LAW 160A ALTERNATIVE DISPUTE RESOLUTION Prof. Arthur Autea Class Policies: Final Exam 40% last day of our regular class October problem + o bjective Class Participation 60% attendance 2x suprise quizzes Final Exam 40% Re levant Laws / Rules RA 876 Arbitration Law EO No 1008 CIA Law RA 9285 - ADR Act of 2004 UNCITRAL Model Law Special ADR Rules UNCITRAL Arbitration Rules ICC Arbi tration Rules 1) a) b) 2) a) b) 3) 1) 2) 3) 4) 5) 6) 7) Cases 1) Vega v. San Carlos Milling Co. Ltd, 51 Phil 908 (1924) 2) California & Hawaiian Sugar Co. v. Pioneer Insurance & Surety Corp. 346 SCRA 214 (2000) 3) As sociated Bank v. CA, 233 SCRA 137 (1994) 4) Bloomfield Academy v. CA, 237 SCRA 4 3 (1994) 5) Mindanao Portland Cement Corporation v. McDonough Construction Co. o f Florida, 90 SCRA 808 (1967) 6) Gonzales v. Climax Mining Ltd., 512 SCRA 148 (2 007) 7) Oil & Natural Gas Commission v. CA, 293 SCRA 26 (1998) 8) Magellan Capit al Mgt. Corp. v. Zosa, 355 SCRA 157 (2001) 9) BF Corporation v. CA, 288 SCRA 267 (1998) 10) Korea Technologies Co. Ltd. v. Lerma, 542 SCRA 1 (2008) 11) Luzon De velopment Bank v. Luzon Development Bank Employees, 249 SCRA 162 (1995) 12) Toyo ta Motor Phils. Corp. V. CA, 216 SCRA 336 13) Heirs of Agusto L. Salas, Jr. v. L aperal Realty Corp., 302 SCRA 620 14) Del Monte Corp. USA v. CA, 351 SCRA 373 WRONG 15) Homebankers Savings and Trust Co. v. CA, 318 SCRA 558 16) Chung Fu Ind ustries Inc. V. CA, 206 SCRA ___ 17) Adamson v. CA, 232 SCRA 602 (1994) 18) Nati onal Steel Corp. v. RTC of Lanao del Norte, 304 SCRA 595 (1999) 19) Asset Privat ization Trust v. CA, 300 SCRA 579 20) China Chiang Jiang Energy Corp (Phils) v. Rosal Infrastructure Builders, G.R. 125706, 30 September 1996 21) Hi Precision S teel, 228 SCRA 397 22) ABS CBN v. World, 544 SCRA 308

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 2 Class Notes - June 11, 2010 INTRODUCTION TO ALTERNATIVE MODES OF DISPUTE RESOLUTION ADR alternative to conventional litigation Arbitration only form of ADR that wil l result in a final, binding and enforceable award Mediation facilitate communic ation, cannot impose resolution of the mediator Conventional Litigation Judgment Final Judgment Interlocutory Order P v. D / P v. R Stenographers Arbitration Aw ard Final Award Interim Award Claimant v. Respondent Court Reporters challenge 14 Unable perform 18 Conduct hearings 19 Determination rules 29 to 32 Termination proceedings to of of of the Act Sec. 26 Meaning of Appointing Authority Sec. 27 What Functions May be Perf ormed by Appointing Authority Sec. 28 Grant of Interim Measure of Protection Sec . 29 Further Authority for Arbitrator to Grant Interim Measure of Protection Sec . 30 Place of Arbitration Sec. 31 Language of the Arbitration ARBITRATION Arbitration v. Litigation {PALPVA} Arbitration Private & confidential Parties ma y select arbitrator Parties can select governing law that will determine their s ubstantive rights Procedure depends on agreement Venue depends on agremeent Liti gation Public Parties cannot agree on presiding officer; Judge is raffled Philip pine law governs Arbitration clause stipulation that parties wil submit dispute to arbitration Re quest for Arbitration arbitrable dispute Legislative History: 1) RA 876 (1953) A rbitration Law 2) New York Convention (1958) a) Convention on the recognition & enforcement of foreign arbitral awards b) Need to prove authenticity only e.g. N AIA 3 case 3) RA 9285 (2004) ADR Act of 2004 a) Covers domestic & international arbitration b) Covers all forms of ADR 4) EO No. 1008 (1985) CIAC a) Covers all disputes in the construction industry 5) Special ADR Rules (October 13, 2009) a) Clarified problems in RA 876 and RA 9285 6) UNCITRAL MODEL LAW part of Philippi ne law a) Sec. 33 of ADR Act of 2004 Sec. 33 Applicability to Domestic Arbitrati on Uncitral Model Law 8 Arbitration Agreement + Substantive Claim 10 No. of arbitra tors 11 Appointment 12 Grounds for challenge 13 Procedure for Preceding Ch. 4 Se c. 22 Legal Representation in International Arbitration Sec. 23 Confidentiality in Arbitration Proceedings Sec. 24 Referral to Arbitration Sec. 25 Interpretatio n of Rules of Court applies Rules of Court governs; Venue may also depend on agreemen t Not consensual Consensual Note: A voluntary arbitrator has the same status as an RTC judge. What is the na ture of ADR? Consensual cannot be compelled to submit to arbitration; but once y ou agree, youre bound by it What is an arbitration agreement? Arbitration agreeme nt determines the rights, obligations, procedure & rules; - may be in a separate agreement or may be a clause in a contract 1) Arbitration clause Any dispute ari sing out of this contract shall be resolved by arbitration. 2) Container contract

Contract containing the arbitration clause

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 3 Note: Doctrine of separability applies. Rule 2.2. Policy on arbitration. XXX The Special ADR Rules recognize the princip le of separability of the arbitration clause, which means that said clause shall be treated as an agreement independent of the other terms of the contract of wh ich it forms part. A decision that the contract is null and void shall not entai l ipso jure the invalidity of the arbitration clause. Sample arbitration clause: Any dispute arising out of this contract shall be reso lved by arbitration under the ICC Rules of Arbitration. Overview ICC Arbitration Rules / Principles: 1) Submit request for arbitration 2) Assessment of non-refun dable fee + cost of arbitration a) Non-refundable fee - $2,500 b) Arbitration co st i) Fees of arbitrators professional fees (1) 40% - chair (2) 30% - members ii ) Claimant 1 iii) Respondent 1 iv) Appointee of Appointing Authority - 1 v) Admi nistrative expenses 3) Highly confidential 4) Counsel in arbitration does not ha ve to be a lawyer a) ADR Rates - $300 / hour b) IBP Rates P3,000 / appearance i) Senior - P7 to 10T / hour ii) Associate P1-1,500 / hour 5) ICA can modify the f orm of the award See provisions, page 31. Domestic v. International Arbitration 1) Domestic not International (RA 9285) 2) International Article 1.3 (UNCITRAL Model Law) RA 9285, Sec. 32. Law Governing Domestic Arbitration. Domestic arbitration shall continue to be governed by Republic Act No. 876, otherwise known as "The Arbitr ation Law" as amended by this Chapter. The term "domestic arbitration" as used h erein shall mean an arbitration that is not international as defined in Article (3) of the Model Law. Uncitral Model Law, Article 1 - xxx 3) An arbitration is i nternational if: a) the parties to an arbitration agreement have at the time of the conclusion of that agreement, their places of business in different States; or b) one of the following places is situated outside the State in which the par ties have their places of business: i) the place of arbitration if determined in , or pursuant to, the arbitration agreement: ii) any place where a substantial p art 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; or c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country. 4) For the purposes of paragraph (3 ) of this article: a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreem ent; b) if a party does not have a place of business, reference is to be made to his habitual residence. What is the principle of Party Autonomy? Party autonomy freedom of the parties t o determine the rules / law governing the mode of resolving their dispute Rule 2.1. General policies. It is the policy of the State to actively promote th e use of various modes of ADR and to respect party autonomy or the freedom of th e parties to make their own arrangements in the resolution of disputes with the greatest cooperation of and the least intervention from the courts. To this end, the objectives of the Special ADR Rules are to encourage and promote the use of ADR, particularly arbitration and mediation, as an important means to achieve s peedy and efficient resolution of disputes, impartial justice, curb a litigious culture and to de-clog court dockets. RA 9285, Sec. 2 Declaration of Policy -To actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes -To encoura ge and actively promote the use of ADR to achieve speedy and impartial justice &

de-clog court dockets Uncitral Model Law, Article 19 - [Determination of rules of procedure] 1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. 2) Failing such agreement, the arbitral tribunal may, subject to t he provisions of this Law, conduct the arbitration in such manner as it consider s appropriate. The power conferred upon the arbitral Institutional v. Adhoc Arbitration 1) Adhoc arbitration 2) Institutional conduct ed under the auspices of an institution Examples: International Chamber of Comme rce CIAC PDRCI Singapore International Arbitration Centre Hongkong International Arbitration Centre ICSPI Disp. American Arbitration Association Japan Commercia l Arbitration Kuala Lumpur RCA KCAB ICC International Court of Arbitration ICA n ot a court of adjudication

