SECTION26. Meaning of "AppointingAuthority".

"Appointing Authority" as used in the Model Law shall mean:

(1) the person or institution named in the arbitration agreement as the

a ointin authority; or the

Page 66 of 198

rrl
Doubie-cbd! to hide lflrt!ICt'P~r

(2) regular arbitration institution under whose rules the arbitration is

agreed to be conducted.

Note:
Note:

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 the procedure under such arbitration rules for the selection and
appointment of arbitrators.

AD HOC ARBITRATION: IBP National President

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.

Who is your ARBITRATOR?

1. Person or Arbitration Body Indicated in the Contract's Arbitration
Agreement
a. Pre-selected & indicated in the Arbitration Agreement
b. Specific Person or from a Specific Group
2. Regular Arbitration Institution under whose rules the arbitration is agreed
to be conducted Q
 rules for the selection & appointment of arbitrators

SECTION 27. What Functions May be Performed by Appointing

AuthorJ.!Y..-

The functions referred to in Articles 11(3), 11(4), 13(3) and 14(1) of the Model Law
shall 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.

l'age 67 of 198

ADVISE:CHOOSEYOURARBITRATORSWELL!
ADVISE: CHOOSE YOUR ARBITRATORS WELL !

FUNDAMENTALRISKoF ARBITRAnoNl

NLESSYOU CHOOSEYOURARBITRATOR
CAREFULLY,
YOU MAY B
OUNO BYAN AWARDEVENTHOUGHIT IS DEMONSTRABL

UNCITRAL MODEL LAW:

ARTICLE 11. APPOINTMENT OF ARBITRATORS

OPTIONS: 3 arbitrators
Sole arbitrator

Avoid Discrimination: QI
(1) No person shall be precluded by reason of his nationality
- • - - ■ -
 I • I ••I •.:

UNCI I RAL MOUtL LAW:

ARTICLE11. APPOINTMENTOF ARBITRATORS

OPTIONS: 3 arbitrators
Sole arbitrator

Avoid Discrimination:
(1) No person shall be precluded by reason of his nationality
from acting as an arbitrator, unless otherwise agreed by the
parties.

(2) The parties are frpe to agree on a procedure of appointing

the arbitrator or arbitrators, subject to the
provisions of paragraphs (4) and (5) of this article.

(3) Failing such agreement,

(a) in an arbitration with three arbitrators:

- each party shall appoint one arbitrator, and

parties.

(2) The parties are free to agree on a procedure of appointing

the arbitrator or arbitrators, subject to the
provisions of paragraphs (4) and (5) of this article.

(3) Failing such agreement, C.-mbru(Hudt • .. 11,;

8 f U:Y·.?i.·:::·
(a) in an arbitration with three arbitrators:

- each party shall appoint one arbitrator, and

Page 68 of 198

- the two arbitrators thus appointed shall appoint the thira

arbitrator:
 - the two arbitrators thus appointed shall appoint the third
arbitrator;
o [1] if a party Jails to appoint the arbitrator within thirty
days of receipt of a request to do so from the other party, or
o {2)if the two arbitrators Jail to agree on the third arbitrator
wit/Iin thirty days of their appointment, the appointment
shall be made, upon request of a party {INTERIM MEASURE
OF PROTECTION}, by the court or other authority specified
in article 6;

(b) in arbitration with a sole arbitrator, if the parties are unable to

agree on the arbitrator, he shall be appointed, upon request of a party,
by the court or other authority specified in article 6.

(4) ~here, under an appointment procedure agreed upon by the A

parties, w
Iwhat are Interim Measuresij

INTERIM MEASURES aim to protect the parties' rights before or during

arbitration proceedings, to regulate the terms of an ongoing
relatlonshlp, or to avoid frustration of the final award.

They are sometimes called CONSERVATORY MEASURES, provisional

rellef, or provlslonal measures, but It Is always the same procedural
mechanism which ts considered.

SECTION 28. Grant of Interim Measure of Protection.-

(a) It is not incompatible with an arbitration agreement for a party to request,

(1) before
constitution of the tribunal. from a Court an interim
measure of protection and for the Court to grant such measure.

(2) After
constitution of the arbitral tribunal & duri~q arbitral
proceedings, a request for an interim measure of protection, or
modification thereof, may be made with the arbitral tribunal or to
----., --- ------------- ------ ----- ------ ---- ---
relief, or provisional measures, but It Is always the same procedural
mechanism which Is considered.

SECTION 28. Grant of Interim Measure of Protection.-

{a) It is not incompatible with an arbitration agreement for a party to request,

(1) before constitution of the tribunal, from a Court an interim

measure of protection and for the Court to grant such measure.

(2) After constitution of the arbitral tribunal & during arbitral

proceedings, a request for an interim measure of protection, or
modification thereat 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 the request.

Page 70 of 198
(b) The following rules on interim or provisional relief shall be
observed:

(1) Any party may request that provisional relief be granted against the
adverse party.

(2) Such relief may be granted:

U) to prevent irreparable loss or injury; (i.e. TRO: temporary

restraining order)

(ii) to provide security fo the performance of any obligation; (i.e.

bond, attachment)

(iii) to produce or preserve any evidence; or

(i.e. search warrants: civil search warrants in Intellectual Property
Law:
1} anton ii/er order
2} saiziecontre aeon both

(iv) to compel any other appropriate act or omission. i.e.

 2} saiziecontre aeon both

(iv) to compel any other appropriate act or omission. i.e.

mandamus)

(3) The order granting provisional relief may be conditioned upon the
provision of security or any act or omission specified in the order.
■ Surety, cash or property BOND

(4) Interim or provisional relief is re~uested by written application

transmitted by reasonable means 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 the evidence supporting the request.

