Dispute Resolution and Crisis/Incident Management (Crim

6)

JASON O NEDIC, RCRIM

Instructor

COURSE DESCRIPTION
This course deals with the study of the process of dealing and resolving
conflicts/disputes resolution and crises management. It includes the art of
intervention through mediation and reconciliation of disagreements between
stakeholder’s agencies. Likewise, the course includes handling of crises that
the criminal justice personnel are commonly encountered. Moreover, the
study significantly provides mechanisms on how to adopt strategies in
dealing with potential and actual crises which are being addressed by
concerned agencies and authorities from law enforcement, corrections and
communities.
COURSE OUTLINE

Chapter 1:

 Segment I: Concept of Conflict;

 What is Conflict?
 What are Conflict Theories?
 What are the Conflict Resolution Strategies?
 Segment II: Alternative Dispute Resolution (ADR) Act;
 Segment III: The Office for Alternative Dispute Resolution;
 Segment IV: Mediation;
 Segment V: International Commercial Arbitration;
 Segment VI: Recognition and Enforcement of Awards;
 Segment VII: Domestic Arbitration; and
 Segment VIII: Arbitration Law (Republic Act No. 876).

Chapter 2: Katarungang Pambarangay Law and Restorative Justice

 Segment IX: Katarungang Pambarangay Law; and

 Segment X: Restorative Justice.

FINALS

 Segment XI: Basic concept of crises and incident management;

 Segment XII: Nature and types of crises;
 Segment XIII: Distinction of crises and incidents;
 Segment XIV: The concept and importance of crisis
management;
 Segment XV: Composition and functions of crisis management;
and
 Segment XVI: Crisis and incidents preventive measures.

OVERVIEW
Under CHED Memorandum Order No. 05 series of 2018, the most
recent curriculum governing BS Criminology Course, the subject Dispute

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Resolution and Crisis Management was formally introduced with a course
code of Criminology 6.
This subject entails a very significant contribution in the field of
criminology, law enforcement, public safety, and research. Thus, students
will benefit relevant knowledge on activities involving dispute resolution and
identify conflicting issues thereby treating them from becoming a worst case
which may be occurred in the family, workplace, community, and society in
general. Also, understanding on the different principles and methodology in
conflict resolution, creating strategic crime prevention and crisis
management efforts will be a contributory factor.
The promotion of peace and ensuring public safety requires a deep
understanding on how to promote conflict resolution at the early stage. In
the event of sudden occurrences brought about by crisis, either natural or
man – made crisis, the importance of internalizing and applying knowledge
on the principles and procedures in Crisis Management will capacitate the
learners from being an instrument of peace and public safety on the future.

SEGMENT I: CONFLICT

1. What is Conflict?

A conflict is an activity which takes place when conscious beings

(individuals or groups) wish to carry out mutually inconsistent acts
concerning their wants, needs or obligations. (Nicholson, M., 1992)
Conflict may also refer to a natural disagreement or struggle between
people which may be physical, or between conflicting ideas. It can either be
within one person, or they can involve several people or groups. It exists
when they have incompatible goals and one or more believe that the
behavior of the other prevents them from their own goal achievement. The
word “Conflict” comes from the Latin word “conflingere” which means to
come together for a battle.

2. What are Conflict Theories?

Conflict theory states that tensions and conflicts arise when resources,
status, and power are unevenly distributed between groups in society and
that these conflicts become the engine for social change. In this context,
power can be understood as control of material resources and accumulated
wealth, control of politics and the institutions that make up society, and
one's social status relative to others (determined not just by class
but by race, gender, sexuality, culture, and religion, among other things).
(Crossman, 2019)
Conflict theory originated in the work of Karl Marx, who focused on the
causes and consequences of class conflict between the bourgeoisie (the
owners of the means of production and the capitalists) and the proletariat
(the working class and the poor). Many social theorists have built on Marx's
conflict theory to bolster it, grow it, and refine it over the years. Many others
have drawn on conflict theory to develop other types of theory within the
social sciences, including the following:

1. Feminist theory;
2. Critical race theory;

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 3. Postmodern theory and postcolonial theory;
4. Queer theory;
5. Post-structural theory, and
6. Theories of globalization and world systems.

So, while initially conflict theory described class conflicts specifically, it

has lent itself over the years to studies of how other kinds of conflicts, like
those premised on race, gender, sexuality, religion, culture, and nationality,
among others, are a part of contemporary social structures, and how they
affect our lives.

3. What are the Conflict Resolution Strategies?

Kenneth Thomas and Ralph Kilmann (2015) developed five conflict

resolution strategies Thomas – Kilmann Instrument or more generally known
as TKI Conflict Strategies that people use to handle conflict, including
avoiding, defeating, compromising, accommodating, and
collaborating.
The Thomas-Kilmann Instrument is designed to measure a person’s
behavior in conflict situations. “Conflict situations” are those in which the
concerns of two people appear to be incompatible.
In such conflict situations, an individual’s behavior can be described
along two dimensions: (1) assertiveness, the extent to which the person
attempts to satisfy his own concerns, and (2) cooperativeness, the extent to
which the person attempts to satisfy the other person’s concerns.

The following are the five (5) Conflict Resolution Strategies:

a. Conflict Resolution Strategy #1: Avoiding

This is unassertive and uncooperative. The person neither

pursues his own concerns nor those of the other individual. Thus, he
does not deal with the conflict. Avoiding might take the form of
diplomatically sidestepping an issue, postponing an issue until a better
time, or simply withdrawing from a threatening situation.
Avoiding is when people just ignore or withdraw from the
conflict. They choose this method when the discomfort of confrontation
exceeds the potential reward of resolution of the conflict. While this
might seem easy to accommodate for the facilitator, people are not
really contributing anything of value to the conversation and may be
withholding worthwhile ideas. When conflict is avoided, nothing is
resolved.

b. Conflict Resolution Strategy #2: Competing

This is assertive and uncooperative. An individual pursues his

own concerns at the other person’s expense. This is a power-oriented
mode in which you use whatever power seems appropriate to win your
own position—your ability to argue, your rank, or economic sanctions.
Competing means “standing up for your rights,” defending a position
which you believe is correct, or simply trying to win. Competing is used
by people who go into a conflict planning to win. Competing might
work in sports or war, but it’s rarely a good strategy for group problem
solving.

c. Conflict Resolution Strategy #3: Accommodating

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 This is unassertive and cooperative—the complete opposite of
competing. When accommodating, the individual neglects his own
concerns to satisfy the concerns of the other person; there is an
element of self-sacrifice in this mode. Accommodating might take the
form of selfless generosity or charity, obeying another person’s order
when you would prefer not to, or yielding to another’s point of view.
Also, accommodating is a strategy where one party gives in to
the wishes or demands of another. They are being cooperative but not
assertive. This may appear to be a gracious way to give in when one
figures out s/he has been wrong about an argument. It is less helpful
when one party accommodates another merely to preserve harmony
or to avoid disruption. Like avoidance, it can result in unresolved
issues. Too much accommodation can result in groups where the most
assertive parties commandeer the process and take control of most
conversations.

d. Conflict Resolution Strategy #4: Collaborating

It is both assertive and cooperative—the complete opposite of

avoiding. Collaborating involves an attempt to work with others to find
some solution that fully satisfies their concerns. It means digging into
an issue to pinpoint the underlying needs and wants of the two
individuals. Collaborating between two persons might take the form of
exploring a disagreement to learn from each other’s insights or trying
to find a creative
solution to an interpersonal problem.
A group may learn to allow each participant to contribute with
the possibility of co-creating a shared solution that everyone can
support.

e. Conflict Resolution Strategy #5: Compromising

It is moderate in both assertiveness and cooperativeness. The

objective is to find some expedient, mutually acceptable solution that
partially satisfies both parties. It falls intermediate between competing
and accommodating. Compromising gives up more than competing but
less than accommodating. Likewise, it addresses an issue more directly
than avoiding, but does not explore it in as much depth as
collaborating. In some situations, compromising might mean splitting
the difference between the two positions, exchanging concessions, or
seeking a quick middle- ground solution.

The concept of this is that everyone gives up a little bit of what

they want, and no one gets everything they want. The perception of
the best outcome when working by compromise is that which “splits
the difference.” Compromise is perceived as being fair, even if no one
is particularly happy with the outcome.

SEGMENT II: ALTERNATIVE DISPUTE RESOLUTION (ADR)

4. What is Republic Act No. 9285?

This Act is known as the "Alternative Dispute Resolution Act of 2004."

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5. What is the policy of the State regarding Alternative Dispute
Resolution (ADR)?
It is hereby declared the policy of the State to actively promote party
autonomy in the resolution of disputes or the freedom of the party to make
their own arrangements to resolve their disputes. Towards this end, the
State shall encourage and actively promote the use of Alternative Dispute
Resolution (ADR) as an important means to achieve speedy and impartial
justice and de-clog court dockets. As such, the State shall provide means for
the use of ADR as an efficient tool and an alternative procedure for the
resolution of appropriate cases. Likewise, the State shall enlist active private
sector participation in the settlement of disputes through ADR.

6. Does RA 9285 limits the power of the Supreme Court to adopt any
ADR System?
No. This Act shall be without prejudice to the adoption by the Supreme
Court of any ADR system, such as mediation, conciliation, arbitration, or any
combination thereof as a means of achieving speedy and efficient means of
resolving cases pending before all courts in the Philippines which shall be
governed by such rules as the Supreme Court may approve from time to
time. (Sec. 2, RA 9285).
7. What is Alternative Dispute Resolution?
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 under RA 9285, 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.
(Sec. 3, par. a, RA 9285)

8. What is Arbitration?
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 RA 9285, resolve a dispute by
rendering an award. (Sec. 3, par. d, RA 9285).
Note: Award means any partial or final decision by an arbitrator in
resolving the issue or controversy.

9. Who is an Arbitrator?
Arbitrator means the person appointed to render an award, alone or
with others, in a dispute that is the subject of an arbitration agreement. (Sec.
3, par. e, RA 9285)

10. What is Early Neutral Evaluation?

This 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. (Sec. 3,
par. n, RA 9285)

11. What is Mediation?

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. (Sec. 3,
par. q, RA 9285)

12. Who is a Mediator?

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 Mediator means a person who conducts mediation. (Sec. 3, par. r, RA
9285)

13. What is Mediation Party?

This means a person who participates in a mediation and whose
consent is necessary to resolve the dispute. (Sec. 3, par. s, RA 9285)

14. What is Mediation-Arbitration?

"Mediation-Arbitration" or Med-Arb is a step dispute resolution process

involving both mediation and arbitration. (Sec. 3, par. t, RA 9285)

15. What is Mini-trial?

This means a structured dispute resolution method in which the merits
of a case are argued before a panel comprising senior decision makers with
or without the presence of a neutral third person after which the parties seek
a negotiated settlement (Sec. 3, par. u, RA 9285)

16. How arbitration, mediation and conciliation are different from

each other?
Arbitration, mediation and conciliation are the main Alternative Dispute
Resolution Mechanism which is generally adopted by the people to resolve
their disputes in an informal manner. They try to reach a solution by
settlement or negotiation with the assistance of a third neutral party and
have turned out to be an effective alternative to the litigation process.
Arbitration is a process where the parties submit their case to a neutral
third party who on the basis of discussion determine the dispute and comes
to a solution.
Mediation and conciliation both are an informal process. Whereas,
arbitration is more formal as compared to them. In mediation, the mediator
generally sets out alternatives for the parties to reach out an agreement.
The main advantage of the mediation is that the settlement is made by the
parties themselves rather than a third party. It is not legally binding on the
parties. In addition, the basic motive of mediation is to provide opportunities
to parties to negotiate and come to a final solution catering the needs of
both sides. Dispute resolution through conciliation involves the assistance of
a neutral third party who plays an advisory role in reaching an agreement.
The process adopted by all the three are different but, the main
purpose is to resolve the dispute in a way where the interest of the parties is
balanced.

17. What is ADR Provider?

"ADR Provider" means institutions or persons accredited as mediator,
conciliator, arbitrator, neutral evaluator, or any person exercising similar
functions in any Alternative Dispute Resolution system. This is without
prejudice to the rights of the parties to choose nonaccredited individuals to
act as mediator, conciliator, arbitrator, or neutral evaluator of their dispute.
(Sec. 3, par. b, RA 9285)

18. What is the liability of ADR providers/Practitioners?

The ADR provides /practitioners shall have the same civil liability for
acts done in the performance of their official duties as that of public officers
as provided in Section 38 (1), Chapter 9, Book 1 of the Administrative Code
of 1987, upon a clear showing of bad faith, malice or gross negligence.
(Article 1.5, IRR, RA 9285)

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19. What are the cases wherein Republic Act No. 9285 does not
apply?

