INT’L COMM.

ARBIT the resolution of disputes or the freedom of

I. Introduction the party to make their own arrangements to
A. History of Arbitration resolve their disputes. [...]
Chung Fu Industries (Philippines) Inc. v. CA –
Legal history discloses that "the early judges called D. When is an arbitration “Commercial”?
upon to solve private conflicts were primarily the
arbiters, persons not specially trained but in whose RA 9285 ​SEC. 21. Commercial Arbitration. - An
morality, probity and good sense the parties in arbitration is "​commercial​" if it covers matters
conflict reposed full trust. Thus, in Republican arising from ​all relationships of a commercial
Rome, arbiter and judge (​judex)​ were synonymous. nature, whether contractual or not. Relationships of
a transactions: ​any trade transaction for the ​supply
B. What is “Arbitration”? or exchange of goods or services​; ​distribution
RA 9285 §3 agreements​; ​construction of works; ​commercial
(d) "Arbitration" means a ​voluntary dispute representation or agency​; ​factoring​; ​leasing,
resolution process in which one or more arbitrators, consulting​; ​engineering​; ​licensing​; ​investment;
appointed in accordance with the agreement of the financing​; ​banking​; ​insurance​; ​joint venture and
parties, or rules promulgated pursuant to this Act, other forms of industrial or business cooperation​;
resolve a dispute​ by rendering an award; carriage of goods or passengers ​by air, sea, rail or
road.
● Arbitration is a ​creature of contract
○ It cannot stipulate anything contrary Model Law Art.1(1)​, footnote 2
to ​law, public policy, morals, good The term “commercial” should be given a wide interpretation so
as to cover matters arising from all relationships of a
customs​, i.e., ​matters that cannot commercial nature, whether contractual or not. Relationships
be compromised of a commercial nature include, but are not limited to, the
○ Arbitration does not apply to crime, following transactions: any trade transaction for the supply or
civil status, jurisdiction of courts, exchange of goods or services; distribution agreement;
commercial representation or agency; factoring; leasing;
legitime, or labor disputes.
construction of works; consulting; engineering; licensing;
investment; financing; banking; insurance; exploitation
C. When is an arbitration “International”? agreement or concession; joint venture and other forms of
industrial or business cooperation; carriage of goods or
IRR Rule 2, Art.1.6 passengers by air, sea, rail or road.

Domestic Arbitration means an arbitration that is

not international as defined in Article 1(3) ​[3(1)] of E. What “laws” govern Int’l Commercial
the Model Law. Arbitration?
● Model Law
Model Law, Art. 3(1) ● New York Convention
(3) An arbitration is international if:
(a) the parties to an arbitration agreement have, at II. Different Modes of Alternative Dispute
the time of the conclusion of that agreement, their Resolution (ADR)
places of business in different States;​ or ● Arbitration
(b) one of the following places is ​situated outside 1. Consensual Means to Resolve Disputes
the State in which the parties have their places of 2. Non-governmental Decision Maker
business: 3. Final and Binding Decision
(i) ​the place of arbitration if determined in, 4. Use of Adjudicatory Procedures
or pursuant to, the arbitration agreement;
○ “A process by which parties
(ii) ​any place where a ​substantial part of consensually submit a dispute to a
the obligations of the ​commercial non-governmental decision-maker,
relationship​ is to be performed or; selected by or for the parties, to
render a binding decision resolving a
the place with which ​the subject-matter of
dispute in accordance with neutral,
the dispute is most closely connected​; or
adjudicatory procedures affording
(c) the parties have ​expressly agreed that the each party an opportunity to present
subject matter of the arbitration agreement relates its case.” - Redfern
to more than one country. ○ Creates a ​binding decision whereas
other modes of ADR are not allowed
● Once any one of these circumstances exist to be binding
it is an ​international arbitration ○ An arbitration agreement may
agreement BUT ​there is still PARTY include another ADR mechanism
AUTONOMY thus parties can decide to ● Mediation
make the arbitration domestic. ○ In the PH there is mandatory and
→ RA 9285 SEC. 2. Declaration of Policy. - voluntary mediation. ​Court Annexed
it is hereby declared the policy of the State Mediation is ​NOT ADR because it is
to actively promote party autonomy in
 government ordered. ADR should → When expressly agreed that the subject
be private; ​non governmental. matter relates to more than country
● Conciliation
○ There is also mandatory conciliation, ○ This determines the ​applicable law →
DOJ Circ. 14-93 which is also substantive law
governmental and ​NOT ​ADR ○ Does ​NOT​ determine:
because it involves a Barangay → Jurisdiction of the arbitrator
Capt. → Governing law of the contract
● Early Neutral Evaluation
○ Commerical contracts may also ● Ad hoc v. Institutional
contain provisions for the resolution RA 9285 §26. Meaning of "Appointing Authority.". -
of certain categories of disputes by "Appointing Authority" as used in the Model Law
an expert selected by or for the shall mean the person or institution named in the
parties and authorized to render a arbitration agreement as the appointing authority;
binding decision on an issue. or the regular arbitration institution under whose
○ No need for adjudicative procedures. rules the arbitration is agreed to be conducted.
● Mini-Trial Where the parties have agreed to submit their
○ Brief presentations or each party’s dispute to institutional arbitration ​rules​, and unless
case to a “judge” or panel they have agreed to a different procedure, they
○ Usually non-binding shall be ​deemed to have agreed to procedure
○ Provides a neutral assessment of under such arbitration rules for the selection and
the strengths and weaknesses of appointment of arbitrators. ​In ad hoc arbitration, the
each party. default appointment of an arbitrator shall be made
● Others by the National President of the Integrated Bar of
○ Baseball or Final Offer Arbitration - the Philippines (IBP) or his duly authorized
parties submit offers in seal representative.
envelopes; min/max amounts of the
award. Institutional
○ By filing with the institution
Why arbitrate? → The institution ​administers ​the
● Neutrality proceedings (like a ​clerk of court​, i.e.
(​least unfavorable​ to foreigner) fees, documents, determines if there is
an arbitration agreement​).
● Centralized Dispute Resolution → The institution does NOT review the
(remove juridsictional disputes)
award
● Enforceabiltiy ○ Whenver the parties choose to ​apply the
● Commercial Competence and Expertise rules of an institution: ​it is institutional​.
(local courts have little experience in resolving → The parties can even have one
complex international disputes and face serious institution administer the rules of
challenges in reliably resolving commercial disputes.)
another institution.
● Finality of Decisions
(absence of extensive appellate review) Ad Hoc
○ Does NOT determine any institution ​nor any
● Party Autonomy and Procedural Flexibility institutional rules; ​NOR ​does it expressly
● Cost and Speed state that it is ad hoc, even though
● Confidentiality indicating institutional rules. → ​remember
(most national court proceedings are not confidential. the parties have party autonomy.
In contrast, international arbitration is substantially
more private)
○ If parties do not desire for IA, they will
● Arbitration Involving States and sometimes select a pre-existing set of
State-Entities procedural rules designed for ad hoc
(arbitral tribunal is more appropriate for disputes arbitrations (ex. UNCITRAL Rules) →
between states/state-entities and private parties) Remember: UNCITRAL is ​not an Arbitral
Institution = ​NOT IA.
Types of Arbitration
● Domestic v. International
The Arbitration Agreement
○ Depends on ​any​ of the ff:
A. What is an “arbitration agreement”?
→ Places of business
→ Place of arbitration
IRR Rule 2, Art.1.6
→ Place where a substantial part of the
Arbitration Agreement means an ​agreement by the
obligations or the commercial rel. is to
parties ​to submit to arbitration all or certain disputes
be performed
which have arisen or which may arise between
→ Place with which the subject matter is
them in respect of a ​defined legal relationship,
closely connected
whether contractual or not. An arbitration
agreement may be in the form of an arbitration was signed by representatives of both parties
clause in a contract or in the form of a separate and duly notarized. The failure of the private
agreement. respondent's representative to initial the
'Conditions of Contract' would therefor not affect
Model Law Art. 7(1) compliance with ​the formal requirements for
(1) “Arbitration agreement” is an agreement by the arbitration agreements ​because that particular
parties to submit to arbitration all or certain disputes portion of the covenants between the parties
which have arisen or which may arise between was ​included by reference in the Articles of
them in respect of a defined legal relationship, Agreement.
whether contractual or not. An arbitration
agreement may be in the form of an arbitration A contract need not be contained in a single
clause in a contract or in the form of a separate writing. It may be collected from several
agreement. different writings which do not conflict with each
other and which, when connected, show the
● Before there can be arbitration there must parties, subject matter, terms and
be a valid arbitration agreement (​remember: consideration, as in contracts entered into by
arbitration is a creature of contract​). correspondence. ​A contract may be
encompassed in several instruments ​even
● Arbitration Clause v. Submission Agreement though every instrument is not signed by
the parties, since it is ​sufficient if the unsigned
Arbitration Clause Submission Agree’t instruments are ​clearly identified or ​referred to
Written into the contract; Written ​AFTER​ a dispute and made part of the signed instrument or
before any dispute arises arises instruments.