Pa11e71 of198
Q: MAY THE COURT GRANT AN EX PARTE APPLICATION &
GRANT OF IMP?

An EX PARTE INTERIM MEASURJ OF PROTECTION Where a party Is not

notified of an application & not given a right to defend its case at the 1"'
stage of the proceedings.

ANS: in cases of extreme urgency and cases In which the very purpose
of the requested interim measure could be jeopardized by giving an
advance notice of the request to the other party

(5) The order shall be binding upon the parties.

(6) Either party may apply with the Court for assistance in implementing or
 (7) A party who does not comply with the order shall be liable for all
damages resulting from noncompliance, including all expenses, and reasonable
attorney's fees, paid in obtaining the order's judicial enforcement.

When is an Arbitral Tribunal deemed constituted?

1. w~en the sole arbitrator or the third arbitrator, who has been nominated,
2. has accepted the nomination and
3. written communication of said nomination and acceptance has been received
by the party making the request.

Nature of Arbitral Tribunal:

FRUEHAUF ELECTRONICS PHILIPPINES CORP. V. TECHNOLOGY

ELECTRONICS ASSEMBLY & MANAGEMENT PACIFIC CORP., G.R. No.
204197, [November 23, 2016), 800 PHIL721-768)

Page 72 of 198
to apply, and
(2) to decide in accordance with the standards laid down by the law itself
in enforcing and administering the same law.
Quasi-judicial power is only exercised by administrative agencies -
legal organs of the government.
Quasi-judicial bodies can only exercise such powers and jurisdiction as are
expressly or by necessary implication conferred upon them by their enabling
statutes. Like courts, a quasi-judicial body's jurisdiction over a subject matter Is
conferred by law and exists independently from the will of the parties. As
government organs necessary for an effective legal system, a quasi-judicial
tribunal's legal existence continues beyond the resolution of a specific dispute.
In other words, quasi-judicial bodies are creatures of law.

As a contractual and consensual body, the arbitral tribunal does not

have any inherent powers over the parties. It has no power to issue coercive
writs or compulsory processes. Thus, there is a need to resort to the regular
courts for interim measures of protection and for the recognition or
enforcement of the arbitral award.
The arbitral tribunal acquires jurisdiction over the parties and the
subject matter through stipulation. Upon the rendition of the final award, Q
the tribunal becomes functus officio and - save for a few exceptions-
ceasesto have any further jurisdiction over the dispute. The tribunal's powers
 statutes. Like courts, a quasi-judicial body's jurisdiction over a subject matter is
conferred by law and exists independently from the will of the parties. As
government organs necessary for an effective legal system, a quasi-judicial
tribunal's legal existence continues beyond the resolution of a specific dispute.
In other words, quasi-judicial bodies are creatures of law.

t,.s a contractual and consensual body, the arbitral tribunal does not
have any inherent powers over the parties. It has no power to issue coercive
writs or compulsory processes. Thus, there is a need to resort to the regular
courts for interim measures of protection and for the recognition or
enforcement of the arbitral award.
The arbitral tribunal acquires jurisdiction over the parties and the
subject matter through stipulation. Upon the rendition of the final award,
the tribunal becomes functus officio and - save for a few exceptions-
ceases to have any further jurisdiction over the dispute. The tribunal's powers
(or in the case of ad hoc tribunals, their very existence) stem from the obligatory
force of the arbitration agreement and its ancillary stipulations. Simply put,
an arbitral tribunal is a creature of contract.

lwhat are Interim Measuresij Q

 NTERIM MEASURES aim to protect the parties' rights before or during
arbitration proceedings, to regulate the terms of an ongoing
relatlonshlp, or to avoid frustration of the final award.

They are sometimes called CONSERVATORY MEASURES, provisional

relief, or provisional measures, but it Is always the same procedural
mechanism which Is considered.

Available even when it is not in the arbitration agreement

WHO may ask for an INTERIM MEASURE OF PROTECTION?

THE PARTIES

WHO may Issue an INTERIM MEASURE OF PROTECTION?

1. PRIOR TO THE CONSTITUTION OF THE ARBITRAL TRIBUNAL: Q

The Court
Philippine Charity Sweepstakes Office v. DFNN, Inc., G.R. No. 206611
(Notice), [February 20, 2017]

INTERIM MEASURE OF PROTECTION is defined under the UNCfTRAL

ModelLaw on InternationalCommercialArbitrationas:
Section 1. Interim measures. -
Article 17. Power of arbitral tribunal to order interim measures. -

(3) An iDteriJD measure is any t:ewpor...,- ~

whether in the form ol aa award or in another form,
by wbieh, at any time prior to the iauaaee ol the
award by wbieb the dispute is finally deeided, the
(4) ARBITRAL TRIBUNAL orders a party to:
(a) Maintain or restore the status quo pending determination of the dispute; TRO
(b) Take action that would prevent, or refrain from taking action that is likely to
cause, current or imminent harm o prejudice to the arbitral process itself; TRO
(c) Provide a means of preserving assetsout of which a subsequent award may
be satisfied; or ATTACHMENT,BOND
(d) Preserve evidence that may be relevant and material to the resolution of the
dispute. SEARCHWARRANTS
Q
 l,

Under Repul,Be Act No. 9285 or the Alternative Displde

Resolution Act of zoo.a,a COURTmay grant an INTERIMMEASUREOF
PROTECTION
ORPROVISIONAL
RELIEF:

(i) to prevent irreparable loss or injury;

(ii) to provide security for the performance of any obligation;

Page 75 of 198

(iii) to produce or preserve any evidence; or

(iv) to compel any other appropriate act or omission.