The provisions of RA 9285 shall not apply to resolution or settlement of

the following:
a. Labor disputes covered by Presidential Decree No. 442, otherwise
known as the Labor Code of the Philippines, as amended and its
Implementing Rules and Regulations;
b. The civil status of persons;
c. The validity of a marriage;
d. Any ground for legal separation;
e. The jurisdiction of courts;
f. Future legitime;
g. Criminal liability;
h. Those which by law cannot be compromised; and
i. Those disputes referred to court-annexed mediation. (Article 1.3,
IRR, RA 9285)

SEGMENT III: THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION

20. What is the Office for Alternative Dispute Resolution?

The Office for Alternative Dispute Resolution (OADR) is as an agency
attached to the Department of Justice. It shall have a Secretariat and shall be
headed by an Executive Director, who shall be appointed by the President of
the Philippines, taking into consideration the recommendation of the
Secretary of Justice. (Article 2.1., IRR, RA 9285)

21. What are the powers of the OADR?

The OADR shall have the following powers:

a. To act as appointing authority of mediators and arbitrators when the

parties agree in writing that it shall be empowered to do so;
b. To conduct seminars, symposia, conferences and other public fora
and publish proceedings of said activities and relevant
materials/information that would promote, develop and expand the
use of ADR;
c. To establish an ADR library or resource center where ADR laws, rules
and regulation, jurisprudence, books, articles and other information
about ADR in the Philippines and elsewhere may be stored and
accessed;
d. To establish training programs for ADR providers/practitioners, both
in the public and private sectors; and to undertake periodic and
continuing training programs for arbitration and mediation and
charge fees on participants. It may do so in conjunction with or in
cooperation with the IBP, private ADR organizations, and local and
foreign government offices and agencies and international
organizations;
e. To certify those who have successfully completed the regular
professional training programs provided by the OADR;
f. To charge for services rendered such as, among others, for training
and certifications of ADR providers;
g. To accept donations, grants and other assistance from local and
foreign sources; and

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 h. To exercise such other powers as may be necessary and proper to
carry into effect the provisions of the ADR Act. (Art. 2.2., IRR, RA
9285)
22. What are the functions of OADR?
The OADR shall have the following functions:

a. To promote, develop and expand the use of ADR in the private and
public sectors through information, education and communication;
b. To monitor, study and evaluate the use of ADR by the private and
public sectors for purposes of, among others, policy formulation;
c. To recommend to Congress needful statutory changes to develop,
strengthen and improve ADR practices in accordance with
international professional standards;
d. To make studies on and provide linkages for the development,
implementation, monitoring and evaluation of government and
private ADR programs and secure information about their respective
administrative rules/procedures, problems encountered and how
they were resolved;
e. To compile and publish a list or roster of ADR providers/practitioners,
who have undergone training by the OADR, or by such training
providers/institutions recognized or certified by the OADR as
performing functions in any ADR system. The list or roster shall
include the addresses, contact numbers, e-mail addresses, ADR
service/s rendered (e.g. arbitration, mediation) and experience in
ADR of the ADR providers/practitioners;
f. To compile a list or roster of foreign or international ADR
providers/practitioners. The list or roster shall include the
addresses, contact numbers, e-mail addresses, ADR service/s
rendered (e.g. arbitration, mediation) and experience in ADR of the
ADR providers/practitioners; and
g. To perform such other functions as may be assigned to it. (Art. 2.3.,
IRR, RA 9285)

23. State the Divisions of OADR.

The OADR shall have the following staff and service divisions, among others:
a. Secretariat – shall provide necessary support and discharge such
other functions and duties as may be directed by the Executive
Director.
b. Public information and Promotion Division – shall be charged
with the dissemination of information, the promotion of the importance
and public acceptance of 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.
c. Training Division – shall be charged with the formulation of
effective standards for the training of ADR practitioners; conduct of
training in accordance with such standards; issuance of certifications of
training to ADR practitioners and ADR service providers who have
undergone the professional training provided by the OADR; and the
coordination of the development, implementation, monitoring and
evaluation of government and private sector ADR programs.
d. Records and Library Division – shall be charged with the
establishment and maintenance of a central repository of ADR laws,
rules and regulations, jurisprudence, books, articles, and other

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 information about ADR in the Philippines and elsewhere. (Art. 2.4., IRR,
RA 9285)

24. What is Advisory Council? State its composition.

There is also created an Advisory Council composed of a
representative from each of the following:
a. Mediation profession;
b. Arbitration profession;
c. ADR organizations;
d. IBP; and
e. Academe.
The members of the Council, who shall be appointed by the Secretary
of Justice upon the recommendation of the OADR Executive Director, shall
choose a Chairman from among themselves. (Art. 2.5., IRR, RA 9285)

25. What is the role of the Advisory Council?

The Advisory Council shall 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. (Art.
2.6., IRR, RA 9285)

SEGMENT IV: MEDIATION

26. What are the Terms Applicable to the Segment/Discussion on

International Commercial Arbitration? Explain.

Terms and Applicable to the Chapter Mediation

A. Ad hoc Mediation means any mediation other than institutional or

court-annexed.
B. Institutional Mediation means any mediation process conducted
under the rules of a mediation institution.
C. Court-Annexed Mediation means 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.
D. Court-Referred Mediation means 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.
E. Certified Mediator means a mediator certified by the Office for
ADR as having successfully completed its regular professional training
program.
F. Mediation means a voluntary process in which a mediator, selected
by the disputing party voluntary agreement regarding a dispute.
G. Mediation Party means a person who participates in a mediation
and whose consent is necessary to resolve the dispute.
H. Mediator means a person who conducts mediation.
I. Non-Party Participant means a person, other than a party or
mediator, who participates in a mediation proceeding as a witness,
resource person or expert. (Rule 2, par. B, IRR, RA 9285)

27. What is the scope of application of the Implementing Rules?

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.

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 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 3.1., IRR, RA 9285)

28. Define Ad hoc, Institutional and Court-Annexed Mediation.

A. Ad hoc Mediation means any mediation other than institutional or
court-annexed.
B. Institutional Mediation means any mediation process conducted
under the rules of a mediation institution.
C. Court-Annexed Mediation means 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.

29. What is the State policy on Mediation?

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. (Article 3.2., IRR, RA 9285)

 SELECTION OF A MEDIATOR

30. Do parties have the right to select a Mediator?

Yes. The parties have the freedom to select a mediator. The parties
may request the Office for Alternative Dispute Resolution (OADR) to provide
them list or roster or the resumes of its certified mediators. The OADR may
be requested to inform the mediator of his/her selection. (Article 3.3., IRR, RA
9285)
31. Is it required that a Mediator has special qualifications by
background or profession?
As a Rule, ADR act does not require 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 mediation
parties. (Sec. 13, RA 9285)

32. May a party waive his right to participate in Mediation?

Yes, except as otherwise provided in RA 9285, a party may designate a
lawyer or any other person to provide assistance in the mediation. A lawyer
of this right shall be made in writing by the party waiving it. A waiver of
participation or legal representation may be rescinded any time. (Sec. 14, RA
9285)

Note: Rescind means to revoke or cancel.

33. When a Mediator be replaced?

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.
(Article 3.4., IRR, RA 9285)

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34. What are the grounds wherein a Mediator may refuse or
withdraw such?
A mediator may refuse from acting as such, withdraw or may be
compelled to withdraw from mediator proceedings under the following
circumstances:

a. If any of the parties so requests the mediator to withdraw;

b. The mediator does not have the qualifications, training and
experience to enable him/her to meet the reasonable expectations of
the parties;
c. Where the mediator's impartially is in question;
d. If continuation of the process would violate any ethical standards;
e. If the safety of any of the parties would be jeopardized;
f. If the mediator is unable to provide effective services;
g. In case of conflict of interest; and
h. In any of the following instances, if the mediator is satisfied that:
1. One or more of the parties is/are not acting in good faith;
2. The parties' agreement would be illegal or involve the
commission of a crime;
3. Continuing the dispute resolution would give rise to an
appearance of impropriety;
4. Continuing with the process would cause significant harm to a
non-participating person or to the public; or
5. Continuing discussion would not be in the best interest of the
parties, their minor children or the dispute resolution process.
(Article 3.5., IRR, RA 9285)

 ETHICAL CONDUCT OF A MEDIATOR

35. Explain the following terms as Ethical Conduct of a Mediator:

A. Competence
It is not required that a mediator shall have special qualifications by
background or profession unless the special qualifications of a
mediator shall:
i. maintains the continually upgrade his/her professional competence
in mediation skills;
ii. ensure that his/her qualifications, training and experience are
known to and accepted by the parties; and
iii. serve only when his/her qualifications, training and experience
enable him/her to meet the reasonable expectations of the parties
and shall not hold himself/herself out or give the impression that
he/she does not have. Upon the request of a mediation party, an
individual who is requested to serve as mediator shall disclose his/her
qualifications to mediate a dispute. (Article 3.5., IRR, RA 9285)

B. Impartially
A mediator shall maintain impartiality.

a. Before accepting a mediation, an individual who is requested to

serve as a mediator shall:

 make an inquiry that is reasonable under the circumstances to

determine whether there are known facts that a reasonable
individual would consider likely to affect the impartiality of the

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 mediator, including a financial or personal interest in the outcome
of the mediation and any existing or past relationship with a party
of foreseeable participant in the mediation; and
 disclose to the mediation parties any such fact known or learned
as soon as practical before accepting a mediation.
b. If a mediator learns any fact described in paragraph (a) of this
Article after accepting a mediation, the mediator shall disclose it as
soon as practicable to the mediation parties. (Article 3.7., IRR, RA
9285)

C. Confidentiality
A mediator shall keep in utmost confidence all confidential information
obtained in the course of the mediation process.
a. A mediator shall discuss issues of confidentiality and the extent of
confidentiality provided in any private sessions or caucuses that the
mediator holds with a party. (Article 3.8., IRR, RA 9285)

D. Consent and Self-Determination

a. A mediator shall make reasonable efforts to ensure that each party
understands the nature and character of the mediation proceeding including
private caucuses, the issues, the available options, the alternatives to non-
settlement, and that each party is free and able to make whatever choices
he/she desires regarding participation in mediation generally and regarding
specific settlement options.

If a mediator believes that a party, who is not represented by counsel,

is unable to understand, or fully participate, the mediation proceedings for
any reason, a mediator may either:
 limit the scope of the mediation proceedings in a manner
consistent with the party's ability to participate, and/or recommend
that the party obtain appropriate assistance in order to continue
with the process; or
 terminate the mediation proceedings.

b. A mediator shall recognize and put in mind that the primary

responsibility of resolving a dispute and the shaping of a voluntary and
uncoerced settlement rests with the parties. (Article 3.9., IRR, RA 9285)

E. Separation of Mediation from Counseling and Legal Advice

a. Except in evaluative mediation or when the parties so request, a mediator

shall:

 refrain from giving legal or technical advice and otherwise engaging in

counseling or advocacy; and
 abstain from expressing his/her personal opinion on the rights and
duties of the parties and the merits of any proposal made.

b. Where appropriate and where either or both parties are not represented
by counsel, a mediator shall;

 recommend that the parties seek outside professional advice to help

them make informed decision and to understand the implication of any
proposal; and
 suggest that the parties seek independent legal and/or technical
advice before a settlement agreement is signed.

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c. without the consent of al parties, and for a reasonable time under the
particular circumstance, a mediator who also practices another profession
shall not establish a professional relationship in that other profession with
one of the parties, or any person or entity, in a substantially and factually
related matter. (Article 3.10., IRR, RA 9285)

F. Charging of Fees.
With respect to charging of fees:
a. A mediator shall fully disclose and explain to the parties the basis of
cost, fees and charges.
b. The mediator who withdraws from the mediation shall return to the
parties any unearned fee and unused deposit.
c. A mediator shall not enter into a fee agreement, which is contingent
upon the results of the mediation or the amount of the settlement.
(Article 3.11., IRR, RA 9285)

H. Promotion of Respect and Control of Abuse of Process.

The mediator shall encourage mutual respect between the parties, and
shall take reasonable steps, subject to the principle of self-determination, to
limit abuses of the mediation process. (Article 3.12., IRR, RA 9285)

I. Solicitation or Acceptance of any Gift.

No mediator or any member of a mediator’s immediate family or
his/her agent shall request, solicit, receive or accept any gift or any type of
compensation other than the agreed fee and expenses in connection with
any matter coming before the mediator. (Article 3.13., IRR, RA 9285)

 ROLE OF PARTIES AND THEIR COUNSELS IN MEDIATION

36. May a party designate a lawyer to assist him in Mediation?

Yes, except as otherwise provided by the ADR Act or by the Rules, a
party may designate a lawyer or any other person to provide assistance in
the mediation. A waiver of this right shall be made in writing by the party
waiving it. A waiver of participation or legal representation may be rescinded
at any time. (Article 3.14., IRR, RA 9285)

37. Enumerate the Roles of a Counsel in Mediation proceedings.

a. The lawyer shall view his/her role in the mediation as a collaborator
with the other lawyer in working together toward the common goal of
helping their clients resolve their differences to their mutual advantage.
b. The lawyer shall encourage and assist his/her client to actively
participate in positive discussions and cooperate in crafting an
agreement to resolve their dispute.
c. The lawyer must assist his/her client to comprehend and appreciate
the mediation process and its benefits, as well as the client’s greater
personal responsibility for the success of mediation in resolving the
dispute.
d. In preparing for participation in mediation, the lawyer shall confer and
discuss with his/her client the following:

 The mediation process as essentially a negotiation between the

parties assisted by their respective lawyers, and facilitated by a
mediator, stressing it its difference from litigation, its advantages and
benefits, the clients heightened role in mediation and responsibility for

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 its success and explaining the role of the lawyer in mediation
proceedings,

 The substance of the upcoming mediation such as;

1. The substantive issues involved in the dispute and their
prioritization in terms of importance to his/her client’s real interests
and needs.
2. The study of other party’s position in relation to the issues with a
view to understanding the underlying interests, fears, concerns and
needs;
3. The information or facts to be gathered or sought from the other
side or to be exchanged that are necessary for informed decision-
making;
4. The possible options for settlement but stressing the need to be
open-minded about other possibilities; and
5. The best, worst and most likely alternative to a non-negotiated
settlement. (Article 3.15., IRR, RA 9285)

38. What other matters a Counsel must do to assist in the

Mediation?

