ADR Midterm Notes

ADR is important

Raffle maintain impartiality

Most of the cases are terminated dahil nag ADR parati

Main DIspute Resolution is Civpro and Crimpro

Kung may problema, file a case

Kaya ng Alternative- Arbitration and Mediation

CBA ay similar sa ADR

Instead na maghablahan pagusapan nalang natin

Mediation Arbitration-this is to protect the workforce, mostly the economy

RA 9285

There is ADR since Spanish TImes. called Arbitracion

May Baranggay pa, magusap na lang.

Ad Hoc Arbitration
Choose the law which law can choose to solve the problem, the evidence, the rules on CIvpro, and even
choose the

Arbitrator.

The Clue WOrd is Party Autonomy. (See, Sec. 2, RA 9285)-shall encourage and actively promote the use
of the ADR.

The State shall enlist active private sector participation in the settlement of disputes in the ADR.

The law is more procedural than substantive. But the essence is that the rules are to be followed.

The Rights becomes substantive because such selection of judges, aribitrators, in contesting arbitration
award, it is not contested substantively,

But on the selection of arbitrator or failure in complying the procedure.

The Main process is arbitration, mediation, before filing of the case in court.

SEc. 8 and 9 of RUle 18, Rules on Civil Procedure

In Trial, there is ADR

New Rules on ADR March 1, 2021

CJ (Ret) Artemio Panganiban

Features of ADR

1. Means used to resolve a dispute or controversy

2. utilizes means and methods allowed by law

4. Avoids Court Trial

5. Involves the participation of Neutral third Party

a. Mediator /JDR Judge

b. Arbitrator

Definition of Terms:

ADR-process or procedure to resolve the controversy. Pag ok na at di sumunod ang kabilang party, ifile
na sa RTC at kailangan

na mai irecognize and considered na siya as non-litigated and kailangan magfile a motion for execution.
Tatanungin

MEdiation, Conciliation, and Early Neutral evaluation, or any combination thereof

Liberal interpretation of ADR

COntract of Sale

ADR Provision

Before any of the case filed, there must be an ADR.

IF the defendant wound not want to comy and seeks to annul the contract, does it mean that the
provisions on ADR will be included in the annullment of the contract

The answer is no, because of the principle of separability.

The contract is sought to be annulled, the ADR provision shall survive the challenge.
ADR allows the parties in case of the residual contracts in case of the annullment of the contract

policy Arbitration

When teh case is filed in the court for the Arbitration being raised at, the court must ask and ensure that
the parties will co to the ADR, mostly the courts initiate that the

parties must be in ADR

POlicy on Arbitration:

COurts shall not refuse to refer parties to the arbitration. (Minsan kasi mahal yan)

There are incidents for the suspension of the proceedings( Civpro)

Interim Modes of Protection(IMP)- similar to attachment in Civil cases, pero ditom, yung tao ang
naattach

ADR is different from the trial, this is actually informal. The rule of tongue is no records, no stenographic
notes. This documents shall be disposed of.

Misconceptions:

1. Referral tends to oust the court of jurisdiction

2. Court in a better psition to resolve the dispute subject of arbitration

3. Referral might result in Multiplicity of Suits

4. Arbitration Proceedings has no comments

5. place of Arbitration is in a foreign Country

6. One or more issues are legal and one or more of the arbitrators are not lawyers

7. One or more arbitrators are not Philippine Lawyers

the arbitration agreement or law

Kaya mag sisingapore para hindi mahabol ng IMP, kasi mahal at napakagastos

The selection of arbitrator can be 2, 3, or arbitrator ng bawat parties.

Who are ADR Providers

It depend on what kind of issue are to be tackled. Their office is at DOJ.

COurt based yun.

May Private naman na DR Providers

Because of teh principle of PArty Autonomy

1. INstitutional ADR Provider- one stop shop, but these are specialized

- Each institution has set of rules

- Institution has Administrative Charges

- Create Institutional Panel of Arbitrators

Advantages: May Predetermined rules , turo turo ka na lang

Disadvantage:Medyo Mahal, at may Breaucracy

2. Ad hoc- bahala sila, do it yourself, lahat ikaw ang magdecide

Not administered by an institution- one stop shop

The existence will expire,as ADR even if the case was not yet resolved.

