Professional Documents
Culture Documents
Adr Reviewer Atty Higuit
Adr Reviewer Atty Higuit
Membership.............................................................23
Contents
Governing bodies.....................................................24
World Council......................................................24
I. INTRODUCTION......................................................2
1.1
1.3
UNDERSTANDING DISPUTE
RESOLUTION OPTIONS..........................................3
1.4
Advantages/Benefits and Disadvantages of
Alternative Dispute Resolution.................................5
1.4.1
Benefits of ADR.....................................5
1.4.2
Disadvantages of ADR.........................8
1.4.3
BENEFITS OF ALTERNATIVE
DISPUTE RESOLUTION......................................9
1.5
ADR
Executive Board...................................................24
International Secretariat.....................................24
National Committees..........................................24
Finance Committee.............................................24
Dispute Resolution Services....................................24
Policy and business practices..................................24
2.2.3
INTERNATIONAL CENTER FOR
SETTLEMENT OF INVESTMENT DISPUTES
(ICSID) (CONVENTION ON THE SETTLEMENT
OF INESTMENT DISPUTE BETWEEN STATES
AND NATIONALS OF OTHER STATES)...........24
2.2.4
UNITED NATIONS COMMISSION
FOR INTERNATIONAL TRADE LAW
(UNICITRAL MODEL LAW ON INTRNATIONAL
COMMERCIAL ARBITRATION-1985)...............26
1.5.1
History.....................................................................26
1.5.2
Membership............................................................26
Model laws...............................................................27
1.6
1.7
SUBJECT OF ADR.......................................11
2.2.5
WORLD TRADE ORGANIZATION
(MARRAKESH AGREEMENT) (DISPUTE
SETTLEMENT UNDERSTANDING)..................27
1.5.3
2
INTERNATIONAL ALTERNATIVE DISPUTE
RESOLUTION/ PEACEFUL SETTLEMENT OF
INTERNATIONAL DISPUTE......................................17
Conventions.............................................................27
2.3
ENFORCEMENT AND RECOGNITION OF
AWARDS.................................................................36
2.1
INTRODUCTION TO PUBLIC
INTERNATIONAL LAW AND PRIVATE
INTERNATIONAL LAW..........................................17
Contents...................................................................36
Background..............................................................36
Summary of provisions............................................37
2.1.1
BASIC PRINCIPLES OF
INTERNATIONAL LAW (SOVEREIGNTY,
JURISDICTION, INDEPENDENCE etc.)...........18
TYPES OF ADR...........................................38
2.1.1.1
Sovereignty.................................................18
2.4.1
1. Negotiation......................................38
2.1.1.3
Independence...............................................19
2.4.2
Assisted negotiation............................38
2.1.2
ARTICLE 33 PARAGRAPH 1 OF THE
UN CHARTER.....................................................21
2.4.3
2. Mediation........................................38
2.4.4
3. Conciliation.....................................38
2.1.3
INTERNATIONAL COURT OF
JUSTICE 21
2.4.5
4. Arbitration.......................................38
2.2
RELEVANT ALTERNATIVE DISPUTE
SETTLEMENT INSTITUTIONS..............................21
2.2.2
INTERNATIONAL COURT OF
ARBITRATION (INTERNATIONAL CHAMBER
OF COMMERCE)................................................23
6. GOOD OFFICES..............................41
DOMESTIC ARBITRATION................................41
3.1
INTRODUCTION TO DOMESTIC
COMMERCIAL DISPUTE RESOLUTION..............41
3.2
ALTERNATIVE DISPUTE RESOLUTION
ACT OF 2004...........................................................41
Republic Act No. 9285.............................................41
April 2, 2004............................................................41
3.3
REPUBLIC ACT NO. 876 ARBITRATION
LAW OF THE PHILIPPINES..................................50
3.4
A.M. No. 07-11-08-SC
SPECIAL
RULES OF COURT ON ALTERNATIVE DISPUTE
RESOLUTION September 1, 2009.........................55
3.5
3.6
3.7
I. INTRODUCTION
BRIEF DESCRIPTION OF ADR
SYSTEM
Alternative Dispute Resolution
(ADR) also known as external dispute resolution in
some countries, such as Australia includes dispute
resolution processes and techniques that act as a
means for disagreeing parties to come to an agreement
short of litigation. It is a collective term for the ways
that parties can settle disputes, with (or without) the
help of a third party.
Despite historic resistance to ADR by many popular
parties and their advocates, ADR has gained
widespread acceptance among both the general public
and the legal profession in recent years. In fact, some
courts now require some parties to resort to ADR of
some type, usually mediation, before permitting the
parties' cases to be tried (indeed the European
Mediation Directive (2008) expressly contemplates socalled "compulsory" mediation; attendance that is, not
settlement at mediation).