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 4 tribunal includes the power to determine the admissibility, relevance, materiali ty and weight of any evidence. Uncitral Model Law, Article 28 - [Rules applicable to substance of dispute] 1) The arbitral tribunal shall decide the dispute in accor dance with such rules of law as are chosen by the parties as applicable to the s ubstance of the dispute. Any designation of the law or legal system of a given S tate shall be construed, unless otherwise expressed, as directly referring to th e substantive law of that State and not to its conflict of laws rules. 2) Failin g any designation by the parties, the arbitral tribunal shall apply the law dete rmined by the conflict of laws rules which it considers applicable. 1 3) The arb itral tribunal shall decide ex aequo et bono or as 2 amiable compositeur only if the parties have expressly authorised it to do so. 4) In all cases, the arbitra l tribunal shall decide in accordance with the terms of the contract and shall t ake into account the usages of the trade applicable to the transaction. Uncitral Arbitration Rules, compositeur, Article 33 Applicable law, amiable Next meeting: RA 876 RA 9285 Special ADR Rules UNCITRAL Model Law Class Notes - June 18, 2010 Appointment of Arbitrators (Domestic) ADR Law Sec. 5 & Sec. 8 RA 876, Sec. 8 Appointment of arbitrators If, in the contract for arbitration or in the submission described in section two, provision is made for a method of n aming or appointing an arbitrator or arbitrators, such method shall be followed; but if no method be provided therein the Court of First Instance shall designat e an arbitrator or arbitrators. The Court of First Instance shall appoint an arb itrator or arbitrators, as the case may be, in the following instances: (a) If t he parties to the contract or submission are unable to agree upon a single arbit rator; or (b) If an arbitrator appointed by the parties is unwilling or unable t o serve, and his successor has not been appointed in the manner in which he was appointed; or (c) If either party to the contract fails or refuses to name his a rbitrator within fifteen days after receipt of the demand for arbitration; or (d ) If the arbitrators appointed by each party to the contract, or appointed by on e party to the contract and by the proper Court, shall fail to agree upon or to select the third arbitrator. (e) The court shall, in its discretion appoint one or three arbitrators, according to the importance of the controversy involved in any of the preceding cases in which the agreement is silent as to the number of arbitrators. (f) Arbitrators appointed under this section shall either accept o r decline their appointments within seven days of the receipt of their appointme nts. In case of declination or the failure of an arbitrator or arbitrators to du ly accept their appointments the parties or the court, as the case may be, shall proceed to appoint a substitute or substitutes for the arbitrator or arbitrator s who decline or failed to accept his or their appointments. Sec. 9 Appointment of addnal arbitrators Where a submission or contract provides that two or more ar bitrators therein designated or to be thereafter appointed by the parties, may s elect or appoint a person as an additional arbitrator, the selection or appointm ent must be in writing. Such additional arbitrator must sit with the original ar bitrators upon the hearing. RULE 6: APPOINTMENT OF ARBITRATORS Rule 6.1. When th e court may act as Appointing Authority. The court shall act as Appointing Autho rity only in the following instances: 1. The arbitral tribunal shall apply the law designated by the parties as applic able to the substance of the dispute. Failing such designation by the parties, t

he arbitral tribunal shall apply the law determined by the conflict of laws rule s which it considers applicable. 2. The arbitral tribunal shall decide as amiabl e compositeur or ex aequo et bono only if the parties have expressly authorised the arbitral tribunal to do so and if the law applicable to the arbitral procedu re permits such arbitration. 3. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the us ages of the trade applicable to the transaction. ICC Rules, Article 15: Rules Go verning the Proceedings 1. The proceedings before the Arbitral Tribunal shall be governed by these Rules, and, where these Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may settle on, whether or no t reference is thereby made to the rules of procedure of a national law to be ap plied to the arbitration. 2. In all cases, the Arbitral Tribunal shall act fairl y and impartially and ensure that each party has a reasonable opportunity to pre sent its case. ICC Rules, Article 17: Applicable Rules of Law 1. The parties sha ll be free to agree upon the rules of law to be applied by the Arbitral Tribunal to the merits of the dispute. In the absence of any such agreement, the Arbitra l Tribunal shall apply the rules of law which it determines to be appropriate. 2 . In all cases the Arbitral Tribunal shall take account of the provisions of the contract and the relevant trade usages. 3. The Arbitral Tribunal shall assume t he powers of an amiable compositeur or decide ex aequo et bono only if the parti es have agreed to give it such powers. Latin for "according to the right and goo d" or "from equity and conscience" 2 Clauses in arbitration agreements allowing the arbitrators to act as "amiables compositeurs", permit the arbitrators to dec ide the dispute according to the legal principles they believe to be just, witho ut being limited to any particular national law. 1

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 5 a. Where any of the parties in an institutional arbitration failed or refused to appoint an arbitrator or when the parties have failed to reach an agreement on the sole arbitrator (in an arbitration before a sole arbitrator) or when the two designated arbitrators have failed to reach an agreement on the third or presid ing arbitrator (in an arbitration before a panel of three arbitrators), and the institution under whose rules arbitration is to be conducted fails or is unable to perform its duty as appointing authority within a reasonable time from receip t of the request for appointment; b. In all instances where arbitration is ad ho c and the parties failed to provide a method for appointing or replacing an arbi trator, or substitute arbitrator, or the method agreed upon is ineffective, and the National President of the Integrated Bar of the Philippines (IBP) or his dul y authorized representative fails or refuses to act within such period as may be allowed under the pertinent rules of the IBP or within such period as may be ag reed upon by the parties, or in the absence thereof, within thirty (30) days fro m receipt of such request for appointment; c. Where the parties agreed that thei r dispute shall be resolved by three arbitrators but no method of appointing tho se arbitrators has been agreed upon, each party shall appoint one arbitrator and the two arbitrators thus appointed shall appoint a third arbitrator. If a party fails to appoint his arbitrator within thirty (30) days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the t hird arbitrator within a reasonable time from their appointment, the appointment shall be made by the Appointing Authority. If the latter fails or refuses to ac t or appoint an arbitrator within a reasonable time from receipt of the request to do so, any party or the appointed arbitrator/s may request the court to appoi nt an arbitrator or the third arbitrator as the case may be. Rule 6.2. Who may r equest for appointment. Any party to an arbitration may request the court to act as an Appointing Authority in the instances specified in Rule 6.1 above. Rule 6 .3. Venue. The petition for appointment of arbitrator may be filed, at the optio n of the petitioner, in the Regional Trial Court (a) where the principal place o f business of any of the parties is located, (b) if any of the parties are indiv iduals, where those individuals reside, or (c) in the National Capital Region. R ule 6.4. Contents of the petition. The petition shall state the following: a. The general nature of the dispute; b. If the parties agreed on an appointment proce dure, a description of that procedure with reference to the agreement where such may be found; c. The number of arbitrators agreed upon or the absence of any ag reement as to the number of arbitrators; d. The special qualifications that the arbitrator/s must possess, if any, that were agreed upon by the parties; e. The fact that the Appointing Authority, without justifiable cause, has failed or ref used to act as such within the time prescribed or in the absence thereof, within a reasonable time, from the date a request is made; and f. The petitioner is no t the cause of the delay in, or failure of, the appointment of the arbitrator. A part from other submissions, the petitioner must attach to the petition (a) an a uthentic copy of the arbitration agreement, and (b) proof that the Appointing Au thority has been notified of the filing of the petition for appointment with the court. Rule 6.5. Comment/Opposition. The comment/opposition must be filed withi n fifteen (15) days from service of the petition. Rule 6.6. Submission of list of arbitrators. The court may, at its option, also require each party to submit a list of not less than three (3) proposed arbitrat ors together with their curriculum vitae. Rule 6.7. Court action. After hearing, if the court finds merit in the petition, it shall appoint an arbitrator; other wise, it shall dismiss the petition. In making the appointment, the court shall have regard to such considerations as are likely to secure the appointment of an

independent and impartial arbitrator. At any time after the petition is filed a nd before the court makes an appointment, it shall also dismiss the petition upo n being informed that the Appointing Authority has already made the appointment. Rule 6.8. Forum shopping prohibited. When there is a pending petition in anothe r court to declare the arbitration agreement inexistent, invalid, unenforceable, on account of which the respondent failed or refused to participate in the sele ction and appointment of a sole arbitrator or to appoint a party-nominated arbit rator, the petition filed under this rule shall be dismissed. Rule 6.9. Relief a gainst court action. If the court appoints an arbitrator, the order appointing a n arbitrator shall be immediately executory and shall not be the subject of a mo tion for reconsideration, appeal or certiorari. An order of the court denying th e petition for appointment of an arbitrator may, however, be the subject of a mo tion for reconsideration, appeal or certiorari. How do you commence arbitration? (domestic) Sec. 5 Preliminary procedure Arbitra tion Agreement (a) (b) Default Submission Agreement (c) (d) Neglect / Fail / Ref use to arbitrate Follow (a) and (b) RA 876, Sec. 5. Preliminary procedure. An arbitration shall be instituted by: (a ) In the case of a contract to arbitrate future controversies by the service by either party upon the other of a demand for arbitration in accordance with the c ontract. Such demand shall be set forth the nature of the controversy, the amoun t involved, if any, and the relief sought, together with a true copy of the cont ract providing for arbitration. The demand shall be served upon any party either in person or by registered mail. In the event that the contract between the par ties provides for the appointment of a single arbitrator, the demand shall be se t forth a specific time within which the parties shall agree upon such arbitrato r. If the contract between the parties provides for the appointment of three arb itrators, one to be selected by each party, the demand shall name the arbitrator appointed by the party making the demand; and shall require that the party upon whom the demand is made shall within fifteen days after receipt thereof advise in writing the party making such demand of the name of the person appointed by t he second party; such notice