Pag mahaba. kailangan anhdegree of effort, expertise, a

3. Special Arbitration:

CIAC-COndtruction Industry Arbitration Commission (EA 1008)

*Arbitration tribunal has limited timeframe

UNICITRAL Model will be thr pattern if you dont know what issues

Seat of Arbitration-Venue

Venue is not jurisdictional in ADR

You can choose the venue

It is not necessarily in the PH. They can choose another venue.

Specpro for the confirmation of the arbitral award-will effectively put the contract into the jurisdiction
of the court

The confirmation is equivalent to rendering judgment in a case.

PH as Seat of Arbitration mahahabol sila ng IMP.

Special ADR Rules

Universal in use and application

Advance ang ADR sa Buong Mundo

2 RUles

[Link]-Competence ( Kompetenz-Kompetenz)

The Arbitral Ztribunal may initially rule on its own jurisdiction

2. Separability or Severability of Arbitration Clause-this is an agreement independent of other terms of

arbitrtion the decision that a contract is void shall not entail ipso jure invalidate of arbitration clause

Annulled na ang contract, pero hindi ibig sabihin na mawawala ang arbitration clause. May mga
remaining obligations at mga bagay na gusto pa

nilang ayusin na gusot.

Wag muna IMP, hayaan muna na magselect at amgdecide ang Arbiter

Motion to dismiss does not mean dismissal, this will cause delay lalo na pag di gusto iaapeal sa CA o sa
SC

They will file a TRO to stop. AAbutin kada appeal ng taon. Masyadng mahaba.

Model Law- where ADR came from

The arbitration clause is independent form the contract

Art. 20, 21, and 23

ADR is donw eithin the milieu of the pre trial

Multiplicity of suit- pag may 1 party na bound sa arbitration at yung 1 na hindi, this will mean a split of
proceeedings

*Arbitration is the contract within the parties

Apostille

This is a cetification so that the documents can be used overseas

Red Ribbon-Certificate of Authentication

Arbiter-NLRC

Arbitator-ADR

The Arbitrators are specialized persons in theri field.

This is Question of Facts, not QUestion of Law.

The Court, not the arbitrator, decide questions of law. The Arbitrators awards, the proceedings are
inquisitorial.

In failure of ADR, The Court will acquire jurisdiction. What happened in there cannot be used as
Evidence.
COnfidential ang communication. The court will be in Clean Slate.

ENE- Early Neutral Evaluation-the lawyers will be called in a non-party assessment early in pre-trial

phase to present summaries of cases and receive non-binding assessment by an experienced and
neutral person

with expertise in the substance of the dispute. (Hindi kasi to pwede sa Trial sa Evid)

CRM-Court-Referred MEdiation- This is referred by the court

CAm- COurt-Annexed Mediation- This is a court conducted in accordance with the party even if the
court already acquired jurisdiction

Kinds ofMediation Proceedings

1. facilitative

2. Evaluative-Early Neutral Evaluation

3. Transformative

In Arbitration they will render an award May sariling proceeding and even acquire evidence. In
mediation depend its successful or not. Tatnungin kung ano ang pinagaawayan at kung ano

ang pwedeng gawin. Hindi Arbiter(MEdiator ang gagawa ng compromise agreement.

OADR-Office of ADR -DOJ

CAM and JDR Court-PMC(Philippine MEdiation Center)-PHILJA

Mediation

CBA is similar to MEDARB- they will enter into an agreement to settle the issues to honor the CBA

Grievance Machinery-away ng mga empleyado

1. Mediation

2. Mediator

3. Mediator-Arbitrator

4. Mini Trial=structured dispute resolutionnad will make a negotiation Settlement

5. Model LAw-UNCITRAL- UN Commission on International Trade LAw

6. Proceeding-pwede kahit ano, walang format

7. Record-those pieces of evidence

8. Roster-List of persons qualified to provide ADR Services

ADR officers-akin to a lawyer, the administrator of justicd

Civil Status of Persons

Advantages

1. Expertisen of Decision Maker

2. Finality of decision- Fanal end executory na pag may compromise agreement.

Sa court kasi pag nagdecide ang RTC, iaappeal pa sa CA, tapos iaabot pa sa SC.