Parties can limit or expand the scope of the ● Associated Bank v. CA – ​The applicable PCHC
agreement as they see fit. provisions on the question of jurisdiction
May include ​future disputes​ in the coverage provide: ​36.6 The fact that a bank ​participates in the clearing
operations of PCHC shall be ​deemed its written and subscribed
consent to the binding effect of this arbitration agreement as if it
May include other clauses (i.e. two-tiered ADR, other
had done so in accordance with Section 4 of the Republic Act No.
rules, etc.) 876 otherwise known as the Arbitration Law."

Both are independent from the contract

Clearly therefore, petitioner Associated Bank,
by its voluntary participation and its consent to
B. Form the arbitration rules cannot go directly to the
● National Union v. Stolt-Nielsen Philippines – Regional Trial Court when it finds it convenient
Clearly, ​the Bill of Lading incorporates by to do so. The jurisdiction of the PCHC under the
reference the terms of the Charter Party. It is rules and regulations is ​clear, undeniable and is
settled law that the charter may be made part of particularly applicable to all the parties in the
the contract under which the goods are carried third party complaint under their obligation to
by an appropriate reference in the Bill of first seek redress of their disputes and
Lading. ​This should include the provision on grievances with the PCHC before going to the
arbitration even without a specific stipulation to trial court.
that effect. ​INSURER "cannot feign ignorance
of the arbitration clause since it was already ● Ormoc Sugarcane Planters’ Association, Inc. v.
charged with notice of the existence of the CA – ​An agreement to arbitrate is a contract,
charter party due to an appropriate reference the relation of the parties is contractual, and the
thereof in the bill of lading and, by the exercise rights and liabilities of the parties are controlled
of ordinary diligence, it could have easily by the law of contracts. In an agreement for
obtained a copy thereof either from the shipper arbitration, the ordinary elements of a valid
or the charterer." By subrogation, it became contract must appear, including an agreement
privy to the Charter Party as fully as the to arbitrate some specific thing, and an
SHIPPER before the latter was indemnified, agreement to abide by the award, either in
because as subrogee, it stepped into the shoes express language or by implication.
of the SHIPPER-ASSURED and is subrogated
Petitioners are associations duly existing and
merely to the latter's rights. ​Stated otherwise,
organized under Philippine law, i.e., they have
as the subrogee of the SHIPPER, the
juridical personalities separate and distinct from
INSURER is contractually bound by the terms
that of their member Planters. It is likewise
of the Charter party. Any claim of
undisputed that the eighty (80) milling contracts
inconvenience or additional expense on its part
that were presented were signed only by the
should not render the arbitration clause
member Planter concerned and one of the
unenforceable.
Centrals as parties. In other words, ​none of the
● BF Corporation v. CA – ​The articles of petitioners were parties or signatories to the
Agreement, which incorporates all the other milling contracts.
contracts and agreements between the parties,
 There is no legal basis for petitioners' purported
right to demand arbitration when they are not
parties to the milling contracts, especially when ● New York Convention
the language of the arbitration clause expressly Article II
grants the right to demand arbitration only to 1. Each Contracting State shall recognize an
the parties to the contract. In addition, agreement in writing under which the ​parties
petitioners need a power-of-attorney to undertake to submit to arbitration ​all or any
represent the Planters whether in the lawsuit or differences which have arisen or which may arise
to demand arbitration. between them ​in respect of a defined legal
relationship​, ​whether contractual or not, concerning
● Lanuza, Jr. v. BF Corporation – ​A consequence a subject matter capable of settlement by
of a corporation's separate personality is that arbitration.
consent by a corporation through its 2. ​The term "agreement in writing" shall include an
representatives is not consent of the arbitral clause in a contract or an arbitration
representative, personally. Its obligations, agreement, signed by the parties or contained in an
incurred through official acts of its exchange of letters or telegrams.
representatives, are its own.
● RA 9285
However, there are instances when the IRR Rule 2, Art.1.6
distinction between personalities of directors, An arbitration agreement ​may be in the form of an
officers, and representatives, and of the arbitration clause in a contract or in the form of a
corporation, are disregarded. We call this separate agreement.
piercing the veil of corporate fiction.
RA 876 ​Section 4. Form of arbitration agreement. -
Piercing the corporate veil is warranted when
"[the separate personality of a corporation] is A contract to arbitrate a controversy thereafter
used as a means to perpetrate ​fraud or an arising between the parties, as well as a
illegal act​, or as a vehicle for the ​evasion of an submission to arbitrate an existing controversy shall
existing obligation, the ​circumvention of be in ​writing and subscribed by the party sought to
be charged, or by his lawful agent. ​→ ​this rule
statutes, or to ​confuse legitimate issues​." It is
also warranted in ​alter ego cases "where a applies to ​domestic arbitration NOT int’l.
corporation is merely a farce since it is a mere
alter ego or business conduit of a person, or ● UNCITRAL Model Law
where the corporation is so organized and Model Law Art. 7(1)
(2) The arbitration agreement shall be in ​writing​.
controlled and its affairs are so conducted as to
make it merely an instrumentality, agency,
(3) An arbitration agreement is ​in writing if its
conduit or adjunct of another corporation."
content is ​recorded in any form​, whether or not the
When there are allegations of bad faith or arbitration agreement or contract has been
malice against corporate directors or concluded ​orally, by conduct, or by other means.
representatives, it becomes the duty of courts
or tribunals to determine if these persons and (4) The requirement that an arbitration agreement
the corporation should be treated as one. In be in writing is ​met by an electronic communication
that case, complainants have no choice but to if the information contained therein is accessible so
institute only one proceeding against the as to be useable for subsequent reference;
parties. “electronic communication” means any
communication that the parties make by means of
● Fruehauf Electronics v. Technology Electronics data messages; “data message” means information
– ​Unlike purely commercial relationships, the generated, sent, received or stored by electronic,
relationship between capital and labor are magnetic, optical or similar means, including, but
heavily impressed with public interest. Because not limited to, ​electronic data interchange (EDI),
of this, Voluntary Arbitrators authorized to electronic mail, telegram, telex or telecopy.
resolve labor disputes have been clothed with
quasi-judicial authority. ​All things considered, (5) Furthermore, an arbitration agreement is in
there is no legal authority supporting the writing if it is contained in an exchange of
position that commercial arbitrators are statements of claim and defence in which the
quasi-judicial bodies. existence of an agreement is alleged by one party
and not denied by the other.
As established earlier, an arbitral award is not
appealable via Rule 43 because: (1) there is ​no
(6) The ​reference in a contract to any document
statutory basis for an appeal from the final
containing an arbitration clause constitutes an
award of arbitrators; (2) ​arbitrators are not
arbitration agreement in writing, ​provided that the
quasi-judicial bodies​; and (3) the ​Special ADR
reference is such as to make that clause part of the
Rules specifically prohibit the filing of an appeal
contract.
to question the merits of an arbitral award.
● Article 181, RA 112321, Revised Corporation 6. L​anguage of Arbitration
Code of the Philippines 7. Arbitral ​S​eat
Section 181. ​Arbitration for Corporations. - ​An
arbitration agreement ​may be provided in the ● Agreement to Arbitrate
articles of incorporation or bylaws of a corporation. ○ Should expressly refer disputes to
When such an agreement is in place, ​disputes “arbitration”​, and ​not to expert
between the corporation, its stockholders or determination, mediation, “ADR” or some
members, ​which arise from the ​implementation of other form.
the articles of incorporation or bylaws, ​or from ○ Most arbit agreements also provide that
intracorporate relations​, shall be referred to disputes should be referred to arbitration for
arbitration. A dispute shall be ​nonarbitrable when a “binding” or “final” disposition, and not an
it involves criminal offenses and interests of third advisory recommendation.
parties. ○ Arbitration clauses ​should treat arbitration
as mandatory and not a possible future
The arbitration agreement shall be binding on the option, applibable if the parties so agree
corporation, its directors, trustees, officers, and after a dispute arises.
executives or managers.
● Scope of the Dispute(s) Submitted to Arbitration
To be enforceable​, the arbitration agreement ○ Scope – categories of disputes that will be
should indicate ​the number of arbitrators and the subject to arbitration (i.e., ​all or some or
procedure for their appointment​. ​The power to only particular types, etc.)​
appoint the arbitrators forming the arbitral tribunal ○ Exclusions can lead (undesirably) to parallel
shall be granted to a designated independent third proceedings in both the arbitral forum and
party. Should the third party fail to appoint the national courts, and to jurisdictional disputes
arbitrators in the manner and within the period over the application of a clause to particular
specified in the arbitration agreement, the parties claims.
may request the Commission to appoint the
arbitrators. In any case, ​arbitrators must be D. More Significant Contents of an Arbitration
accredited or must belong to organizations Agreement
accredited for the purpose of arbitration.
1. Applicable Arbitration Rules
The arbitral tribunal shall have the power to rule on What if there is no agreement?
its own jurisdiction and on questions relating to the → ​RA 9285 §26
validity of the arbitration agreement. When an "Appointing Authority" as used in the Model Law