The rising popularity of ADR can be explained by the
increasing caseload of traditional courts, the
perception that ADR imposes fewer costs than
litigation, a preference for confidentiality, and the
desire of some parties to have greater control over the
selection of the individual or individuals who will
decide their dispute.
Some of the senior judiciary in certain jurisdictions (of
which England and Wales is one) are strongly in favor
of the use of mediation to settle disputes.1
2
1
http://en.wikipedia.org/wiki/Alternative_dispute_resolution
http://www.businessdictionary.com/definition/alternativedispute-resolution.html#ixzz204cSk0Xz
GOOD FAITH
Those who engage in ADR should do so in an attempt
to reach agreement--not to delay or secure tactical
advantage.
ADVANTAGES
CONFIDENTIALITY
Parties
Control
Outcome
METHOD
DISADVANTAGE
S
Alternativ
e Dispute
Resolution
(ADR)
Does Not
Establish
Legal
http://envdeskbook.org/CH19/Ch19ADR.htm#_Toc3255513
91
http://www.cpuc.ca.gov/PUC/ADR/adrprinciples.htm
Time Efficient
Cost Efficient
Confidentia
l
Maintains
Business
Relationshi
ps
NonAdversarial
, Informal
Process
Appropriat
e For Fraud
Or
Criminal
Matters
Precedent
Can
Adversal
Establish a
Approache
Legal
s
Precedent
Appropriat
e Where
One Party
Has No
Intention
Of
Complianc
e
litigation
arbitration
Not Open
To Public
Scrutiny
Not
Appropriate
For Fraud
Or Criminal
Behaviour
Parties Have
Limited
Control
Over The
Outcome
May Destroy
Business
Relationship
s
AN EXPLANATION OF ALTERNATIVE
DISPUTE RESOLUTION METHODS
ASSISTED NEGOTIATION
The parties engage a professional negotiator or
'go-between' to assist parties reach a desired
result. It is usually informal and the negotiator
can either be appointed by one party or both.
In the latter situation he/she is a joint
negotiator. This method is often helpful in
smaller disputes where parties are still talking
to one another and need help to break an
impasse, and where they have identified all the
issues to be negotiated.
MEDIATION
Mediation is a process where an independent
person is used to assist the parties in dispute
to find a mutually acceptable solution. The
mediator will systematically work through the
issues, help identify alternatives, and facilitate
final agreement. The process is nonadversarial and focuses on the parties'
resolving the dispute themselves using the
skills of a mediator. The key principle of
Lower costs
AN
EXPLANATION
OF
ADVERSARIAL
DISPUTE RESOLUTION METHODS
Durability of agreements
Confidentiality
LITIGATION
Litigation is an adversarial legal process
conducted in a Court of law, in accordance
with strict procedures, where the parties
present legal arguments and evidence to
support their claims before a judge. The judge
applies the relevant law to the evidence,
resulting in a judgement in favour of one of the
parties involved.
ARBITRATION
Arbitration is an adversarial process, agreed by
the parties in dispute, in which each party
presents legal arguments and evidence, in
accordance with formal procedures, to a
mutually agreed arbitrator. The arbitrator
makes a determination in favour of one of the
parties. This determination is usually legally
binding.
1.3.1
Benefits of ADR
increased settlement
improved satisfaction with the outcome or
manner in which the dispute is resolved
among disputants
http://en.wikipedia.org/wiki/Alternative_dispute_resolution#
Benefits
Perceived
Disputant
Responses
Reason
Want to reduce costs
183
Want speedy resolution
159
Uncertainty of court outcome 142
Preservation
of
ongoing
86
relationship
Desire
for
compromise
82
solution
Desire for more control over
80
process and outcome
Privacy and confidentiality
74
Directed by contract, statute or
61
existing agreement
Desire for creative solution
48
Concerns
about
court
39
procedures [8]
Mediation
Medium-High
High
High
High
High
Medium-High
High
43.9
41.8
40.8
37.8
31.1
24.5
19.9
* Multiple response.
Mediation and negotiation are seen as more likely than
arbitration to generate ADR benefits including:
% of Lawyers
(n=196)
93.4
81.1
72.4
14.8% 21.9%
10.9%
10.7%
14.3% 13.7%
15.6%
14.3%
10.8
17
26.6
12
20.7
2.7
13
20.3
5.2
4.1
3.1
10.3
1.4
0.0
1.7
1.4
1.6
1.7
5.4
12.5
6.9
* Multiple response.
Cheaper resolution
Faster resolution
More control
Informal
process/relaxed/less
stressful
More creative solutions
Other
Preserves relationships
* Multiple response.
