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Involved in Arbitration / ADR?

We know the different processes.

We can help you dissect and analyze them,

refine and combine them, create hybridprocedures to make them suitable forparticular relationships, as well as develop

strategies and point you to the right direction.

Philippine Institute ofArbitrators


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COMPREHENDING ARBITRATIONS

CLEARING-UP THE CONFUSIONby

MARIO E. VALDERRAMA AB, LLB, FCIArb, FHKIArb, FPIArb

CIArb Approved TutorResident Representative to the Regional Sub-Committee

The Chartered Institute of Arbitrators

East Asia Branch

Contact DetailsTel No 367 4001; Telefax 362 1867

Mobile 0917 411 4594

E-mail


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THE CONFUSION: ARBITRATION ANDSTATUTE BASED ARBITRATIONS

There are several processes called arbitration in the Philippines.

Classes:

a. Arbitration (traditional/agreementbased)

b. Statute based arbitrations


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CLEARING-UP THE CONFUSION

CONCEPT OF ARBITRATION (AGREEMENTBASED)

Arbitration is a device whereby thesettlement of a question, which is ofinterest for two or more persons, isentrusted to one or more other persons the arbitrator or arbitrators- who derivetheir powers from a private agreement,not from the authorities of a State, andwho are to proceed and decide the case onthe basis of such an agreement Fouchard, Gaillard, Goldman on


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CLEARING-UP THE CONFUSION

In contrast, in statute basedarbitrations the arbitrator orarbitrators derive their powersfrom the authorities of a State.


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CLEARING THE CONFUSION:

STATUTE BASED ARBITRATIONS

Sub Classification

Optional - needs stipulation to arbitrate,

e.g. CIAC and voluntary laborarbitrations

Imposed does not require agreement

to arbitrate, e.g. consumer and


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CLEARING-UP THE CONFUSION: AGREEMENT BASED ARBITRATION

Contractual; synonymous with the conceptof party autonomy in the resolution of

disputes Tribunal an instrumentality of the parties Award is product of private dispute

resolution processes, hence the need for judicial recognition of confirmation

Principle of finality of awards is based oncontract & core component of the process

Validity issues: award treated just like a


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ARBITRATION

Contractual Nature

Arbitration is a creature of contract,not of law. It is based on the contractprinciple of party autonomy or the

will of the parties, expressed as thefreedom to contract.


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ARBITRATION

Award a Product of Dispute ResolutionProcess; Need forConfirmation/Recognition

A vacated award x x x was aninternational award which was notintegrated in the legal system of that

State x x x (Hilmarton v OTV, 1994 BULLCIV. A, No. 104, Court de Cassation,March 23, 1994. From Carbonneu).


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ARBITRATION

Principle of Finality of Award isContractual

x x x arbitrators are judges chosen by theparties to decide the matters submitted to. them, finally and without appeal x x x(Burchell v Marsh, 58 U.S.. 344, 15 L.Ed.96 (1854).

The essence of the arbitration process isthat an arbitral award shall put the disputeto rest x x x. Arbitral finality is a corecomponent of the parties agreement tosubmit to arbitration. Thus, an arbitration


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ARBITRATION

Validity Issues: Award is Treated Just Likea Contractual Stipulation

An award is ignored or vacated if bad;recognized or confirmed and enforced ifgood; subject to the principle ofseparability.

An added saving grace is referral back to

the Tribunal which was introduced by


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STATUTE BASED ARBITRATIONS Established by statute Hybrid processes Freedom of parties to select arbitrators

and craft procedure heavily curtailed Tribunal an instrumentality of

Government Resultant award deemed integrated into

the legal system No agreement exists that the award is

final, hence a merits review is available


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Created by statute: There is hereby established in the

CIAP a body to be known as theConstruction Industry ArbitrationCommission (E.O. 1008 Section 3).


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Hybrid Processes

A perusal of the procedures will show acombination of the precepts of agreementbased arbitration and litigation.


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Curtailment of freedom to choosearbitrators:

Generally, only CIAC accredited arbitratorsmay be appointed in CIAC panels.


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Curtailment of freedom to craft procedure: The Arbitral Tribunal shall at all times adopt the

most expeditious procedure for the introductionand reception of evidence, and SHALL HAVECOMPLETE CONTROL OVER THE PROCEEDINGS,but in any case shall afford full and equal

opportunity to all parties to present relevantevidence (CIAC Rules Sec. 13.4).


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Tribunal an instrumentality of theGovernment

Obviously, as CIAC was created bystatute.


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Award subject to appeal

Rule 43 Section 1. Scope. This Rule shallapply to appeals from awards x x x.

Among these agencies are the x x x

Construction Industry ArbitrationCommission.


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WANT TO KNOW MORE?

Attend our courses and seminars.

Contact us for schedules.

Philippine Institute of Arbitratorsc/o Atty. Mario E. Valderrama

Tel. No. (632) 367 4001

Telefax (632) 362 1867

E-mail: [email protected]

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