FINALS Flashcards
(47 cards)
Arbitration?
*voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an award.
*R.A. 876 authorizes arbitration for domestic disputes.
*R.A. 9285 further institutionalized the use of alternative dispute resolution systems, including arbitration, in the settlement of disputes.
*It requires consent from both parties in the form of an arbitration clause that preexisted the dispute or a subsequent submission agreement.
KEY FEATURES
*Party autonomy - As provided in the state policy under the ADR Act, parties to an arbitration agreement have the freedom to make their own terms and arrangement on resolving conflicts.
*Equal treatment and fairness of parties — Article 18 of the 1985 UNCITRAL Model Law provides that parties are to be treated with equality and each party shall be given a full opportunity of presenting his/her case.
*Ease of enforcement — Although arbitral institutions and arbitrators do not have coercive powers like regular courts, awards can be imposed in accordance with the procedures to which the parties consented to be subjected to. Likewise, the limited grounds to refuse and set aside arbitration awards assures parties that these awards can still be enforced with ease.
TYPES OF ARBI
- State-state arbitration
- Investor-State arbitration
- Ad-hoc arbitration
- Institutional arbitration
- Legislated arbitration
- Construction arbitration
- Commercial arbitration
- Domestic arbitration
- International commercial arbitration
International Arbitration when ?
1985 UNCITRAL Model Law, an arbitration is international if:
i. the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States;
ii. one of the following places is situated outside the State in which the parties have their places of business:
1. the place of arbitration if determined in, or pursuant to, the arbitration agreement;
2. any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected;
iii. the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.
Seat of arbi?
- The seat of arbitration is the legal home of arbitration.
- it does not necessarily mean the physical place where the arbitration proceedings will take place.
- What is contemplated as the seat of arbitration is the place of which laws will apply to the arbitration proceedings.
- It will determine the court that has the power to interfere in the arbitration proceedings
MATRiX AWARD: Foreign Arbi
S: Outside country of enforcement
K: Award outside PH
L: NY conv & ADR act
R: Refusal to award under Sp. ADR rules
MATRiX AWARD: International Arbi
S: Inside country of enforcement
K: Awards in International comm Arbi in PH
L: UNCITRAL model law & ADR act
R: Setting aside under Sp ADR Rules
MATRiX AWARD : DOMESTIC Arbi (dom)
S: in country of enforcement
K: Domestic Arbi Awards
L: Arbi Law & ADR law
R: vacation under special ADR Rules
MATRiX AWARD : DOMESTIC Arbi (ciac)
S: in country of enforcement
K: CIAC Arbi Awards
L: Construction industry arbi law
R: Appeal under rule 43 of ROC ….SC held that- awards by CIAC goes directly to SC
Elements of arbi
- Submission to Arbi
- Seat
- Arbitral Rule
- # of Arbitrators
- Language
- Governing Law
Arbi agreement
is the basis of an Arbitrator’s jurisdiction and mandate.
It is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not
may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
Art. 7 of the 1985 UNCITRAL Model Law - arbitration agreement shall be in writing
venue of arbi
where it will physically take place
diff between Abri and Court
ARBI: proceeding is contractual and less formal in nature .
The parties are bound by the rules that are agreed upon between them and the arbitral tribunal derives its authority to resolve the dispute from the parties’ consent. are confidential and must not be published as compared to court
COURT: Court litigation is a much more technical process wherein a Judge takes cognizance of a case between
parties. litigation wherein the court records are open for public scrutiny.
advantages of arbi vs court lit
Compared to court litigation, arbitration is generally faster and more cost efficient. The parties can choose the place of arbitration and the venue of the proceedings.
arbitration awards are not appealable on the merits since the parties agreed on how they should resolve their dispute.
In court litigation, the parties may
appeal on the merits
who may be arbitrators
o any person appointed to serve as an arbitrator must be of legal age, in full enjoyment of his/her civil rights and knows how to read and write.
o No person appointed to serve as an arbitrator shall be related by blood or marriage within the sixth degree to either party to the controversy.
o No person shall serve as an arbitrator in any proceeding if he/she has or has had financial, fiduciary or other interest in the controversy or cause to be decided or in the result of the proceeding, or has any personal bias, which might prejudice the right of any party to a fair and impartial award.
o No party shall select as an arbitrator any person to act as his/her champion or to advocate his/her cause
Arbi vs mediation
arbi has an award mediation doesnt
Institutional Arbitration vs Ad hoc
institutional arbitration is more predictable due to the fact that the parties are briefed in advance regarding the conduct of the proceeding, venue, and appointment of the tribunal.
the parties will have more control over the cost of the arbitration (as they are not subject to the fee schedule of an arbitration center) or over the proceeding itself (as they can agree to their own rules),
how long is arbi proceedings ?
insti = 6mons to 1 yr
ad hoc = 1 or 2 yrs
Requirements for an Arbitration Agreement to be valid and enforceable?
(1) It must be in writing;
(2) It must be signed by the parties or their respective agents.
Is there a need for a separate Arbitration Agreement besides the arbitration clause provided for in a contract?
NO. ADR Act of 2004 provides that an arbitration agreement can be in the form of an arbitration clause in a contract or in a separate agreement
decision that the contract is null and void will not necessarily lead to the invalidity of the arbitration clause.
What if there is a unilateral or optional clause in a contract that provides for the right to choose Arbitration? Is such clause enforceable?
Yes. Such clause is not expressly prohibited in Philippine
ADR Laws. As such, as provided for by the principle of party autonomy under Sec. 2 of the ADR Act, an arbitration agreement giving one party the right to choose arbitration is likely to be forceable.
Can a third party who is not a signatory in the contract with an Arbitration Agreement, be impleaded the arbitration proceedings?
No. As a rule, an arbitration agreement is consensual contract which is binding only between the contracting parties.
Civil Code: Contracts take effect only between the parties, their as signs and heirs , xpt in cases where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law.
PWEDE: signatory si 3rd party
Does the Statute of Limitations apply to Arbitration proceedings?
Yes since right to arbitrate arises from a written contract. Proceedings must be commenced within ten years from the date the right to institute arbitration arises under the written contract between the parties to the dispute.
tho law does not specifically proved for a limitation period
What are the statutes which apply to Arbitration proceedings?
- Civil Code of the Philippines;
- R.A. No. 876 otherwise known as the Arbitration Law;
- R.A. No. 9285 otherwise known as the Alternative Dispute Resolution Act of 2004; and
- Supreme Court’s A.M. No. 07-11-08-SC 01 September 2009 or the Special Rules of Court on Alternative Dispute Resolution