Responses
(n=49)*
30
27
8
%
ofInterviewees
61.2
55.1
16.3
12.2
5
5
3
10.2
10.2
6.1
of ADR
Views
on
the
and
Mediation
Limitations
of
Limitations
of
Arbitration
Key
Mediation (n=196)*
(n=196)*
ADRLimitatio
%
of
%
of
n
Response
Response
Lawyer
Lawyer
s
s
s
s
Enforceability
17
8.7
54
27.6
Delaying tactics 35
17.9
74
37.8
Increased Costs 80
40.8
35
17.9
* Multiple response.
Only a minority of the lawyers participating in the
lawyers' survey expressed concerns about those issues.
However, the disputants research does reveal how
powerful lawyers' views can be in relation to take-up of
ADR. A small group ofdisputants were explicitly
advised by their lawyer not to take-up ADR on the
grounds that it was too expensive or ADR would be
ineffective. Some disputants assumed that if lawyer-tolawyer informal discussion had failed to resolve the
dispute then ADR would simply not be an option.
Overall, however, surveyed lawyers tended to be
supportive of ADR. Indeed, among the lawyers
participating in the lawyers' survey around 64.4
percent accepted the notion that there might be merit
in the court ordering parties to take-up ADR prior to
proceeding with a case. It is notable, however, that
only 22.2 percent of the participant lawyers felt court
orders to arbitration were acceptable, compared to
53.7 percent who accepted the notion of the courts
ordering parties to mediation.
Even among lawyers who believed the benefits of ADR
were such as to justify some mechanism by which the
courts could order parties to mediation, there was still
a concern that ADR should not be promoted in a
manner that compromised litigants' access to justice.
Disputants' Views on the Disadvantages of
ADR
Although ADR was seen by the disputants
participating in the in-depth interviews as a less costly
pathway than the court system, a small proportion
ofthe 49 interviewees who felt they could comment on
the merits of ADR, identified a series of potential
drawbacks with ADR. Those are set out in Table 4.8
Disadvantages
of
ADR
Identified
by
Interviewees (Disputant In-depth Interviews
n=49)*
Key
Disadvantages
Responses
Identified
Lackof enforcement
10
Increased costs
9
Delaying tactic
9
Other
7
Compromise of principles
7
ADR practitioner may not have
3
the technical skills required
Need other party to be willing
2
to come to the table
No right of appeal
2
%
of
Interviewees
20.4
18.4
18.4
14.3
14.3
6.1
4.1
DISPUTE RESOLUTION7
Cost:
One of the largest reasons parties choose to resolve
their disputes outside of the courts is cost. Alternative
dispute resolution usually costs much less than
litigation, allowing smaller financial disputes a
financially viable way to be settled.
Speed:
ADR can be scheduled by the parties and the panelist
as soon as they are able to meet. Compared to the court
process, where waits of 2-3 years are normal, dispute
resolution is as fast as the parties want it to be.
Control:
The parties control some of the process; selecting what
method of ADR they want to follow, selecting the
panelist for their dispute resolution; the length of the
process; and, in a mediations case, even the outcome.
Opposed to the court system, where the legal system
and the judge control every aspect, ADR is much more
flexible.
Confidentiality:
Disputes resolved in court are public and any
judgments awarded are also public. Mediation,
arbitration, and mini trials are all conducted in private
and in strict confidentiality.
Experienced Neutral Panelists:
Our panelists are professional mediators and
arbitrators with training and expertise in dispute
resolution and insurance. Disputing parties are able to
select their panelist from a list of qualified individuals
who are specialized in specific aspects of insurance. In
the court system, binding decisions are made by judges
who may lack expertise in insurance practices.
Cooperative Approach:
All ADR services take place in a more informal, less
confrontational atmosphere. This is more conducive to
maintaining a positive business relationship between
the two parties. With mediation, specifically, the result
is collaboration between the two parties.
4.1
* Multiple response.
Twelve of 49 disputants stated that they saw only
advantages and no disadvantages associated with
ADR.6
6
http://www.justice.govt.nz/publications/globalpublications/a/alternative-dispute-resolution-
general-civil-cases/4-advantages-anddisadvantages-of-adr
7
http://www.ibabc.org/idrsbc/benefits.html
http://general-law.knoji.com/litigation-vsalternative-dispute-resolution-adr/
http://www.nadr.co.uk/background/contrast.php
http://wiki.answers.com/Q/What_are_the_disad
vantages_and_advantages_of_Alternative_dispu
te_resolution#ixzz204zUKU00
http://www.opm.gov/er/adrguide/section1a.asp
regulations
INTERNATIONAL
ALTERNATIVE
DISPUTE
RESOLUTION/
PEACEFUL
SETTLEMENT OF
INTERNATIONAL
DISPUTE
2.1 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW AND
PRIVATE INTERNATIONAL
LAW
Private
international
law,
or
conflict of laws, which addresses the questions of (1)
which jurisdiction may hear a case, and (2) the law
concerning which jurisdiction applies to the issues in
the case.12
Conflict of laws (or private international law) is a set of
procedural rules that determines which legal system
and which jurisdiction's applies to a given dispute. The
rules typically apply when a legal dispute has a
"foreign" element such as a contract agreed to by
parties located in different countries, although the
"foreign" element also exists in multi-jurisdictional
countries such as the United Kingdom, the United
States, Australia and Canada.
