WHAT IS INTERNATIONAL COMMERCIAL ARBITRATION?

Arbitration – is any arbitration weather or not administered by a permanent arbitration institution.

International Arbitration – is an arbitration where the parties to an arbitration agreement have, at the
time of the conclusion of that agreement, there places of business in different state or one of the
following places is situated outside the Philippines in which the parties have there places of business
wherein-

a. The place of arbitration if determined in, or pursuant to the arbitration agreement;

b. 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 the parties have expressly agreed that the subject matter of the arbitration agreement relates
to more than one country.

For the purpose of international arbitration, the NEW YORK CONVENTION is the United Nations
Convention on the recognition and enforcement of foreign arbitral Awards approve in 1958 and ratified
by the Philippine senate under Senate Resolution NO. 71. The following are important terms to
consider:

 Non-Convention Award means a foreign arbitral award made in a state, which is not a
convention state.
 Non-Convention State means a state that is not a member of the New York Convention
 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 institution
under whose rules the arbitration is agreed to be conducted.
 Arbitral Tribunal (under the model Law) means the sole arbitrator or a panel of arbitrators.
 Commercial Arbitration means an arbitration that covers matters arising from all relationships
of a commercial nature, whether contractual or not. Relationships of a commercial nature
include, but are not limited to any trade transaction for the supply or exchange of goods and
services; distribution agreement; construction of works; commercial representation or agency;
factory; leasing; consulting; engineering; licensing; investment; financing; banking; insurance;
joint venture and other form of industrial or business cooperation; carriage of goods or
passengers by air, sea, rail, or road.
 Convention award means of foreign arbitral award made in convention state.
 Court (under the model law) means a body of organ of the judicial system of the phil. (i.e., the
Regional Trial Court, Court of Appeals and Supreme Court).

WHAT IS DOMESTIC ARBITRATION?

-Is an arbitration that is not international. The ff. are important terms to consider
 Ad hoc arbitration means an arbitration administered by an arbitrator and or the parties
themselves.
 Appointing authority in Ad hoc arbitration means, in the absence of an agreement, the
national president of the IBP or his/her duly authorized representative.
  Appointing authority guidelines means the set of rules approved or adopted by an appointing
authority for the making of a request for appointment, challenge, termination of the mandate
of arbitrator and for taking action thereon.
 Arbitration means a volunteer dispute resolution process in which one or more arbitrators,
appointed in accordance with the agreement of the parties these rules, resolve a dispute by
rendering an award.
 Arbitral tribunal means a sole arbitrator or a panel, board or committee of arbitrators.
 Claimant means a person/s with a claim against another and who commence/s arbitration
against the latter.
 Court means, unless otherwise specified in these rules, a Regional Trial Court.
 Day means calendar day.
 Institutional arbitration means arbitration administered by an entity, which is registered as a
domestic corporation with the security in a exchange commission (SEC) ‘and engaged in, among
others, arbitration and dispute in the phil. on a regular and permanent basis
 Request for appointment means the letter – request to the appointing authority of either or
both parties for the appointment of arbitrator or of the two arbitrators first appointed by the
parties for the appointment of the third member of an arbitral tribunal.
 Representative is a person duly authorized in writing by a party to a dispute, who could be a
counsel, a person in his/her employ or any other person of his/her choice, duly authorized
represent said party in the arbitration proceedings.
 Respondent means the person/s against whom the claimant commence/s arbitration.
 Written communication means the pleading, motion, manifestation, notice, order, award and
any other document or paper submitted of filed with the arbitral tribunal or delivered to a
party.

Other forms of ADR

1. Early Natural Evolution is an ADR process wherein parties and their lawyers are brought
together early in the pre-trial phase to present summaries of their cases and to receive a
non-binding assessment by an experienced neutral person, with expertise in the subject
matter or substance of the dispute.
2. Mediation-Arbitration or Med-Arb is a two-step dispute resolution process involving
mediation and then followed by arbitration.
3. Mini-Trial is a structured dispute resolution method in which the merits of a case are
argued before a panel comprising of senior decision-makers, with or without the presence
of neutral third person, before which the parties seek a negotiated settlement.

OFFICE OF ALTERNATIVE DISPUTE RESOLUSTION

The Office of ADR is an agency attached to the Department of Justice which shall be headed by an
Executive Director, who shall be appointed of the President of the Philippines, taking into consideration
the recommendation of the Secretary of Justice.