- Interim measures ol protec:tioa serve to protect tbe datru quo

dllring tbe peadenq ol tbe arlritratioa pruc:eediDg.

Q
- It is merely ancillary to the main action.
 (iv) to compel any other appropriate act or omission.

- Interim measures of protec:tioD serve to protect tbe n:atiu quo

during Uae peadeacy of tile arbitration proceeding.

I
- It is merely ancillary to the main action.

- Considering tbat tile A4 Hoe Arbitral Tl'ibanal baa alreadJ'

reaclered aa Arbitral Award, tbia case baa become moot.
A case becomes moot when:
1.1 due to supervening events, it ceases to present a justiciable controversy.
2. Any resolution on the merits will have no practical effect or value.

SECTION 29. Further Authority for Arbitrator to Grant Interim

Measure of Protection.- Unless otherwise agreed by the parties, the arbitral
tribunal may, at the request of a party, order any party to take such interim
measures of protection as the arbitral tribunal may consider necessary i,Q
respect of the subject-matter of the dispute following the rules in Section 28,
KINDS OF INTERIM MEASURES OF PROTECTION:

Those which are aimed at:

1. FACILITATING THE CONDUCT OF THE ARBITRAT/ON PROCEEDINGS

Thru PROCEDURALORDERS:generally followed because they are

directed to a party & an arbitral tribunal might draw adverse
conclusion from non-compliance with such orders in addition to the
inherent authority to make an allocation of arbitration costs in the
final award.
EX.APPOINTMENTOF ARBITRATORS

2. AVOIDING LOSSOR DAMAGESAND MEASURESAIMED AT PRESERVING

THESTATUSQUO;

PROCEDURALCOURTORDERSrequiring a party to continue performing

a contract or refraining from taking certrain actions during the arbitral
proceedings until the awards are made

EX. TRO MANDAMUS

ATTACHMENT SEARCHWARRANTS
1. FACILITATINGTHE CONDUCTOF THEARBITRATIONPROCEEDINGS

Thru PROCEDURAL ORDERS: generally followed because they are

directed to a party & an arbitral tribunal might draw adverse
conclusion from non-compliance with such orders in addition to the
inherent authority to make an allocation of arbitration costs in the
final award.
EX.APPOINTMENTOF ARBITRATORS

2. AVOIDING LOSSOR DAMAGESAND MEASURESAIMED AT PRESERVING

THESTATUSQUO;

PROCEDURAL COURT ORDERS requiring a party to continue performing

a contract or refraining from taking certain actions during the arbitral
proceedings until the awards are made

EX. TRO MANDAMUS

I
ATTACHMENT SEARCH WARRANTS

3. FACILITATINGTHEENFORCEMENTOF THEAWARD
 directed to a party & an arbitral tribunal might draw adverse
conclusion from non-compliance with such orders in addition to the
inherent authority to make an allocation of arbitration costs in the
final award.
EX.APPOINTMENTOF ARBITRATORS

2. AVOIDING LOSSOR DAMAGESAND MEASURESAIMED AT PRESERVING

THESTATUSQUO;

PROCEDURALCOURTORDERSrequiring a party to continue performing

a contract or refraining from taking certain actions during the arbitral
proceedings until the awards are made

EX. TRO MANDAMUS

ATTACHMENT SEARCHWARRANTS I

3. FACILITATINGTHE ENFORCEMENTOF THEA WARD

- PURELYJUDICIALIN NATURE

Q
 PROCEDURALCOURTORDERSfor the provision of security or for injunction
or attachment or for the sale of perishable goods 16

Busan(MRT) v. Falcon(Passport)Cases:

Busan Universal Rail, Inc. v. Department of Transportation-Metro Rail

Transit 3, G.R. No. 235878, [February 26 2020)

(As a result of a NEGOTIATEDPROCUREMENTunder Republic Act No. (RA)9184, 4 respondent and the Joint Venture
composed of Busan Transportation Corporation, Edison Development and Construction, Tramat Mercantile, Inc.,
TMICorp, Inc., and Castan Corporation entered into a contract for the Department of Transportation and
Communications (DOTC,•MRT3System Maintenance Provider, light rail vehicles (LRVs)General Overhaul and Total
Replacement of the Signaling System (MRT3 Contract). The Joint Venture was incorporated as a special purpose
company known as BURI.I
The petition is bereft of merit.
Esse111ially,the only issue that is proper for resolurion is 1.-J1dhtr or 1tol 11,, RTC /,as /ttrisdic/1011to ism, th, •
proftt:tlon and restra/11lllg ordt!r $Q11g/rt bp pi!tlllo11r.r agal.11#re.tp<mdtnl.

Petitioner are,uesthat 1heRIC bas au1horitvto issue interim measures of orotec1ionin cases involvimz.disoutes tha1
(~d ,e UILOI ~ •~CUUll"'I cu r-r\u-..unc,w,c.," I WIUt:!1 11.eµuUII\.A\.l t'IIO. ll\AJ ".1i&'+1 't resµu11uer1l dllU lll~JU1r1, ve1nute

compc,sed of Busan Transportation Corporation, Edisc,n Oevelc,pment and Construction, ~ Mercantile, Inc.,
TMICorp, Inc., and Castan Corporation entered into a contract for the Department c,I Transpc,rtation and
Communications (DOTC}-MRT3 System Maintenance Provider, light rail vehicles (LRVs)General Overhaul end Total
Replacement of the Signaling System (MRT3 Contract). The Joint Venture was incorporated as a special purpose
company known as BURI.)
The petition is bereft of merit.
Essenliolly. lbe only issue !hat is proper for resolution is whether or ,ro/ the RTC has i11rldicllorr to Issue the
prolect/011 a11d restraining order sougltt bp pelit1011er agai11sl respo11dtml.