which
governs the relationship between provinces and
international entities. It includes these legal fields:
treaty law, law of sea, international criminal law, the
laws of war or international humanitarian law and
international human rights law.
http://en.wikipedia.org/wiki/International_law
territorial integrity
border inviolability
2.1.1.2Universal jurisdiction14
is a principle of international law that allows states to
investigate and prosecute a national of any state found
within their borders who is alleged to have committed
certain international crimes.
This principle is premised upon the idea that crimes
under international law such as war crimes, crimes
against humanity, airplane hijacking and genocide as
well as torture, extrajudicial killings, and forced
disappearances are so serious and reprehensible that
any state may prosecute the offender regardless of
nationality because they are in essence an enemy of
mankind.
13
http://en.wikipedia.org/wiki/Sovereignty
14
http://www.judicialmonitor.org/archive_1007/generalprincipl
es.html
2.1.1.3Independence of the
Judiciary16
In Brief
International law requires that cases presented in
international tribunals and cases
presented in
domestic tribunals where international law is
applicable be resolved by tribunals that are
independent and that are composed of independent
judges.
In Theory
15
http://en.wikipedia.org/wiki/Universal_jurisdiction
16
http://www.judicialmonitor.org/archive_0506/generalprincipl
es.html
includes
the
Annex
on
The
Qualifications of Belligerents, Chapter
II: Prisoners of War
http://en.wikipedia.org/wiki/Hague_Conventions_of_1899_an
d_1907
International Secretariat
National Committees
In 90 of the worlds nations, members have established
formal ICC structures called national committees. In
countries where there is no national committee,
companies and organizations such as chambers of
part of international
unwritten, including
customary rules of
general principles of
The
United
Nations
Commission
on
International Trade Law (UNCITRAL) was
established by the United Nations General Assembly
by its Resolution 2205 (XXI) of 17 December 1966 "to
promote the progressive harmonization and
unification of international trade law".
UNCITRAL carries out its work at annual sessions held
alternately in New York City and Vienna.
History
When world trade began to expand dramatically in the
1960s, national governments began to realize the need
for a global set of standards and rules to harmonize
national and regional regulations, which until then
governed international trade.
Membership
UNCITRAL's original membership comprised 29
states, and was expanded to 36 in 1973, and again to
60 in 2002. Member states of UNCITRAL are
representing different legal traditions and levels of
economic development, as well as different geographic
regions. States includes 14 African states, 14 Asian
states, 8 Eastern European states, 10 Latin American
and Caribbean states, and 14 Western European states.
The Commission member States are elected by the
18
http://en.wikipedia.org/wiki/International_Centre_for_Settle
ment_of_Investment_Disputes
Conventions
The Convention is an agreement among participating
states establishing obligations binding upon those
States that ratify or accede to it. A convention is
designed to unify law by establishing binding legal
obligations To become a party to a convention, States
are required formally to deposit a binding instrument
of ratification or accession with the depositary. The
entry into force of a convention is usually dependent
upon the deposit of a minimum number of instruments
of ratification.
UNCITRAL conventions:
the
United
Nations
Convention
International
Bills
of
Exchange
International Promissory Notes (1988)
the
United
Nations
Convention
on
Independent Guarantees and Stand-by Letters
of Credit (1995)
on
and
Model laws
A model law is a legislative text that is recommended
to States for enactment as part of their national law.
Model laws are generally finalized and adapted by
UNCITRAL, at its annual session, while conventions
requires the convening of a diplomatic conference.
UNCITRAL Model
Commerce (1996)
Law
on
Electronic
UNCITRAL Model
Signatures (2001)
Law
on
Electronic
2.
The General Council may make appropriate
arrangements for consultation and cooperation with
non-governmental organizations concerned with
matters related to those of the WTO.
(b)
the measures to be taken in respect of Members
in arrears.
1.
There shall be a Secretariat of the WTO
(hereinafter referred to as the Secretariat) headed by
a Director-General.
2.
The Ministerial Conference shall appoint the
Director-General and adopt regulations setting out the
powers, duties, conditions of service and term of office
of the Director-General.
3.
The Director-General shall appoint the members
of the staff of the Secretariat and determine their
duties and conditions of service in accordance with
regulations adopted by the Ministerial Conference.
4.