intra-corporate dispute is filed with a ​Regional Trial shall mean the person or institution ​named in the
Court, the court shall dismiss the case before the arbitration agreement as the appointing authority;
termination of the pretrial conference, if it or the regular arbitration institution ​under whose
determines that an arbitration agreement is written rules the arbitration is agreed to be conducted.
in the corporation’s articles of incorporation, Where the parties have agreed to submit their
bylaws, or in a separate agreement. dispute to institutional arbitration rules, ​and unless
they have agreed to a different procedure, ​they
The arbitral tribunal shall have the power to grant shall be deemed to have agreed to procedure
interim measures necessary to ensure enforcement under such arbitration rules for the selection and
of the award, prevent a miscarriage of justice, or appointment of arbitrators. ​In ad hoc arbitration, the
otherwise protect the rights of the parties. default appointment of an arbitrator shall be made
by the National President of the Integrated Bar of
A final arbitral award under this section shall be the Philippines (IBP) or his duly authorized
executory after the lapse of fifteen (15) days from representative.
receipt thereof by the parties and shall be stayed
only by the filing of a bond or the issuance by the → IRR Rule 5, Art.4.(b)
appellate court of an injunctive writ. b) Failing such agreement, the arbitral tribunal may,
subject to this Chapter, conduct the arbitration in
The Commission shall formulate the rules and such manner as it considers appropriate.
regulations, which shall govern arbitration under Unless the arbitral tribunal considers it
this section, subject to existing laws on arbitration. inappropriate, ​the UNCITRAL Arbitration Rules
adopted by the UNCITRAL on 28 April 1976 and
C. Elements of Arbitration Agreements the UN General Assembly on 15 December 1976
RASCALS shall apply subject to the following clarification: All
1. Institutional Arbitration ​R​ules references to the "Secretary General of the
2. A​greement to arbitrate Permanent Court of Arbitration at the Hague" shall
3. S​cope of Disputes Submitted to Arbitration be deemed to refer to the ​appointing authority​.
4. C​hoice-of-law
5. A​rbitrators’ number, qualification and
method of selection
 ○ If IA is desired, the parties’ arbitration (2) Failing such determination, the number of
agreement must select and refer to an arbitrators shall be ​three​.
arbitral institution and/or its rules.
Qualifications ​IRR Rule 3, art. 4.11(a) ​– ​No person
2. Seat of Arbitration or Arbitral Seat shall be precluded by reason of his/her
What if there is no agreement? nationality from acting as an arbitrator​, unless
→ ​RA 9285 §30 otherwise agreed by the parties
Place of Arbitration. - The parties are free to agree
on the place of arbitration. ​Failing such agreement, RA 9285 §17​(d) ​The parties may agree in the
the place of arbitration shall be in Metro Manila, settlement agreement that the mediator shall
unless the arbitral tribunal​, ​having regard to the become a ​sole arbitrator for the dispute and shall
circumstances of the case, including the treat the settlement agreement as an arbitral award
convenience of the parties ​shall decide on a which shall be subject to enforcement under
different place of arbitration. Republic Act No. 876, otherwise known as the
The arbitral tribunal may​, ​unless otherwise Arbitration Law, notwithstanding the provisions of
agreed by the parties, ​meet at any place it Executive Order No. 1008 for mediated dispute
considers appropriate ​for consultation among its outside of the CIAC.
members, for hearing witnesses, experts, or the → A mediator can be appointed as arbitrator
parties, or for inspection of goods, other property or
documents. ○ Procedure for Appointment / Selection
○ Some clauses identify a specific
→ ​IRR Rule 5, Art.4.20 individual
(a) The parties are free to agree on the place of ○ Most common provision is
arbitration. Failing such agreement, the place of designation of an “appointing
arbitration shall be in Metro Manila unless the authority” which will select a sole
arbitral tribunal, having regard to the circumstances arbitrator or presiding arbitrator in
of the case, including the convenience'. of ,the the event the parties cannot do so
parties, shall decide on a different place of
arbitration. IRR Rule 3, Art. 4.11(b to e)​ –
(b) Parties are free to agree on a procedure of
(b) ​Notwithstanding the rule stated in paragraph (a) appointing the arbitrator or arbitrators, subject to
of this provision, ​the arbitral tribunal may, unless the provisions of para. (d) and (e) of this Article
otherwise agreed by the parties, meet at any place
it considers appropriate for ​consultation among its (c) Failing such agreement
members, for hearing witnesses, experts or the (i) In an arbitration with 3 arbitrators, ​each
parties, or for inspection of goods, other property or party shall appoint 1 arbitrator, and the 2
documents. arbitrators thus appointed shall appoint the
3rd arbitrator; if a party fails to appoint the
○ Seat – State where the arbitration has its arbitrator within 30 days from receipt of a
formal or juridical seat request to do so form the other party, or if
○ Effect of Seat: the 2 arbitrators fail to agree on the 3rd
○ Selection of the ​procedural law of arbitrator within 30 days from appointment,
the arbitration the appointment shall be made, upon
○ National ​courts responsible for request of a party, by the appointing
applying the law authority
○ Issues relating to ​constitution of
the tribunal (ii) ​in an arbitration with a sole arbitrator, if
○ Law applicable to ​annulment of the parties are unable to agree on the
arbitral awards arbitrator, he/she shall be appointed, ​upon
request of a party, by the appointing
3. Arbitrators authority
○ Number – Odd number, in IA the rules will
usually provide for this or grant the power to (d) Where, under an appointment procedure agreed
the institution, otherwise the couts may upon by the parties;
decide (i) a party fails to act as required under such
procedure, or
IRR Rule 3, Art. 4.10 – Parties are free to (ii) the parties, or two arbitrators, are unable
determine the number of arbitrators. ​Failing such to reach an agreement expected of them
determination, the number of arbitrators shall be 3. under such procedure, or
(iii) a third party, including an institution, fails
Model Law Art. 10​ – to perform any function entrusted to it under
(1) The parties are free to determine the number of such procedure
arbitrators. Any party ​may ​request the appointing authority to
take the necessary measure to appoint an
arbitrator, ​unless the agreement on the tribunal in accordance with paragraph (a) of this
appointment procedure provides other means of Article.
securing the appointment.
Model Law Art.22
(e) A decision on a matter entrusted by para. (c) (1) The parties are free to agree on the language or
and (d) of this article to the appointing authority languages to be used in the arbitral proceedings.
shall be ​immediately executory and ​not ​subject to Failing such agreement, the arbitral tribunal shall
a motion for reconsideration or appeal. determine the language or languages to be used in
the proceedings. This agreement or determination,
○ Replacement unless otherwise specified therein, shall apply to
IRR Rule 3, Art. 4.12 ​– any written statement by a party, any hearing and
(a) When a person is approached in connection any award, decision or other communication by the
with his/her possible appointment as an arbitrator, arbitral tribunal.
he/she shall disclose any circumstance likely to (2) The arbitral tribunal may order that any
give rise to justifiable doubts as to his/her documentary evidence shall be accompanied by a
impartiality or independence. ​An arbitrator, from the translation into the language or languages agreed
time of his/her appointment and throughout the upon by the parties or determined by the arbitral
arbitral proceedings shall, without delay, disclose tribunal.
any such circumstance to the parties unless they
have already been informed of them by him/her.
What if there is no agreement on the above? →
(b) An arbitrator may be challenged ​only if Model Law ​Absent party agreement, institutional
circumstances exist that give rise to ​justifiable rules authorize the tribunal to select the language/s
doubts as to his/her impartiality or independence, for arbitration ; ​IRR of RA 9285 ​English for ICA.
or ​if he/she does not possess qualifications
agreed to by the parties. ​A party may challenge an 5. Governing Law of the Arbitration Agreement
arbitrator appointed by him/her, or in whose New York Convention
appointment he/she has participated, ​only ​for Article II
reasons of which he/she becomes aware after the 3. ​The court of a Contracting State​, ​when seized of
appointment has been made. an action in a matter in respect of which the parties
have made an agreement within the meaning of
4. Language of Arbitration this article, shall, at the request of one of the
RA 9285 ​SEC. 31. Language of the Arbitration. - parties, refer the parties to arbitration, ​unless it
The parties are free to agree on the language or finds that the said agreement is null and void​,
languages to be used in the arbitral proceedings. inoperative or incapable of being performed.
Failing such agreement, the language to be used
shall be English in ​international arbitration​, ​and Article V
English or Filipino for ​domestic arbitration​, ​unless 1. ​Recognition and enforcement of the award may
the arbitral tribunal shall determine a different or be ​refused​, at the request of the party against
another language or languages to be used in the whom it is invoked, ​only if that party furnishes to
proceedings. This agreement or determination, the competent authority where the recognition and
unless otherwise specified therein, shall apply to enforcement is sought,​ ​proof that​:
any written statement by a party, any hearing and
any award, decision or other communication by the (a) ​The parties to the agreement referred to in
arbitral tribunal. article II ​were, ​under the law applicable to them,
The arbitral tribunal may order that any under some ​inc ​ apacity, OR ​the said ​agreement
documentary evidence shall be accompanied by a is not valid under the law to which the parties have
translation into the language or languages agreed subjected it ​OR​, failing any indication thereon,
upon by the parties or determined in accordance under the law of the country ​where the award was
with paragraph 1 of this section. made​;

