue to apply even if a mediator complaint of professional misconduct or malpractice filed
is found to have failed to act impartially against mediator in a proceeding; or B. If mediator learns fact in A(1) only after acceptance of
6. Mediator may not be called to testify to provide information 7. Sought or offered to prove or disprove a claim of
mediation
disclose it as soon as practicable
gathered in mediation. complaint of professional misconduct of malpractice filed
against a party, nonparty participant, or representative of
Mediator shall disclose his qualifications
at the request of any
WAIVER OF CONFIDENTIALITY a party based on conduct occurring during a mediation.
party
• Act does not require any special qualifications by
A. How to waive privilege arising from confidentiality of B. Court/admin agency finds [1] after hearing in camera that [2]
background or profession UNLESS required by the:
information? party seeking discovery has shown that [3] evidence is not
o Mediation agreement OR
1. By the mediator and mediation parties: otherwise available, [3] there is a need for the evidence which
o Mediation parties
• In a record substantially outweighs interest protecting confidentiality and
• Orally during a proceeding [4] mediation communication is sought/offered in
2. By a non-party participant 1. Court proceeding involving a crime or felony
2. Proceeding to prove claim/defense the under the law is
• Only if information is provided by such non-party
sufficient to reform/avoid a liability on a contract arising
participant
out of the mediation
B. Effects of waiver of confidentiality
C. Mediator may not be compelled to:
• If another person is prejudiced and it becomes necessary
- Provide evidence of mediation communication
to respond to the representation of disclosure
Party - Testify in such proceeding
who discloses is precluded from asserting privilege under
Sec 9 to bar disclosure of the rest of information which D. If mediation communication not privileged under an exception
are necessary to a complete understanding of the in A or B
only portion necessary for the application of the
previously disclosed information exception for nondisclosure may be admitted (i.e. limited
purpose of an exception)
• Effect: admission of particular evidence =/ admissible for
any other purpose

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 sign and certify
1. If mediation is successful 1. Parties and counsels SIGN 1. Need to ENFORCE settlement

enforcement
If parties so desire

petition may be filed by any

prepare settlement the settlement agreement.
DEPOSIT settlement of the parties with same court
agreement by: [1] parties which will proceed summarily to
prepare

agreement with appropriate

deposit
with assistance of counsel & hear the petition, in accordance
[2] mediator. 2. Mediator CERTIFIES s/he Clerk of RTC where the place
with rules as SC may promulgate
explained the contents of the where one party resides.
settlement to the parties in a 2. Treat “settlement agreement”
as an “arbitral award”
2. Parties and counsels: language known to them
•HOW?
HOW? By parties’ agreement
[1] endeavor to make terms that mediator shall become
and condition complete AND sole arbitrator
[2] make adequate provisions •EFFECT?
EFFECT? Subject to
for the contingency of bread enforcement under RA 876,
despite provisions of EO 1008
to avoid conflicting
for mediated dispute outside
interpretations of CIAC
agreement.

Figure 1 Enforcement of a Mediated Settlement Agreement

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 New York Convention on the
Recognition and Enforcement of
Foreign Arbitral Awards
APPLICABILITY
1. Recognition and enforcement of arbitral awards made
in the territory of a State other than the State where
recognition and enforcement of such awards are
sought AND arising out of differences between persons
2. Arbitral awards not considered domestic awards in the
State where their recognition and enforcement are
sought
PROCEDURE FOR THE STATES
1. Recognize the parties’ agreement in writing
• Differences in respect of a defined legal
relationship, contractual or not, concerning a
matter capable of settlement by arbitration
2. Refer parties to arbitration at the request of one of the
parties
• Unless agreement is null and void, inoperative or
incapable of being performed
3. Recognize arbitral awards as binding
4. Enforce arbitral awards in accordance with the rules of
procedure of territory where it is relied upon
• Also, refrain from imposing substantially more
onerous charges
RESPONSIBILITY OF PARTY APPLYING FOR
RECOGNITION AND ENFORCEMENT
Supply to the court the following at the time of the
application:
1. Duly authenticated original award or a duly
certified copy thereof
2. Original agreement referred to in Art II or a duly
certified copy thereof
If award OR agreement not made in an official language