The responsibilities of the Director-General and
of the staff of the Secretariat shall be exclusively
international in character. In the discharge of their
duties, the Director-General and the staff of the
Secretariat shall not seek or accept instructions from
any government or any other authority external to the
WTO. They shall refrain from any action which might
adversely reflect on their position as international
3.
The General Council shall adopt the financial
regulations and the annual budget estimate by a twothirds majority comprising more than half of the
Members of the WTO.
4.
Each Member shall promptly contribute to the
WTO its share in the expenses of the WTO in
accordance with the financial regulations adopted by
the General Council.
(a)
A request for a waiver concerning this
Agreement shall be submitted to the Ministerial
Conference for consideration pursuant to the practice
of decision-making by consensus. The Ministerial
Conference shall establish a time-period, which shall
not exceed 90 days, to consider the request. If
consensus is not reached during the time-period, any
decision to grant a waiver shall be taken by three
fourths4 of the Members.
(b)
A request for a waiver concerning the
Multilateral Trade Agreements in Annexes 1A or 1B or
1C and their annexes shall be submitted initially to the
Council for Trade in Goods, the Council for Trade in
Services or the Council for TRIPS, respectively, for
consideration during a time-period which shall not
exceed 90 days. At the end of the time-period, the
relevant Council shall submit a report to the
Ministerial Conference.
1.
The WTO shall continue the practice of decisionmaking by consensus followed under GATT 1947(1).
Except as otherwise provided, where a decision cannot
be arrived at by consensus, the matter at issue shall be
decided by voting. At meetings of the Ministerial
Conference and the General Council, each Member of
the WTO shall have one vote. Where the European
Communities exercise their right to vote, they shall
have a number of votes equal to the number of their
member States(2)which are Members of the WTO.
Decisions of the Ministerial Conference and the
General Council shall be taken by a majority of the
votes cast, unless otherwise provided in this
Agreement or in the relevant Multilateral Trade
Agreement(3).
4.
A decision by the Ministerial Conference
granting a waiver shall state the exceptional
circumstances justifying the decision, the terms and
conditions governing the application of the waiver, and
the date on which the waiver shall terminate. Any
waiver granted for a period of more than one year shall
be reviewed by the Ministerial Conference not later
than one year after it is granted, and thereafter
annually until the waiver terminates. In each review,
the Ministerial Conference shall examine whether the
exceptional circumstances justifying the waiver still
exist and whether the terms and conditions attached to
the waiver have been met. The Ministerial Conference,
on the basis of the annual review, may extend, modify
or terminate the waiver.
2.
The Ministerial Conference and the General
Council shall have the exclusive authority to adopt
interpretations of this Agreement and of the
Multilateral Trade Agreements. In the case of an
interpretation of a Multilateral Trade Agreement in
Annex 1, they shall exercise their authority on the basis
of a recommendation by the Council overseeing the
functioning of that Agreement. The decision to adopt
an interpretation shall be taken by a three-fourths
majority of the Members. This paragraph shall not be
used in a manner that would undermine the
amendment provisions in Article X.
5.
Decisions under a Plurilateral Trade Agreement,
including any decisions on interpretations and waivers,
shall be governed by the provisions of that Agreement.
5.
The WTO may conclude a headquarters
agreement.
3.
In exceptional circumstances, the Ministerial
Conference may decide to waive an obligation imposed
on a Member by this Agreement or any of the
Multilateral Trade Agreements, provided that any such
decision shall be taken by three fourths (4) of the
Members unless otherwise provided for in this
paragraph.
2.
The least-developed countries recognized as such
by the United Nations will only be required to
undertake commitments and concessions to the extent
consistent with their individual development, financial
and trade needs or their administrative and
institutional capabilities.
5.
Non-application of a Plurilateral Trade
Agreement between parties to that Agreement shall be
governed by the provisions of that Agreement.
1.
This Agreement shall be open for acceptance, by
signature or otherwise, by contracting parties to GATT
1947, and the European Communities, which are
eligible to become original Members of the WTO in
accordance with Article XI of this Agreement. Such
acceptance shall apply to this Agreement and the
Multilateral Trade Agreements annexed hereto. This
Agreement and the Multilateral Trade Agreements
annexed hereto shall enter into force on the date
determined by Ministers in accordance with paragraph
3 of the Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations and
shall remain open for acceptance for a period of two
years following that date unless the Ministers decide
otherwise. An acceptance following the entry into force
of this Agreement shall enter into force on the 30th
day following the date of such acceptance.
1.
Any State or separate customs territory
possessing full autonomy in the conduct of its external
commercial relations and of the other matters
provided for in this Agreement and the Multilateral
Trade Agreements may accede to this Agreement, on
terms to be agreed between it and the WTO. Such
accession shall apply to this Agreement and the
Multilateral Trade Agreements annexed thereto.