Pe1i1iooerarglles tha1 !he RTC bas au1horiiy to issue interim meas\ll"esof proiec1io11in cases in,·ol\"ill!!disputes chat
are proper for arbi1ra1io11by ,·inue of RA 9184. The probibi1ory provision under Stttiou 3 (d) of RA 8975 is 1101
•ppLicable inasmuch •• the arbitration clause coutained in the GCC, which is 311 integral pa11of the MRT3 Contrncl.
is a ncbored on RA 9 I 84.
The MRT3 Contract was entered into as a result of a fl{Jgotiated proc11re111e11t
under RA 9184, or the
Government Procurement Refom1 ct. nder Sectio1159, Rule XVITIof the Revised Implementing Rules and
Regulations of RA 9184;
SECTION 59. Arbitration -
9.l. If a11ydispute or difference of a11ykind wlrarsoe-.-er
shall arise /JeMeen
the parties In connection witlt the i111p/eme111a1io11
ofrhe conrrac1co,•ered by
1he Ac1 and tl11sIRR, tlte panies shall make m-ery effori to rnsol,•e amccably
such dispute or difference by mutual consultation.
59.2.A1!Y and all disputes onsi11gfrom /he imp/eme11ta1io11 of a comract
corered by 1he Act and thcs IRR shall be submmed 10 arb11mlion i11 tire
Philippine.saccordmg to the pro, isions of R.A. 876, othen,•ise knmt·11as the
1

"Arbitra1io11Law" and R.A. 9285, olhen,•ise lmo,,·11as the ''Alternative

D/spule Resolut on Act of2004": Provided however, Tica/ disputes Iha/ are
wilfc/11the comptftmce of tire Co11str11ctio11J11d11try ArbitraliOII
Commission [CIA C/10 reso/,·eslcalibe referred tfcereul.Theprocess of
arb/rratco11sho/1 be mcorporated as a pro"isco1e/11the contract tliat w/11be
executed pursuam Jo thepro,•isco,,s of1/ceAct and J/cisIRR: Prol'ided.fitrrher,
by mwual agreeme111,the ponies may agree m writi11gto resort 10other
lJJgJ_
Q
altemaliw modes of dispute resolution.
 Page 81 of 198

(7) A party who does not comply with the order shall be liable for all damages resulting from
noncompliance, including all e~penses and reasonable attorney's fees, paid in obtaining the order's
judicial enforcement.
Section 3 (h) of the same s1anue provides tha1 the "Court" as referred 10 in Ankle 6 of the Model Law
shall mean a Regional Trial Court.
Republic Act o. 9285 is a. l!_ne..al Ja\\ applicable to sU ouuers and controversies to be re:soh1@d
tbrougb aJlematl\'e dispute resolution methods. This law allows• Regional Trial Court 10gratll lom·IID or
provisiona.l relief, Including preliminary injunction, 10 parties in ao arbiu·ation case prior to the
con.stitulion or the arbit:ral tribunat
This geuersl srarnte. however, mus1 give woy 10 • ••P•d•I I•• go,•ernlng 00110001gonrument
projects, Republic Acl No. 8975 which prohibits coui1s, excepl the Su111·emeCourt, from issuing TR Os and I
writs ofprelim.ina.ry injunction lu cases involYing national go\lern.meot p1·oj@cts.
 '' 'J

*EXTENT OF COURT INTERVENTION IN ARBITRATION

PROCEEDINGS:

Department of Foreign Affairs v. BCA International Corp., G.R. No.

225051, [July 19, 2017), 813 PHIL 1086-1103

Co11rl l11tr1ve11l100
Is aUowed nodrr RA No. 9285 ln lhe roUowlog lnslaorrs:
(I) when a pany in the arbi1ra1ionproceedings requests for an tnrerim measure or prorectio •
(2) Judlclal re,•le, or arbllral awards by the Regional TriAlCourt (RTC): and
(3) appeal Crom the RTC decislons on {RECOGNITION} arbllral awards 10 1be Com~ or Appeals.

Tbr ntrot or court iotervrolioo io domestic nrbitratioo is sprcifird io tbr IRR of RA No. 9285,
tbus:
Art. 5.4. Extent of Cou11 Intervention. In mallers governed by
Ibis liapter, 110court shall it11erl'e11eexcept i11accordance with the Special
A.DR Rules.

Page 82 of 198
Coul'I iule1veul'iou iu lbe Special ADR Rules is allowed lb rough the e remedies: wilb the RTC:
peclfic acUoo
(I) SPECIFIC CO T RELIEF_ which includes Judicial Relief Involving the Issue of:
(al E.'-isteDce, Validity and Enforceability of the Arbirral Agreement [No Arbitrnl Tribunal
co11s1in1ted:not an Award).
(bl Iuterim Measures of Protection,
(c) RBITR.A OR :
(i) Challenge 10 rhe Appointment of Arbitraror,
(ii} Termination of Mandate of Arbitn1tor.
(d) Assistance in Taking vidence.
(i) Search warrams
(e) Confideutiali1y/Pro1ectiveOrders. Gag Orders
(f) [Special Proceeding) Co11flrma//011, Correction or Vacation of Award iu Domestic
Arbi1,rntiou~
all 10be filed with the RTC:
(2) a motloo fol' recoosiderntlon rMRJmay be filed by a party with 1he RTC on lhe grounds sp,.-..:ified
in
Rule 19.1:
(3) an appeal to !be Court or Appeals:
tbrougb a petltiou for nvlew under Rule 19.2 or
- rhrough a special cMI action for certiorari under Rule 19.26:and
 (ii) Tennfoarion of Mandate of Arbitraror.
(dl Assistance in Taking Evidence.
(i) Seaccb warranls
(e) onfidentiality rorecrive Orders. [Gag Orders]
(I) [Special Proceedi11g] Conjlrmalio11, Correcrion or Vacarion of Award iu Domcsric
Arbitration,
all 10 be filed with the RTC;
(2) a motion for rrconsidentliou [MR) may be filed by a party with the RT on the grounds specified in
Rule 19.J;
(3) an appl'al lo tbr om1 or Apprals:
'1 lbl'ougb a prllliou for re,,Jrw under Rule 19.2 or
- througha ;pedal dvU action for cerllorari underRule 19.26, and
(4) a petilion for c,rt/orarl with the Supreme Court:
-from a judgment or final order or resolution of the Court of Appeals,, ral.sing only qu..stions of law.