3. Privacy of Proceeding

4. Procedural Informality-mam ser lang

5. Low COst

6. Speed

Arbitration- is to present a dispute to 1 or more 3rd persons to render decision

Chung fu vs. CA

Gr. 96283 -History of Arbitration

Mediation and Arbitratio

Mediation would normally civil or family related.

Arbitration would mean commercial.

DOmestic and international

Ang interntional ang PH kas mas madaling intindihin.

ADR 2004 is the amalgation of all the ADR in the PH

UNCITRAL Model Lw ang sinusundan natin

Our Model Law refers to Model LAw of 1985.

Sec. 19 :Adoption of Model Law

2006 Amendments

Not Adopted by RA 9285

Waiver of Forum Non Conveniens

The PH now insists that we use the rules of the PH.

If the business is in the PH, in adopting the Model LAw, the PH effectively waives the right of the PH
Court to invoke forum non conveniens as a ground for its aid is sought
in support of the arbitration in the PH between parties who may have their place or places of business in
the PH

-Waiver of Forum Non conveniens

Definition of International Arbitration is to differentiate form the domestic arbitration.

How do you know ehere could you possibly file a case.

How to know if it is international arbitration

Tests of Internaitonality

1. Place of Business

2. Place of Arbitration

3. Place of Performance

4. Subject Mater of an agreeement

Why do we have a model law?

Para may basis, para international.

Pereo ang isa sa char. of ADR ay:

1. Party Autonomy

2. COnfidentiality

This is to allow their records be reposited in the UN so that in case of similar situation

we can have basis on how to resolve the conflict.

Travaux Preparatoir

Preparatory works
Sec. 21; COmmercial Arbitration

It includes those of commercial in nature. This is not to limit but to enhance and expand.

Kung di Abogado ang arbitrator mo, limited lang dapat appearance niya

COnfidentiality

COnfidential and shall not be published

The court will issue a Protective Order

Punta ka sa COurt of SPECPRO para mag iconfirm nag award. It will adopt as decision

If implemented, it will be in executions.

ADR vs. COurt Proceedings

1. Public in nature - Private in nature

2. COurts of REcords: document access is public. State reason- Private,cannot be released

3. DIsclose is Discretionary and belongs to both court and parties- Cannot be discloed

RA 876, Sec. 7

1 month to settle arbitration

Kung pre-trial at pinili nila ng parties na arbitration.

Pior to pre trial and for limited time.

Pwede pipili

Kailan bawa lang arbitration

Arbitration is not forever

If less than a month, may award ka na.

If more than a month, arbitration is terminated. May option pa naman. Trial. DUn sa Pre-trial.

Limited, specific, and on a particular point

Remember Doctrine of Severabiliy: If contract is terminated, the Arbitration CLause Survives.

This why Arbitratin is stritly consensual.

May the court grant ex parte application and grant of IMP (Interim Measure of Protection)

Pag extreme urgency lang. Impossible na kasi may hearing na.

Interim Protection Measure

Place of ADR

Place orf Business-broad and encompassing

Grounds to challenge

Note on challenge-Kompetenz2x
Kung ayaw maappeal, , sa RTC by IMP and to IBP President for selection

COnstruction ADR

The Members of archi or engineer hindi lawyers. Kung di maresolve to, madaming projects ang
mahahalt

Final and Binding

Kasi we have agreement to execute it within ourselves. Kaya confirm sa RTC pars marecognize ang
Jurisdiction

Ex eco et bono

Non Liquet(No Applicable Law)

Office of ADR-DOJ