2.
Decisions on accession shall be taken by the
Ministerial Conference. The Ministerial Conference
shall approve the agreement on the terms of accession
by a two-thirds majority of the Members of the WTO.
3.
Accession to a Plurilateral Trade Agreement shall
be governed by the provisions of that Agreement.
2.
A Member which accepts this Agreement after its
entry into force shall implement those concessions and
obligations in the Multilateral Trade Agreements that
are to be implemented over a period of time starting
with the entry into force of this Agreement as if it had
accepted this Agreement on the date of its entry into
force.
3.
Until the entry into force of this Agreement, the
text of this Agreement and the Multilateral Trade
Agreements shall be deposited with the DirectorGeneral to the CONTRACTING PARTIES to GATT
1947. The Director-General shall promptly furnish a
certified true copy of this Agreement and the
Multilateral Trade Agreements, and a notification of
each acceptance thereof, to each government and the
European Communities having accepted this
Agreement. This Agreement and the Multilateral Trade
Agreements, and any amendments thereto, shall, upon
the entry into force of this Agreement, be deposited
with the Director-General of the WTO.
4.
The acceptance and entry into force of a
Plurilateral Trade Agreement shall be governed by the
provisions of that Agreement. Such Agreements shall
be deposited with the Director-General to the
CONTRACTING PARTIES to GATT 1947. Upon the
entry into force of this Agreement, such Agreements
shall be deposited with the Director-General of the
WTO.
1.
Any Member may withdraw from this Agreement.
Such withdrawal shall apply both to this Agreement
and the Multilateral Trade Agreements and shall take
effect upon the expiration of six months from the date
on which written notice of withdrawal is received by
the Director-General of the WTO.
2.
Withdrawal from a Plurilateral Trade Agreement
shall be governed by the provisions of that Agreement.
4.
Each Member shall ensure the conformity of its
laws, regulations and administrative procedures with
its obligations as provided in the annexed Agreements.
5.
No reservations may be made in respect of any
provision of this Agreement. Reservations in respect of
any of the provisions of the Multilateral Trade
Agreements may only be made to the extent provided
for in those Agreements. Reservations in respect of a
provision of a Plurilateral Trade Agreement shall be
governed by the provisions of that Agreement.
6.
This Agreement shall be registered in accordance
with the provisions of Article 102 of the Charter of the
United Nations.
DONE at Marrakesh this fifteenth day of April one
thousand nine hundred and ninety-four, in a single
Location
New York, US
Effective
7 June 1959
Condition
3 ratifications
Signatories
24
Parties
146
Depositaries
Languages
Chinese,
Spanish
English,
French,
Russian
and
1 Background
2 Summary of provisions
3 Parties to the New York Convention
4 States which are Not Party to the New York
Convention
5 United States Issues
6 External links
7 References
Background
In 1953, the International Chamber of Commerce
(ICC) produced the first draft Convention on the
Recognition and Enforcement of International Arbitral
Awards to the United Nations Economic and Social
Council. With slight modifications, the Council
submitted the convention to the International
Conference in the Spring of 1958. The Conference was
chaired by Willem Schurmann, the Dutch Permanent
Representative to the United Nations and Oscar
Schachter, a leading figure in international law who
later taught at Columbia Law School and the Columbia
School of International and Public Affairs, and served
as the President of the American Society of
International Law.
International arbitration is an increasingly popular
means of alternative dispute resolution for cross-
Assisted negotiation
2. Mediation
2.4.4 3. Conciliation
1. Negotiation
2.4.5
Arbitration agreement
3 DOMESTIC
ARBITRATION
3.1 INTRODUCTION TO
DOMESTIC COMMERCIAL
DISPUTE RESOLUTION
3.2 ALTERNATIVE DISPUTE
RESOLUTION ACT OF 2004
Republic Act No. 9285
April 2, 2004
AN ACT TO INSTITUTIONALIZE THE USE OF AN
ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN
THE PHILIPPINES AND TO ESTABLISH THE
OFFICE
FOR
ALTERNATIVE
DISPUTE
RESOLUTION, AND FOR OTHER PURPOSES
commenced
in
violation
of
such
(x) "Non-Convention Award" means a foreign arbitral
award made in a State which is not a Convention State;
means
person
who
conducts
applying
Chapter,
promote
through
record
SEC. 26. Meaning of "Appointing Authority.". "Appointing Authority" as used in the Model Law shall
mean the person or institution named in the
arbitration agreement as the appointing authority; or
the regular arbitration arbitration institution under
whose rules the arbitration is agreed to be conducted.
Where the parties have agreed to submit their dispute
to institutional arbitration rules, and unless they have
agreed to a different procedure, they shall be deemed
to have agreed to procedure under such arbitration
rules for the selection and appointment of arbitrators.