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 6 shall require that the two arbitrators so appointed must agree upon the third ar bitrator within ten days from the date of such notice. (b) In the event that one party defaults in answering the demand, the aggrieved party may file with the C lerk of the Court of First Instance having jurisdiction over the parties, a copy of the demand for arbitration under the contract to arbitrate, with a notice th at the original demand was sent by registered mail or delivered in person to the party against whom the claim is asserted. Such demand shall set forth the natur e of the controversy, the amount involved, if any, and the relief sought, and sh all be accompanied by a true copy of the contract providing for arbitration. (c) In the case of the submission of an existing controversy by the filing with the Clerk of the Court of First Instance having jurisdiction, of the submission agr eement, setting forth the nature of the controversy, and the amount involved, if any. Such submission may be filed by any party and shall be duly executed by bo th parties. (d) In the event that one party neglects, fails or refuses to arbitr ate under a submission agreement, the aggrieved party shall follow the procedure prescribed in subparagraphs (a) and (b) of this section. ie they can be finalised using arbitration or another process. Adjudication deci sions are usually binding on both parties by prior agreement. In relation to con struction contracts, adjudication is a statutory procedure by which any party to the contract has a right to have a dispute decided by an adjudicator, normally used to ensure payment. It is intended to be quicker and more cost effective tha n litigation or arbitration. The right arises by virtue of the Housing Grants Co nstruction and Regeneration Act 1996. Adjudication is also sometimes used to des cribe a non-specific alternative dispute resolution process in which a third par ty makes a decision as to the best way to resolve the dispute. In this sense, om budsmen, arbitrators and judges are all types of adjudicators. The aim of adjudication is to resolve disputed issues in order to enable work to continue (either indefinitely or while awaiting the decision of a judge or arbi trator). Arbitration is a more formal process, and the arbitrators decision is legally binding. FIDIC (Federacion Internationale Des Ingenieurs Conseil) 1) Dispute Adjudication Board 2) Relevant in contract negotiation 3) Different colors a) Red b) Blue c) Green d) Pink e) Silver i) 2 parties: (1) Project owner employer (2) Contractor ii) Contains an interesting provision saying that an employer would not be liab le even if wrong information was given iii) Contains an adjudication clause in t he following tenor: Appeal from adjudication may be taken to the arbitrational pa nel under ICC Rules. iv) Three levels: (1) Amicable settlement (2) Adjudication ( 3) Arbitration Arbitration v. Adjudication Sir thinks the difference is onl y in the terminology, until he saw the FIDIC. Arbitration - (d) "Arbitration" me ans a voluntary dispute resolution process in which one or more arbitrators, app ointed in accordance with the agreement of the parties, or rules promulgated pur suant to this Act, resolve a dispute by rendering an award (RA 9285) In arbitrat ion an independent, impartial third party hears both sides in a dispute and make s a decision to resolve it. In most cases the arbitrators decision is legally b inding on both sides, so it is not possible to go to court if you are unhappy wi th the decision. Arbitration is in many ways an alternative form of court with p rocedural rules which govern issues such as disclosure of documents and evidence . But arbitration is private rather than public. Hearings are less formal than c ourt hearings, and some forms of arbitration do not involve hearings but are dec

ided on the basis of documents only. Adjudication Adjudication involves an indep endent third party considering the claims of both sides and making a decision. T he adjudicator is usually an expert in the subject matter in dispute. Adjudicato rs are not bound by the rules of litigation or arbitration. Their decisions are often interim ones,

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 7 MINI-TRIAL What is a Mini-Trial? "Mini-Trial" means a structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decisi on makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement (RA 9285, Sec. 3(u)) Note: Senior decision makers meet, negotiated settlement Principle of confidentiality in mediation Extends to admissions made in mediatio n Sec. 9 - Confidentiality of Information Information obtained through mediation p roceedings shall be subject to the following principles and guidelines: (a) Info rmation obtained through mediation shall be privileged and confidential. (b) A p arty, a mediator, or a nonparty participant may refuse to disclose and may preve nt any other person from disclosing a mediation communication. (c) Confidential Information shall not be subject to discovery and shall be inadmissible if any a dversarial proceeding, whether judicial or quasi-judicial, However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a media tion. (d) In such an adversarial proceeding, the following persons involved or p reviously involved in a mediation may not be compelled to disclose confidential information obtained during mediation: (1) the parties to the dispute; (2) the m ediator or mediators; (3) the counsel for the parties; (4) the nonparty particip ants; (5) any persons hired or engaged in connection with the mediation as secre tary, stenographer, clerk or assistant; and (6) any other person who obtains or possesses confidential information by reason of his/her profession. (e) The prot ections of this Act shall continue to apply even of a mediator is found to have failed to act impartially. (f) a mediator may not be called to testify to provid e information gathered in mediation. A mediator who is wrongfully subpoenaed sha ll be reimbursed the full cost of his attorneys fees and related expenses. Sec. 10 Waiver of Confidentiality EARLY NEUTRAL EVALUATION What is Early Neutral Evaluation? "Early Neutral Evaluation" means an ADR proces s wherein parties and their lawyers are brought together early in a pre-trial ph ase to present summaries of their cases and receive a nonbinding assessment by a n experienced, neutral person, with expertise in the subject in the substance of the dispute Note: Similar to a pre-trial; before the filing of the complaint MEDIATION How are mediated-settlements enforced? By depositing in court (RA 9285, Sec. 17) Court-Annexed Mediation v. Court-Ordered Mediation "Court-Annexed Mediation" me ans any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute (RA 9285, Sec. 3 (l)) Note: gover ned by SC issuances Court-Referred Mediation" means mediation ordered by a court to be conducted in accordance with the Agreement of the Parties when as action is prematurely commenced in violation of such agreement (RA 9285, Sec. 3 (m)) No tes: - ground for stay of civil action - related to Art. 1159 CC Art. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. A privilege arising from the confidentiality of information may be waived in a r ecord, or orally during a proceeding by the mediator and the mediation parties. A privilege arising from the confidentiality of information may likewise be waiv

ed by a nonparty participant if the information is provided by such nonparty par ticipant. A person who discloses confidential information shall be precluded fro m asserting the privilege under Section 9 of this Chapter to bar disclosure of t he rest of the information necessary to a complete understanding of the previous ly disclosed information. If a person suffers loss or damages in a judicial proc eeding against the person who made the disclosure. A person who discloses or mak es a representation about a mediation is preclude from asserting the privilege u nder Section 9, to the extent that the communication prejudices another person i n the proceeding and it is necessary for the person prejudiced to respond to the representation of disclosure. Sec. 11 Exceptions to Privilege {RPTCPM} (a) Ther e is no privilege against disclosure under Section 9 if mediation communication is:

