I

a. ALTERNATIVE DISPUTE RESOLUTION SYSTEM - means any process or

procedure used to resolve a dispute or controversy, other than by adjudication of a
presiding judge of a court or an officer of a government agency, as defined in this Act, in
which a neutral third party participates to assist in the resolution of issues, which
includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any
combination thereof (Section 3 (a) RA 9285).
b. INTERNATIONAL LAW – is the body of legal rules which apply between sovereign
states and such other entities as have been granted international
personality(International Law, Isagani Cruz, Page 1 citing Schwarzenberger, 1).
c. ARBITRATION - means a voluntary dispute resolution process in which one or more
arbitrators, appointed in accordance with the agreement of the parties, or rules
promulgated pursuant to this Act, resolve a dispute by rendering an award (Section 3 (d)
RA 9285).
d. MEDIATION - means a voluntary process in which a mediator, selected by the
disputing parties, facilitates communication and negotiation, and assist the parties in
reaching a voluntary agreement regarding a dispute (Section 3 (q) RA 9285).
e. (EARLY) NEUTRAL EVALUATION - means an ADR process wherein parties and
their lawyers are brought together early in a pre-trial phase to present summaries of
their cases and receive a nonbinding assessment by an experienced, neutral person, with
expertise in the subject in the substance of the dispute (Section 3 (n) RA 9285).
f. CONFIDENTIALITY (OF INFORMATION) - Information obtained through
mediation proceedings shall be subject to the following principles and guidelines:

(a) Information obtained through mediation shall be privileged and confidential.

(b) A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from
disclosing a mediation communication.

(c) Confidential Information shall not be subject to discovery and shall be inadmissible if any adversarial 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 mediation.

(d) In such an adversarial proceeding, the following persons involved or previously involved in a mediation may not be
compelled to disclose confidential information obtained during mediation: (1) the parties to the dispute; (2) the mediator
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 possesses
confidential information by reason of his/her profession.

(e) The protections 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 provide information gathered in mediation. A mediator who is wrongfully
subpoenaed shall be reimbursed the full cost of his attorney's fees and related expenses.
 II

The International Centre for Settlement of Investment Disputes (ICSID) was established
by the WORLD BANK under the 1965 convention on the settlement of investment
dispute between STATES and NATIONALS OF OTHER STATES. The convention has
been ratified by some 135 States.

The Centre main PURPOSE is to FACILITATE the settlement of investment disputes

between GOVERNMENT AND FOREIGN INVESTOR.

Since 1978, the Centre has had a set of additional facility rules, authorizing the ICSID
Secretariat to administer certain types of proceedings between States and foreign
nationals, which fall outside the Convention (These cases may be where a party is NOT
FROM A MEMBER STATE or where the dispute is NOT INVESTMENT DISPUTE.)

ADVANCE CONSENT-BY GOVERNMENTS to submit investment disputes to ICSID

arbitration can be found in INVESTMENT CONTRACTS between government and
investors, as well as in bilateral investment treaties.

(Whereas International Court Of Arbitration of ICC, the main purpose of it is to

MONITOR the arbitral process. One important and unique feature of the court is that
it SCRUTINIZE AND APPROVES arbitral awards submitted in draft form by the
arbitrator. This quality control mechanism is a key element of the ICC arbitration
system. Note: International Court Of Arbitration is NOT A COURT) [Page 61-62 of
Arbitration and Alternative Dispute Resolution, ATC and Arellano Law Foundation,
2011]
 III A

1. Neutrality of Arbitrators

2. Privacy and Confidentiality

3. Speed of the Disposition

4. Non-Formal and More Flexible Procedure

5. Flexibility in the Choice of Law/s

6. Better Enforcement of Arbitral Awards vs. Judicial Decisions

1. Neutrality of Arbitrators
1. Fear of Patriotic or “Hometown” decisions – whereas in local court who will decide, it will
most probably decide in favor of its country.
2. Independent – arbitrator will be coming from other country (Other National)
3. Freedom of Choice of parties who should be the arbitrator or members of panel of
arbitrator.
4. Familiarity with UNCITRAL Model Law