To assist in the Mediation, the lawyer:

a. shall give support to the mediator so that his/her client will fully
understand the rules and processes of mediation;
b. shall impress upon his/her client the importance of speaking for
himself/herself and taking responsibility for making decisions during the
negotiations within the mediation process.;
c. may ask for a recess in order to give advice or suggestions to his/her
client in private, if he/she perceives that his/her client is unable to bargain
effectively; and
d. shall assist his/her client and the mediator put in writing the terms of
the settlement agreement that the parties have entered into. That
lawyers shall see to it that the terms of the settlement agreement are not
contrary to law, morals, good customs, public order or public policy.
(Article 3.16., IRR, RA 9285)

 CONDUCT OF MEDIATION

39. What are the articles to be considered in the conduct of

Mediation?

The articles to be considered in the conduct of Mediation are the following:

a. The mediator shall not make untruthful or exaggerated claims about
the dispute resolution process, its costs and benefits, its outcome or the
mediator’s qualifications and abilities during the entire mediation process.
b. The mediator shall held the parties reach a satisfactory resolution to
their dispute but has no authority to impose a settlement on the parties.
c. The parties shall personally appear for mediation and may be assisted
by a lawyer. A party maybe represented by an agent who must have full
authority to negotiate and settle the dispute.
d. The mediation process shall, in general, consists of the following
stages:
 opening statement of the mediator
 individual narration by the parties;
 exchange by the parties;
 summary of issues;

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  generation and evaluation of options; and
 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:
 by the execution of a settlement agreement by the parties;
 by the withdrawal of any party from mediation; and
 by the written declaration of the mediator that any further effort at
mediation would not be helpful. (Article 3.17., IRR, RA 9285)

40. Where is the place of Mediation?

The parties are free to agree on the place of mediation. Failing such
agreement, the place of mediation shall be any place convenient and
appropriate to all parties. (Article 3.18., IRR, RA 9285)

 EFFECT OF AGREEMENT TO SUBMIT A DISPUTE TO MEDIATION

UNDER INSTITUTIONAL RULES

41. What does an agreement to submit a dispute to mediator by an

institution include?

An agreement to submit a dispute to mediation by an institution shall

include an agreement to be bound by the internal mediation and
administrative policies of such institution. Further, an agreement to submit a
dispute to mediation under institutional mediation rules shall be deemed to
include an agreement to have such rules govern the mediation of the dispute
and for the mediator, the parties, their respective counsels and non-party
participants to abide by such rules. (Article 3.19., IRR, RA 9285)

 ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENT

42. What are the operative principles to guide Mediation?

The mediation shall be guided by the following operative principles:

a. A settlement agreement following successful mediation shall be
prepared by the parties with the assistance of their respective
counsels. If any, and by the mediator. The parties and their
respective counsels shall endeavor to make the terms and condition
of the settlement agreement complete and to make adequate
provision for the contingency of breach to avoid conflicting
interpretations of the agreement.
b. The parties and their respective counsels, if any, shall sign the
settlement agreement. The mediator shall certify that he/she
explained the contents of the settlement agreement to the parties in
a language known to them.
c. If the parties agree, the settlement agreement may be jointly
deposited by the parties or deposited by one party with prior notice
to the other party/ties with the Clerk of Court of the Regional Trial
Court
(i) where the principal place of business in the Philippines of any
of the parties are located;
(ii) if any of the parties is an individual, where any of those
individuals resides; or

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 (iii) in the National Capital Judicial Region. Where there is a need
to enforce the settlement agreement, a petition may be filed by any
of the parties with the same court in which case, the court shall
proceed summarily to hear the petition, in accordance with the
Special ADR Rules.
d. The parties may agree in the settlement agreement that the
mediator shall become a sole arbitrator for the dispute and shall
treat the settlement agreement as an arbitral award which shall be
subject to enforcement under Republic Act No. 876, otherwise known
as "The Arbitration Law", notwithstanding the provisions of Executive
Order No. 1008, s. 1985, otherwise known as the "Construction
Industry Arbitration Law" for mediated disputes outside the
Construction Industry Arbitration Commission. (Article 3.20., IRR, RA
9285)

 CONFIDENTIALITY OF INFORMATION

43. What are the principles and guidelines on the information

obtained through Mediation?
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, mediator, or non-party participant may refuse to disclose
and may prevent any other person from disclosing a confidential
information.
c. Confidential information shall not be subject to discovery and shall
be inadmissible in 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 disclosed
confidential information obtained during the mediation:
 the parties to the dispute;
 the mediator or mediators;
 the counsel for the parties;
 the non-party participants
 any person hired or engaged in connection with the mediation as
secretary, stenographer, clerk or assistant; and
 any other person who obtains or possesses confidential
information by reason of his/her profession.
e. The protections of the ADR Act shall continue to apply even if a
mediator is found to have failed to act impartially.
f. A mediator may not be called to testify to provide confidential
information gathered in mediation. A mediator who is wrongfully
subpoenaed shall be reimbursed the full cost of his/her attorney’s fees
and related expenses. (Article 3.21., IRR, RA 9285)

44. May the privilege of confidentiality of information be waived?

Yes, under the following circumstances, a privilege of confidentiality of

information is deemed waived:
a. A privilege arising from the confidentiality of information may be
waived in a record or orally during a proceeding by the mediator and
the mediation parties.

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 b. With the consent of the mediation parties, a privilege arising from
the confidentiality of information may likewise be waived by a non-
party participant if the information is provided by such non-party
participant.
c. A person who discloses confidential information shall be precluded
from asserting the privilege under Article 3.21 (Confidentiality of
Information) to bar disclosure of the rest of the information necessary
to a complete understanding of the previously disclosed information. If
a person suffers loss or damage as a result of the disclosure of the
confidential information, he/she shall be entitled to damages in a
judicial proceeding against the person who made the disclosure.
d. A person who discloses or makes a representation about a
mediation is precluded from asserting the privilege mentioned in
Article 3.21 to the extent that the communication prejudices another
person in the proceeding and it is necessary for the person prejudiced
to respond to the representation or disclosure. (Article 3.22., IRR, RA
9285)

45. What are the exceptions to the privilege of confidentiality of

information?

a. There is no privilege against disclosure under Article 3.21 in the following

instances:
 in an agreement evidenced by a record authenticated by all parties
to the agreement;
 available to the public or made during a session of a mediation which
is open, or is required by law to be open, to the public;
 a threat or statement of a plan to inflict bodily injury or commit a
crime of violence;
 intentionally used to plan a crime, attempt to commit, or commit a
crime, or conceal an ongoing crime or criminal activity.
 sought or offered to prove or disprove abuse, neglect, abandonment
or exploitation in a proceeding in which a public agency is protecting
the interest of an individual protected by law; but this exception does
not apply where a child protection matter is referred to mediation by a
court or where a public agency participates in the child protection
mediation;
 sought or offered to prove or disapprove a claim or complaint of
professional misconduct or malpractice filed against a party, non-party
participant, or representative of a party based on conduct occurring
during a mediation.

b. If a court or administrative agency finds, after a hearing in camera, that

the party seeking discovery of the proponent of the evidence has shown that
the evidence is not otherwise available, that there is a need for the evidence
that substantially outweighs the interest in protecting confidentially, and the
mediation communication is sought or offered in:
 a court proceeding involving a crime or felony; or
 a proceeding to prove a claim or defense that under the law is
sufficient to reform or avoid a liability on a contract arising out of the
mediation.

c. A mediator may not be compelled to provide evidence of a mediation

communication or testify in such proceeding.
d. If a mediation communication is not privileged under an exception in sub-
section (a) or (b) hereof, only the portion of the communication necessary for

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the application of the exception for non-disclosure may be admitted. The
admission of a particular evidence for the limited purpose of an exception
does not render that evidence, or any other mediation communication,
admissible for any other purpose. (Article 3.23., IRR, RA 9285)

46. May a Mediator be allowed to make a report to communicate

matters regarding Mediation?

As a Rule, NO. A mediator may not make a report, assessment,

evaluation, recommendation, finding or other communication regarding a
mediation to a court or agency or other authority that may make a ruling on
a dispute that is the subject of a mediation, except:

a. to state that the mediation occurred or has terminated, or where a

settlement was reached; or
b. as permitted to be disclosed under Article 3.23 (Exception to the
Privilege of Confidentiality of Information). The parties may, by an
agreement in writing, stipulate that the settlement agreement shall be
sealed and not disclosed to any third party including the court. Such
stipulation, however, shall not apply to a proceeding to enforce or set
aside the settlement agreement. (Article 3.24., IRR, RA 9285)

 FEES AND COST OF MEDIATION

47. In Ad Hoc Mediation, what are the rules on Fees and Cost?
In ad hoc mediation, the parties are free to make their own
arrangement as to mediation cost and fees. In default thereof, the schedule
of cost and fees to be approved by the OADR shall be followed. (Article 3.25.,
IRR, RA 9285)

48. In Institutional Mediation, what does mediation cost include?

In institutional mediation, mediation cost shall include the

administrative charges of the mediation institution under which the parties
have agreed to be bound, mediator’s fees and associated expenses, if any. In
default of agreement of the parties as to the amount and manner of
payment of mediation’s cost and fees, the same shall be determined in
accordance with the applicable internal rules of the mediation service
providers under whose rules the mediation is conducted. (Article 3.26., IRR,
RA 9285)

49. What are the factors in determining mediation fee?

A mediation service provider may determine such mediation fee as is

reasonable taking into consideration the following factors, among others:
a. the complexity of the case;
b. the number of hours spent in mediation; and
c. the training, experience and stature of mediators. (Article 3.26., IRR, RA
9285)

SEGMENT V: INTERNATIONAL COMMERCIAL ARBITRATION

50. What are the Terms Applicable to the Segment/Discussion on

International Commercial Arbitration? Explain.

Terms Applicable to the Chapter on International Commercial Arbitration:

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 1. 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. 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. 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 /her duly authorized representative.
2. Arbitral Tribunal (under the Model Law) means a sole arbitrator or a
panel of arbitrators.
3. Arbitration means any arbitration whether or not administered by a
permanent arbitration institution.
4. 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, the following commercial transactions: any trade transaction for the
supply or exchange of goods or services; distribution agreements;
construction of works; commercial representation or agency; factoring;
leasing; consulting; engineering; licensing; investment; financing;
banking; insurance; joint venture and other forms of industrial or business
cooperation; carriage of goods or passengers by air, sea rail or road.
5. Convention Award means a foreign arbitral award in a Convention
State.
6. Convention State means a state that is a member of the New York
Convention.
7. Court (under the Model Law) means a body or organ of the judicial
system of the Philippines (i.e., the Regional Trial Court, Court of Appeals
and Supreme Court).
8. International Arbitration means an arbitration where:
a. the parties to an arbitration agreement have, at the time of the
conclusion of that agreement, their places of business in different
states; or
b. one of the following places is situated outside the Philippines in
which the parties have their places of business:
 the place of arbitration if determined in, or pursuant to, the
arbitration agreement;
 any place where a substantial part of the obligations of the
commercial relationship is to be performed or the place with 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. For this
purpose:
(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/her habitual residence.
9. New York Convention means the United Nations Convention of the
Recognition and Enforcement of Foreign Arbitral Awards approved in 1958
and ratified by the Philippine Senate under Senate Resolution No.71.
10. Non-Convention Award means a foreign arbitral ward made in a state,
which is not a Convention State.