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 8 (1) in an agreement evidenced by a record authenticated by all parties to the ag reement; (2) available to the public or that is made during a session of a media tion which is open, or is required by law to be open, to the public; (3) a threa t or statement of a plan to inflict bodily injury or commit a crime of violence; (4) internationally used to plan a crime, attempt to commit, or commit a crime, or conceal an ongoing crime or criminal activity; (5) sought or offered to prov e or disprove abuse, neglect, abandonment, or exploitation in a proceeding in wh ich a public agency is protecting the interest of an individual protected by law ; but this exception does not apply where a child protection matter is referred to mediation by a court or a public agency participates in the child protection mediation; (6) sought or offered to prove or disprove a claim or complaint of pr ofessional misconduct or malpractice filed against mediator in a proceeding; or (7) sought or offered to prove or disprove a claim of complaint of professional misconduct of malpractice filed against a party, nonparty participant, or repres entative of a party based on conduct occurring during a mediation. (b) There is no privilege under Section 9 if a court or administrative agency, finds, after a hearing in camera, that the party seeking discovery of the proponent of the evi dence has shown that the evidence is not otherwise available, that there is a ne ed for the evidence that substantially outweighs the interest in protecting conf identiality, and the mediation communication is sought or offered in: (1) a cour t proceeding involving a crime or felony; or (2) a proceeding to prove a claim o r defense that under the law is sufficient to reform or avoid a liability on a c ontract arising out of the mediation. (c) A mediator may not be compelled to pro vide evidence of a mediation communication or testify in such proceeding. (d) If a mediation communication is not privileged under an exception in subsection (a ) or (b), only the portion of the communication necessary for the application of the exception for nondisclosure may be admitted. The admission of particular ev idence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose. Sec. 12 Pr ohibited Mediator Reports A mediator may not make a report, assessment, evaluati on, recommendation, finding, or other communication regarding a mediation to a c ourt or agency or other authority that make a ruling on a dispute that is the su bject of a mediation, except: (a) Where the mediation occurred or has terminated , or where a settlement was reached. (b) As permitted to be disclosed under Sect ion 13 of this Chapter. RULE 10: CONFIDENTIALITY/PROTECTIVE ORDERS or witness who disclosed or who was compelled to disclose information relative t o the subject of ADR under circumstances that would create a reasonable expectat ion, on behalf of the source, that the information shall be kept confidential ha s the right to prevent such information from being further disclosed without the express written consent of the source or the party who made the disclosure. Rul e 10.2. When request made.A party may request a protective order at anytime there is a need to enforce the confidentiality of the information obtained, or to be obtained, in ADR proceedings. Rule 10.3. Venue. A petition for a protective orde r may be filed with the Regional Trial Court where that order would be implement ed. If there is a pending court proceeding in which the information obtained in an ADR proceeding is required to be divulged or is being divulged, the party see king to enforce the confidentiality of the information may file a motion with th e court where the proceedings are pending to enjoin the confidential information from being divulged or to suppress confidential information. Rule 10.4. Grounds . A protective order may be granted only if it is shown that the applicant would be materially prejudiced by an unauthorized disclosure of the information obtai ned, or to be obtained, during an ADR proceeding. Rule 10.5. Contents of the mot

ion or petition. The petition or motion must state the following: a. That the in formation sought to be protected was obtained, or would be obtained, during an A DR proceeding; b. The applicant would be materially prejudiced by the disclosure of that information; c. The person or persons who are being asked to divulge th e confidential information participated in an ADR proceedings; and d. The time, date and place when the ADR proceedings took place. Apart from the other submiss ions, the movant must set the motion for hearing and contain a notice of hearing in accordance with Rule 15 of the Rules of Court. Rule 10.6. Notice. Notice of a request for a protective order made through a motion shall be made to the oppo sing parties in accordance with Rule 15 of the Rules of Court. Rule 10.7. Commen t/Opposition. The comment/opposition must be filed within fifteen (15) days from service of the petition. The opposition or comment may be accompanied by writte n proof that (a) the information is not confidential, (b) the information was no t obtained during an ADR proceeding, (c) there was a waiver of confidentiality, or (d) the petitioner/movant is precluded from asserting confidentiality. Rule 1 0.8. Court action. If the court finds the petition or motion meritorious, it sha ll issue an order enjoining a person or persons from divulging confidential info rmation. In resolving the petition or motion, the courts shall be guided by the following principles applicable to all ADR proceedings: Confidential information shall not be subject to discovery and shall be inadmissible in any adversarial proceeding, whether judicial or quasi judicial. However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissib le or protected from discovery solely by reason of its use therein. Rule 10.1. Who may request confidentiality. A party, counsel

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 9 For mediation proceedings, the court shall be further guided by the following pr inciples: a. Information obtained through mediation shall be privileged and conf idential. b. A party, a mediator, or a nonparty participant may refuse to disclo se and may prevent any other person from disclosing a mediation communication. c . In such an adversarial proceeding, the following persons involved or previousl y involved in a mediation may not be compelled to disclose confidential informat ion obtained during the mediation: (1) the parties to the dispute; (2) the media tor or mediators; (3) the counsel for the parties: (4) the nonparty participants ; (5) any persons hired or engaged in connection with the mediation as secretary , stenographer; clerk or assistant; and (6) any other person who obtains or poss esses confidential information by reason of his/ her profession. d. The protecti on of the ADR Laws shall continue to apply even if a mediator is found to have f ailed to act impartially. e. A mediator may not be called to testify to provide information gathered in mediation. A mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his attorney fees and related expenses. Rule 10. 9. Relief against court action. The order enjoining a person or persons from div ulging confidential information shall be immediately executory and may not be en joined while the order is being questioned with the appellate courts. If the cou rt declines to enjoin a person or persons from divulging confidential informatio n, the petitioner may file a motion for reconsideration or appeal. Rule 10.10. C onsequence of disobedience. Any person who disobeys the order of the court to ce ase from divulging confidential information shall be imposed the proper sanction by the court. rules promulgated pursuant to this Act, resolve a dispute by rendering an award (Sec. 3d, RA 9285) What distinguishes Arbitration from other forms of ADR? Final, binding and enforceable through the following procedures: 1) Confirmation of awa rd 2) Judgment is capable of enforcement PROCESS OF ARBITRATION Arbitration agreement | Dispute | Selection of arbitrators | Conduct of arbitrat ion proceedings | Arbitral Award | Confirmation &/or Enforcement FIRST PART: ARBITRATION AGREEMENT Arbitration Agreement v. Submission Agreement Arbitration Agreement Before dispute occurence of Submission Agreement Agreement to submit dispute to arbitration; no previous arbitration clause May be entered into at any time, even after pretrial No Class - June 25, 2010 Class Notes - July 2, 2010 ARBITRATION What is ADR? "Alternative Dispute Resolution System" means any process or proced ure used to resolve a dispute or controversy, other than by adjudication of a pr esiding judge of a court or an officer of a government agency, as defined in thi s Act, in which a neutral third party participates to assist in the resolution o f issues, which includes arbitration, mediation, conciliation, early neutral eva luation, mini-trial, or any combination thereof (Sec. 3a, RA 9285) What is Arbit ration? "Arbitration" means a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or A party may invoke this at any time before pretrial, after which, both parties m ust invoke it

Petition for Enforcement Agreement (See end) of Arbitration Notice Requirements Depends on whether or not the petition / motion filed is cov ered by Summary Procedure. Covered by Summary Procedure: 1) Judicial Relief Invo lving the Issue of Existence, Validity or Enforceability of the Arbitration Agre ement;

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 10 2) 3) 4) 5) 6) 7) 8) 9) Referral to ADR; Interim Measures of Protection; Appointment of Arbitrator; Chal lenge to Appointment of Arbitrator; Termination of Mandate of Arbitrator; Assist ance in Taking Evidence; Confidentiality/Protective Orders; and Deposit and Enfo rcement of Mediated Settlement Agreements. Not Covered by Summary Procedure: 1) Confirmation, Correction or Vacation of Awa rd in Domestic Arbitration 2) Recognition and Enforcement or Setting Aside of an Award in International Commercial Arbitration 3) Recognition and Enforcement of a Foreign Arbitral Award Notes: *Petition to correct / vacate does not touch up on the merits of the award. *Petition to vacate (domestic) depends on grounds to vacate *Petition to set aside (international) See UNCITRAL A.34 & 36 General Rule: the arbitral tribunal Except: the court, in the following instance s: 1) Before commencement of arbitration 2) After arbitration is commenced, but before the constitution of the arbitral tribunal; 3) After the constitution of t he arbitral and at any time during arbitral proceedings but, at this stage, only to the extent that the arbitral tribunal has no power to act or is unable to ac t effectively. RA 876, Sec. 14 xxx The arbitrator or arbitrators shall have the power at any tim e, before rendering the award, without prejudice to the rights of any party to p etition the court to take measures to safeguard and/or conserve any matter, whic h is the subject of the dispute in arbitration. RA 9285, Sec. 28 Grant of Interim Measure of Protection (a) It is not incompatible with an arbitration agreement for a party to request, before constitution of the tribunal, from a Court an int erim measure of protection and for the Court to grant such measure. After consti tution of the arbitral tribunal and during arbitral proceedings, a request for a n interim measure of protection or modification thereof, may be made with the ar bitral tribunal or to the extent that the arbitral tribunal has no power to act or is unable to act effectively, the request may be made with the Court. The arb itral tribunal is deemed constituted when the sole arbitrator or the third arbit rator who has been nominated, has accepted the nomination and written communicat ion of said nomination and acceptance has been received by the party making requ est. (b) The following rules on interim or provisional relief shall be observed: (1) Any party may request that provision relief be granted against the adverse party: (2) Such relief may be granted: (i) to prevent irreparable loss or injury : Pop Quiz - July 9, 2010 Petition to Enforce Arbitation Agreement using the case of Mindanao Portland Cem ent Corporation v. McDonough Construction Co. of Florida, 90 SCRA 808 (1967) Class Notes - July 16, 2010 THIRD PART: COMMENCEMENT OF ARBITRATION & CONSTITUTION OF ARBITRAL TRIBUNAL How do you commence arbitration? 1) Adhoc by a demand to arbitrate 2) Institutional - very similar to a demand to arbitrate, addressed to the institution; called a Request for Arbitration or Notice of Arbitration What is the significance of fil ing a Request for Arbitration or Notice of Arbitration? Whether conventional lit igation or ADR, the filing of the initiatory complaint / request for arbitration is significant in the area of interim measures of protection. It could be obtai ned from:

(ii) to provide security for the performance of any obligation; (iii) to produce or preserve any evidence; or (iv) to compel any other appropriate act or omissi on. (3) The order granting provisional relief may be conditioned upon the provis ion of security or any act or omission specified in the order. (4) Interim or pr ovisional relief is requested by written application transmitted by reasonable m eans to the Court or arbitral tribunal as the case may be and the party against whom the relief is sought, describing in appropriate detail the precise relief, the party against whom the relief is 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 en forcing an interim measure ordered by an arbitral tribunal. (7) A party who does not comply with the order shall be liable for all damages resulting from noncom pliance, including all

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 11 expenses, and reasonable attorneys fees, paid in obtaining the orders judicial enforcement. RA 9285, Sec. 29 Further Authority for Arbitrator to Grant Interim Measure of Protection Unless otherwise agreed by the parties, the arbitral trib unal may, at the request of a party, order any party to take such interim measur es of protection as the arbitral tribunal may consider necessary in respect of t he subject matter of the dispute following the rules in Section 28, paragraph 2. Such interim measures may include but shall not be limited to preliminary injuc tion directed against a party, appointment of receivers or detention, preservati on, inspection of property that is the subject of the dispute in arbitration. Ei ther party may apply with the Court for assistance in implementing or enforcing an interim measures ordered by an arbitral tribunal. Uncitral Model Law, Article 17 - [Power of arbitral tribunal to order interim measures] Unless otherwise ag reed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal m ay consider necessary in respect of the subject-matter of the dispute. The arbit ral tribunal may require any party to provide appropriate security in connection with such measure. Uncitral Arbitration Rules, Interim measures of protection, Article 26 1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subjectmatter of the disp ute, including measures for the conservation of the goods forming the subject-ma tter in dispute, such as ordering their deposit with a third person or the sale of perishable goods. 2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security fo r the costs of such measures. 3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreeme nt to arbitrate, or as a waiver of that agreement. ICC Rules, Article 23, Conser vatory and Interim Measures 1. Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the reque st of a party, order any interim or conservatory measure it deems appropriate. T he Arbitral Tribunal may make the granting of any such measure subject to approp riate security being furnished by the requesting party. Any such measure shall t ake the form of an order, giving reasons, or of an Award, as the Arbitral Tribun al considers appropriate. 2. Before the file is transmitted to the Arbitral Trib unal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The appl ication of a party to a judicial authority for such measures or for the implemen tation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not aff ect the relevant powers reserved to the Arbitral Tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof. 3) Inform the prospective respondent that a Request for Arbitration was received 4) Prospective respondent answers 5) Assess the fees Period for rendering an Aw ard: 1) Stipulation 2) To be determined by the arbitral tribunal during the prel iminary conference Less than 60 days Summary (ADR Rules) 15 days from service to file Comment/Opposition 1 hearing day, only for the purpose of clarifications R esolution 30 days from the time the petition is submitted for resolution 10 days - ADR Law Four courses of action by the Court Determine existence of AA If no, dismiss (1) If yes, determine if there was default or not in the compliance with the Arbitration Agreement (2) If there is no default, (dismiss) If there was de fault, Court to Challenge of arbitrator If a party renews his challenge in Court arbitration proceedings are suspended But under Special ADR Rules proceed Inter

national Bar Association (IBA) Rules of Evidence Green List list of factors that may or may not be disclosed but will not affect the fitness of Red List list of prohibited factors Long Quiz - July 23, 2010 Coverage: Class notes from start to latest. Class Notes July 30, 2010 FOURTH PART: CONDUCT OF ARBITRATION PROCEEDINGS CONFIDENTIALITY Why is there no publication of awards of arbitral tribunals? Bec ause of the principle of confidentiality of arbitration proceedings (Sec. 23, RA 9285). Upon receipt: 1) WON a dispute is arbitable the first thing that an institution should determine 2) Assess an non-refundable fee of $2500.

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 12 Sec. 23 Confidentiality in Arbitration Proceedings The arbitration proceedings, including the records, evidence and the arbitral award, shall be considered conf idential and shall not be published except (1) with the consent of the parties, or (2) for the limited purpose of disclosing to the court of relevant documents in cases where resort to the court is allowed herein. Provided, however, that th e court in which the action or the appeal is pending may issue a protective orde r to prevent or prohibit disclosure of documents or information containing secre t processes, developments, research and other information where it is shown that the applicant shall be materially prejudiced by an authorized disclosure thereo f. Exception to confidentiality: 1) Application for Interim Measure of Protectio n 2) Appoint Arbitrator 3) Challenge Arbitrator 4) Ask to Vacate / Modify Award 5) Ask to Enforce the Award What is the consequence confidentiality? Claim for d amages. of breach of There arises a policy of judicial restraint, such that the finding of the court on the jurisdiction of the arbitral tribunal is at best prima facie. Note: There is a before AT, after ATs finding, and afterafter. Does the prima facie finding of the court mean that the arbitral tribunal can still be formed? Yes. If the cour t finds that the arbitration agreement is null and void, inoperative or incapabl e of being performed, a party may nevertheless commence arbitration and constitu te the arbitral tribunal. So where does prima facie finding of the court come in? How is it prima facie? This means that the same issue may be passed upon by the arbitral tribunal, which has the effect of superseding the previous of the court . (This is the AFTER ruling.) What about the after-after ruling? The same issue may be passed upon in an action to vacate or set aside the arbitral award (Rule 3.11 ) In this case, it is no longer a prima facie determination of such issue or iss ues, but shall be a FULL REVIEW of such issue or issues with due regard, however , to the standard of review for arbitral awards. But how may arbitration commenc e if it the court has made a prima facie finding that ithe arbitration agreement is found null and void, inoperative or incapable of being performed? Will the o ther party who got the favorable ruling of the court participate / cooperate? Ge t an appointment of arbitrator - sole arbitrator, adhoc, institutional. Illustra tion: Its possible for A to get a ruling from the court that the arbitration agre ement is null and void, and B may commence arbitration in an institution in anot her country. B now asked to appoint arbitrator for A contesting the arbitration agreement. What is the remedy of A? a) Get an injunction from RTC Philippines. N ext step is contempt. (Although the exercise of a legal right is not contemptuou s) There may also be problem in getting injunction. Plus theres a provision in Sp ecial ADR Rules prohibiting injunction against arbitration. Finally, A can later on file a petition to set aside the award. b) Challenge jurisdiction of arbitra l tribunal constituted by institution in foreign country. Where do you file the action for damanges arising from breach of confidentiality ? RTC, not arbitral tribunal. Because the jurisdiction of the arbitral tribunal over issues is defined by the arbitration agreement. Issue of breach of confiden tiality is usually involved in other causes of rd actions or pending actions. e. g. transactions with 3 persons. Note: Breach of confidentiality covers mere disc losure of fact of pendency of arbitration proceedings. COMPETENCE-COMPETENCE PRI NCIPLE What is the Competence-Competence Principle? Power of arbitral tribunal to initially rule on the question of its jurisdiction over a dispute including any objections with respect to the existence or validity of the arbitration agreemen t or any condition precedent to the filing of a request of arbitration. Restatem ent of the Rule: Before the arbitral tribunal is constituted, the regular courts

have jurisdiction to determine the issue of competence of a tribunal. The momen t the arbitral tribunal is constituted, the arbitral tribunal has jurisdiction.