IRR Rule 5, Art. 4.22 – (a) The parties are free to ○ UNCITRAL Model Law​ (same)
agree on the language or languages to be used in ○ Law of the Main Contract v. Law of the
the arbitral proceedings, ​Failing such agreement, Seat
the language to be used shall be English. This Sulamérica v. Enesa – ​to determine which law
agreement, unless otherwise specified therein, should apply to the arbitration agreement, they laid
shall apply to any written statement by a party, any down a ​two pronged approach: First, one cannot
hearing and any award, decision or other assume that the proper law of the arbitration
communication by the arbitral tribunal. agreement will follow the law of the contract; rather,
there should be a “three-stage enquiry” into
(b) The arbitral ​tribunal may order that any i. express choice;
documentary evidence shall be accompanied by a ii. implied choice and
translation into the language or languages agreed iii. closest and most real connection.
upon ​by the parties or determined by the arbitral
Contrary to the rationale at first instance, they - In Sulamerica, since there was an express
accepted that, ​in the absence of other factors, the choice for the main contract this is the
implied law of the arbitration agreement will often implied agreement. BUT the law of the seat
be the same as the law of the substantive contract. was applied instead because ​the law of the
However, they chose not to be more prescriptive as main contract would have invalidated the
this will always be a matter of contractual arbitration agreement. << The validation
interpretation. principle. Thus the more applicable law is
the law of the seat.
○ Four Choice of Law Issues: - This was clarified in Enka. If there is no
1. Substantive ​law governing the merits express agreement as to the law applicable
of the parties underlying contract to the arbitration agreement, then the
and other claims implied law should govern. The ​strongest
2. Law governing the parties’ implication of agreement is the choice of law
arbitration agreement​, of the main contract, ​the exception being
3. The law applicable to the ​arbitral when doing so would violate the validation
proceedings principle. Then, the ​next most reasonable
4. The conflict of laws rules applicable connection is the law of the seat.
to select each of the foregoing laws
- The Three-Stage Test was reinforced in
○ Governing Law of the Contract Enka. For as long as there is an express
(Substantive Law) agreement, that will govern ​even if it would
→ Re: interpretation, effectiveness, validity, invalidate the arbitration agreement.​ The
etc. of the CONTRACT problem arises when there is no express
→ Underlying dispute ordinarily is resolved agreement, which triggers the second step
under the rules of substantive law of a “what is the implied agreement?”. The
particular national legal system STRONGEST EVIDENCE of the implied
→ International arbitral awards typically give agreement is the governing law of the main
effect to the parties’ agreements concerning contract, the only time that this can be
applicable substantive law (choice of law questioned is if the governing law of the
clauses) ​Exc: Where the ​mandatory national main contract would invalidate the
laws or public policies override the arbitration agreement. In that case, avoid
contractual agreements the implied law invalidating the arbitration
agreement, and then the closest connection
○ Governing Law of the Arbitration test will apply. Then look at the seat and the
Agreement (Law Applicable to the Arbit. place of performance.
Agr.)
→ Validity, enforceability, etc. of the 6. Scope of Arbitration Agreement
ARBITRATION AGREEMENT *remember: New York Convention
this is a contract separable and independent Article V
of the main contract 1. ​Recognition and enforcement of the award may
→ Arbitration agreements are presumptively be ​refused​, at the request of the party against
“separable” from the underlying contract in whom it is invoked, ​only if that party furnishes to
which they appear. the competent authority where the recognition and
enforcement is sought,​ ​proof that​:
○ Governing Law of the Seat (Procedural (c) ​The award deals with a difference not
Law) contemplated by or not falling within the terms of
→ the submission to arbitration, or it contains
→ Law governing arbitral proceedings is the decisions on matters beyond the scope of the
arbitration statute of the arbitral seat ​BUT submission to arbitration, provided that, if the
parties can stipulate otherwise, depending decisions on matters submitted to arbitration can be
on the jurisdictions applicable. separated from those not so submitted, that part of
→ Deals with issues re: ​appointment and the award which contains decisions on matters
qualifications of arbitrators, of parties’ legal submitted to arbitration may be recognized and
representatives, extent of judicial intervention, form of enforced;
the award, stanadards for annulment.

7. Other Clauses in an Arbitration Agreement

○ Conflict of Law Rules
○ Sharing of costs / Legal costs
→ Tribunals decide, but the practice of
○ Disclosure powers of the tribunal
tribunals in selecting the law applicable to ○ Fast-track or other procedural rules
each of the issues varies. ○ State sovereign immunity waivers
○ Waivers of right to seek annulment
Sulamerica and Enka Case Comparisons ○ Discovery
In both cases, there was NO express choice of law ○ Currency of Award and Interests
applicable to the Arbitration Agreement. ○ Monetary thresholds
○ Bifurcation of Proceedings
 ○ Finality of Award were meant to be resolved under
○ Confidentiality different dispute ADR provisions.
○ Even when the same clause,
8. Interpretation verbatim, is repeated it can be
RA 9285 considered independent of the other
SEC. 19. Adoption of the Model Law on contracts (different scope).
International Commercial Arbitration. - International ● Incorporation of Institutional Rules
commercial arbitration shall be governed by the ○ Most courts apply the version of the
Model Law on International Commercial Arbitration rules in force at the time of the
(the "Model Law") adopted by the United Nations making of the agreement
Commission on International Trade Law on June ○ Arbitral Institutions have a broad
21, 1985 (United Nations Document A/40/17) and discretion in interpreting their own
recommended approved on December 11, 1985, rules
copy of which is hereto attached as Appendix "A". ● Allocation of Competence to Interpret
○ Arbitral Institutions generally have
SEC. 20. Interpretation of Model Law. - ​In competence to determine their own
interpreting the Model Law, regard shall be had to jurisdiction
its international origin and to the need for uniformity ○ The arbitration agreement serves as
in its interpretation and resort may be made to the clear and unmistakable evidence of
travaux preparatories and the report of the the parties’ intent to delegate
Secretary General of the United Nations jurisdictional disputes to an arbitrator
Commission on International Trade Law dated
March 25, 1985 entitled, "International Commercial
Arbitration: Analytical Commentary on Draft Trade
identified by reference number A/CN. 9/264."