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 11. Non-Convention State means a state that is not a member of the New
York Convention. (Rule 2, par. C, IRR, RA 9285)

51. What is the scope of application of Chapter 4 of the IRR of RA

9285 on International Commercial Arbitration?

a. It applies to international commercial arbitration, subject to any

agreement in force between the Philippines and other state or states.
b. It applies only if the place or seat of arbitration is the Philippines and in
default of any agreement of the parties on the applicable rules.
c. It shall not affect any other law of the Philippines 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 the ADR
Act. (Article 4.1., IRR, RA 9285)

52. Cite the Rules on International Commercial Arbitration.

The following are the rules of interpretation in international commercial

arbitration:
a. International commercial arbitration shall be governed by the Model
Law on International Commercial Arbitration.
b. In interpreting this Chapter, regard shall be had to the international
origin of the Model Law and to the need for uniformity in its interpretation.
Resort may be made to the travaux preparatoires and the Report of the
Secretary-General of the United Nations Commission on International
Trade Law dated March 1985 entitled, "International Commercial
Arbitration: Analytical Commentary on Draft Text identified
by reference number A/CN. 9/264".
c. Moreover, in interpreting this Chapter, the court shall have due regard
to the policy of the law in favor of arbitration and the policy of the
Philippines to actively promote party autonomy in the resolution of
disputes or the freedom of the parties to make their own arrangement to
resolve their dispute.
d. Where a provision of this Chapter, except the Rules applicable to the
substance of the dispute, leaves the parties free to determine a certain
issue, such freedom includes the right of the parties to authorize a third
party, including an institution, to make that determination.
e. Where a provision of this Chapter refers to the fact that the parties
have agreed or that they may agree or in any other way refers to an
agreement of the parties, such agreement includes any arbitration rules
referred to in that agreement.
f. Where a provision of this Chapter, other than in paragraph (a) of Article
4.25 (Default of a Party) and paragraphs (b) (i) of Article 4.32
(Termination of Proceedings), refers to a claim, it also applies to a
counter-claim, and where it refers to a defense, it also applies to a
defense to such counter-claim. (Article 4.2., IRR, RA 9285)

53. When is a written communication deemed received?

a. Unless otherwise agreed by the parties:

 any written communication is deemed to have been received if it is
delivered to the addressee personally or at his/her place of business,
habitual residence or mailing address; if none of these can be found after
making a reasonable inquiry, a written communication is deemed to have
been received if it is sent to the addressee’s last known place of business,

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 habitual residence or mailing address by registered letter or any other
means which provides a record of the attempt to deliver it;
 the communication is deemed to have been received on the day it is so
delivered.
b. The provisions of this Article do not apply to communications in court
proceedings, which shall be governed by the Rules of Court. (Article 4.3., IRR,
RA 9285)

54. May the right to object be waived?

Yes. The right to object may be waived. Any party who knows that any
provision of this Chapter from which the parties may derogate or any
requirement under the arbitration agreement has not been complied with
and yet proceeds with the arbitration without stating the objections for such
non-compliance without undue delay or if a time limit is provided therefor,
within such period of time, shall be deemed to have waived the right to
object. (Article 4.4., IRR, RA 9285)

55. What is the extent of Court intervention?

In matters governed by this Chapter, no court shall intervene except

where so provided in the ADR Act. Resort to Philippine courts for matters
within the scope of the ADR Act shall be governed by the Special ADR Rules.
(Article 4.5., IRR, RA 9285)

56. What other functions must be performed by the appointing

authority?

a. The functions referred to in paragraphs (c) and (d) of Article 4.11

(Appointment of Arbitrators) and paragraph (c) of Article 4.13 (Challenge
Procedure) and paragraph (a) of Article 4.14 (Failure or Impossibility to
Act) shall be performed by the appointing authority as defined in Article
1.6 C1, 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. The appointment of an arbitrator is not subject
to appeal or motion for reconsideration.

b. The functions referred to in paragraph (c) of Article 4.16 (c)

(Competence of Arbitral Tribunal to Rule on its Jurisdiction), second
paragraph of Article 4.34 (Application for Setting Aside an Exclusive
Recourse Against Arbitral Award), Article 4.35 (Recognition and
Enforcement), Article 4.38 (Venue and Jurisdiction), shall be performed by
the appropriate Regional Trial Court.

c. A Court may not refuse to grant, implement or enforce a petition for an

interim measure, including those provided for in Article 4.9 (Arbitration
Agreement and Interim Measures by Court), Article 4. 11 (Appointment of
Arbitrators), Article 4.13 (Challenge Procedure), Article 4,27 (Court
Assistance in Taking Evidence), on the sole ground that the Petition is
merely an ancillary relief and the principal action is pending with the
arbitral tribunal. (Article 4.6., IRR, RA 9285)

 ARBITRATION AGREEMENT

57. Explain the form of an Arbitration Agreement

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 The Arbitration agreement, as defined in Articles 1.6 A4, shall be in
writing. An agreement is in writing if it is contained in a document signed by
the parties or in an exchange of letters, telex, telegrams or other means of
telecommunication which provide a record of the agreement, or in an
exchange of statements of claim and defense in which the existence of an
agreement, or in an exchange of statements of claim and defense in which
the existence of an agreement is alleged by one party and not denied by
another. The reference in a contract to a document containing an arbitration
clause constitutes an arbitration agreement provided that the contracts is
writing and the reference is such as to make that clause part of the contract.
(Article 4.7., IRR, RA 9285)

58. What are the rules when a substantive claim is before a court?

The following are the rules when a substantive claim is before the court:

a. A court before which an action is brought in a matter which is the

subject of an arbitration agreement shall, if at least one party so requests
of both parties thereafter, refer the parties to arbitration unless it finds
that the arbitration agreement is null and void, inoperative or incapable
of being performed.

b. Where an action referred to in the previous paragraph has been

brought, arbitral proceedings may nevertheless be commenced or
continued, and an award may be made, while the issue is pending before
the court.

c. Where the action is commenced by or against multiple parties, one or

more of whom are parties to an arbitration agreement, the court shall
refer to arbitration those parties who are bound by the arbitration
agreement although the civil action may continue as to those who are
not bound by such arbitration agreement. (Article 4.8., IRR, RA 9285)

59. May a party request for an interim measure of protection before

or during the arbitral proceedings?

Yes. It is not incompatible with an arbitration agreement for a party to

request from a court, before the constitution of the arbitral tribunal or during
arbitral proceedings, an interim measure of protection and for a court to
grant such measure. To the extent that the arbitral tribunal has no power to
act or is unable to act effectively, a request for interim measure of
protection, or modification thereof as provided for, and in the manner
indicated in Article 4.17 (Power of Tribunal to Order Interim Measures), may
be made with the court. The rules of interim or provisional relief provided for
in paragraph (c) of Article 4.17 of these Rules shall be observed. A party may
bring a petition under this Article before the court in accordance with the
Rules of Court or the Special ADR Rules. (Article 4.9., IRR, RA 9285)

 COMPOSITION OF ARBITRAL TRIBUNAL

60. How many Arbitrators may the parties agree upon?

The parties are free to determine the number of arbitrators Failing
such determination, the number of arbitrators shall be three (3). (Article
4.10., IRR, RA 9285)

61. Explain how Arbitrators are appointed.

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The appointment of arbitrators is governed by the following procedures:
a. No person shall be produced by reason of his/her nationality from
acting as an arbitrator, unless otherwise agreed by the parties.
b. The parties are free to agree on a procedure of appointing the
arbitrator or arbitrators, subject to provisions of paragraphs (d) and (e) of
this
Article.
c. Failing such agreement:
 in an arbitration with three (3 ) arbitrators, each party shall appoint
one arbitrator, and the two (2) arbitrators thus appointed shall appoint
the third arbitrator; if any party fails to appoint the arbitrator within
thirty (30) days of receipt of a request to do so from the other party, or
if the two (2) arbitrators fail to agree on the third arbitrator within
thirty days (30) days of their appointment shall be made, upon request
of a party, by the appointing authority;
 in an arbitration with a sole arbitrator, if the parties are unable to
agree on the arbitrator, he/she shall be appointed, upon request of a
party, by the appointing authority.
d. Where, under an appointment procedure agreed upon the parties,
 a party fails to act as required under such procedure, or
 the parties, or two arbitrators, are unable to reach an agreement
expected of them under such procedure, or
 a third party, including an institution, fails to perform any function
entrusted to it under such procedure, any party may request the
appointing authority to take the necessary measure to appoint an
arbitrator, unless the agreement on the appointment procedure
provides other means for securing the appointment. A decision on a
matter entrusted by paragraphs (c) and (d) of this to the appointing
authority shall be immediate executory and not be subject to a motion
for reconsideration or appeal. The appointing authority shall have in
appointing an arbitrator, due regard to any qualifications required of
the arbitrator by the agreement of the parties and to such
considerations as are likely to secure the appointment of an
independent and impartial arbitrator and, in the case of a sole or third
arbitrator, shall take into account as well the advisability of appointing
an arbitrator of a nationality other than the Rules of Court of the
Special ADR Rules. (Article 4.11., IRR, RA 9285)

62. What are the grounds to challenge an Arbitrator?

The grounds for challenge are as follows:

a. When a person is approached in connection with his/her possible
appointment as an arbitrator, he/she impartiality or independence. An
arbitrator, from the time of his/her appointment and throughout the
arbitral proceedings shall, without delay, disclose any such circumstance
to the parties unless they have already been informed of them him/her.
An arbitrator may be challenged only if circumstances exist that
give rise to justifiable doubts as to his/her impartiality or independence,
or if he/she does not possess qualifications agreed to by the parties. A
party may challenge an arbitrator appointed by him/her, or in whose
appointment he/she has participated, only for reasons of which he/she
becomes aware after the appointment has been made. (Article 4.12.,
IRR, RA 9285)

63. What is the procedure in challenging an Arbitrator?

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 The challenge procedure is as follows:

a. The parties are free to agree on a procedure for challenging an

arbitrator, subject to the provisions of this Article.

b. Failing such agreement, a party who intends to challenge an

arbitrator shall, within fifteen (15) days after becoming aware of the
constitution of the arbitral tribunal or after becoming aware of any
circumstances referred to in paragraph (b) of Article 4.12 (Grounds for
Challenge,) send a written statement of the reasons for the challenge to
the arbitral tribunal. Unless the challenged arbitrator withdraws from
his/her office or the other party agrees to the challenged arbitrator
withdraws from his/her office or the party agrees to the challenge, the
arbitral tribunal shall decide on the challenge.

c. If a challenge under any procedure agreed upon by the parties or

under the procedure of paragraph (b) of this Article is not successful, the
challenging party may request the appointing authority, within thirty
(30) days after having received notice of the decision rejecting the
challenge, to decide on the challenge, which decision shall be
immediately executory and not subject to motion for reconsideration or
appeal. While such a request is pending, the arbitral tribunal, including
the challenged arbitrator, may continue the arbitral proceedings and
make an award.
A party may bring a petition under this Article before the court in
accordance with the Rules of Court or the Special ADR Rules. (Article
4.13., IRR, RA 9285)

64. What is the consequence if there is failure or impossibility to act

as an Arbitrator?

a. If an arbitrator becomes de jure or de facto unable to perform his/her

functions or for other reasons fails to act without undue delay, his/her
mandate terminates if he/she withdraws from his/her office or if the parties
agree on the termination. Otherwise, if the controversy remains concerning
any of these grounds, any party may request the appointing authority to
decide on the termination of the mandate, which decision shall be
immediately executory and not subject for motion for reconsideration or
appeal.

b. If, under this Article or paragraph (b) of Article 4.13 (Challenge Procedure),
an arbitrator withdraws from his/her office or a party agrees for termination
of the mandate of an arbitrator, this does not imply acceptance of the
validity of any ground referred to in this Article or in paragraph (b) of Article
4.12 (Grounds for Challenge). (Article 4.14., IRR, RA 9285)

65. What is the consequence if the mandate of an Arbitrator is

terminated?

Where the mandate of an arbitrator terminates under Articles 4.13

(Challenge Procedure) and 4.14 (Failure or Impossibility to Act) or because of
his/her withdrawal from office for any other reason or because of the
revocation of his/her mandate, a substitute arbitrator shall be appointed
according to the rules that were applicable to the appointment of the
arbitrator being replaced. (Article 4.15., IRR, RA 9285)

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  JURISDICTION OF ARBITRAL TRIBUNAL

66. Discuss the competence of Arbitral Tribunal to Rule on

jurisdiction.

a. The arbitral tribunal may rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration
agreement or any condition precedent to the filing of the request for
arbitration. For that purpose, an arbitration clause, which forms part of a
contract shall be treated as an agreement independent of the other terms of
the contract. A decision by the arbitral tribunal that the contract is null and
void shall not entail ipso jure the invalidity of the arbitration clause.

b. A plea that the arbitral tribunal does not have jurisdiction shall be raised
not later than the submission of the statement of defense (I.e., in an Answer
or Motion to Dismiss). A party is not precluded from raising such plea by the
fact that he/she has appointed, or participated in the appointment of, an
arbitrator. A plea that the arbitral tribunal is exceeding the scope of its
authority shall be raised as soon as the matter alleged to be beyond the
scope of its authority is raised during the arbitral proceedings. The arbitral
tribunal may, in either case, admit a later plea if it considers the delay
justified.

c. The arbitral tribunal may rule on a plea referred to in paragraph (b) of this
Article either as a preliminary question or in an award on the merits. If the
arbitral tribunal rules as a preliminary question that it has jurisdiction, any
party may request, within thirty (30) days after having received notice of
that ruling, the Regional Trial Court to decide the matter, which decision
shall be immediately executory and not subject to motion for reconsideration
or appeal. While such a request is pending, the arbitral tribunal may
contribute the arbitral proceedings and make an award. (Article 4.16., IRR,
RA 9285)

67. Does the Arbitral tribunal have the power to order interim
measures?

a. Unless otherwise agreed by the parties, the arbitral tribunal may, at the
request of the party, order any party to take such interim measures of
protection as the arbitral tribunal may consider necessary in respect of the
subject to matter of the dispute following paragraph (c) of this Article. Such
interim measures may include, but shall not be limited to, preliminary
injunction directed against a party, appointment of receivers, or detention,
preservation, inspection of property that is the subject of the dispute in
arbitration.

b. After constitution of the arbitral tribunal, and during arbitral proceeding, a

request for interim measures of protection, or modification thereof shall be
made with the arbitral tribunal. 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.

c. The following rules on interim or provisional relief shall be observed:

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  Any party may request that the interim or provisional relief shall be
observed:
 Such relief may be granted:
i. To prevent irreparable loss or injury;
ii. To provide security for the performance of an obligation;
iii. To produce or preserve evidence
iv. To compel any other appropriate acts or omissions.
 The order granting provisional relief may be conditioned upon the
provision of security or any act or omission specified in order.
 Interim or provisional relief is requested by written application
transmitted by reasonable means to the arbitral tribunal and the party
against whom relief is sought, describing in appropriate details of the
precise relief, the party against whom the relief is requested, the
ground for the relief, and the evidence, supporting the request.
 The order granting or denying an application for the interim relief
shall be binding upon the parties.
 Either party may apply with the court for assistance in implementing
or enforcing an interim measure ordered by an arbitral tribunal.
 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. (Article 4.17., IRR, RA 9285)