produce translation (certified by an official/sworn
translator OR diplomatic/consular agent) of these
documents into such language
SANTOS, Karichi E.
REFUSAL TO RECOGNIZE AND ENFORCE AWARD EFFECTS OF APPLICATION TO SET ASIDE OR
SUSPEND AWARD
How done?  In relation to Art V 1 (e) “set aside or suspended”
• At the request of party against whom it is invoked
• Said party furnishes to competent authority proof Authority before which the award is sought to be relied upon
that: may, if it considers it proper:
a. Parties to agreement were • Adjourn the decision on the enforcement of the
[1] incapacitated under the applicable law OR award
[2] agreement not valid under the law to which parties • On the application of party claiming enforcement
have subjected it award: order adversarial party to give suitable
b. Adverse party was security
[1] not given proper notice of the appointment of
arbitrator OR
[2] was otherwise unable to present his case
c. Award
[1] deals with a difference not contemplated by or not
falling within the terms of the submission to arbitration
OR [2] contains decisions on matters beyond the scope
of the submission
PROVIDED decision on matters submitted can be
separated from not so submitted, there may be partial
recognition as to the former
d. Composition of the arbitral authority or the arbitral
procedure was
[1] not in accordance with the agreement of the parties
OR [2] failing such agreement, was not in accordance
with the law of the country where arbitration took place
e. Award
[1] has not yet become binding on the parties OR
[2] has been set aside or suspended by a competent
authority of the country, in which under the law of
which, that award was made
f. Competent authority in the country where recognition
and enforcement is sought finds that:
[1] subject matter of the difference is not capable of
settlement by arbitration under the law of that country
[2] recognition or enforcement of the award would be
contrary to public policy of that country
Civil Procedure Assignment Page 4 of 6
 Executive Order No. 1008
CREATION OF ARBITRATION MACHINERY III. Arbitrators
A. May have one or three arbitrator
IN THE CONSTRUCTION INDUSTRY OF THE B. If parties agree that dispute be settled by sole arb
PHILIPPINES
By agreement, nominate from list of accredited
arbitrators by CIAC for appointment and
I. Policy confirmation
A. Encourage the early and expeditious settlement of C. If parties fail to agree on sole arbitrator
disputes in the Philippine construction industry
CIAC has option to appoint single OR Arbitral
Tribunal, taking into consideration complexities
II. Jurisdiction and intricacies of the dispute/s
A. Construction Industry Arbitration Commission D. If CIAC appoints Arbitral Tribunal
(CIAC) shall have original and exclusive jurisdiction
Each party may nominate 1 arbitrator from the
over disputes arising from or connected with list of accredited arbitrators
rd
contracts entered into by parties involved in
3 arbitrator to be appointed by CIAC
construction. E. Qualifications
1. Men or distinction in whom the business
B. Whether the dispute arises:
sector and government can have confidence
1. BEFORE or AFTER completion of the contract
2. Not permanently employed with CIAC
2. AFTER the abandonment or breach thereof
3. Render services only when they are called to
C. Disputes may involved
arbitrate
D. Requisite for acquisition of jurisdiction – parties to
F. Expert arbitrators
a dispute must agree to submit the same to
1. Only if requested by any of the parties OR by
voluntary arbitration
the Arbitral Tribunal
E. What may be included within jurisdiction of CIAC
2. If done by either or both of the parties
1. Violation of specifications for materials and
a. Appointment of expert to be confirmed
workmanship
by the Arbitral Tribunal
2. Violation of terms of agreement
b. Parties shoulder the expert’s fees and
3. Interpretation and/or application of
expenses
contractual time and delays
c. Deposit with Secretariat half of the said
4. Maintenance and defects
fees before commencement of service
5. Payment, default of employer or contractor
d. If only one party request
he shall
6. Changes in contract cost
deposit the whole amount required
F. What is excluded in the coverage – disputes arising
from employee-employer relationships (covered by
Labor Code) IV. Awards
A. Binding upon the parties
B. Final and inappealable EXCEPT on questions of law
which shall be appealable to the Supreme Court
C. Final and executory
D. Issuance of writ of execution may be motu propio
OR on motion of any interested party

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 Republic Act No. 876
“THE ARBITRATION LAW”

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