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 13 UNCITRAL: 1) Petition to Set Aside 2) Petition to Refuse Recognition What is the Principle of Separability? Arbitration clause is treated as an agreement indepe ndent of the other terms of the contract of which it forms part. A decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (Uncitral Model Law, Sec. 16(1); Special ADR Rules 2.2) What is the effect of multiple actions and parties? Rule 4.7. Would Rule 4.7 result in multiplicity of suits? Yes. But this does not prevent arbitration from being commenced. A party may ask that the ruling of the arbitral tribunal on a preliminary questi on upholding or declining its jurisdiction be declared null and void, inexistent or unenforceable. This is premised on the fact that the jurisdiction of the arb itral tribunal is defined by the arbitration agreement. The determination of the court is no longer a prima facie finding. But would that not violate the Compet enceCompetence Principle? The determination of the court after the commencement of arbitration proceedings Illustration August 6 Commencement of Arbitration Sce nario A: On May 6, the determination of the court is merely prima facie and the parties may still commence arbitration. Scenario B: On November 6, the determina tion of the court is no longer prima facie. What would be the remedy of the clai mant? Not final may still be reviewed by MR, appeal, certiorari. Rule 3.19 1) MR - yes 2) Certiorari yes a) Affirming ATs jurisdiction not subject to certiorari b) AT has no jurisdiction certiorari available Note: How many days? 3) Appeal ye s daw Vega v. San Carlos Milling Co. Ltd, 51 Phil 908 (1924) Petitioners: Teodor o Vega Respondent: San Carlos Milling Co., Ltd. Facts: Defendant-appellant conte nds that Sec. 23 of the Mills covenant and Sec. 14 of the Planters covenant, as su ch stipulations on arbitration are valid, and constitute a condition precedent, to which the plaintiff should have resorted before applying to the courts, as he prematurely did. 3 3 Cases for next meeting (August 6, 2010): 1) Vega v. San Carlos Milling Co. Ltd, 51 Phil 908 (1924) no digest 2) California & Hawaiian Sugar Co. v. Pioneer Insur ance & Surety Corp. 346 SCRA 214 (2000) 3) Associated Bank v. CA, 233 SCRA 137 ( 1994) 4) Bloomfield Academy v. CA, 237 SCRA 43 (1994) 5) Mindanao Portland Cemen t Corporation v. McDonough Construction Co. of Florida, 90 SCRA 808 (1967) 6) Go nzales v. Climax Mining Ltd., 512 SCRA 148 (2007) 7) Oil & Natural Gas Commissio n v. CA, 293 SCRA 26 (1998) 8) Magellan Capital Mgt. Corp. v. Zosa, 355 SCRA 157 (2001) 9) BF Corporation v. CA, 288 SCRA 267 (1998) 10) Korea Technologies Co. Ltd. v. Lerma, 542 SCRA 1 (2008) 11) Luzon Development Bank v. Luzon Development Bank Employees, 249 SCRA 162 (1995) In re: multiplicity Class Notes - August 6, 2010 Is there a counterpart of the principle of confidentiality in Sec. 23 RA 9285 in RA 876? Sec. 14? (UNANSWERED) What is the Judicial Relief After Commencement of Arbitration (Rule 3, Special ADR Rules)? Said STIPULATIONS TO ARBITRATE are as follows: "23 (Mills covenant). That it (the MillParty of the first part) will submit any and all differences that may arise between the Mill and the Planters to the decision of arbitrators, two of

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 14 This, more so, if these two provisions are read with the reciprocal covnenant in Sec. 7 of the Mills covenant. 4 It is an admitted fact that the differences whic h later arose between the parties, and which are the subject of the present liti gation have not been submitted to arbitration provided for in the above quoted c lauses. Plaintiff filed an action for the recovery of 32,959 kilos of centrifuga l sugar, or its value, P6,252, plus the payment of P500 damages and the costs. T he lower court decided in favor of the plaintiff. Issue: WON the lower court err ed in having held itself with jurisdiction to take cognizance of and render judg ment in the cause Held: NO. Ratio: 1) The defendant is right in contending that clause 23 of the Mills covenant and clause 14 of the Planters Covenant on arbi tration are valid, but they are not for that reason a bar to judicial action, in view of the way they are expressed: "An agreement to submit to arbitration, not consummated by an award, is no bar to a suit at law or in equity concerning the subject matter submitted. And the rule applies both in respect of agreements to submit existing differences and agreements to submit differences which may aris e in the future." (5 C. J., 42.) And in view of the terms in which the said cove nants on arbitration are expressed, it cannot be held that in agreeing on this p oint, the parties proposed to establish the arbitration as a condition precedent to judicial action, because these clauses quoted do not create such a condition either expressly or by necessary inference. "Submission as Condition Precedent to Suit. Clauses in insurance and other contr acts providing for arbitration in case of disagreement are very dissimilar, and the question whether submission to arbitration is a condition precedent to a sui t upon the contract depends upon the language employed in each particular stipul ation. Where by the same agreement which creates the liability, the ascertainmen t of certain facts by arbitrators is expressly made a condition precedent to a r ight of action thereon, suit cannot be brought until the award is made. But the courts generally will not construe an arbitration clause as ousting them of thei r jurisdiction unless such construction is inevitable, and consequently when the arbitration clause is not made a condition precedent by express words or necess ary implication, it will be construed as merely collateral to the liability clau se, and so no bar to an action in the courts without an award." (2 R. C. L., 362 , 363.) 2) Neither does the reciprocal covenant No. 7 of the Mills covenant expre ssly or impliedly establish the arbitration as a condition precedent. The expres sion "subject to the provisions as to arbitration, hereinbefore appearing" does not declare such to be a condition precedent. This phrase does not read "subject to the arbitration," but "subject to the provisions as to arbitration hereinbef ore appearing." And, which are these "provisions as to arbitration hereinbefore appearing?" Undoubtedly clauses 23 and 14 quoted above, which do not make arbitr ation a condition precedent. Disposition. Affirmed. Separate Opinions AVANCEA, J., concurring: 1) Inasmuch as clause 23 of the Mills Covenants, and clause 14 of the Planters Covenants provide that the parties sh ould respect and abide by the decision of the arbitrators, they bar judicial int ervention and consequently are null and void in accordance with the ruling of th is court in the case of Wahl and Wahl vs. Donaldson, Sims & Co. (2 Phil., 301). Clause 7 of the Mutual Covenants, naming the Court of First Instance of Iloilo a s the one with jurisdiction to try such cases as might arise from the parties c ontractual relations, by the very fact that it was made subject to the arbitrati on clauses previously mentioned, does not render such arbitration merely a condi tion precedent to judicial action, nor does it change its scope, as clearly indi cated by its wording and the intention of the parties. Said clause 7 was doubtle ss added in case it became

whom shall be chosen by the Mill and two by the Planters, who in case of inabili ty to agree shall select a fifth arbitrator, and to respect and abide by the dec ision of said arbitrators, or any three of them, as the case may be." "14 (Plant ers covenant). That they (the PlantersParties of the second part) will submit any and all differences that may arise between the parties of the first part and the parties of the second part to the decision of arbitrators, two of whom shall be chosen by the said parties of the first part and two by the said party of the s econd part, who in case of inability to agree, shall select a fifth arbitrator, and will respect and abide by the decision of said arbitrators, or any three of them, as the case may be." 4 2) Said RECIPROCAL COVENANT No. 7, reads: "7. Subject to the provisions as to arbit ration, hereinbefore appearing, it is mutually agreed that the courts of the Cit y of Iloilo shall have jurisdiction of any and all judicial proceedings that may arise out of the contractual relations herein between the party of the first an d the parties of the second part."

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 15 necessary to resort to the courts for the purpose of compelling the parties to a ccept the arbitrators decision in accordance with the contract, and not in orde r to submit anew to the courts what had already been decided by the arbitrators, whose decision the contracting parties had bound themselves to abide by and res pect. MALCOLM, J., dissenting: 1) Defendant is not bound to furnish cars free of charge for use on the plaintiffs portable railway tracks, in relation with its corollary, that the letter written by the manager of the defendants mill on Ma rch 18, 1916, does not estop the defendant from demanding compensation for the f uture use of the cars. 2) The parties having formally agreed to submit their dif ferences to arbitrators, while recognizing the jurisdiction of the courts, arbit ration has been made a condition precedent to litigation, and should be held val id and enforceable. a) In the Philippines fortunately, the attitude of the court s toward arbitration agreements is slowly crystallizing into definite and workab le form. The doctrine announced in Wahl and Wahl vs. Donaldsono. ([1903], 2 Phil ., 301), was that a clause in a contract providing that all matters in dispute s hall be referred to arbitrators and to them alone, is contrary to public policy and cannot oust the courts of jurisdiction. But the rule now is that unless the agreement is such as absolutely to close the doors of the courts against the par ties, which agreement would be void, the courts will look with favor upon such a micable arrangements and will only with great reluctance interfere to anticipate or nullify the action of the arbitrator. The new point of the judiciary in the progressive jurisdiction of Pennsylvania, in England, and under the Civil Law, i s also worthy of our serious consideration. i) It is the rule in Pennsylvania that when the persons making an executory cont ract stipulate in it that all disputes and differences between them, present or prospective, in reference to such contract or any sum payable under it, shall be submitted to the arbitrament of a named individual, or specifically designated persons, they are effectually bound irrevocably by that stipulation, and preclud ed from seeking redress elsewhere until the arbiter or arbiters agreed upon have rendered an award or otherwise been discharged. In England, the view seems now to prevail that a contractual stipulation for a general arbitration, constitutes a condition precedent to the institution of judicial proceedings for the enforc ement of the contract. Finally, it is within our knowledge that the Spanish civi l law wisely contains elaborate provisions looking to the amicable adjustment of controversies out of court. Litigation by means of friendly adjusters was forme rly well known. The procedure in this kind of litigation was minutely outlined i n the Ley de Enjuiciamiento Civil. Two articles of the Civil Code, namely, articles 1820 and 1821, were given up to the subject of arbitration, and expressly confirmed this method of settling differe nces. c) d) It was plainly the solemn purpose of the parties to settle their controversies a micably if possible before resorting to the courts. They provided for themselves by mutual consent a method which was speedier and less expensive for all concer ned and less likely to breed that ill-feeling which is often the consequence of hotly contested litigation. All this was done by the Planters on the one hand an d by the Milling Company on the other, to the end that justice might guide them and possible differences be quickly adjusted. It is clear, by paragraph 7 of the