 CONDUCT OF ARBITRAL PROCEEDINGS

68. Discuss the conduct of Arbitral proceedings.

1. On Treatment of Parties
The parties shall be treated with equality and each shall be given a full
opportunity of presenting his/her case. (Article 4.18., IRR, RA 9285)

2. On Determination of the Rules of Procedures

a. Subject to the provisions of this Chapter, the parties are free to agree
on the procedure to be followed by the arbitral tribunal in conducting the
proceedings.

b. Falling such agreement, the arbitral tribunal may, subject to this

Chapter, conduct the arbitration in such manner as it considers
appropriate. Unless the arbitral tribunal considers it inappropriate, the
UNCITRAL Arbitration Rules adopted by the UNCITRAL on 28 April 1976
and the UN General Assembly on 15 December 1976 shall apply subject
to the following clarification: All references to the "Secretary-General of
the Permanent Court of Arbitration at the Hague" shall be deemed to refer
to the appointing authority.

c. The power conferred upon the arbitral tribunal includes the power to
determine the admissibility, relevance, materiality and weight of any
evidence. (Article 4.19., IRR, RA 9285)

3. On Venue of Arbitration

a. 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

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 the convenience of the parties, shall decide on a different place of
arbitration.

b. Notwithstanding the rule stated in paragraph (a) of this provision, 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. (Article 4.20., IRR, RA 9285)

4. On the Commencement of Arbitral Proceedings

Unless otherwise agreed by the parties, the arbitral proceedings in

respect of a particular dispute commence on the date on which a request for
that dispute to be referred to arbitration is received by the respondent.
(Article 4.21., IRR, RA 9285)

5. On the Language to be Used

a. 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. This agreement, 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.

b. The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed
upon by the parties or determined by the arbitral tribunal in accordance
with paragraph (a) of this Article. (Article 4.222., IRR, RA 9285)

6. On the Statements of Claim and Defense

a. Within the period of time agreed by the parties or determined by the

arbitral tribunal, the claimant shall state the facts supporting his/her/its
claim, the points at issue and the relief or remedy sought, and the
respondent shall state his/her/its defense in respect of these particulars,
unless the parties have otherwise agreed as to the required elements of
such statements. The parties may submit with their statements, all
documents they consider to be relevant or may add a reference to the
documents or other evidence they will submit.

b. Unless otherwise agreed by the parties, either party may amend or

supplement his/her claim or defense during the course of the arbitral
proceedings, unless the arbitral tribunal considers it inappropriate to allow
such amendment having regard to the delay in making it. (Article 4.23.,
IRR, RA 9285)

7. On Hearing and Written Proceedings

a. Subject to any contrary agreement by the parties, the arbitral tribunal

shall decide whether to hold oral hearings for the presentation of
evidence or for oral argument, or whether the proceedings shall be
conducted on the basis of documents and other materials. However,
unless the parties have agreed that no hearings at an appropriate stage
of the proceedings, if so requested by a party.

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 b. The parties shall be given sufficient advance notice of any hearing and
of any meeting of the arbitral tribunal for the purposes of inspection
goods, other property or documents.

c. All statements, documents or other information supplied to the arbitral

by one party shall be communicated to the other party. Also, an expert
report or evidentiary document on which the arbitral tribunal may rely in
making its decision shall be communicated to the parties. (Article 4.24.,
IRR, RA 9285)

8. On Default of a party

Unless otherwise agreed by the parties, if, without, showing sufficient cause,
a. the claimant fails to communicate his statement of claim in accordance
with paragraph (a) Article 4.23 (Statement of Claim and Defense), the
arbitral tribunal shall terminate the proceedings;

b. the respondent fails to communicate his/her/its statement of defense in

accordance with paragraph (a) Article 4.23 (Statement of Claim and
Defense), the arbitral tribunal shall continue the proceedings without
treating such failure in itself as an admission of the claimant’s allegations.

c. any party’s fails to appear at a hearing or to produce documentary

evidence, the arbitral tribunal may continue the proceedings and make
the award on the evidence before it. (Article 4.25., IRR, RA 9285)

9. On Expert appointed by the Arbitral Tribunal

Unless otherwise agreed by the parties, the arbitral tribunal,

a. may appoint one or more experts to report to it on specific issues to be

determined by the arbitral tribunal; or

b. may require a party to give the expert any relevant information or to

produce, or to provide access to, any relevant documents, goods or other
property for his/her inspection. Unless otherwise agreed by the parties, if
a party so requests or if the arbitral tribunal considers it necessary, the
expert shall, after delivery of his/her written or oral report, participate in a
hearing where the parties have the opportunity to put questions to him
and to present expert witnesses in order to testify on the points at issue.
(Article 4.26., IRR, RA 9285)

10. On Court Assistance in Taking Evidence

The arbitral tribunal or a party with the approval of the arbitral tribunal
may request from a court of the Philippines assistance in taking evidence.
The court may execute the request within its competence and according to
its rules on taking evidence.
The arbitral tribunal shall have the power to require any person to attend a
hearing as a witness. The arbitral tribunal shall have the power to subpoena
witnesses and documents when the relevancy of the testimony and the
materiality thereof has been demonstrated to it. The arbitral tribunal may
also require the retirement of any witness during the testimony of any other
witness. A party may bring a petition under this Section before the court in
accordance with the Rules of Court or the Special ADR Rules. Article 4.27.,
IRR, RA 9285)

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11. On Rules Applicable to the Substance of Dispute

a. The arbitral tribunal shall decide the dispute in accordance with such
rules of law as are chosen by the parties as applicable to the substance of
the dispute. Any designation of the law or legal system of a given state
shall be construed, unless otherwise expressed, as directly referring to
the substantive law of that state and not its conflict of laws rules.

b. Failing any designation by the parties, the arbitral tribunal shall apply
the law determined by the conflict of laws rules, which it considers
applicable.

c. The arbitral tribunal shall decide ex aequo et bono or as amiable

compositeur only if the parties have expressly authorized it to do so.

d. In all cases, the arbitral tribunal shall decide in accordance with the
terms of the contract and shall take into account the usages of the trade
applicable to the transaction. (Article 4.28., IRR, RA 9285)

12. Decision-making by Panel of Arbitrators

In arbitral proceedings with more than one arbitrator, any decision of

the arbitral tribunal shall be made, unless otherwise agreed by other parties,
by a majority of all its members. However, questions of procedure may be
decided by a presiding arbitrator, if so authorized by the parties or all
members of the arbitral tribunal. (Article 4.29., IRR, RA 9285)

13. Settlement

If, during arbitral proceedings, the parties settle the dispute, the
arbitral tribunal shall terminate the proceedings and, if requested by the
parties and not objected to by the arbitral tribunal, record the settlement in
the form of an arbitral award on agreed terms. An award on agreed terms
shall be made in accordance with the provisions of Article 4.31 (Form and
Contents of Award), and shall state that it is an award. Such an award has
the same status and effect as any other award on the merits of the case.
(Article 4.30., IRR, RA 9285)

14. On Forum and Contents of Award

a. The award shall be made in writing and shall be signed by the

arbitrator or arbitrators. In arbitral proceedings with more than one
arbitrator, the signatures of the majority of all members of the arbitral
tribunal shall suffice, provided that the reason for any omitted signature
is stated.

b. The award shall state the reasons upon which it is based, unless the
parties have agreed that no reasons are to be given or the award is an
award on agreed terms under paragraph (a) of Article 4.20 (Place of
Arbitration).

c. The award shall state its date and the place of arbitration as
determined in accordance with paragraph (a) of this Article. The award
shall be deemed to have been made at that place.

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 d. After the award is made, a copy signed by the arbitrators in
accordance with paragraph (a) of this Article shall be delivered. to each
party. (Article 4.31., IRR, RA 9285)

15. On termination of Proceedings

a. The arbitral proceedings are terminated by the final award or by an order

of the arbitral tribunal in accordance with paragraph (b) of this Article.

b. The arbitral tribunal shall issue an order for the termination of the arbitral
proceedings when:
 The claimant withdraws his/her/its claim, unless the respondent
objects thereto and the arbitral tribunal recognized a legitimate interest on
his/her/its part in obtaining a final settlement of the dispute;
 The parties agree the termination of the proceedings;
 The arbitral tribunal finds that the continuation of the proceedings
has for any other reason become unnecessary or impossible.

c. The mandate of the arbitral tribunal ends with termination of the arbitral
proceedings subject to the provisions of Articles 4.33 (Correction and
Interpretation of Award, Additional Award) and paragraph (d) of Articles 4.34
(Application for Setting Aside an Exclusive Recourse against Arbitral Award).

d. Notwithstanding the foregoing, the arbitral tribunal may, for special

reasons, reserve in the final award or order, a hearing to quantity costs and
determine which party shall bear the costs or the division thereof as may be
determined to be equitable. Pending determination of this issue, the award
shall not be deemed final for purposes of appeal ,vacation, correction, or any
post-award proceedings. (Article 4.32., IRR, RA 9285)

16. On Correction and Interpretation of Award, Additional Award

a. Within thirty (30) days from receipt of the award, unless another period of
time has been agreed upon by the parties:

 A party may, with notice to the other party, request the arbitral tribunal
to correct in the award any errors in computation, any clerical or
typographical errors or any errors of similar nature;
 A party may, it so agreed by the parties and with notice to the other
party, request the arbitral tribunal to give an interpretation of a specific
point or part of the award.

b. If the arbitral tribunal considers the request to be justified, It shall make

the correction or give the interpretation within thirty (30) days from receipt
of the request. The interpretation shall form part of the award.

c. The arbitral tribunal may correct any error of the type referred to in
paragraph (a) of this Article on its own initiative within thirty (30) day from
the date of the award.

d. Unless otherwise agreed by the parties, a party may, with notice to the
other party, request, within thirty (30) days receipt of the award, the arbitral
tribunal to make an additional award as to claims presented in the arbitral
proceedings but omitted from the award. If the arbitral tribunal considers the
request to be justified, it shall make the additional award within sixty (60)
days

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e. The arbitral tribunal may extend, if necessary, the period of time within
which it shall make a correction interpretation or an additional award under
paragraphs (a) and (b) of this Article.

f. The provisions of Article 4.31 (Form and Contents of Award) shall apply to
a correction or interpretation of the award or to an additional award. (Article
4.33., IRR, RA 9285)

17. On Application for Setting Aside an Exclusive course against

Arbitral Award

a. Recourse to a court against an arbitral award may be made only by

application for setting aside in accordance with second and third paragraphs
of this Article.

b. An arbitral award may be set aside by the Regional Trial Court only If:
1. the party making the application furnishes proof that:
 a party to the arbitration agreement was under some incapacity; or
the said agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of the
Philippines; or
 the party making the application was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
 the award deals with a dispute not contemplated by or not failing
within the terms of the submission to arbitration, or contains, decisions
on matters beyond the scope of the submission to arbitration, provided
that, if the decisions on matters submitted to arbitration can be
separated from those not so submitted, only the part of the award
which contains decisions on matters not submitted to arbitration may
be set aside; or
 the composition of the arbitral tribunal or the arbitral procedure was
not in accordance with the agreement of the parties, unless such
agreement was in conflict with a provision of ADR Act from which the
parties cannot derogate, or, falling such agreement, was not in
accordance with ADR Act; or
2. the Court finds that:
 the subject-matter of the dispute is not capable of settlement by
arbitration under the law of the Philippines; or
 the award is in conflict with the public policy of the Philippines.

c. An application for setting aside may not be made after three months have
elapsed from the date on which the party making that application had
received the award or, If a request had been made under Article 4.33
(Correction and Interpretation of Award, Additional Award) from the date on
which that request has been disposed of by the Arbitral tribunal

d. The court, when asked to set aside an award, may, where appropriate and
so requested by a party, suspend the setting aside proceedings for a period
of time determined by it in order to give the arbitral tribunal an opportunity
resume the arbitral proceedings or take such other action as in the arbitral
tribunal's opinion will eliminate the grounds for setting aside.

e. A party may bring a petition under this Article before the court in
accordance with the Special ADR Rules. (Article 4.34., IRR, RA 9285)

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 SEGMENT VI: RECOGNITION AND ENFORCEMENT OF AWARDS

69. What are the rules on recognition and enforcement?

The Rules on recognition and enforcement are as follows:

a. A foreign arbitral award shall be recognized as binding and, upon

petition in writing to the regional trial Court, shall be enforced subject to
the provisions of this Article and of Article 4.36 (Grounds for Refusing
Recognition or Enforcement).

b. The petition for recognition and enforcement of such arbitral awards

shall be filled with the Regional trial Court In accordance with Special ADR
Rules.

1. Convention Award - The New York Convention shall govern the

recognition and enforcement of arbitral awards covered by said
Convention. The petitioner shall establish that the country in which the
foreign arbitration award was made is a party to the New York
Convention.