In ad hoc arbitration, the default appointment of an
arbitrator shall be made by the National President of
the Integrated Bar of the Philippines (IBP) or his duly
authorized representative.
SEC. 27. What Functions May be Performed by
Appointing Authority. - The functions referred to in
Articles 11(3), 11(4), 13(3) and 14(1) of the Model Law
shall be performed by the Appointing Authority, unless
the latter shall fail or refuse to act within thirty (30)
days from receipt of the request in which case the
applicant may renew the application with the Court.
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 interim measure of
protection and for the Court to grant such measure.
After constitution of the arbitral tribunal and during
arbitral proceedings, a request for an interim measure
of protection or modification thereof, may be made
with the arbitral 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 arbitral tribunal is deemed constituted when the
sole arbitrator or the third arbitrator who has been
nominated, has accepted the nomination and written
communication of said nomination and acceptance has
been received by the party making request.
(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:
SEC. 36. Authority to Act as Mediator or Arbitrator. By written agreement of the parties to a dispute, an
arbitrator may act as mediator and a mediator may act
as arbitrator. The parties may also agree in writing
that, following a successful mediation, the mediator
shall issue the settlement agreement in the form of an
arbitral award.
SEC. 37. Appointment of Foreign Arbitrator. - The
Construction Industry Arbitration Commission (CIAC)
shall promulgate rules to allow for the appointment of
a foreign arbitrator or coarbitrator or chairman of a
tribunal a person who has not been previously
accredited by CIAC: Provided, That:
(a) the dispute is a construction dispute in which one
party is an international party
(b) the person to be appointed agreed to abide by the
arbitration rules and policies of CIAC;
(c) he/she is either coarbitrator upon the nomination
of the international party; or he/she is the common
choice of the two CIAC-accredited arbitrators first
appointed one of whom was nominated by the
international party; and
(d) the foreign arbitrator shall be of different
nationality from the international party.
SEC. 38. Applicability to Construction Arbitration. The provisions of Sections 17 (d) of Chapter 2, and
Section 28 and 29 of this Act shall apply to arbitration
of construction disputes covered by this Chapter.
SEC. 39. Court to Dismiss Case Involving a
Construction Dispute. - A regional trial court which a
construction dispute is filed shall, upon becoming
aware, not later than the pretrial conference, that the
parties had entered into an arbitration to be conducted
by the CIAC, unless both parties, assisted by their
respective counsel, shall submit to the regional trial
court a written agreement exclusive for the Court,
rather than the CIAC, to resolve the dispute.
CHAPTER 7 - JUDICIAL REVIEW OF ARBITRAL
AWARDS
A. DOMESTIC AWARDS
SEC. 40. Confirmation of Award. - The confirmation of
a domestic arbitral award shall be governed by Section
23 of R.A. 876.
A domestic arbitral award when confirmed shall be
enforced in the same manner as final and executory
decisions of the Regional Trial Court.
SEC. 49. Office for Alternative Dispute Resolution. There is hereby established the Office for Alternative
Dispute Resolution as an attached agency to the
Department of Justice (DOJ) which shall have a
Secretariat to be headed by an executive director. The
executive director shall be appointed by the President
of the Philippines.
The objective of the office are:
(a) to promote, develop and expand the use of ADR in
the private and public sectors; and
To assist the government to monitor, study and
evaluate the use by the public and the private sector of
ADR, and recommend to Congress needful statutory
changes to develop. Strengthen and improve ADR
practices in accordance with world standards.
SEC. 50. Powers and Functions of the Office for
Alternative Dispute Resolution. - The Office for
Alternative Dispute Resolution shall have the following
powers and functions:
(a) To formulate standards for the training of the ADR
practitioners and service providers;
(b) To certify that such ADR practitioners and ADR
service providers have undergone the professional
training provided by the office;
(c) To coordinate the development, implementation,
monitoring, and evaluation of government ADR
programs;
or
be
or
to
the
presumptive
disqualifying
Rule
5.8.
Comment/Opposition.
The
comment/opposition must be filed within fifteen (15)
days from service of the petition. The opposition or
comment should state the reasons why the interim
measure of protection should not be granted.
Rule 5.9. Court action. - After hearing the petition, the
court shall balance the relative interests of the parties
and inconveniences that may be caused, and on that
basis resolve the matter within thirty (30) days from
(a) submission of the opposition, or (b) upon lapse of
the period to file the same, or (c) from termination of
the hearing that the court may set only if there is a
need for clarification or further argument.
If the other parties fail to file their opposition on or
before the day of the hearing, the court shall motu
proprio render judgment only on the basis of the
allegations in the petition that are substantiated by
supporting documents and limited to what is prayed
for therein.