ole: iss11esim•olwd are:

ED RAL
HUtlOK OF ARUJTRALTRl:O AL
- C: ON SUB. T Al'IITIVE ISSUES

Under the Special ADR Rules, review by 1he upnmr Court of au appeal by cer1iorai-i Is uot a matlri-
ofl'igbt, thus:

RULE 19.36. REVIEW DISCRETIONARY. - A re,•lew by the Supreme Court Is

not a matt,r of right, but of sound judldal diur,tlon, which will be grautod only for
' . .' . . . .
 . ' ' ..
- Lbrougha speciaJ chil action for certiorari under R11le19.26; and
(4) a petldou for ~,tiororiwhb tht upreme Court:
-kom • Judgment or final order or resolution or the Court ol Appe•b, ralslD.gonly que tlons of law.

ote: i s11e im•oll'ed are:

-PRO ED 'RAL
• CONSITUTION OF ARBITRAL TRIB AL
- C: 0. SUBST n-IVE ISSUES

"nder the Special ADR Rules, re,,iew by the opn.'mt' oort o.fau appt>al by certiorari is ool a matlt>J"
of right, thus:

.R 'LE 19.36..R£11TEWDl RETI(J ARJ'. - rC\1ew by the. upreme ourt i

uo1 a mauer or rlgln, bu1 or sound judicial discretion, which wUJ be granted only for
serious and co111pellit11J rPaso1Isres11lti11g111grow prei11dice to tllP aggriewd parf)t.
The followi.ng.while ueither co111rolliugnor fully measuring the court's discrelion. lndJcate the
serious and compelling. and necessarl)v. restrictive nature of the grounds that will
warrant the enrdse of the Supreme Court's discretionary powers, whe11the Court of
Appeals:

Page 83 of 198
 b. Erred lo upholding • final order or decision despite the lack
of Jurlsdlt1ioo or 1he oour1 1ha1rendere<lsuch final order or decision;
c. Failed to opply any pl'O,·lsioo, principle, policy or rule
coutai1Jedin these Special AOR Rules resulting in substantial prejudice 10
!be aggrieved party: and
d. Comm.iued an error so egregious and harmful to a party as to
nmount to an undeniable excess of jurisdiction.
" """ ftU'I tltlll. lhl' pdlllllnn tltstlgrtts wltll tlU Collrt of AppHls
'mllhulllon of fl•nlloM of/m. of lllw or bot/, 9antloru of [llr;,ttlllll_lllt, 'llall.
l Co ' The error impuled 10
the Court of Appeals Dl\lSI be grounded upon any of the above prescribed grounds for review
or be closely au.alogousthere10.
A mere general allegation !bar rhe Cour1 of Appeals has com milled serious aod
substant.ial error or th.at it has acted ,,..·(tbgrave abuse or discretion resulting in substantial
pr~judice to the petitiouer u~/1J1out JJ1dlcal/11gwill, speclflci()· Ille nature ofsucll ~rror or
abu.seof dlscre1io11 and tire seriousprejudice suffered br the petitio11eron accom,t thereof,
shall coosrltute suffideul g1·ouod for the Supreme Cour1 to dismiss outiigbt the petirloo.

RULE 19.37. Ffling of Petirron n·lrhSupreme Ccurr. -A party desiring io appeal by

cemorari from • judgment or furn! order or resolution of the Court of Appeals issued pursuant
to these Special ADR Rules may file with lhe Supreme Court a verified petition for review on
cerriorar/. The petition shall raise 011lyqlleslions of law, which must be distincily set fortli.
II is clear that a11appeal bJ· certiorari to tl,e Supreme Co11rl Is from a j11dgme11Ior j111alorder or
resolut/011of the Co11rlof Appeal,; and only qua/Ions of /a,r may b, raaed. There hnve been i.nslanceswhen
we overlooked 1herule on hierarchy of couns and took cognizance of a petirion for ceniorarl alleging gmve abuse
of discre1ion by 1beRegional Trial Coun when it gnu11edio1erimrelief 10a party and issued an Order assailed by
the petitioner. considering the transcendental imponance of the issue involved therein 35 or to bener serve the
ends of justice when lhe case is de1ennined 0111be merits ra1ber on technicality. 36 However, in this case, the
appeal by cerrlorarl is llOt from a final Order of the Cour1 of Appeals or the Regional Trial Cour1. bu1 from an A
ioterlocu1oryorder of rlie ArbitralTribunal:hence. che pelition must be dismissed. ..
SECTION 30. Place of Arbitration.- The parties are free to agree on the
place of arbitration. Failing such agreement, the place of arbitration shall be in
Metro Manila, unless the arbitral tribunal, having regard to the
circumstances of the case, including the convenience of the parties shall decide on
a different place of arbitration.