2. Non-Convention Award – The recognition and enforcement of foreign

arbitral awards not covered by the New York Convention shall be done
in accordance with procedural rules to be promulgated by the Supreme
Court. The court may, on grounds of comity and reciprocity, recognize
and enforce a non-convention award as a convention award.

c. The party relying on an award or applying for its enforcement shall file
with the Regional Trial Court the original or duly authenticated copy of the
award and the original arbitration agreement or a duly authenticated copy
thereof. If the award or agreement is not made in an official language of
the Philippines, the party shall supply a duly certified translation thereof
into such language.

d. A foreign arbitral award when confirmed by a court of a foreign country,

shall be recognized and enforced as a foreign arbitral award and not as a
judgment of a foreign court.

e. A foreign arbitral award when confirmed by the Regional Trial Court,

shall be enforced in the same manner as final and executory decisions of
courts of law of the Philippines.

f. If the Regional Trial Court has recognized the arbitral award but an
application for rejection and/or) suspension of enforcement of that award
is subsequently made, the Regional Trial Court may, if it considers the
application to be proper, vacate or suspend the decision to enforce that
award and may also, on the application of the party claiming recognition
or enforcement of that award, order the other party seeking
rejection or suspension to provide appropriate security. (Article 4.35., IRR,
RA 9285)

70. What are the grounds for refusing recognition or enforcement of

convention award and non-convention awards?

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The grounds for refusing recognition or enforcement are as follows:

a. WITH RESPECT TO CONVENTION AWARD

Recognition or enforcement of an arbitral award, made in a state,

which is a party to the New York Convention, may be refused, at the request
of the party against whom it is provoked, only if the party furnishes to the
Regional Trial Court proof that:

a. The parties to the arbitration agreement are, under the law applicable to
them, under some incapacity; or the said agreement is not valid under the
law to which the parties have subjected it or; failing any indication thereon,
under the law of the country where the award was made; or

b. the party against whom the award is invoked was not given proper notice
of the appointment of an arbitrator or of the arbitral proceedings or was
otherwise in able to present his case; or
c. the award deals with dispute not contemplated by or not failing within the
terms of the submission to arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration; provided that, if the
decisions on matters submitted to arbitration can be separated from those
not so submitted, that part of the award which contains decisions on matters
submitted to arbitration may be recognized and enforced; or

d. the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties or, failing such agreement,
was not in accordance with the law of the country where the arbitration too
place; or

e. the award has not become binding on the parties or has been set aside or
suspended by a court of the country in which, or under the law of which, that
award was made. Recognition and enforcement of an arbitral award may
also be refused if the Regional Trial Court where recognition and
enforcement is sought finds that:

a. the subject-matter of the dispute is not capable of settlement by

arbitration under the law of Philippines; or

b. the recognition or enforcement of the award would be contrary to the

public policy of the Philippines. A party to a foreign arbitration proceeding
may oppose an application for recognition and enforcement of the arbitral
award in accordance with the Special ADR Rules only on the grounds
enumerated under paragraph (a) and (c) of Article 4.35 (Recognition and
Enforcement). Any other ground raised shall be disregarded by the
Regional Trial Court.

B. WITH RESPECT TO NON-CONVENTION AWARD

a. A foreign arbitral award rendered in a state which is not a party to the

New York Convention will be recognized upon proof of the existence of
comity and reciprocity and may be treated as a convention award. If not so
treated and if no comity or reciprocity exists, the non-convention award
cannot be recognized and/or enforced but may be deemed as presumptive
evidence of a right as between the parties in accordance with Section 48 of
the Rules of Court.

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b. If the Regional Trial Court has recognized the arbitral award but a petition
for suspension of enforcement of that award is subsequently made, the
Regional Trial Court may, if it considers the petition to be proper, suspend
the proceedings to enforce the award, and may also, on the application of
the party claiming recognition or enforcement of that award, order the other
party seeking suspension to provide appropriate security.

c. If the petition for recognition or enforcement of the arbitral award is filed

by a party and a counter-petition for the rejection of the arbitral award is
filed by the other party, the Regional Trial Court may, if it considers the
counter-petition to be proper but the objections thereto may be rectified or
cured, remit the award to the arbitral tribunal for appropriate action and in
the meantime suspend the recognition and enforcement proceedings and
may also on the application of the petitioner order the counter-petitioner to
provide appropriate security. (Article 4.36., IRR, RA 9285)

71. What is the remedy of the losing party from an Arbitral award
rendered by the Regional Trial Court?

A decision of the Regional Trial Court recognizing, enforcing, vacating

or setting aside an arbitral award may be appealed to the Court of Appeals in
accordance with the rules of procedure to be promulgated by the Supreme
Court. (Article 4.37., IRR, RA 9285)

72. Is the appellant required to post bond?

Yes. The losing party who appeals from the judgment of the court
recognizing and enforcing an arbitral award shall be required by the Court of
Appeals to post a counter-bond executed if favor of the prevailing party
equal to the amount of the award in accordance with the Special ADR Rules.
(Article 4.37., IRR, RA 9285)

73. Is a stipulation that the arbitral tribunal’s award or decision

shall be final and valid?

Yes. Any stipulation by the parties that the arbitral tribunal’s award or
decision shall be final, and therefore not appealable, is valid. (Article 4.37.,
IRR, RA 9285)

74. What is the consequence if there is a stipulation that the

arbitral tribunal’s award or decision shall be final?
Such stipulation carries with it a waiver of the right to appeal from an
arbitral award. Article 4.18., IRR, RA 9285)

75. Is the remedy of certiorari under the Rule 65 of the Rules of

Court available if appeal is deemed waived by virtue of the
aforesaid stipulation?

Yes. The implementing rules expressly provide that it is without

prejudice to judicial review by way of certiorari under Rule 65 of the Rules of
Court. (Article 4.18., IRR, RA 9285).

76. What is the nature of the proceedings involved in the following?

a. Recognition and enforcement of an arbitration agreement or

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b. Vacation or setting aside of an arbitral award, and

c. Any application with a court for arbitration assistance and supervision,

except appeal. Under Article 4.38 of the IRR of RA 9825, proceedings for
recognition and enforcement of an arbitration agreement or for vacation or
setting aside an arbitral award, and any application with a court for
arbitration assistance and supervision, except appeal shall be deemed as
special proceedings.

77. Which Court has jurisdiction to try these cases cite the venue
thereof.

The cases may be filed with the Regional Trial Court where:
a. the arbitration proceedings are conducted;
b. where the asset to be attached or levied upon, or the act to be
enjoined is located;
c. where any of the parties to the dispute resides or has its place of
business; or
d. in the National Capital Judicial Region at the option of the applicant.
(Article 4.38., IRR, RA 9285)

78. Is notice of proceedings to parties mandatory?

Yes. In a special proceeding for recognition and enforcement of an

arbitral award, the court shall send notice to the parties at their address of
record in the arbitration, or if any party cannot be served notice at such
address, at such party’s last known address. The notice shall be sent at least
fifteen (15) days before the date set for the initial hearing of the application.
(Article 4.39., IRR, RA 9285)

79. Is a party entitled to legal representation in international

commercial arbitration conducted in the Philippines?

Yes. In international commercial arbitration conducted in the

Philippines, a party may be represented by any person of his/her choice:
Provided, that such representative, unless admitted to the practice of law in
the Philippines, shall not be authorized to appear as counsel in any Philippine
court or any other quasi-judicial body whether or not such appearance is in
relation to the arbitration in which he/she appears. (Article 4.40., IRR, RA
9285)

80. May the Arbitration proceedings be disclosed to the public?

No. The arbitration proceedings, including the records, evidence and

the arbitral award, shall be considered confidential and shall not be poolside
except:

a. with the consent of the parties; or

b. for the limited purpose of disclosing to the court 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

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 prejudiced by an authorized disclosure thereof. (Article 4.41., IRR, RA
9285)

81. Is a petition for recognition and enforcement of awards

summary in nature?

Yes. A petition for recognition and enforcement of awards brought

before the court shall be heard and dealt with summarily in accordance with
the Special ADR Rules. (Article 4.42., IRR, RA 9285)

82. What is the consequence when a party dies making submission

or a contract to arbitrate?

When a party dies after making a submission or a contract to arbitrate

as prescribed in these Rules, the proceedings may be begun or continued
upon the application of, or notice to, his/her executor or administrator, or
temporary administrator of his/her estate. In any such case, the court may
issue an order extending the time within which notice of a motion to
recognize or vacate an award must be served. Upon recognizing an award,
where a party has died since it was filed or delivered, the court must enter
judgement in the name of the original party; and the proceedings thereupon
are the same as where a party dies after a verdict. (Article 4.43., IRR, RA
9285)

83. What rules shall govern a multi-party arbitration?

When a single arbitration involves more than two parties, the foregoing
rules, to the extent possible, shall be used, subject to such modifications
consistent with this Chapter as the arbitral tribunal shall deem appropriate to
address possible complexities of a multi-party arbitration. (Article 4.44., IRR,
RA 9285)

84. May the parties agree to consolidate proceedings and

concurrent hearings?

Yes. The parties and the arbitral tribunal may agree –

a. that the arbitration proceedings shall be consolidated with other
arbitration proceedings; or

b. that concurrent hearings shall be held, on such terms as may be

agreed. Unless the parties agree to confer such power on the arbitral
tribunal, the tribunal has no power to order consolidation of arbitration
proceedings or concurrent hearings. (Article 4.45., IRR, RA 9285)

85. Discuss the costs of Arbitration in arbitral Tribunal’s Award.

Article 4.46 provides;

a. The arbitral tribunal shall fix the costs of arbitration in its award. The term
"costs" include only:
 The fees of the arbitral tribunal to be stated separately as to each
arbitrator and to be fixed by the tribunal itself in accordance with the
paragraph (b) of this Article;
 The travel and other expenses incurred by the arbitrators;
 The costs of expert advice and of other assistance required by the
arbitral tribunal;

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  The travel and other expenses of witnesses to the extent such
expenses are approved by the arbitral tribunal;
 The costs for legal representation and assistance of the successful
party if such costs were claimed during the arbitral proceedings, and
only to the extent that the arbitral tribunal determines that the amount
of such costs is reasonable;
 Any fees and expenses of the appointing authority.

b. The fees of the arbitral tribunal shall be reasonable in amount, taking into
account the amount in dispute, the complexity of the subject matter, the
time spent by the arbitrators and any other relevant circumstances of the
case. If an appointing authority has been agreed upon by the parties and if
such authority has issued a schedule of fees for arbitrators in international
cases which it administers, the arbitral tribunal in fixing its fees shall take
that schedule of fees into account to the extent that it considers appropriate
in the circumstances of the case. If such appointing authority has not issued
a schedule of fees for arbitrators in international cases, any party may, at
any time request the appointing authority to furnish a statement setting
forth the basis for establishing fees which is customarily followed in
international cases in which the authority appoints arbitrators. If the
appointing authority consents to provide such a statement, the arbitral
tribunal, in fixing its fees, shall take such information into account to the
extent that it considers appropriate in the circumstances of the case.

c. In cases referred to in the second and third sub-paragraphs of paragraph

(b) of this Article, when a party so requests and the appointing authority
consents to perform the function, the arbitral tribunal shall fix its fees only
after consultation with the appointing authority which may make any
comment it deems appropriate to the arbitral tribunal concerning the fees.

d. Except as provided in the next sub-paragraph of this paragraph, the costs

of arbitration shall, in principle, be borne by the unsuccessful party.
However, the arbitral tribunal may apportion each of such costs between the
parties if it determines that apportionment is reasonable, taking into account
the circumstances of the case. With respect to the costs of legal
representation and assistance referred to in paragraph (c) of paragraph (a)
(iii) of this Article, the arbitral tribunal, taking into account the circumstances
of the case, shall be free to determine which party shall bear such costs or
may apportion such costs between the parties if it determines that
appointment is reasonable. When the arbitral tribunal issues an order for the
termination of the arbitral proceedings or makes an award on agreed terms,
it shall fix the costs of arbitration referred to in paragraphs (b), (c) and (d) of
this Article in the context of that order or award.

e. The arbitral tribunal, on its establishment, may request each party to

deposit an equal amount as an advance for the costs referred to in
paragraphs (i), (ii) and (iii) of paragraph (a) of this Article. During the course
of the arbitral proceedings, the arbitral tribunal may request supplementary
deposits from the parties. If an appointing authority has been agreed upon
by the parties and when a party so requests and the appointing authority
consents to perform the function, the arbitral tribunal shall fix the amounts
of any deposits or supplementary deposits only after consultation with the
appointing authority which may make any comments to the arbitral tribunal
which it deems appropriate concerning the amount of such deposits and
supplementary deposits. If the required deposits are not paid in full within
thirty (30) days after receipt of the request, the arbitral tribunal shall so

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inform the parties in order that the required payment may be made. If such
payment is not made, the arbitral tribunal may order the suspension or
termination of the arbitral proceedings. After the award has been made, the
arbitral tribunal shall render an accounting to the parties of the deposits
received and return any unexpended balance to the parties. (Article 4.46.,
IRR, RA 9285)

SEGMENT VII: DOMESTIC ARBITRATION

86. What are the terms applicable to this chapter/segment? Explain.

1. Ad hoc Arbitration means arbitration administered by an arbitrator

and/or the parties themselves. An arbitration administered by an institution
shall be regarded as ad hoc arbitration if such institution is not a permanent
or regular arbitration institution in the Philippines.

2. 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.

3. 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/s and for
taking action thereon.

4. Arbitration means a voluntary dispute resolution process in which one or

more arbitrators, Appointed in accordance with the agreement of the parties
or these Rules, resolve a dispute by rendering an award.

5. Arbitral Tribunal means a sole arbitrator or a panel, board or committee

of arbitrators.
6. Claimant means a person/s with a claim against another and who
commence/s arbitration against the latter.

7. Court means, unless otherwise specified in these Rules, a Regional Trial

Court.