In cases where, based solely on the petition, the court
finds that there is an urgent need to either (a) preserve
property, (b) prevent the respondent from disposing
of, or concealing, the property, or (c) prevent the relief
prayed for from becoming illusory because of prior
notice, it shall issue an immediately executory
temporary order of protection and require the
petitioner, within five (5) days from receipt of that
order, to post a bond to answer for any damage that
respondent may suffer as a result of its order. The exparte temporary order of protection shall be valid only
for a period of twenty (20) days from the service on the
party required to comply with the order. Within that
period, the court shall:
a. Furnish the respondent a copy of the petition and a
notice requiring him to comment thereon on or before
the day the petition will be heard; and
b. Notify the parties that the petition shall be heard on
a day specified in the notice, which must not be beyond
the twenty (20) day period of the effectivity of the exparte order.
The respondent has the option of having the temporary
order of protection lifted by posting an appropriate
counter-bond as determined by the court.
If the respondent requests the court for an extension of
the period to file his opposition or comment or to reset
the hearing to a later date, and such request is granted,
the court shall extend the period of validity of the exparte temporary order of protection for no more than
twenty days from expiration of the original period.
Rule 7.2. When challenge may be raised in court. When an arbitrator is challenged before the arbitral
tribunal under the procedure agreed upon by the
parties or under the procedure provided for in Article
13 (2) of the Model Law and the challenge is not
successful, the aggrieved party may request the
Appointing Authority to rule on the challenge, and it is
only when such Appointing Authority fails or refuses to
act on the challenge within such period as may be
allowed under the applicable rule or in the absence
thereof, within thirty (30) days from receipt of the
request, that the aggrieved party may renew the
challenge in court.
Rule 7.3. Venue. - The challenge shall be filed with the
Regional Trial Court (a) where the principal place of
business of any of the parties is located, (b) if any of
the parties are individuals, where those individuals
reside, or (c) in the National Capital Region.
Rule 7.4. Grounds. - An arbitrator may be challenged
on any of the grounds for challenge provided for in
Republic Act No. 9285 and its implementing rules,
Republic Act No. 876 or the Model Law. The
nationality or professional qualification of an
arbitrator is not a ground to challenge an arbitrator
unless the parties have specified in their arbitration
agreement a nationality and/or professional
qualification for appointment as arbitrator.
examination
and
copying
of
CONFIDENTIALITY/PROTECTIVE
CORRECTION OR
IN
DOMESTIC
confirmation,
through
TO
CONSTRUCTION
b. Neutral evaluation;
c. Mini-trial;
d. Mediation-arbitration;
e. A combination thereof; or
RECONSIDERATION,
Rule 19.1. Motion for reconsideration, when allowed. A party may ask the Regional Trial to reconsider its
ruling on the following:
PROVISIONS
ON
APPEAL
AND
if
the
award
exceeds
PhP
by
law
cannot
be
CHAPTER 2
THE OFFICE
RESOLUTION
FOR
ALTERNATIVE
DISPUTE
(e) Academe.
CHAPTER 3
MEDIATION
RULE 1 General Provisions
Article 3.1. Scope of Application. These Rules apply to
voluntary mediation, whether ad hoc or institutional,
other than court-annexed mediation and only in
default of an agreement of the parties on the applicable
rules.
These Rules shall also apply to all cases pending before
an administrative or quasi-judicial agency that are
subsequently agreed upon by the parties to be referred
to mediation.
Article 3.2. Statement of Policy. In applying and
construing the provisions of these Rules, consideration
must be given to the need to promote candor of parties
and mediators through confidentiality of the mediation
process, the policy of fostering prompt, economical
and amicable resolution of disputes in accordance with
principles of integrity of determination by the parties
and the policy that the decision-making authority in
the mediation process rests with the parties.
A party may petition a court before which an action is
prematurely brought in a matter which is the subject of
a mediation agreement, if at least one party so
requests, not later than the pre-trial conference or
upon the request of both parties thereafter, to refer the
parties to mediation in accordance with the agreement
of the parties.
RULE 2- Selection of a Mediator
Article 3.3. Freedom to Select mediator. The parties
have the freedom to select mediator. The parties may
request the OADR to provide them with a list or roster
or the resumes of its certified mediators. The OADR
the
special
his/her
(vi) closure
(e) The mediation proceeding shall be held in private.
Person, other than the parties, their representatives
and mediator, may attend only with the consent of all
the parties,
(f) the mediation shall be closed:
Article
3.21.
Confidentiality
of
Information.
Information obtained through mediation proceedings
record
presumptive
disqualifying
At the end of each presentation, rebuttal or surrebuttal, the mini-trial panel member/s may ask
clarificatory questions from any of the presentors.
RULE 3 Mini-Trial