Powers of ADR

 To act as appointing authority of mediators and arbitrators

  To conduct seminars, symposia, conferences, and any other public for a
 To establish an ADR library or resources center…
 To establish training programs for ADR providers/practitioners…
 To certify those who have successfully completed the regular professional trainings provided by
the ADR…
 To charge fees…
 To accept donations, grants and other assistance from local and foreign resources…
 To exercise such other powers as many be necessary and proper to carry into effect the
provisions of ADR.

Functions of OADR
 To promote, develop, and expand…
 To monitor, study and evaluate…
 To recommend to congress…
 To make studies on and provide linkage for development…
 To compile and publish a list or roster of ADR providers/practitioners…
 To compile a list or roster of foreign or international ADR providers/pratitiners.

Divisions of ADR
The OADR has ff. staff and service divisions:
 Secretariat which shall provide necessary support and discharge such other functions
and duties as many be directed by the Executive Director.
 Public Information and Promotion Division which shall be charged with the
dissemination of information, the promotion of the importance and public acceptance f
mediation, conciliation, arbitration or any combination thereof and other ADR forms as a
means of achieving speedy and efficient means of resolving all disputes and to help in
the promotion, development and expansion of the use of ADR.
 Training Division which shall be charge the formulation of effective standards
 Records and Library Division which shall be charged with the establishment and
maintenance of a central repository of ADR laws, rules and regulations and etc.

THE ADVISORY COUNCIL

Composition of the Advisory Council

 Mediation profession
 Arbitration profession
 ADR organization
 IBP
 Academe

Role of the Advisory Council

The advisory council is responsible to advise the Executive Director on policy, operational and
other relevant matters. The council shall meet regularly, at least once every two (2) months, or
upon call by the Executive Director.
The MEDIATION process
Mediation is a voluntary process in which a mediator, selected by the disputing parties, facilities
communication and negotiation, and assists the parties in reaching a voluntary agreement
regarding a dispute.
The ff. are important term to consider:
o Ad hoc Mediation means any mediation other than institutional or
court-annexed.
o Institutional Mediation means any mediation administered by, and
conducted under the rules of, a mediation institution.
o Court-Annexed Mediation means any mediation process conducted
under the auspices of the court and in accordance with Supreme Court
approved guidelines, after such court has acquired jurisdiction of the
dispute.
o Court-Referred Mediation means a mediation ordered by a court to be
conducted in accordance with the agreement of the parties when an
action is prematurely commenced in violation of such agreement.
o Certified Mediator means a mediator certified by the office for ADR as
having successfully completed its regular professional training program.
o Mediation Party means a person who participates in a mediation and
whose consent is necessary to resolve the dispute.
o Mediator a person who conducts mediation.
o Non-Party Participants means a person, other than a party or
mediator, who participates in a mediation proceeding as a witness,
resource person or expert.

o Selection of a Mediator
The parties have the freedom to select their mediator. The parties may request
the OADR to provide them with the list or roster or the resumes of its certified
mediators. The OADR may be requested to inform the mediator of his/her
selection.
o Replacement of Mediator
If the mediator selected is unable to act as such for any reason, the parties may,
upon being informed of such fact, select another mediator.
o Refusal or Withdrawal of Mediator
A mediator may refuse from acting to such, withdraw or may be compelled to
withdraw, from the mediation proceedings under the following circumstances.
 If any of the parties so requests the mediator to withdraw.
 The mediator does not have the qualifications, training and experience
to enable him/her to meet the reasonable expectations of the parties.
 Where the mediator’s impartiality is in question.
 If continuation if the process would violate any ethical standards.
 If the safety of any of the parties would be jeopardized.
 If the mediator is unable to provide effective services.
 Incase of conflict of interest.
 In any of the following instances, if the mediator is satisfied that:
a. One or more of the parties is/are not acting in good faith;
b. the parties agreement would be illegal or involve the commission of
a crime;
c. continuing the dispute resolution would give rise to an appearance
impropriety;
d. continuing with the process would cause significant harm to a
nonparticipating person or to the public, or;
e. continuing discussions would not be in the best interests of the
parties, their minor children or the dispute resolution process.

THE ETHICAL CONDUCT OF MEDIATOR

 Competence it is not required that a mediator shall have special

qualifications by background or profession unless the special
qualifications of a mediator are required in the mediation
agreement or by the mediatin parties.
 Impartiality a mediator shall maintain impartiality.
 Confidentiality a mediator shall keep in utmost confidence all
confidential information obtained in the course of the mediation
process.