8. Day means calendar day.

9. Domestic Arbitration means arbitration that is not international as

defined in Article 1(3) of the Mode Law.

10. Institutional Arbitration means arbitration administered by an entity,

which is registered as a domestic corporation with the Securities and
Exchange Commission (SEC) and engaged in. among others, arbitration of
disputes in the Philippines on a regular and permanent basis.

11. Request for Appointment means the letter-request to the appointing

authority of either or both parties for the appointment of arbitrator/s or of
the two arbitrators first appointed by the parties for the appointment of the
third member of an arbitral tribunal.

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12. 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 to represent said party in the
arbitration proceedings.

13. Respondent means the person/s against whom the claimant

commence/s arbitration.

14. Written communication means the pleading, motion, manifestation,

notice, order, award and any other document or paper submitted or filed
with the arbitral tribunal or delivered to a party.

87. What is the Scope of application of Domestic Arbitration in this

segment/chapter?

The scope of application of Domestic Arbitration in Chapter 5, IRR or RA 9285

includes:

a. Domestic arbitration, which is not international as defined in

paragraph C8 of Article 1.6 shall continue to be governed by Republic
Act No. 876, otherwise known as "The Arbitration Law", as amended by
the ADR Act. 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 ADR Act are specifically
applicable to domestic arbitration. In the absence of a specific applicable
provision, all other rules applicable to international commercial
arbitration may be applied in a suppletory manner to domestic
arbitration.

b. This Chapter shall apply to domestic arbitration whether the dispute is

commercial, as defined in Section 21 of the ADR Act, or non-
commercial, by an arbitrator who is a private individual appointed by the
parties to hear and resolve their dispute by rendering an award;

Provided that, although a construction dispute may be

commercial, it shall continue to be governed by E.O. No. 1008, s.1985
and the rules promulgated by the Construction Industry Arbitration
Commission.

c. Two or more persons or parties may submit to arbitration by one or

more arbitrators any controversy existing between them at the time of
the submission and which may be the subject of an action; or the parties
to any contract may in such contract agree to settle by arbitration a
controversy thereafter arising between them. Such submission or
contract shall be valid, enforceable and irrevocable, save upon such
grounds as exist at law for the revocation of any contract. Such
submission or contract may include questions arising out of valuations,
appraisals or other controversies which may be collateral, incidental,
precedent or subsequent to any dispute between the parties. A
controversy cannot be arbitrated where one of the parties to the
controversy is an infant, or a person judicially declared to be
incompetent, unless the appropriate court having jurisdiction approved a
petition for permission to submit such controversy to arbitration made
by the general guardian or guardian ad litem of the infant or of the
incompetent. But where a person capable of entering into a submission
or contract has knowingly entered into the same with a person incapable

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 of so doing, the objection on the ground of incapacity can be taken only
in behalf of the person so incapacitated. (Article 5.1., IRR, RA 9285)

88. How should the delivery of written communication be made?

The delivery of written communication can be made through the following:

a. Except as otherwise agreed by the parties, a written communication
from one party to the other or to the arbitrator or to an arbitration
institution or from the arbitrator or arbitration institution to the parties
shall be delivered to the addressee personally, by registered mail or by
courier service. Such communication shall be deemed to have been
received on the date it is delivered at the addressee’s address of record,
place of business, residence or last known address. The communication,
as appropriate, shall be delivered to each party to the arbitration and to
each arbitrator, and, in institutional arbitration, one copy to the
administering institution.

b. During the arbitration proceedings, the arbitrator may order a mode

of delivery and a rule for receipt of written communications different
from that provided in paragraph (a) of this Article.

c. If a party is represented by counsel or a representative, written

communications for that party shall be delivered to the address of
record of such counsel or representative.

d. Except as the parties may agree or the arbitrator may direct

otherwise, a written communication may be delivered by electronic mail
or facsimile transmission or by such other means that will provide a
record of the sending and receipt thereof at the recipient’s mailbox
(electronic inbox). Such communication shall be deemed to have been
received on the same date of its transmittal and receipt in the mailbox
(electronic inbox). (Article 5.2., IRR, RA 9285)

89. When is a party deemed to have waived his right to object?

The following constitutes a waiver of right to object:

a. A party shall be deemed to have waived his right to object to non-
compliance with any non-mandatory provision of these Rules (from which
the parties may derogate) or any requirement under the arbitration
agreement when:
1. he/she/it knows of such non-compliance; and
2. proceeds with the arbitration without stating his/her/its objections
to such non-compliance without undue delay or if a time-limit is
provided therefor, within such period of time.

b. If an act is required or allowed to be done under this Chapter, unless

the applicable rule or the agreement of the parties provides a different
period for the act to be done, it shall be done within a period of thirty
(30) days from the date when such act could have been done with legal
effect. (Article 5.3., IRR, RA 9285)

90. Does a Court have the right to intervene?

In matters governed by this Chapter, no court shall intervene except in

accordance with the Special ADR Rules. (Article 5.4., IRR, RA 9285)

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91. What other functions may be performed by the appointing
authority?

Article 5.5 (Court or Other Authority for Certain Functions of Arbitration

Assistance and Supervision) of the IRR of RA 9285 provides:

“The functions referred to in paragraphs (c) and (d) of Article 5.10

(Appointment of Arbitrators), paragraph (a) of Article 5.11 (Grounds for
Challenge), and paragraph (a) of Article 5.13 (Failure or Impossibility to Act),
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.” (Article 5.5.,
IRR, RA 9285)

 ARBITRATION AGREEMENT

92. What is the form of an arbitration agreement?

An arbitration agreement shall be in writing. An agreement is in writing

if it is contained in a document signed by the parties or in an exchange of
letters, telex, telegrams or other means of telecommunication which provide
a record of the agreement, or in an exchange of statements of claim and
defense in which the existence of an agreement is alleged by one party and
not denied by the other. The reference in a contract to a document
containing an arbitration clause constitutes an arbitration agreement
provided that the contract is in writing and the reference is such as to make
that clause part of the contract. (Article 5.6, IRR, RA 9285)

93. May a party request the court to stay the action and refer the
dispute to arbitration?

A party to an action may request the court before which it is pending

to stay the action and to refer the dispute to arbitration in accordance with
their arbitration agreement not later than the pre-trial conference.
Thereafter, both parties may make a similar request with the court. The
parties shall be referred to arbitration unless the court finds that the
arbitration agreement is null and void, inoperative or incapable of being
performed. (Article 5.7, par. a, IRR, RA 9285) Where an action referred to in
paragraph (a) of this Article has been brought, arbitral proceedings may
nevertheless be commenced or continued, and an award may be made,
while the issue is pending before the court. (Article 5.7, par. b, IRR, RA 9285)

94. What must the court do when the action is commenced by or

against multiple parties, one or more of whom are parties to an
arbitration agreement?

Where the action is commenced by or against multiple parties, one or

more of whom are parties to an arbitration agreement, the court shall refer
to arbitration those parties who are bound by the arbitration agreement
although the civil action may continue as to those who are not bound by
such arbitration agreement. (Article 5.7, par. c, IRR, RA 9285)

95. May a party request for an Interim measure of protection?

Yes. It is not incompatible with an arbitration agreement for a party to

request from a court, before the constitution of the arbitral tribunal or during

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arbitral proceedings, an interim measure of protection and for a court to
grant such measure. After the 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. (Article 5.8, pars. a and b
respectively, IRR, RA 9285)

96. What are the rules on interim or provisional relief that must be
observed?

The following rules on interim or provisional relief shall be observed:

1. Any party may request that interim or provisional relief be granted
against the adverse party.
2. Such relief may be granted:
 To prevent irreparable loss or injury;
 To provide security for the performance of an obligation;
 To produce or preserve evidence; or
 To compel any other appropriate act or omissions.
 The order granting provisional relief may be conditioned upon the
provision of security or any act or omission specified in the order.
 Interim or provisional relief is requested by written application
transmitted by reasonable means to the arbitral tribunal and the
party against whom relief is sought, describing in appropriate detail
of the precise relief, the party against whom the relief is requested,
the ground for the relief, and the evidence supporting the request.
 The order either grating or denying an application for interim
relief shall be binding upon the parties.
 Either party may apply with the court for assistance in
implementing or enforcing an interim measure ordered by an
arbitral tribunal.
 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. (Article 5.8., IRR, RA 9285)

97. What are the matters deemed included in the interim measures
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 in respect of the
subject matter of the dispute following the Rules in this Article. Such interim
measures may include but shall not be limited to preliminary injunction
directed against a party, appointment of receivers or detention,
preservation, inspection of property that is the subject of the dispute in
arbitration. Either party may apply with the court for assistance in
implementing or enforcing an interim measure ordered by an arbitral
tribunal. (Article 5.8, par. d, IRR, RA 9285)

 COMPOSITION OF ARBITRAL TRRIBUNAL

98. How many Arbitrators must constitute an Arbitral Tribunal?

The parties are free to determine the number of arbitrators. Failing
such determination, the number of arbitrators shall be three (3). (Article 5.9.,
IRR, RA 9285)

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99. Who may be appointed as arbitrators?

 Any person appointed to serve as an arbitrator must be of legal age, in

full enjoyment of his/her civil rights and knows how to read and write.
 No person appointed to serve as an arbitrator shall be related by blood
or marriage within the sixth degree to either party to the controversy.
 No person shall serve as an arbitrator in any proceeding if he/she has
or has had financial, fiduciary or other interest in the controversy or
cause to be decided or in the result of the proceeding, or has any
personal bias, which might prejudice the right of any party to a fair and
impartial award.
 No party shall select as an arbitrator any person to act as his/her
champion or to advocate his/her cause. (Article 5.10, par. a, IRR, RA
9285)

100. What is the procedure in the appointment of Arbitrator or

Arbitrators?

The parties are free to agree on a procedure of appointing the

arbitrator or arbitrators. If, in the contract for arbitration or in the
submission, a provision is made for a method of appointing an arbitrator or
arbitrators, such method shall be followed. (Article 5.10, par. b, IRR, RA
9285) Failing such agreement,

a. in an arbitration with three (3) arbitrators, each party shall appoint one
(1) arbitrator, and the two (2) arbitrators thus appointed shall appoint the
third arbitrator; if a party fails to appoint the arbitrator within thirty (30)
days of receipt of a request to do so from the other party, or if the two
arbitrators fail to agree on the third arbitrator within thirty (30) days of
their appointment, the appointment shall be made, upon request of a
party, by the appointing authority;

b. in an arbitration with a sole arbitrator, if the parties are unable to

agree on the arbitrator, he/she shall be appointed, upon request of a
party, by the appointing authority. (Article 5.10, par. c, IRR, RA 9285)
Where, under an appointment procedure agreed upon by the parties,
a. a party fails to act or appoint an arbitrator as required under such
procedure, or
b. the parties, or two (2) arbitrators, are unable to appoint an
arbitrator or reach an agreement expected of them under such
procedure, or
c. a third party, including an institution, fails to appoint an arbitrator
or to perform any function entrusted to it under such procedure, or
d. The multiple claimants or the multiple respondents is/are unable to
appoint its/their respective arbitrator, any party may request the
appointing authority to appoint an arbitrator.
In making the appointment, the appointing authority shall summon the
parties and their respective counsel to appear before said authority on the
date, time and place set by it, for the purpose of selecting and appointing a
sole arbitrator. If a sole arbitrator is not appointed in such meeting, or the
meeting does not take place because of the absence of either or both parties
despite due notice, the appointing authority shall appoint the sole arbitrator.
(Article 5.10, par. d, IRR, RA 9285)
If the default appointment of an arbitrator is objected to by a party on
whose behalf the default appointment is to be made, and the defaulting

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party requests the appointing authority for additional time to appoint his/her
arbitrator, the appointing authority, having regard to the circumstances, may
give the requesting party not more than thirty (30) days to make the
appointment.
If the objection of a party is based on the ground that the party did not
fail to choose and appoint an arbitrator for the arbitral tribunal, there shall be
attached to the objection the appointment of an arbitrator together with the
latter’s acceptance thereof and curriculum vitae. Otherwise, the appointing
authority shall appoint the arbitrator for that party. (Article 5.10, par. e, IRR,
RA 9285)
In making a default appointment, the appointing authority shall have
regard to such considerations as are likely to secure the appointment of an
independent and impartial arbitrator. In order to achieve speedy and
impartial justice and to moderate the cost of arbitration, in choosing an
arbitrator, the appointing authority shall give preference to a qualified
person who has a place of residence or business in the same general locality
as the agreed venue of the arbitration and who is likely to accept the
arbitrator’s fees agreed upon by the parties, or as fixed in accordance either
with the internal guidelines or the Schedule of Fees approved by the
administering institution or by the appointing authority. (Article 5.10, par. f,
IRR, RA 9285)
The appointing authority shall give notice in writing to the parties of
the appointment made or its inability to comply with the Request for
Appointment and the reasons why it is unable to do so, in which later case,
the procedure described under Article 5.5 (Court or Other Authority for
Certain Functions of arbitration Assistance and Supervision) shall apply.
(Article 5.10, par. g, IRR, RA 9285)
A decision on a matter entrusted by this Article to the appointing
authority shall be immediately executory and not subject to appeal or motion
for reconsideration. The appointing authority shall be deemed to have been
given by the parties discretionary authority in making the appointment but in
doing so, the appointing authority shall have due regard to any qualification
or disqualification of an arbitrator/s under paragraph (a) of Article 5.10
(Appointment of Arbitrators) as well as any qualifications required of the
arbitrator/s by the agreement of the parties and to such considerations as
are likely to secure the appointment of an independent and impartial
arbitrator. (Article 5.10, par. h, IRR, RA 9285)
The chairman of the arbitral tribunal shall be selected in accordance
with the agreement of the parties and/or the rules agreed upon or, in default
thereof, by the arbitrators appointed. (Article 5.10, par. i, IRR, RA 9285) Any
clause giving one of the agreement, if otherwise valid, shall be construed as
permitting the appointment of one (1) arbitrator by all claimants and one (1)
arbitrator by all respondents. The third arbitrator shall be appointed as
provided above.
If all the claimants or all the respondents cannot decide among
themselves on an arbitrator, the appointment shall be made for them by the
appointing authority. Article 5.10, par. j, IRR, RA 9285)

The appointing authority may adopt Guidelines for the making of a Request
for Appointment. Article 5.10, par. k, IRR, RA 9285) Except as otherwise
provided in the Guidelines of the appointing authority, if any, a Request for
Appointment shall include, as applicable, the following:
a. the demand for arbitration;
b. the name/s and curricula vitae of the appointed arbitrator/s;
c. the acceptance of his/her/its appointment of the appointed
arbitrator/s;

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 d. any qualification or disqualification of the arbitrator as provided in
the arbitration agreement;
e. an executive summary of the dispute which should indicate the
nature of the dispute and the parties thereto;
f. principal office and officers of a corporate party;
g. the person/s appearing as counsel for the party/ies; and
h. information about arbitrator’s fees where there is an agreement
between the parties with respect thereto.