Mutual Covenants, that these parties did not intend that the decision of the ar bitrators should prevent resort to the courts, for they expressly agreed to carr y litigation between them to the courts of Iloilo. Acting under legal rules, eve n in their most restrictive form, disputes arising out of the contract, were to be referred to arbitration so that the damages sustained by a breach of the cont ract, could be ascertained by specified arbitrators before any right of action a rose; but the matters in dispute were not to be referred to arbitrators and to t hem alone, to the utter exclusion of the courts. It is exactly correct to state that the clauses of the Covenants hereinbefore quoted, were meant as a condition precedent to litigation, which accordingly should be given effect. STUDY NOTES Rule 2.2. Policy on arbitration. (A) Where the parties have agreed to submit their dispute to arbitration, courts shall refer the parties to arbitrat ion pursuant to Republic Act No. 9285 bearing in mind that such arbitration agre ement is the law between the parties and that they are expected to abide by it i n good faith. Further, the courts shall not refuse to refer parties to arbitrati on for reasons including, but not limited to, the following: a. The referral ten ds to oust a court of its jurisdiction d. The arbitration proceeding has not com menced b) ii) CLASS NOTES 1) Court was already rly as 1924. 2) Malcolm dissent: d by stipulation, precluded from inction between (a) did not name ce to arbitration is a condition iii) talking about arbitration agreement, etc. as ea 3 jurisdictions: *Pensylvannia irrevocably boun seeking redress to the courts; but makes a dist arbitrator; (b) *England even a general referen precedent (liberal)

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 16 *Spain (Ley de Enjuiciamiento Civil) detailed amicable settlement + arbitration - Respect solemn purpose of the parties - Not null and void for absolutely ousts the courts of jurisdiction. Is an arbitration agreement a condition precedent t o the filing of an action in court? Rule 16.1 (j) of the Rules of Court MTD on t he ground of failure to comply with a condition precedent Is this an absolute ru le? No. It can be waived. R.A. 9285, Sec. 24. Referral to Arbitration. - A court before which an action is brought in a matter which is the subject matter of an arbitration agreement sha ll, if at least one party so requests not later that the pre-trial conference, o r upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. Sec. 7 Stay of civil action Relate to Referral to ADR (Special Rules) Depends on the request of a party, because party may decide not to undergo ADR - Related to Section 24 of RA 9285 If any suit or proceeding be brought upon an issue arising out of an agreement providing for the arbitrati on thereof, the court in which such suit or proceeding is pending, upon being sa tisfied that the issue involved in such suit or proceeding is referable to arbit ration, shall stay the action or proceeding until an arbitration has been had in accordance with the terms of the agreement: Provided, That the applicant, for t he stay is not in default in proceeding with such arbitration. Rule 4.2. When to make request. (A) Where the arbitration agreement exists before the action is f iled. The request for referral shall be made not later than the pre-trial confer ence. After the pre-trial conference, the courthuj will only act upon the reques t for referral if it is made with the agreement of all parties to the case. Class Notes - August 13, 2010 Can you be bound by an arbitration clause by subrogation? See California & Hawai ian Sugar Co. v. Pioneer Insurance & Surety Corp (2000) California & Hawaiian Sugar Co. v. Pioneer Insurance & Surety Corp., 346 SCRA 21 4 (2000) Petitioners: California Hawaiian Sugar Company, Pacific Gulf Marine Inc and CF Sharp and Co Respondent: Pioneer Insurance and Surety Corporation Facts: On November 27, 1990, the vessel MV SUGAR ISLANDER arrived at the port of Manila carrying a cargo of soybean meal in bulk consigned to several consignees, one of which was the Metro Manila Feed Millers Association. Discharging of cargo from vessel to barges commenced. From the barges, the cargo was allegedly offloaded, rebagged and reloaded on consignees delivery trucks. Respondent, however, claims that when the cargo was weighed on a licensed truck scale a shortage of 255.051 metric tons valued at P1,621,171.16 was discovered. The shipment was insured wit h Pioneer against all risk in the amount of P19,976,404.00. Due to the alleged r efusal of petitioners to settle their respective liabilities, respondent, as ins urer, paid the consignee Metro Manila Feed Millers Association. Pioneer filed a c omplaint for damages against petitioners. Petitioners filed a Motion to Dismiss the complaint on the ground that respondents claim is premature, the same being a rbitrable. The RTC ordered to defer the hearing of the MTD and directed petition ers to file their Answer. Petitioners filed their answer with counterclaim and c rossclaim alleging that Pioneer did not comply with the arbitration clause. Peti tioners filed a Motion to Defer Pre-Trial and Motion to Set for Preliminary Hear ing the Affirmative Defense of Lack of Cause of Action for Failure to comply wit h Arbitration Clause, respectively. The RTC denied. The CA affirmed. It ruled th at petitioner cannot set the case for preliminary hearing as an MTD was filed. A lso, the arbitration clause in the charter party did not bind Pioneer. The right of Pioneer to file a

Conclusion: An arbitration clause is NOT a condition precedent such that it is a ground for dismissal, because it is an alternative mode of dispute resolution. Hence, a party goes to court not to pass upon the merits or to have resolve it r esolved, but for other reasons, such as to have the arbitration agreement enforc ed, modified, set aside, etc. It is a ground to STAY civil action (Sec. 7, RA 87 6; Sec. 24, RA 9285), not to dismiss it. Malcolm: Condition precedent if it is m ore of a factfinding task.

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 17 complaint against petitioners is not dependent upon the charter party, nor does it grow out of any privity contract. It accrues simply upon payment. Citing Pan Malayan Insurance Corporation v. CA, the CA ruled that the right of respondent i nsurance company as subrogee was not based on the charter party or any other con tract; rather, it accrued upon the payment of the insurance claim by private res pondent to the insured consignee. Issue: WON the arbitration clause was binding upon Pioneer Held: YES Ratio: The CA erred when it held that the arbitration cla use was not binding on Pioneer. There was nothing in Pan Malayan, however, that prohibited the applicability of the arbitration clause to the subrogee. That cas e merely discussed, inter alia, the accrual of the right of subrogation and the legal basis therefor. This issue is completely different from that of the conseq uences of such subrogation; that is, the rights that the insurer acquires from t he insured upon payment of the indemnity. (Pan Malayan: The right of subrogation is not dependent upon, nor does it grow out of, any privity of contract or upon written assignment of claim. It accrues simply upon payment of the insurance cl aim by the insurer.) As to the preliminary hearing: True, Section 6, Rule 16 spe cifically provides that a preliminary hearing on the affirmative defenses may be allowed only when no motion to dismiss has been filed. Section 6, however, must be viewed in the light of Section 3 which requires courts to resolve a motion t o dismiss and prohibits them from deferring its resolution on the ground of indu bitability. Section 6 disallows a preliminary hearing of affirmative defenses on ce a motion to dismiss has been filed because such defense should have already b een resolved. In the present case, however, the trial court did not categoricall y resolve petitioners Motion to Dismiss, but merely deferred resolution thereof. STUDY NOTES Rule 2.2. Policy on arbitration. (A) Where the parties have agreed to submit their dispute to arbitration, courts shall refer the parties to arbitrat ion pursuant to Republic Act No. 9285 bearing in mind that such arbitration agre ement is the law between the parties and that they are expected to abide by it i n good faith. Further, the courts shall not refuse to refer parties to arbitrati on for reasons including, but not limited to, the following: c. The referral wou ld result in multiplicity of suits; Rule 4.7. Multiple actions and parties. The court shall not decline to refer some or all of the parties to arbitration for a ny of the following reasons: a. Not all of the disputes subject of the civil act ion may be referred to arbitration; b. Not all of the parties to the civil action are bound by the arbitration agree ment and referral to arbitration would result in multiplicity of suits; c. The i ssues raised in the civil action could be speedily and efficiently resolved in i ts entirety by the court rather than in arbitration; d. Referral to arbitration does not appear to be the most prudent action; or e. The stay of the action woul d prejudice the rights of the parties to the civil action who are not bound by t he arbitration agreement. The court may, however, issue an order directing the i nclusion in arbitration of those parties who are not bound by the arbitration ag reement but who agree to such inclusion provided those originally bound by it do not object to their inclusion. CLASS NOTES Can you be bound by an arbitration clause in subrogation? No express ruling in California & Hawaiian Sugar Co. v. Pioneer Insurance & Surety Corp (2 000), citing Pan Malayan, saying that a subrogee is bound. Theres only the accrua l of the right of subgrogation and the legal basis therefor. Was there consent o n the part of the insurance company? Yes, on the basis of the principle of subro gation and its effects. Will Article 1311 of the Civil Code apply here? Art. 1311. Contracts take effect only between the parties, their assigns and hei