2. Privacy and Confidentiality

1. Privacy is invariably insured by limiting the proceedings to the parties, their
representatives and witnesses;
2. Protective orders can be issued by the arbitrator or court.
3. The arbitration proceedings, including the records, evidence and the arbitral award, shall
be considered confidential 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 the court in
which the action or the appeal is pending may issue a protective order to prevent or
prohibit disclosure of documents or information containing secret processes,
developments, research and other information where it is shown that the applicant shall
be materially prejudiced by an authorized disclosure thereof.” (R.A. 9285, Section 23)

3. Speed of the Disposition

1. Due principally to
i. Expertise of Arbitrators
ii. Non-Formal and More Flexible Procedures
iii. No clogged dockets
iv. Good case management in
Institutional/Administered Arbitration (vs. Ad Hoc Proceedings)
2. Non-availability of Protracted Pre-Trial Discovery Procedures
i. Waiver of Judicial Procedures
 ii. Check Applicable Rules/Law on Available/Limited Modes
iii. Arbitrator’s Discretion/Sanctions
- Lack of Coercive Power
- Voluntary Compliance/Adverse Inference

4. Non-Formal and More Flexible Procedure

1. Not bound by the technical rules of procedure/rules of evidence
2. Parties shall be treated with equality and each party shall be given a full
opportunity of presenting his case. (UML, Article 18)
Example: Witness Conferencing

5. Flexibility in the Choice of Law/s

1. Law of the place (“seat”) of arbitration; aka the Lex Arbitri or Curial law
2. Procedural law of the place of arbitration
3. Governing Law: The “proper law” of the contract governing substantive issue, merits
4. Law governing enforcement of the Award
a. New York Convention
b. Bilateral, multi-lateral treaties
c. civil procedure law, arbitration law of the place of enforcement
5. Law governing the Arbitration agreement
Arbitrability. Is the subject matter one which can be arbitrated, e.g. anti-trust
claims, divorce, etc.?
6. Law governing the capacity of the parties to enter into agreements to
arbitrate (restriction imposed by domestic law)
a. state agencies
b. age of party

6. Better Enforcement of Arbitral Awards vs. Judicial Decisions

A. New York Convention of 1958

Reservations on Reciprocity and Commercial Issues

Limited Grounds for Refusal

1. By Challenging Party:
i. Incapacity of a Party to, and Invalidity of, Arbitration
Agreement

ii. No proper notice/Inability to present case

iii. Beyond Scope of Arbitration Agreement

iv. Composition of Arbitral Tribunal not in accord with Agreement/Law of Place

of Arbitration

v. Award not yet binding or final

2. By Court of Enforcement Forum

i. Non-arbitrable matters
 ii. Contrary to Public Policy

B. There is no equivalent International Convention on the Enforcement of Judicial

decisions similar to the NY Convention. In the Philippines, a foreign judgment is merely a
“presumptive evidence of a right as between the parties” and “may be repelled by
evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of
law or fact.

C. The court shall in no case substitute its own judgment for that of the arbitral
tribunal. See Asset Privatization Trust v. Court of Appeals, 300 SCRA 579 (1998) where the
Court ruled that courts “will not review the findings of law and fact contained in an award, and
will not undertake to substitute their judgment for that of the arbitrators, since any other rule
would make an award the commencement, not the end, of litigation. Errors of law and fact,
or an erroneous decision on matters submitted to the judgment of the arbitrators, are
insufficient to invalidate an award fairly and honestly made.” 300 SCRA at 601-602.
 III B

The primary purpose of ICSID is to PROVIDE FACILITIES for the conciliation and
arbitration of international investment disputes. Arbitration and conciliation under the
Convention are entirely voluntary and require consent of both the investor and State
concerned. Once such consent is given, it cannot be withdrawn unilaterally and it
becomes a binding undertaking.

ICSID is a neutral facility and it does not decide the cases. The independent arbitrators
and conciliators appointed to each case hear the evidence and determine the outcome of
the dispute before them.
 III C

Hague Convention was created for the maintenance of general peace; to promote by all the efforts in their
power the friendly settlement of international disputes; establishing permanent institution of a Tribunal
of Arbitration accessible to all, in the midst of independent Powers, with a view to obviating as far as
possible recourse to force in the relations between States, the Contracting Powers agree to use their best
efforts to ensure the pacific settlement of international differences.

To this end, a Permanent Court of Arbitration was created handle international dispute among its
member.