The arbitral tribunal may, unless otherwise agreed by the parties, meet at any place
it considers appropriate for consultation among its members, for hearing
witnesses, experts or the parties, or for inspection of goods, other property or
documents.

Page 84 of 198

Venue:
1. Uoon aereement of the Parties
 1 ne aro1tra1;ribuna, may,' uniess omerw,se agreea oy me pa mes, meer at any p1ace

it considers appropriate for consultation among its members, for hearing

witnesses, experts or the parties, or for inspection of goods, other property or
documents.

Page 84 of 198

Venue:
1. Upon agreement of the Parties
2. Metro Manila
3. Discretion of the Arbitral Tribunal
a. Ai:i_propriate Place
i. Consultation
ii. Hearing for testimonies of witness, parties, experts
iii. Inspection of goods, property, documents
SECTION 31. Language of the !!rJJitrgpon-.:- The parties are free to agree on
the language or languages to be used in the arbitral proceedings. Failing such
agreement, the language to be used shall be English in international arbitration,
and English or Filipino for domestic arbitration, unless the arbitral tribunal shall
determine a different or another language or languages to be used in the
proceedings. This agreement or determination, unless otherwise specified therein,
shall apply to any written statement by a party, any hearing and any award,
decision or other communication by the arbitral tribunal.

The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed upon the
parties or determined in accordance with paragraph 1 of this Section.

Preferred Language of proceedings/documents:

1. Per agreement of the Parties
2. English

Accompanied by Translations: (preferred: side-by-side)

Page 86 ofl98

Q
FRUEHAUF ELECTRONICS PHILIPPINES CORP. V. TECHNOLOGY ELECTRONICS
ASSEMBLY AND MANAGEMENT PACIFIC CORP., G.R. No. 204197, [November 23,
2016), 800 PHIL 721-768)

"Arbitration is an alternative mode of dispute resolution outside of the

regular court system. Although adversarial in character, arbitration is technically
not litigation. It is a voluntaryr process in which one or more arbitrators -
appointed according to the parties' agreement or according to the applicable rules
of the Alternative Dispute Resolution (ADR) Law - resolve a dispute by rendering
an award. While arbitration carries many advantages over court litigation, in many
ways these advantages also translate into its disadvantages.
Resort to arbitration is voluntary. It requires consent from both parties in
the form of an ARBITRATIONCLAUSEthat pre-existed the dispute or a subsequent
submission agreement. This written arbitration agreement is an independent and
legally enforceable contract that must be complied with in good faith. By entering
into an arbitration agreement, the parties agree to submit their dispute to an
arbitrator (or tribunal) of their own choosing and be bound by the latter's
resolution.
However, this contractual ond consensual character means that the
.,..,-.r-f-;.,...,.. ,..,,. .. n.-#- ;.,,,......,j,..,,..,.J ,. +J.;.,1 .,...,...,. • ., ;.,. +.$,,. ..,.,.,....,..,.,.,.,,rl;"'..,,.. ""'"..., :I 1,1,,,..,. f,.f-f-nr 1r
uu~ 11u5a·uuu. IL 1:, d vunun.a,y 1,11u1,..c:.:,:) Ill WIIIL.11 UIIC UI •11v1c atL.tlLldlUI:, -

appointed according to the parties' agreement or according to the applicable rules

of the Alternative Dispute Resolution (ADR) Law - resolve a dispute by rendering
an award. While arbitration carries many advantages over court litigation, in many
ways these advantages also translate into its disadvantages.
Resort to arbitration is voluntary. It requires consent from both parties in
the form of an ARBITRATION CLAUSEthat pre-existed the dispute or o subsequent
submission agreement. This written arbitration agreement is an independent and
legally enforceable contract that must be complied with in good faith. By entering
into an arbitration agreement, the parties agree to submit their dispute to an
arbitrator (or tribunal) of their own choosing and be bound by the latter's
resolution.

However, this contractual ond consensual character means that the

parties cannot impleod a third-party in the proceedings even if the latter's
participation is necessary for o complete settlement of the dispute. The tribunal
does not have the power to compel a person to participate in the arbitration
proceedings without that person's consent. It also has no authority to decide on
issues that the parties did not submit (or agree to submit) for its resolution.
As a purely private mode of dispute resolution, arbitration proceedings,
including the records, the evidence, and the arbitral award, are confidential unlike
court proceedings which are generally public. This allows the parties to avoid
negative publicity and protect their privacy. Our law highly regards the
confidentiality of arbitration proceedings that it devised a judicial remedy to
prevent or prohibit the unauthorized disclosure of confidential information
obtained therefrom.
The contractual nature of arbitral proceedings affords the parties
substantial autonomy over the proceedings. The parties are free to agree on the
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1
!)UUflfl!)~IVU uytt:.t:lllt:IU. I tll!lo WI IUC'II dlUIUdUUtl d81et:ttlC'llt. I::>dll IIIUt:JJt:IIUll;IH, dllU