rs, except in case where the rights and obligations arising from the contract ar e not transmissible by their nature, or by stipulation or by provision of law. T he heir is not liable beyond the value of the property he received from the dece dent. If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obl igor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conf erred a favor upon a third person. Can Assignment in A1311 be equated with Subrogation? No. The right of subrogation is not dependent upon, nor does it grow out of, any privity of contract or upon written assignment of claim. It accrues simply upon payment of the insurance cla im by the insurer. (Pan Malayan) c.f. Art. 2207. If the plaintiffs property has been insured, and he has received ind emnity from the insurance company for the injury or loss arising out of the wron g or breach of contract complained of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the person who has violat ed the contract. If the amount paid by the insurance company does not fully cove r the injury or loss, the aggrieved party shall be entitled

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 18 to recover the deficiency from the person causing the loss or injury. resulting increase in tuition fees allowed by RA 6728 were discussed at length. The DECS however affirmed the tuition fee increase. The court issued an order en joining petitioners and Secretary Cario and/or their agents, representatives or p ersons acting in their behalf from implementing the increase in tuition fees, an d not withholding their release of the report cards and/or other papers necessar y for the students desiring to transfer to other schools until further orders fr om the court. The application for injunction was set for hearing on April 19, 19 90 at 2:00 p.m. Answer to the complaint was filed by petitioners on April 19, 19 90. On the same date, the court conducted the first hearing on the application f or a writ of preliminary injunction which hearing was followed by settings on Ap ril 25, 26 and 27, 1990. The court thereafter issued an order granting the writ of preliminary injunction. On certiorai, the CA affirmed and ruled that the gran t or denial of an injunction rests upon the sound discretion of the court. Issue : WON the court erred in granting the injunction Held: Ratio: The pertinent prov isions RA 6728, also commonly known as "An Act Providing Government Assistance t o Students and Teachers in Private Education, And Appropriating Funds Therefor," provide: Sec. 9. Further Assistance To Students in Private Colleges and Univers ities. . . . . (b) For students enrolled in schools charging above one thousand five hundred pesos (P1,500.00) per year in tuition and other fees during the sch ool year 1988-1989 or such amount in subsequent years as may be determined from time to time by the State Assistance Council, no assistance for tuition fees sha ll be granted by the Government: Provided, however, That the schools concerned m ay raise their tuition fees subject to Section 10 hereof. xxx xxx xxx Sec. 10. C onsultation. In any proposed increase in the rate of tuition fee, there shall be appropriate consultations conducted by the school administration with the duly organized parents and teachers associations and faculty associations with respec t to secondary schools, and with students governments or councils, alumni and fa culty associations with respect to colleges. For this purpose, audited financial statements shall be made Can a party be bound by the Arbitration Clause by statutory provision? Xam: Anal ogous to heirs in the sense that the subrogee acquires the transmissible rights of the original party. (UNANSWERED). See however, Bloomfield Academy Sec. 10 on Co nsultation of RA 6728, also commonly known as "An Act Providing Government Assis tance to Students and Teachers in Private Education, And Appropriating Funds The refor" Xam: See also, Associated Bank case Sec. 3 (Agreement to the PCHC Rules) in relation to Sec. 36 on Arbitration. Bloomfield Academy v. CA, 237 SCRA 43 (1994) Petitioners: Bloomfield Academy and Rodolfo Lagera Respondents: CA, Bloomfield Academy Parents Advisory Association Inc, et al Facts: The petition originated in a complaint for injunction filed o n April 6, 1990 by private respondent, the association of parents and guardians of students enrolled in petitioner. One of the defendants in the case is petitio ner which is a non-stock, non-profit educational institution. What is being disp uted before the court is the increase in tuition fee. The petitioners contend th at the increase is essential due to the increase of the minimum wage under RA 67 27. Private respondents alleged that the 21.22% increase was made without prior consultation with the parents required by law and that, in any case, the approve d increase was exorbitant (at 21.22%). They sent a letter to the DECS Secretary complaining that the tuition fee increase was without valid basis already, after both parties agreed on 50% of the increase which was implemented and paid by th

e students during the school year with the clear understanding that the other 50 % is waived by the defendant. Petitioners, on their part, contended that the par ties did, in fact, hold consultations at which the wage increase for teachers ma ndated by RA6727 and the

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 19 available to authorized representatives of these sectors. Every effort shall be exerted to reconcile possible differences. In case of disagreement, the alumni a ssociation of the school or any other impartial body of their choosing shall act as arbitrator. xxx xxx xxx Sec. 14. Program Administration/Rules and Regulation s. The State Assistance Council shall be responsible for policy guidance and dir ection, monitoring and evaluation of new and existing programs, and the promulga tion of rules and regulations, while the Department of Education, Culture and Sp orts shall be responsible for the day to day administration and program implemen tation. Likewise, it may engage the services and support of any qualified govern ment or private entity for its implementation. The judicial action initiated by private respondent before the court appears to us to be an inappropriate recours e. It remains undisputed that the DECS Secretary has, in fact, taken cognizance of the case for the tuition fee increase and has accordingly acted thereon. We c an only assume that in so doing the DECS Secretary has duly passed upon the rele vant legal and factual issues dealing on the propriety of the matter. In the dec ision process, the DECS Secretary has verily acted in a quasi-judicial capacity. The remedy from that decision is an appeal. Conformably with BP 129, the exclus ive appellate jurisdiction to question that administrative action lies with the CA, not with the court a quo. If we were to consider, upon the other hand, the c ase for injunction filed with the court a quo to be a ordinary action solely aga inst herein petitioner (with DECS being then deemed to be merely a nominal party ), it would have meant the courts taking cognizance over the case in disregard of the doctrine of primary jurisdiction. Neither can we treat the case as a spec ial civil action for certiorari or prohibition as the complaint filed by private respondent with the court a quo, contains no allegation of lack, or grave abuse in the exercise, of jurisdiction on the part of DECS nor has there been any fin ding made to that effect by either the court a quo or the appellate court that c ould warrant the extraordinary remedy. A special civil action, either for certio rari or prohibition, can be grounded only on either lack of jurisdiction or grav e abuse of discretion. In passing, we also observe that the parties have both re mained silent on the provisions of Republic Act No. 6728 to the effect that in c ase of disagreement on tuition fee increases (in this instance by herein private parties), the issue should be resolved through arbitration. Although the matter has not been raised by the parties, it is an aspect, nevertheless, in our view, that could have well been explored by them instead of immediately inv oking, such as they apparently did, the administrative and judicial relief to re solve the controversy. All told, we hold that the court a quo has been bereft of jurisdiction in taking cognizance of private respondents complaint. We see no real justification, on the basis of the factual and case settings here obtaining , to permit a deviation from the long standing rule that the issue of jurisdicti on may be raised at any time even on appeal. CLASS NOTES Take Note of Sec. 10: In case of disagreement, the alumni association of the school or any other impartial body of their choosing shall act as arbitr ator Is Sec. 10 an effective arbitration clause? Is the designation of the alumni association in Sec. 10 an appointment of arbitrator? Statutory arbitration clau se? A republic act meddled with the legal relationship. Sir, too broad, too vagu e. Consent is absent. If yes, party may move to stay civil action. If not, theres no arbitrable dispute and theres no basis to stay civil action. Take Note of the the ff. provisions: R.A. 9285, Sec. 24. Referral to Arbitration. - A court befo re which an action is brought in a matter which is the subject matter of an arbi tration agreement shall, if at least one party so requests not later that the pr

e-trial conference, or upon the request of both parties thereafter, refer the pa rties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. Sec. 7 Stay of civil action R elate to Referral to ADR (Special Rules) Depends on the request of a party, beca use party may decide not to undergo ADR - Related to Section 24 of RA 9285 If an y suit or proceeding be brought upon an issue arising out of an agreement provid ing for the arbitration thereof, the court in which such suit or proceeding is p ending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration, shall stay the action or proceeding

Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblaci on for her great digests! Law 160A Alternative Dispute Resolution (Prof. A. Autea) 20 until an arbitration has been had in accordance with the terms of the agreement: Provided, That the applicant, for the stay is not in default in proceeding with such arbitration. Rule 4.2. When to make request. (A) Where the arbitration agr eement exists before the action is filed. The request for referral shall be made not later than the pre-trial conference. After the pretrial conference, the c