● In most jurisdictions, the starting point for

the interpretation or international arbitration
agreements is ​generally-applicable contract
law and its principles of contract
interpretation. These typically include the
contra preferentem ("interpretation against
the draftsman") r​ ule, specific terms prevail
over general ones, giving effect to all parts,
and trade usage of terms.
● “Pro-arbitration assumption”
○ “Broad” vs “Narrow” → some courts
have said that a “broad” clause will
attract a pro-arbitration rule
○ No prohibition against arbitration of
non-contractual claims (i.e torts).
Many courts determine inclusion or
exclusion of such claims based on
the facts attendant.
○ No prohibition on arbitration of
claims based on statutory
protections.
● Multiple Contracts
○ In general, so long as the parties the
contracts are the same and the
underlying contracts relate to a
single project, courts have usually
held that an arbitration clause in one
agreement extends to related
agreements.
○ Where agreement lack a sufficiently
close relationship, then an arbitration
clause in one contract is likely
inapplicable to the other.
○ The existence of ​dissimilar
arbitration provisions in related
contracts is strong evidence that
disputes under several agreements
VII. Issues on Existence, Validity, and Rule 4.3. Contents of request. - The request for
Enforceability of Arbitration Agreements referral shall be ​in the form of a motion​, which
shall state that the dispute is covered by an
A. When should the right to arbitrate be arbitration agreement.
invoked? Apart from other submissions, the movant shall
attach to his motion an authentic copy of the
R.A. 9285 arbitration agreement.
SEC. 24. Referral to Arbitration. - A court before The request ​shall contain a notice of hearing
which an action is brought in a matter which is the addressed to all parties specifying the date and
subject matter of an arbitration agreement shall, if time when it would be heard. The party making the
at least one party so requests ​not later than the request ​shall serve it upon the respondent to
pre-trial conference​, ​OR ​upon the request of ​both give him the opportunity to file a comment or
parties thereafter​, refer the parties to arbitration opposition as provided in the immediately
unless it finds that the arbitration agreement is null succeeding Rule before the hearing.
and void, inoperative or incapable of being Rule 4.4. Comment/Opposition. - The
performed. comment/opposition must be filed within fifteen (15)
days from service of the petition. The
New York Convention comment/opposition should show that:
Article II (3)​The court of a Contracting State, when (a) there is no agreement to refer the dispute to
seized of an action in a matter in respect of which arbitration; ​and/or
the parties have made an agreement within the (b) the agreement is null and void; ​and/or
meaning of this article, shall, ​at the request of one (c) the subject-matter of the dispute is not
of the parties, refer the parties to arbitration, ​unless capable of settlement or resolution by
it finds that the said agreement is null and void, arbitration in accordance with Section 6 of the
inoperative or incapable of being performed. ADR Act.
Rule 4.5. Court action. - After hearing, the court
Model Law shall stay the action and, considering the statement
Article 8. Arbitration agreement and substantive of policy embodied in Rule 2.4, above, refer the
claim before court parties to arbitration if it finds prima facie, based on
(1) A court before which an action is brought in a the pleadings and supporting documents submitted
matter which is the subject of an arbitration by the parties, that there is an arbitration
agreement shall, if a party so requests ​not later agreement and that the subject-matter of the
than when submitting his first statement on the dispute is capable of settlement or resolution by
substance of the dispute, refer the parties to arbitration in accordance with Section 6 of the ADR
arbitration ​unless it finds that the agreement is Act. Otherwise, the court shall continue with the
null and void, inoperative or incapable of being judicial proceedings.
performed. Rule 4.6. No reconsideration, appeal or certiorari. -
(2) Where an action referred to in paragraph (1) of An order referring the dispute to arbitration
this article has been brought, arbitral proceedings shall be immediately executory and shall not be
may nevertheless be commenced or continued, subject to a motion for reconsideration, appeal
and an award may be made, while the issue is or petition for certiorari.
pending before the court. An order denying the request to refer the
dispute to arbitration shall not be subject to an
Special ADR Rules appeal, ​but may be the subject of a motion for
RULE 4: REFERRAL TO ADR reconsideration and/or a petition for certiorari.
Rule 4.1. ​Who makes the request. - ​A party to a Rule 4.7. Multiple actions and parties. - The court
pending action filed in violation of the arbitration shall NOT decline to refer some or all of the parties
agreement​, whether contained in an arbitration to arbitration ​for any of the following reasons:
clause or in a submission agreement, may request a. Not all of the disputes subject of the civil action
the court to refer the parties to arbitration in may be referred to arbitration;
accordance with such agreement. b. Not all of the parties to the civil action are bound
Rule 4.2. ​When to make request.​ - by the arbitration agreement and referral to
(A) Where the ​arbitration agreement exists arbitration would result in multiplicity of suits;
before the action is filed​. - The request for referral c. The issues raised in the civil action could be
shall be made ​not later than the pre-trial speedily and efficiently resolved in its entirety by
conference. ​After the pre-trial conference​, ​the court the court rather than in arbitration;
will only act upon the request for referral ​if it is d. Referral to arbitration does not appear to be the
made with the agreement of all parties to the case. most prudent action; or
(B) ​Submission agreement. - If there is no e. The stay of the action would prejudice the rights
existing arbitration agreement at the time the case of the parties to the civil action who are not bound
is filed but the parties subsequently enter into an by the arbitration agreement.
arbitration agreement, they may request the court The court may, however, issue an order directing
to refer their dispute to arbitration at ​any time the inclusion in arbitration of those parties who are
during the proceedings. not bound by the arbitration agreement but who
agree to such inclusion provided those originally (i) ​the arbitration agreement is inexistent, void,
bound by it do not object to their inclusion. unenforceable or not binding upon a person for any
Rule 4.8. Arbitration to proceed.- Despite the reason​, including the fact that the adverse party is
pendency of the action referred to in Rule 4.1, not privy to said agreement; or
above, arbitral proceedings may nevertheless be (ii) ​the dispute is not arbitrable or is outside the
commenced or continued, and an award may be scope of the arbitration agreement;​ or
made, while the action is pending before the court. (iii) ​the dispute is under the original and exclusive
jurisdiction of a court or quasi-judicial body,
B. Judicial Relief Involvng the Issue of
Existence, Validity, and Enforceability of (c) The respondent in the arbitration may invoke
Arbitration Agreements any of such grounds to question before the court
the existence, validity, or enforceability of the
and arbitration agreement, or the propriety of the
arbitration, or the jurisdiction of the arbitrator and
C. Grounds for Questioning Existence, invoke the pendency of such action as ground for
Validity, and Enforceability of Arbitration suspension of the arbitration proceeding. The
Agreements arbitral tribunal, having regard to the circumstances
of the case, and the need for the early and
IRR of R.A. 9285 expeditious settlement of the dispute, in light of the
Article 4.16. Competence of Arbitral Tribunal to facts and arguments raised to question its
Rule on its Jurisdiction. (a) The arbitral tribunal jurisdiction, may decide either to suspend the
may rule on its own jurisdiction, ​including any arbitration until the court has made a decision on
objections with respect to the existence or validity the issue or continue with the arbitration.
of the arbitration agreement or any condition
precedent to the filing of a request for arbitration. Model Law
For that purpose, ​an arbitration clause, which forms Article 16. Competence of arbitral tribunal to rule on
part of a contract shall be treated as an agreement its jurisdiction
independent of the other terms of the contract. ​A (1) ​The arbitral tribunal may rule on its own
decision by the arbitral tribunal that the contract is jurisdiction, including any objections with respect to
null and void shall not entail ipso jure the invalidity the existence or validity of the arbitration
of the arbitration clause. agreement. For that purpose, an arbitration clause
(b) ​A plea that the arbitral tribunal does not have which forms part of a contract shall be treated as
jurisdiction shall be raised not later than the an agreement independent of the other terms of the
submission of the statement of defense (i.e., in an con- tract. A decision by the arbitral tribunal that the
Answer or Motion to Dismiss). A party is not contract is null and void shall not entail ipso jure the
precluded from raising such plea by the fact that invalidity of the arbitration clause.
he/she has appointed, or participated in the
appointment of, an arbitrator. ​A plea that the Special ADR Rules
arbitral tribunal is exceeding the scope of its Rule 3.1. When judicial relief is available. - The
authority shall be raised as soon as the matter judicial relief provided in Rule 3, whether resorted
alleged to be beyond the scope of its authority is to before or after commencement of arbitration,
raised during the arbitral proceedings. The arbitral shall apply only when the place of arbitration is in
tribunal may, in either case, admit a later plea if it the Philippines.
considers the delay justified. A. Judicial Relief ​before Commencement of
(c) The arbitral tribunal may rule on a plea referred Arbitration
to in paragraph (b) of this Article ​either as a Rule 3.2. Who may file petition. - ​Any party ​to an
preliminary question or in an award on the merits. If arbitration agreement may petition the appropriate
the arbitral tribunal rules as a preliminary question court to determine any question concerning the
that it has jurisdiction, any party may request, within existence, validity and enforceability of such
thirty (30) days after having received notice of that arbitration agreement serving a copy thereof on the
ruling, the Regional Trial Court to decide the respondent in accordance with Rule 1.4 (A).
matter, which decision shall be immediately Rule 3.3. When the petition may be filed. - The
executory and not subject to motion for petition for judicial determination of the existence,
reconsideration or appeal. While such a request is validity and/or enforceability of an arbitration
pending, the arbitral tribunal may continue the agreement ​may be filed at any time prior to the
arbitral proceedings and make an award. commencement of arbitration.
Despite the pendency of the petition provided
Article 5.15. Competence of Arbitral Tribunal to herein, ​arbitral proceedings may nevertheless be
Rule on its Jurisdiction. ​(a) When a demand for commenced and continue to the rendition of an
arbitration made by a party to a dispute is objected award, while the issue is pending before the court.
to by the adverse party, the arbitral tribunal shall, Rule 3.4. Venue. - A petition questioning the
in the first instance, resolve the objection when existence, validity and enforceability of an
made on any of the following grounds: arbitration agreement may be filed before the
Regional Trial Court of the place where any of the
petitioners or respondents has his principal place of Rule 3.12. Who may file petition. - ​Any party to
business or residence. arbitration may petition the appropriate court for
Rule 3.5. Grounds. - A petition may be granted only judicial relief from the ruling of the arbitral tribunal
if it is shown ​that the arbitration agreement is, on a preliminary question upholding or declining its
under the applicable law, invalid, void, jurisdiction. Should the ruling of the arbitral tribunal
unenforceable or inexistent. declining its jurisdiction be reversed by the court,
Rule 3.6. Contents of petition. - The verified petition the parties shall be free to replace the arbitrators or
shall state the following: any one of them in accordance with the rules that
a. The facts showing that the persons named as were applicable for the appointment of arbitrator
petitioner or respondent have legal capacity to sue sought to be replaced.
or be Rule 3.13. When petition may be filed. - The
sued; petition may be filed ​within thirty (30) days after
b. The nature and substance of the dispute having received notice of that ruling by the arbitral
between the parties; tribunal.
c. The grounds and the circumstances relied upon Rule 3.14. Venue. - The petition may be filed before
by the petitioner to establish his position; and d. the Regional Trial Court of the place where
The relief/s sought. arbitration is taking place, or where any of the
Apart from other submissions, the petitioner must petitioners or respondents has his principal place of
attach to the petition an authentic copy of the business or residence.
arbitration agreement. Rule 3.15. Grounds. - The petition may be granted
Rule 3.7. Comment/Opposition.-The when the court finds ​that the arbitration agreement
comment/opposition of the respondent must be is invalid, inexistent or unenforceable as a result of
filed within fifteen (15) days from service of the which the arbitral tribunal has no jurisdiction to
petition. resolve the dispute.
Rule 3.8. Court action. - In resolving the petition, Rule 3.16. Contents of petition. - The petition shall
the ​court must exercise judicial restraint in state the following:
accordance with the policy set forth in Rule 2.4, a. The facts showing that the person named as
deferring to the competence or jurisdiction of the petitioner or respondent has legal capacity to sue
arbitral tribunal to rule on its competence or or be sued; b. The nature and substance of the
jurisdiction. dispute between the parties;
Rule 3.9. No forum shopping. - A petition for judicial c. The grounds and the circumstances relied upon
relief under this Rule may not be commenced when by the petitioner; and
the existence, validity or enforceability of an d. The relief/s sought.
arbitration agreement has been raised as one of In addition to the submissions, the petitioner shall
the issues in a prior action before the same or attach to the petition a copy of the request for
another court. arbitration and the ruling of the arbitral tribunal.
Rule 3.10. Application for interim relief. - If the The arbitrators shall be impleaded as nominal
petitioner also applies for an interim measure of parties to the case and shall be notified of the
protection, he must also comply with the progress of the case.
requirements of the Special ADR Rules for the Rule 3.17. Comment/Opposition. - The
application for an interim measure of protection. comment/opposition must be filed within fifteen (15)
Rule 3.11. Relief against court action. - Where days from service of the petition.
there is a prima facie determination upholding the Rule 3.18. Court action. - (A) Period for resolving
arbitration agreement.-​A prima facie determination the petition.- The court shall render judgment on