legally enforceable contract that must be complied with in good faith. By entering
into an arbitration agreement, the parties agree to submit their dispute to an
arbitrator (or tribunal) of their own choosing and be bound by the latter's
resolution.
However, this controctual and consensual character means that the
parties cannot implead a third-party in the proceedings even if the latter's
participation is necessary for a complete settlement of the dispute. The tribunal
does not have the power to compel a person to participate in the arbitration
proceedings without that person's consent. It also has no authority to decide on
issues that the parties did not submit (or agree to submit) for its resolution.
As a purely private mode of dispute resolution, arbitration proceedings,
including the records, the evidence, and the arbitral award, are confidential unlike
court proceedings which are generally public. This allows the parties to avoid
negative publicity and protect their privacy. Our law highly regards the
confidentiality of arbitration proceedings that it devised a judicial remedy to
prevent or prohibit the unauthorized disclosure of confidential information
obtained therefrom.
The contractual nature of arbitral proceedings affords the parties
substantial autonomy over the proceedings. The parties are free to agree on the
procedure to be observed during the proceedings. This lends considerable
flexibility to arbitration proceedings as compared to court litigation governed by
the Rules of Court.
The parties likewise appoint the arbitrators based on agreement. There
are no other legal requirements as to the competence or technical qualifications
of an arbitrator. Their only legal qualifications are: (1) being of legal age; {2) full-
enjoyment of their civil rights; and (3) the ability to read and write. The parties can
 Page 94 of 198

tailor-fit the tribunal's composition to the nature of their dispute. Thus, a

specialized dispute can be resolved by experts on the subject.

{Disadvantages)
However, because ARBITRATORS do not necessarily have a background
in law, they cannot be expected to have the leqal mastery of a maqistrote. There
is a greater risk that an arbitrator might misapply the law or misappreciate the
facts en route to an erroneous decision.
/APPEAL] This risk of error is compounded by the absence of an effective appeal
mechanism. The errors of an arbitral tribunal are not subject to correction by the
judiciary. As a private alternative to courtproceedings, arbitration is meant to be
an end not the beginning, of litigation. Thus, the arbitra/ award is final and
binding on the parties by reason of their contract - the arbitration
agreement.
Q
 agreement.

NOTE:

- COURT PARTICIPATION IS NOT MANDATED

- OFTEN PROCEEDS INDEPENDENT OF A COURT CASE

I
SECTION 32. Law Governing Domestic Arbitration.- Domestic arbitration
shall continue to be governed by Republic Act No. 876, otherwise known as "The
ArbitrationLaw" as amended by this Chapter. The tfrm "domestic arbitration"
as used herein shall mean an arbitration that is not international as
defined in Article 1(3) of the Model Law.

IMPORTANT:

IF THE ARBITRATION IS NOT INTERNATIONAL, IT I~

f'ON.<;lnFRFn nnMF<;Tlf' ARRITRATION_
 '•I';..:,'

- avoid intervention by domestic/local courts in the various phases

of international arbitration 18

DOMESTIC ARBITRATION= NOT INTERNATIONAL:

- DOMICILE/ Places of business are in one & the same state (at the time of the
conclusion of the agreement)

- Substantial part of the commercial agreement is to be accomplished or

concluded in the domestic state

- Per agreement of parties. Places of business in different states:

where a party has more than one placeof business,the placeof buslne
s that whichhasthe closest relatlonshl to the arbitrationa reement

I a party doesnot havea laceo businessr erenceIs to be made to hi

I
Q
Note:
 {b) one of the folfowing places is situated outside the State in
which the parties have their places of business:

[ PLACE OF BUSINESS ]

(D the place of arbitration if determined in, or pursuant to, the arbitration

agreement;

(ii) any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-
matter of the dispute is most closely connected; 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 agreement;

(b) if a party does not have a place of business, reference is to be

made to his habitual residence.

if the arbitration is not international as defined above.

DOMESTIC ARBITRATION. ~
+ then it is considered
Q
DOMESTIC: IN THE PHILIPPINES:
1. Place of Arbitration per Arbitration Agreement = Ph iii ines

2. Obligations:
• Performance: Substantial Part of the Obligations = Phi Ii ines

t Page 97 of 198

- Subject Matter:
- place Is closely connected = Phili ines
- relates to more than one country = Phlll Ines

3. Several Places of Business:

==
- Closest Relationship to the Arbitration Agreement _=_,P_,h,.,_,11,,_,I
• PLACE OF BUSINESS not Prlnclpal Place of Business

4. No Place of Business:
 1. t"lace or ArP1trat1on per ArP1trat1on Agreement = t"hlll mes

2. Obligations:
- Performance: Substantial Part of the Obligations = Phi Ii ines

Page 97 of 198

- Subject Matter:
- place Is closely connected = Phili ines
- relates to more than one country = Phlll Ines

3. Several Places of Business:

- Closest Relationship to the Arbitration Agreement = Phlll Ines
- PLACE OF BUSINESS not Principal Place of Business

4. No Place of Business:
- Habitual Residence = Philippines

- Convenience
- Location
 - reIa1es 10 more man one country ::....J:'.!!!llppines

3. Several Places of Business:

- Closest Relationship to the Arbitration Agreement = Phlli ines
- PLACE OF BUSINESS not Principal Place of Business

4. No Place of Business:
- Habitual Residence = Philippines

Convenience
- Location

(5) This Law shall not affect any other law of this State by virtue of which certain
disputes may not be submitted to arbitration or may be submitted to arbitration only
according to provisions other than those of this Law.