by the court upholding the existence, validity or the basis of the pleadings filed and the evidence, if
enforceability of an arbitration agreement shall not any, submitted by the parties, within thirty (30) days
be subject to a motion for reconsideration, appeal from the time the petition is submitted for
or certiorari. resolution.
Such prima facie determination ​will not, however, (B) No injunction of arbitration proceedings. - The
prejudice the right of any party to raise the issue of court shall not enjoin the arbitration proceedings
the existence, validity and enforceability of the during the pendency of the petition.
arbitration agreement before the arbitral tribunal or Judicial recourse to the court shall not prevent the
the court in an action to vacate or set aside the arbitral tribunal from continuing the proceedings
arbitral award. ​In the latter case, the court’s review and rendering its award.
of the arbitral tribunal’s ruling upholding the (C) When dismissal of petition is appropriate. - The
existence, validity or enforceability of the arbitration court shall dismiss the petition if it fails to comply
agreement shall no longer be limited to a mere with Rule 3.16 above; or if upon consideration of
prima facie determination of such issue or issues the grounds alleged and the legal briefs submitted
as prescribed in this Rule, but shall be a full review by the parties, the petition does not appear to be
of such issue or issues with due regard, however, prima facie meritorious.
to the standard for review for arbitral awards Rule 3.19. Relief against court action. - The
prescribed in these Special ADR Rules. aggrieved party may file a motion for
B. Judicial Relief ​after​ Arbitration Commences reconsideration of the order of the court. The
decision of the court shall, however, not be subject
to appeal. The ruling of the court affirming the the reasons that the court shall consider in granting
arbitral tribunal’s jurisdiction shall not be subject to the relief:
a petition for certiorari. The ruling of the court that a. The need to prevent irreparable loss or injury;
the arbitral tribunal has no jurisdiction may be the b. The need to provide security for the performance
subject of a petition for certiorari. of any obligation; c. The need to produce or
Rule 3.20. Where no petition is allowed. - Where preserve evidence; or
the arbitral tribunal defers its ruling on preliminary d. The need to compel any other appropriate act or
question regarding its jurisdiction until its final omission.
award, the aggrieved party cannot seek judicial Rule 5.5. Contents of the petition. - The verified
relief to question the deferral and must await the petition must state the following: a. The fact that
final arbitral award before seeking appropriate there is an arbitration agreement;
judicial recourse. b. The fact that the arbitral tribunal has not been
A ruling by the arbitral tribunal deferring resolution constituted, or if constituted, is unable to act or
on the issue of its jurisdiction until final award, shall would be unable to act effectively;
not be subject to a motion for reconsideration, c. A detailed description of the appropriate relief
appeal or a petition for certiorari. sought;
Rule 3.21. Rendition of arbitral award before court d. The grounds relied on for the allowance of the
decision on petition from arbitral tribunal’s petition
preliminary ruling on jurisdiction. - If the arbitral Apart from other submissions, the petitioner must
tribunal renders a final arbitral award and the Court attach to his petition an authentic copy of the
has not rendered a decision on the petition from the arbitration agreement.
arbitral tribunal’s preliminary ruling affirming its Rule 5.6. Type of interim measure of protection that
jurisdiction, that petition shall become ipso facto a court may grant.- The following, among others,
moot and academic and shall be dismissed by the are the interim measures of protection that a court
Regional Trial Court. The dismissal shall be without may grant:
prejudice to the right of the aggrieved party to raise a. Preliminary injunction directed against a party to
the same issue in a timely petition to vacate or set arbitration;
aside the award. b. Preliminary attachment against property or
Rule 3.22. Arbitral tribunal a nominal party. - The garnishment of funds in the custody of a bank or a
arbitral tribunal is only a nominal party. The court third person;
shall not require the arbitral tribunal to submit any c. Appointment of a receiver;
pleadings or written submissions but may consider d. Detention, preservation, delivery or inspection of
the same should the latter participate in the property; or,
proceedings, but only as nominal parties thereto. e. Assistance in the enforcement of an interim
measure of protection granted by the arbitral
RULE 5: INTERIM MEASURES OF PROTECTION tribunal, which the latter cannot enforce effectively.
Rule 5.1. Who may ask for interim measures of Rule 5.7. Dispensing with prior notice in certain
protection. - A party to an arbitration agreement cases. - Prior notice to the other party may be
may petition the dispensed with when the petitioner alleges in the
court for interim measures of protection. petition that there is an urgent need to either (a)
Rule 5.2. When to petition. - A petition for an preserve property, (b) prevent the respondent from
interim measure of protection may be made (a) disposing of, or concealing, the property, or (c)
before arbitration is commenced, (b) after prevent the relief prayed for from becoming illusory
arbitration is commenced, but before the because of prior notice, and the court finds that the
constitution of the arbitral tribunal, or (c) after the reason/s given by the petitioner are meritorious.
constitution of the arbitral tribunal and at any time Rule 5.8. Comment/Opposition. - The
during arbitral proceedings but, at this stage, only comment/opposition must be filed within fifteen (15)
to the extent that the arbitral tribunal has no power days from service of the petition. The opposition or
to act or is unable to act effectively. comment should state the reasons why the interim
Rule 5.3. Venue. - A petition for an interim measure measure of protection should not be granted.
of protection may be filed with the Regional Trial Rule 5.9. Court action. - After hearing the petition,
Court, which has jurisdiction over any of the the court shall balance the relative interests of the
following places: parties and inconveniences that may be caused,
a. Where the principal place of business of any of and on that basis resolve the matter within thirty
the parties to arbitration is located; b. Where any of (30) days from (a) submission of the opposition, or
the parties who are individuals resides; (b) upon lapse of the period to file the same, or (c)
c. Where any of the acts sought to be enjoined are from termination of the hearing that the court may
being performed, threatened to be performed or not set only if there is a need for clarification or further
being performed; or argument.
d. Where the real property subject of arbitration, or If the other parties fail to file their opposition on or
a portion thereof is situated. before the day of the hearing, the court shall motu
Rule 5.4. Grounds. - The following grounds, while proprio render judgment only on the basis of the
not limiting the reasons for the court to grant an allegations in the petition that are substantiated by
interim measure of protection, indicate the nature of
supporting documents and limited to what is prayed c. The measure of protection ordered by the arbitral
for therein. tribunal amends, revokes, modifies or is
In cases where, based solely on the petition, the inconsistent with an earlier measure of protection
court finds that there is an urgent need to either (a) issued by the court.
preserve property, (b) prevent the respondent from If it finds that there is sufficient merit in the
disposing of, or concealing, the property, or (c) opposition to the application based on letter (b)
prevent the relief prayed for from becoming illusory above, the court shall refer the matter back to the
because of prior notice, it shall issue an arbitral tribunal for appropriate determination.
immediately executory temporary order of Rule 5.12. Security. - The order granting an interim
protection and require the petitioner, within five (5) measure of protection may be conditioned upon the
days from receipt of that order, to post a bond to provision of security, performance of an act, or
answer for any damage that respondent may suffer omission thereof, specified in the order.
as a result of its order. The ex-parte temporary The Court may not change or increase or decrease
order of protection shall be valid only for a period of the security ordered by the arbitral tribunal.
twenty (20) days from the service on the party Rule 5.13. Modification, amendment, revision or
required to comply with the order. Within that revocation of court’s previously issued interim
period, the court shall: measure of protection. - Any court order granting or
a. Furnish the respondent a copy of the petition and denying interim measure/s of protection is issued
a notice requiring him to comment thereon on or without prejudice to subsequent grant, modification,
before the day the petition will be heard; and amendment, revision or revocation by the arbitral
b. Notify the parties that the petition shall be heard tribunal as may be warranted.
on a day specified in the notice, which must not be An interim measure of protection issued by the
beyond the twenty (20) day period of the effectivity arbitral tribunal shall, upon its issuance be deemed
of the ex-parte order. to have ipso jure modified, amended, revised or
The respondent has the option of having the revoked an interim measure of protection
temporary order of protection lifted by posting an previously issued by the court to the extent that it is
appropriate counter- bond as determined by the inconsistent with the subsequent interim measure
court. of protection issued by the arbitral tribunal.
If the respondent requests the court for an Rule 5.14. Conflict or inconsistency between
extension of the period to file his opposition or interim measure of protection issued by the court
comment or to reset the hearing to a later date, and and by the arbitral tribunal. - Any question involving
such request is granted, the court shall extend the a conflict or inconsistency between an interim
period of validity of the ex-parte temporary order of measure of protection issued by the court and by
protection for no more than twenty days from the arbitral tribunal shall be immediately referred by
expiration of the original period. the court to the arbitral tribunal which shall have the
After notice and hearing, the court may either grant authority to decide such question.
or deny the petition for an interim measure of Rule 5.15. Court to defer action on petition for an
protection. The order granting or denying any interim measure of protection when informed of
application for interim measure of protection in aid constitution of the arbitral tribunal. - The court shall
of arbitration must indicate that it is issued without defer action on any pending petition for an interim
prejudice to subsequent grant, modification, measure of protection filed by a party to an
amendment, revision or revocation by an arbitral arbitration agreement arising from or in connection
tribunal. with a dispute thereunder upon being informed that
Rule 5.10. Relief against court action. - If an arbitral tribunal has been constituted pursuant to
respondent was given an opportunity to be heard such agreement. The court may act upon such
on a petition for an interim measure of protection, petition only if it is established by the petitioner that
any order by the court shall be immediately the arbitral tribunal has no power to act on any
executory, but may be the subject of a motion for such interim measure of protection or is unable to
reconsideration and/or appeal or, if warranted, a act thereon effectively.
petition for certiorari. Rule 5.16. Court assistance should arbitral tribunal
be unable to effectively enforce interim measure of
Rule 5.11. Duty of the court to refer back. - The protection. - The court shall assist in the
court shall not deny an application for assistance in enforcement of an interim measure of protection
implementing or enforcing an interim measure of issued by the arbitral tribunal which it is unable to
protection ordered by an arbitral tribunal on any or effectively enforce.
all of the following grounds:
a. The arbitral tribunal granted the interim relief ex D. Other Grounds
parte; or
b. The party opposing the application found new
material evidence, which the arbitral tribunal had
not considered in granting in the application, and
which, if considered, may produce a different result;
or
The Arbitral Award (i) a party fails to act as required under such
A. Number of Arbitrators procedure, or
B. Appointment of Arbitrators (ii) the parties, or two arbitrators, are unable to
C. Challenge and Disqualification of reach an agreement expected of them under such
Arbitrators procedure, or
D. Appointment of Substitute or (iii) a third party, including an institution, fails to
Replacement Arbitrator perform any function entrusted to it under such
procedure
IRR Rule 3, Art. 4.10 – Parties are free to Any party may request the appointing authority to
determine the number of arbitrators. Failing such take the necessary measure to appoint an
determination, the number of arbitrators shall be 3. arbitrator, unless the agreement on the
appointment procedure provides other means of
Model Law Art. 10 – securing the appointment.
(1) The parties are free to determine the number of
arbitrators. (e) A decision on a matter entrusted by para. (c)
(2) Failing such determination, the number of and (d) of this article to the appointing authority
arbitrators shall be three. shall be immediately executory and not subject to a
motion for reconsideration or appeal.
Qualifications IRR Rule 3, art. 4.11(a) – No person
shall be precluded by reason of his/her nationality Replacement
from acting as an arbitrator, unless otherwise IRR Rule 3, Art. 4.12 –
agreed by the parties (a) When a person is approached in connection
with his/her possible appointment as an arbitrator,
RA 9285 §17(d) The parties may agree in the he/she shall disclose any circumstance likely to
settlement agreement that the mediator shall give rise to justifiable doubts as to his/her
become a sole arbitrator for the dispute and shall impartiality or independence. An arbitrator, from the
treat the settlement agreement as an arbitral award time of his/her appointment and throughout the
which shall be subject to enforcement under arbitral proceedings shall, without delay, disclose
Republic Act No. 876, otherwise known as the any such circumstance to the parties unless they
Arbitration Law, notwithstanding the provisions of have already been informed of them by him/her.
Executive Order No. 1008 for mediated dispute
outside of the CIAC. (b) An arbitrator may be challenged only if
A mediator can be appointed as arbitrator circumstances exist that give rise to justifiable
doubts as to his/her impartiality or independence,
Procedure for Appointment / Selection or if he/she does not possess qualifications agreed
Some clauses identify a specific individual to by the parties. A party may challenge an
Most common provision is designation of an arbitrator appointed by him/her, or in whose
“appointing authority” which will select a sole appointment he/she has participated, only for
arbitrator or presiding arbitrator in the event the reasons of which he/she becomes aware after the
parties cannot do so appointment has been made.

IRR Rule 3, Art. 4.11(b to e) – International Arbitral Proceedings

(b) Parties are free to agree on a procedure of A. Commencement
appointing the arbitrator or arbitrators, subject to International Chamber of Commerce
the provisions of para. (d) and (e) of this Article 4.2 The date on which the Request is received by
the Secretariat shall, for all purposes, be deemed to
(c) Failing such agreement be the date of the commencement of the
(i) In an arbitration with 3 arbitrators, each party arbitration.
shall appoint 1 arbitrator, and the 2 arbitrators thus
appointed shall appoint the 3rd arbitrator; if a party Singapore International Arbitration Center
fails to appoint the arbitrator within 30 days from 3.3 The date of receipt of the complete Notice
receipt of a request to do so form the other party, or of Arbitration by the Registrar shall be deemed to
if the 2 arbitrators fail to agree on the 3rd arbitrator be the date of commencement of the arbitration.
within 30 days from appointment, the appointment For the avoidance of doubt, the Notice of Arbitration
shall be made, upon request of a party, by the is deemed to be complete when all the
appointing authority requirements of Rule 3.1 and Rule 6.1(b) (if
applicable) are fulfilled or when the Registrar
(ii) in an arbitration with a sole arbitrator, if the determines that there has been substantial
parties are unable to agree on the arbitrator, he/she compliance with such requirements. SIAC shall
shall be appointed, upon request of a party, by the notify the parties of the commencement of the
appointing authority arbitration.