TESTSFORINTERNATIONALITY:
[BAPS]
[to Determine International or Domestic Arbitration]
1. Place of Business
2. Place of Arbitration
3. Place of Performance
4. Subject Matter of the Agreement
 of them are controlled and managed by foreign
companies
• Even if the place of business is in the Philippines,
the arbitration will be considered International

o Determine the Different States to which the Parties to the

Arbitration belong

o Place of Business not Principal Place of Business

- Place of Businesswith the:

I
o Closest Relationship
o Connection to the Arbitration Agreement
o Relevant to the Purpose of the Arbitration Agreement

- If party has no place of business, one may refer to his habitual

residence 1

!MODEL LAW, Article 1 (4): [Place of Business JI

8. PLACE OF ARBITRATION:

- Common practice not to specify the place of Arbitration in the

cont ct
o Difficulty in predicting the nature of the conflict in the contract
o Contentious Issues: leave to the parties the choice of arbitration

- IF SILENT ON THE PLACE OF ARBITRATION:

o Parties are FREE TO AGREE on the place of Arbitration

o If still fails to agree: Arbitration Tribunal will determine

Q
I lt.lrlTD/\1 r.11nn~1 I /\\Al•
o Parties are FREETO AGREEon the place of Arbitration
o If still fails to agree: Arbitration Tribunal will determine

UNCITRALMODEL LAW:

The Arbitration does not become international because

the place of arbitration chosen by an arbitral tribunal or
an arbitration institution is situated outside the state in
which the parties have their place of busines

ADR ACT 2004:

"SECTION 30. Place of Arbitration.- The parties are free to agree on the
place of arbitration. Failing such agreement, the place of arbitration shall be
in Metro Manila, unless the arbitral tribunal, having regard to the
circumstances of the case, including the convenience of the parties shall
decide on a different place of arbitration.

The arbitral tribunal may, unless otherwise agreed by the parties, meet at
Q
 hearing witnesses, experts or the parties, or for inspection of goods, other
property or documents."

C. PLACE OF PERFORMANCE:

If a substantial (not all) part of the obligation arises under a

commercial relationship which is to be performed in a state other
than the one in which the parties have their places of b1.1Siness

- EXCEPTIONS:

o Model Law: Article 1(3) (b) (ii):

■ An arbitration would be international where the place

with which the subject matter of the dispute is most
closely connected is outside the state in which the
parties have their places of business {International
Character is Ascertained) Cl
 - The area in which might arise that was then to be settled by
arbitration

WHAT MATTERS ARE SUBJECT TO ARBITRATION?

o LIMITED/SPECIFIC ARBITRATION AGREEMENT: Those

specifically indicated in the Arbitration Agreement, whether to
limit the scope or by inference, expand them

o Dependent on the Arbitration Agreement:

• General Arbitration Agreement: Any controversy,

.Jvhethercontractual or non-contractual, maybe submitted
to arbitration. Such submission or contract may include
questions which may be collateral, incidental, precedent or
subsequent to any issue between the parties. 19 0
 .tl 11mnme scope or oy 1merence, expana mem

o Dependent on the Arbitration Agreement:

• General Arbitration Agreement: Any controversy,

whether contractual or non-contractual, maybe submitted
to arbitration. Such submission or contract may include
questions which may be collateral, incidental, precedent or
subsequent to any issue between the parties. 19

ResidualTest of lnternatlonali (Catch-Allprovision):whe

he subjectmatter of the arbitration agreement [rather than th
arbitrationa reement itse/f] is relatedto more than one state

- Not subject to Arbitration: questions of law

19 Parlade,p. 277, RA876 (2).

 ti

NOTE:
THE FACT THAT FOREIGN ARBITRATORS ARE CHOSEN FOR A DISPUTE
OR THE CHOICE BY THE PARTIES TO THE DISPUTE OF FOREIGN
PROCEDURAL LAW WOULD NOT BE A TEST OF ARBITRATION

SECTION 33. Applicability to Domestic Arbitration.- Articles 8,

10, 11, 12, 13, 14, 18 and 19 and 29 to 32 of the Model Law and Sections
22 to 31 of the preceding Chapter 4 shall apply to domestic arbitration.

U CITRAL Model Law: (EXPLANATIONS LATER)

ARTICLE8. ARBITRATION AGREEMENTAND SUBSTANTIVECLAIM BEFORECOURT

(1) A court before which en action is broupt in a matter which is th

ubject of an arbitration agrHment shall, if a party so requests not late
han when submittin1 his first statement on the substance of the dispute
refer the parties to arbitration unless It finds that th• a1rHment is null a
id, lnol!!ratlv• or incaP.abl• of beig l!!rformad. Cl
, .. _:._ -- _u,:.,; __ .. :.,,_ J-1-----'
 nevermeIessoe commenceaor conunueo.aria an awa,a may oe maoe.wnneme issueIs penoIngoerore
1hecourt

CHAPTERIll. COMPOSITION OF ARBJTRAL

TRIBUNAL

ARTICLE10. NUMBER OF ARBITRATORS

(1) The parties are free to determine the number of arbitrators.
(21Failingsuch determinatil,n, the number of arbitrators shall be three.

ARTICLE11. APPOINTMENT OF ARBITRATORS

(1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise
agreed by the parties.

(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the
provisions of paragraphs (4) and (5) of this article.

(3) Failing such agreement,

Page 103 of 198

(a} in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the rw91
arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator
ARTICLE12. GROUNDSFOR CHALLENGE

(1) DISCLOSURE:When a person is approached in connection with his possible

appointment as an arbitrator, he shall disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence. An arbitrator, from the time of
his appointment and throughout the arbitral proceedings, shall without delay disclose any
such circumstances to the parties unless they have already been informed of them by
him.
(2) IMPARTIALITY. INDEPENDENCE.QUALIFICATIONS.An arbitrator may be
challenged only if circumstances exist that give rise to justifiable doubts as to his
impartiality or Independence, or if he does not possess qualifications agreed to by the
parties. A party may challenge an arbitrator appointed by him, or in whose appointment
he has participated, only for reasons of which he becomes aware after the appointment
has been made.

ARTICLE13. CHALLENGEPROCEDURE

(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to
the provisions of paragraph (3) of this article.

Page 104 of 198 ~