(d) Where, under an appointment procedure agreed

upon by the parties;
Hong Kong IAC communication of said nomination and acceptance
4.2 An arbitration shall be deemed to commence on has been received by the party making request.
the date on which a copy of the Notice of Arbitration
is received by HKIAC. For the avoidance of doubt, (b) The following rules on interim or provisional
this date shall be determined in accordance with relief shall be observed:
the provisions of Articles 3.1 to 3.5. (1) Any party may request that provision relief be
granted against the adverse party:
American Arbitration Association (2) Such relief may be granted:
The arbitration shall be deemed to commence on (i) to prevent irreparable loss or injury:
the date on which the Administrator receives the (ii) to provide security for the performance of any
Notice of Arbitration. obligation; (iii) to produce or preserve any
evidence; or
B. Legal Representative (iv) to compel any other appropriate act or
R.A. 9285 omission.
SEC. 22. Legal Representation in International (3) The order granting provisional relief may be
Arbitration. - In international arbitration ​conducted conditioned upon the provision of security or any
in the Philippines,​ a party may be presented by any act or omission specified in the order.
person of his choice. Provided, that such (4) Interim or provisional relief is requested by
representative, ​unless admitted to the practice of written application transmitted by reasonable
law in the Philippines, shall not be authorized to means to the Court or arbitral tribunal as the case
appear as counsel in any Philippine court, or any may be and the party against whom the relief is
other quasi-judicial body whether or not such sought, describing in appropriate detail the precise
appearance is in relation to the arbitration in which relief, the party against whom the relief is
he appears. requested, the grounds for the relief, and evidence
supporting the request.
(5) The order shall be binding upon the parties.
(6) Either party may apply with the Court for
assistance in Implementing or enforcing an interim
C. Confidentiality measure ordered by an arbitral tribunal.
R.A. 9285 (7) A party who does not comply with the order
SEC. 23. Confidential of Arbitration Proceedings. - shall be liable for all damages resulting from
The arbitration proceedings, including the records, noncompliance, including all expenses, and
evidence and the arbitral award, shall be reasonable attorney's fees, paid in obtaining the
considered confidential and shall not be order's judicial enforcement.
published ​except (1) ​with the consent of the
parties​, or (2) for the ​limited purpose ​of disclosing SEC. 29. Further Authority for Arbitrator to Grant
to the court of relevant documents in cases where Interim Measure of Protection. - Unless otherwise
resort to the court is allowed herein.​ Provided, agreed by the parties, the arbitral tribunal may, at
however, that the court in which the action or the the request of a party, order any party to take such
appeal is pending may issue a protective order to interim measures of protection as the arbitral
prevent or prohibit disclosure of documents or tribunal may consider necessary in respect of the
information containing secret processes, subject matter of the dispute following the rules in
developments, research and other information Section 28, paragraph 2. Such interim measures
where it is shown that the applicant shall be may include but shall not be limited to preliminary
materially prejudiced by an authorized disclosure injuction directed against a party, appointment of
thereof. receivers or detention, preservation, inspection of
property that is the subject of the dispute in
D. Interim Measures and Preliminary Orders arbitration. Either party may apply with the Court for
R.A. 9285 assistance in implementing or enforcing an interim
Sec. 28, R.A. No. 9285. Grant of Interim Measure measures ordered by an arbitral tribunal.
of Protection. (a) It is not incompatible with an
arbitration agreement for a party to request, before Special ADR Rules
constitution of the tribunal, from a Court an interim RULE 10: CONFIDENTIALITY/PROTECTIVE
measure of protection and for the Court to grant ORDERS
such measure. After constitution of the arbitral Rule 10.1. Who may request confidentiality. - A
tribunal and during arbitral proceedings, a request party, counsel or witness who disclosed or who was
for an interim measure of protection, or modification compelled to disclose information relative to the
thereof, may be made with the arbitral tribunal or to subject of ADR under circumstances that would
the extent that the arbitral tribunal has no power to create a reasonable expectation, on behalf of the
act or is unable to act effectively, the request may source, that the information shall be kept
be made with the Court. The arbitral tribunal is confidential has the right to prevent such
deemed constituted when the sole arbitrator or the information from being further disclosed without the
third arbitrator who has been nominated, has express written consent of the source or the party
accepted the nomination and written who made the disclosure.
Rule 10.2. When request made. - A party may For mediation proceedings, the court shall be
request a protective order at anytime there is a further guided by the following principles: a.
need to enforce the confidentiality of the Information obtained through mediation shall be
information obtained, or to be obtained, in ADR privileged and confidential.
proceedings. b. A party, a mediator, or a nonparty participant
Rule 10.3. Venue. - A petition for a protective order may refuse to disclose and may prevent any other
may be filed with the Regional Trial Court where person from disclosing a mediation communication.
that order would be implemented. c. In such an adversarial proceeding, the following
If there is a pending court proceeding in which the persons involved or previously involved in a
information obtained in an ADR proceeding is mediation may not be compelled to disclose
required to be divulged or is being divulged, the confidential information obtained during the
party seeking to enforce the confidentiality of the mediation: (1) the parties to the dispute; (2) the
information may file a motion with the court where mediator or mediators; (3) the counsel for the
the proceedings are pending to enjoin the parties: (4) the nonparty participants; (5) any
confidential information from being divulged or to persons hired or engaged in connection with the
suppress confidential information. mediation as secretary, stenographer; clerk or
Rule 10.4. Grounds. - A protective order may be assistant; and (6) any other person who obtains or
granted only if it is shown that the applicant would possesses confidential information by reason of his/
be materially prejudiced by an unauthorized her profession.
disclosure of the information obtained, or to be d. The protection of the ADR Laws shall continue to
obtained, during an ADR proceeding. apply even if a mediator is found to have failed to
Rule 10.5. Contents of the motion or petition. - The act impartially.
petition or motion must state the following: e. A mediator may not be called to testify to provide
a. That the information sought to be protected was information gathered in mediation. A mediator who
obtained, or would be obtained, during an ADR is wrongfully subpoenaed shall be reimbursed the
proceeding; full cost of his attorney fees and related expenses.
b. The applicant would be materially prejudiced by Rule 10.9. Relief against court action. - The order
the disclosure of that information; enjoining a person or persons from divulging
c. The person or persons who are being asked to confidential information shall be immediately
divulge the confidential information participated in executory and may not be enjoined while the order
an ADR proceedings; and is being questioned with the appellate courts.
d. The time, date and place when the ADR If the court declines to enjoin a person or persons
proceedings took place. from divulging confidential information, the
Apart from the other submissions, the movant must petitioner may file a motion for reconsideration or
set the motion for hearing and contain a notice of appeal.
hearing in accordance with Rule 15 of the Rules of Rule 10.10. Consequence of disobedience. - Any
Court. person who disobeys the order of the court to
Rule 10.6. Notice. - Notice of a request for a cease from divulging confidential information shall
protective order made through a motion shall be be imposed the proper sanction by the court.
made to the opposing parties in accordance with
Rule 15 of the Rules of Court.
Rule 10.7. Comment/Opposition. - The Model Law
comment/opposition must be filed within fifteen (15) CHAPTER IV A. Section 1. Interim measures
days from service of the petition. The opposition or Article 17. Power of arbitral tribunal to order interim
comment may be accompanied by written proof measures
that (a) the information is not confidential, (b) the (1) ​Unless otherwise agreed by the parties​, the
information was not obtained during an ADR arbitral tribunal may, at the request of a party, grant
proceeding, (c) there was a waiver of interim measures.
confidentiality, or (d) the petitioner/movant is (2) An interim measure is any temporary measure​,
precluded from asserting confidentiality. whether in the form of an award or in another form,
Rule 10.8. Court action. - If the court finds the by which, ​at any time prior to the issuance of the
petition or motion meritorious, it shall issue an order award by which the dispute is finally decided, the
enjoining a person or persons from divulging arbitral tribunal orders a party to:
confidential information. (a) ​Maintain or restore the status quo pending
In resolving the petition or motion, the courts shall determination of the dispute;
be guided by the following principles applicable to (b) Take action that would ​prevent, or refrain from
all ADR proceedings: Confidential information shall taking action that is likely to cause, current or
not be subject to discovery and shall be imminent harm or prejudice to the arbitral process
inadmissible in any adversarial proceeding, itself;
whether judicial or quasi judicial. However, (c) Provide a means of ​preserving assets ​out of
evidence or information that is otherwise admissible which a subsequent award may be satisfied; or
or subject to discovery does not become (d) ​Preserve evidence that may be relevant and
inadmissible or protected from discovery solely by material to the resolution of the dispute.
reason of its use therein.
Article 17 A. ​Conditions for granting interim preliminary order is directed has been given notice
measures and an opportunity to present its case.
(1) The party requesting an interim measure under (5) A preliminary order shall be binding on the
article 17(2)(a), (b) and (c) shall satisfy the arbitral parties but shall not be subject to enforcement by a
tribunal that: court. Such a preliminary order does not con-
(a) ​Harm not adequately reparable by an stitute an award.
award of damages is likely to result if the Section 3. Provisions applicable to interim
measure is not ordered, ​and such harm measures and preliminary orders
substantially outweighs the harm that is Article 17 D. Modification, suspension, termination
likely to result to the party against whom The arbitral tribunal may modify, suspend or
the measure is directed if the measure is terminate an interim measure or a preliminary order
granted; ​AND it has granted, upon application of any party or, in
(b) There is a ​reasonable possibility that the exceptional circumstances and upon prior notice to
requesting party will succeed on the merits the parties, on the arbitral tribunal’s own initiative.
of the claim. The determination on this Article 17 E. Provision of security
possibility shall not affect the discretion of (1) The arbitral tribunal may require the party
the arbitral tribunal in making any requesting an interim measure to provide
subse-quent determination. appropriate security in connection with the
(2) With regard to a request for an interim measure measure.
under article 17(2)(d), the requirements in (2) The arbitral tribunal shall require the party
paragraphs (1)(a) and (b) of this article shall apply applying for a preliminary order to provide security
only to the extent the arbitral tribunal considers in connection with the order unless the arbitral
appropriate. tribunal considers it inappropriate or unnecessary
to do so.
Section 2. Preliminary orders
Article 17 B. Applications for preliminary orders and Article 17 F. Disclosure
conditions for granting preliminary orders (1) The arbitral tribunal may require any party
(1) Unless otherwise agreed by the parties, a party promptly to disclose any material change in the
may, without notice to any other party, make a circumstances on the basis of which the measure
request for an interim measure together with an was requested or granted.
application for a preliminary order directing a party (2) The party applying for a preliminary order shall
not to frustrate the purpose of the interim measure disclose to the arbitral tribunal all circumstances
requested. that are likely to be relevant to the arbitral tribu-
(2) The arbitral tribunal may grant a preliminary nal’s determination whether to grant or maintain the
order provided it considers that prior disclosure of order, and such obliga- tion shall continue until the
the request for the interim measure to the party party against whom the order has been requested
against whom it is directed risks frustrating the has had an opportunity to present its case.
purpose of the measure. Thereafter, paragraph (1) of this article shall apply.
(3) The conditions defined under article 17A apply
to any preliminary order, provided that the harm to
be assessed under article 17A(1)(a), is the harm
likely to result from the order being granted or not.
Article 17 C. Specific regime for preliminary orders
(1) Immediately after the arbitral tribunal has made
a determination in respect of an application for a
preliminary order, the arbitral tribunal shall give
notice to all parties of the request for the interim
measure, the application for the preliminary order,
the preliminary order, if any, and all other communi-
cations, including by indicating the content of any
oral communication, be- tween any party and the
arbitral tribunal in relation thereto.
(2) At the same time, the arbitral tribunal shall give
an opportunity to any party against whom a
preliminary order is directed to present its case at
the earliest practicable time.
(3) The arbitral tribunal shall decide promptly on
any objection to the preliminary order.
(4) A preliminary order shall ​expire after twenty
days from the date on which it was issued by the
arbitral tribunal. However, the arbitral tribunal may
issue an interim measure adopting or modifying the
preliminary order, after the party against whom the