In institutional arbitration, the request shall include such further

information or particulars as the administering institution shall require.
Article 5.10, par. l, IRR, RA 9285)

A copy of the Request for Appointment shall be delivered to the

adverse party. Proof of such delivery shall be included in, and shall form part
of, the Request for Appointment filed with the appointing authority. Article
5.10, par. m, IRR, RA 9285)

A party upon whom a copy of the Request for Appointment is

communicated may, within seven (7) days of its receipt, file with the
appointing authority his/her/its objection/s to the Request or ask for an
extension of time, not exceeding thirty (30) days from receipt of the request,
to appoint an arbitrator or act in accordance with the procedure agreed upon
or provided by these Rules.

Within the aforementioned periods, the party seeking the extension

shall provide the appointing authority and the adverse party with a copy of
the appointment of his/her arbitrator, the latter’s curriculum vitae, and the
latter’s acceptance of the appointment.

In the event that the said party fails to appoint an arbitrator within said
period, the appointing authority shall make the default appointment. (Article
5.10, par. n, IRR, RA 9285)
An arbitrator, in accepting an appointment, shall include, in his/her
acceptance letter, a statement that:
a. he/she agrees to comply with the applicable law, the arbitration
rules agreed upon by the parties, or in default thereof, these Rules,
and the Code of Ethics for Arbitrators in Domestic Arbitration, if any;

b. he/she accepts as compensation the arbitrator’s fees agreed upon

by the parties or as determined in accordance with the rules agreed
upon by the parties, or in default thereof, these Rules; and

c. he agrees to devote as much time and attention to the arbitration as

the circumstances may require in order to achieve the objective of a
speedy, effective and fair resolution of the dispute. (Article 5.10, par.
0, IRR, RA 9285)

101. What are the grounds to challenge an Arbitrator?

a. When a person is approached in connection with his/her possible

appointment as an arbitrator, he/she shall disclose any circumstance
likely to give rise to justifiable doubts as to his/her impartiality,
independence, qualifications and disqualifications. An arbitrator, from the
time of his/her appointment and throughout the arbitral proceedings, shall
without delay, disclose any such circumstances to the parties unless

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 they have already been informed of them by him/her.
A person, who is appointed as an arbitrator notwithstanding the
disclosure made in accordance with this Article, shall reduce the
disclosure to writing and provide a copy of such written disclosure to all
parties in the arbitration.

b. An arbitrator may be challenged only if:

1. circumstances exist that give rise to justifiable doubts as to his/her

impartiality or independence;
2. he/she does not possess qualifications as provided for in this
Chapter or those agreed to by the parties;
3. he/she is disqualified to act as arbitration under these Rules;
4. he refuses to respond to questions by a party regarding the nature
and extent of his professional dealings with a party or its counsel.

c. If, after appointment but before or during hearing, a person appointed

to serve as an arbitrator shall discover any circumstances likely to create
a presumption of bias, or which he/she believes might disqualify him/her
as an impartial arbitrator, the arbitrator shall immediately disclose such
information to the parties. Thereafter, the parties may agree in writing:
1. to waive the presumptive disqualifying circumstances; or
2. to declare the office of such arbitrator vacant. Any such vacancy
shall be filed in the same manner the original appointment was made.

d. After initial disclosure is made and in the course of the arbitration

proceedings, when the arbitrator discovers circumstances that are likely
to create a presumption of bias, he/she shall immediately disclose those
circumstances to the parties. A written disclosure is not required where it
is made during the arbitration and it appears in a written record of the
arbitration proceedings.

e. An arbitrator who has or has had financial or professional dealings with

a party to the arbitration or to the counsel of either party shall disclose in
writing such fact to the parties, and shall, in good faith, promptly respond
to questions from a party regarding the nature, extent and age of such
financial or professional dealings. (Article 5.11., IRR, RA 9285)

102. What is the procedure to challenge an Arbitrator?

The procedure to challenge an arbitrator is as follows:

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

b. Failing such agreement, a party who intends to challenge an arbitrator

shall, within fifteen (15) days after becoming aware of the constitution of
the arbitral tribunal or after becoming aware of any circumstance referred
to in paragraph (b) of Article 5.11 (Grounds for Challenge), send a written
statement of the reasons for the challenge to the arbitral tribunal. Unless
the challenged arbitrator withdraws from his/her office or the other party
agrees to the challenge, the arbitral tribunal shall decide on the
challenge.

c. If a challenge under any procedure agreed upon by the parties or under

the procedure of paragraph (b) of this Article in not successful, the
challenging party may request the appointing authority, within thirty (30)

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 days after having received notice of the decision rejecting the challenge,
to decide on the challenge, which decision shall be immediately executory
and not subject to appeal or motion for reconsideration. While such a
request is pending, the arbitral tribunal, including the challenged
arbitrator, may continue the arbitral proceedings and make an award.

d. If a request for inhibition is made, it shall be deemed as a challenge.

e. A party may challenge an arbitrator appointed by him/her/it, or in

whose appointment he/she/it has participated, only for reasons of which
he/she/it becomes aware after the appointment has been made.

f. The challenge shall be in writing and it shall state specific facts that
provide the basis for the ground relied upon for the challenge. A challenge
shall be made within fifteen (15) days from knowledge by a party of the
existence of a ground for a challenge or within fifteen (15) days from the
rejection by an arbitrator of a party’s request for his/her inhibition.

g. Within fifteen (15) days of receipt of the challenge, the challenged

arbitrator shall decide whether he/she shall accept the challenge or reject
it. If he/she accepts the challenge, he/she shall voluntarily withdraw as
arbitrator. If he/she rejects it, he/she shall communicate, within the same
period of time, his/her rejection of the challenge and state the facts and
arguments relied upon for such rejection.

h. An arbitrator who does not accept the challenge shall be given an

opportunity to be heard.

i. Notwithstanding the rejection of the challenge by the arbitrator, the

parties may, within the same fifteen (15) day period, agree to the
challenge.

j. In default of an agreement of the parties to agree on the challenge

thereby replacing the arbitrator, the arbitral tribunal shall decide on the
challenge within thirty (30) days from receipt of the challenge.

k. If the challenge procedure as agreed upon by the parties or as provided

in this Article is not successful, or a party or the arbitral tribunal shall
decline to act, the challenging party may request the appointing authority
in writing to decide on the challenge within thirty (30) days after having
received notice of the decision rejecting the challenge. The appointing
authority shall decide on the challenge within fifteen (15) days from
receipt of the request. If the appointing authority shall fail to act on the
challenge within thirty (30) days from the date of its receipt or within such
further time as it may fix, with notice to the parties, the requesting party
may renew the request with the court.
The request made under this Article shall include the challenge, the
reply or explanation of the challenged arbitrator and relevant
communication, if any, from either party, or from the arbitral tribunal.

l. Every communication required or agreement made under this Article in

respect of a challenge shall be delivered, as appropriate, to the
challenged arbitrator, to the parties, to the remaining members of the
arbitral tribunal and to the institution administering the arbitration, if any.

m. A challenged arbitrator shall be replaced if:

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 1. he/she withdraws as arbitrator, or
2. the parties agree in writing to declare the office of arbitrator vacant,
or
3. the arbitral tribunal decides the challenge and declares the office of
the challenged arbitrator vacant, or
4. the appointing authority decides the challenge and declares the
office of the challenged arbitrator vacant, or
5. in default of the appointing authority, the court decides the
challenge and declares the office of the challenged arbitrator vacant.

n. The decision of the parties, the arbitral tribunal, the appointing authority,
or in proper cases, the court, to accept or reject a challenge is not subject to
appeal or motion for reconsideration.

o. Until a decision is made to replace the arbitrator under this Article, the
arbitration proceeding shall continue notwithstanding the challenge, and the
challenged arbitrator shall continue to participate therein as an arbitrator.
However, if the challenge incident is raised before the court, because the
parties, the arbitral tribunal or appointing authority failed or refused to act
within the period provided in paragraphs (j) and (k) of this Article, the
arbitration proceeding shall be suspended until after the court shall have
decided the incident. The arbitration shall be continued immediately after
the court has delivered an order on the challenging incident. If the court
agrees that the challenged arbitrator shall be replaced, the parties shall
immediately replace the arbitrator concerned.

p. The appointment of a substitute arbitrator shall be made pursuant to the

procedure applicable to the appointment of the arbitrator being
replaced. (Article 5.12., IRR, RA 9285)

103. What are the consequences if there is failure or impossibility to

act?

a. If an arbitrator becomes de jure or de facto unable to perform his/her

functions or for other reasons fails to act without undue delay, his/her
mandate terminates if he/she withdraws from his/her office or if the
parties agree on the termination. Otherwise, if a controversy remains
concerning any of these grounds, any party may request the appointing
authority to decide on the termination of the mandate, which decision
shall be immediately executory and not subject to appeal or motion for
reconsideration.

b. If, under this Article or Article 5.12 (Challenge Procedure), an

arbitrator withdraws from his/her office or a party agrees to the
termination of the mandate of an arbitrator, this does not imply
acceptance of the validity of any ground referred to in this Article 5.12.
(Article 5.13., IRR, RA 9285)

104. When is the appointment of a substitute arbitrator proper?

Where the mandate of an arbitrator terminates under Articles 5.12

(Challenge Procedure) or 5.13 (Failure or Impossibility) or because of his
withdrawal from office for any other reason or because of the revocation of
his mandate by agreement of the parties or in any other case of termination

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of his/her mandate, a substitute arbitrator shall be appointed according to
the rules applicable to the arbitrator being replaced. (Article
5.14., IRR, RA 9285)

 JURISDICTION OF ARBITRAL TRIBUNAL

105. What are the grounds for objection over the jurisdiction of the
arbitral tribunal?
a. When a demand for arbitration made by a party to a dispute is objected to
by the adverse party, the arbitral tribunal shall, in the first instance, resolve
the objection when made on any of the following grounds:
1. the arbitration agreement is in existent, void, unenforceable or not
binding upon a person for any reason, including the fact that the adverse
party is not privy to said agreement; or
2. the dispute is not arbitrable or is outside the scope of the arbitration
agreement; or
3. the dispute is under the original and exclusive jurisdiction of a court or
quasi-judicial body,

b. If a party raises any of the grounds for objection, the same shall not
preclude the appointment of the arbitrator/s as such issue is for the arbitral
tribunal to decide.
The participation of a party in the selection and appointment of an
arbitrator and the filling of appropriate pleadings before the arbitral tribunal
to question its jurisdiction shall not be construed as a submission to the
jurisdiction of the arbitral tribunal or of a waiver of his/her/its right to assert
such grounds to challenge the jurisdiction of the arbitral tribunal or the
validity of the resulting award.

c. The respondent in the arbitration may invoke any such grounds to

question before the court the existence, validity, or enforceability of the
arbitration agreement, or the propriety of the arbitration, or the jurisdiction
of the arbitrator and invoke the pendency of such action as ground for
suspension of the arbitration proceeding. The arbitral tribunal, having regard
to the circumstances of the case, and the need for the early and expeditious
settlement of the dispute, in light of the facts and arguments raised to
question its jurisdiction, may decide either to suspend the arbitration until
the court has made a decision on the issue or continue with arbitration.

d. If a dispute is, under an arbitration agreement, to be submitted to

arbitration, but before arbitration is commenced or while it is pending, a
party files an action before the court which embodies or includes as a cause
of action the dispute that is to be submitted to arbitration the filling of such
action shall not prevent the commencement of the arbitration or the
continuation of the arbitration until the award is issued. (Article 5.15., IRR,
RA 9285)

106. Can an arbitral tribunal order interim measures?

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 in respect of the
subject matter of the dispute following the rules in this Article. Such interim
measures may include, but shall not be limited to preliminary injunction
directed against a party, appointment of receivers or detention preservation,

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inspection of property that is the subject of the dispute in arbitration. (Article
5.15, par. a, IRR, RA 9285)

107. When may a request for interim measure of protection be

made?

After the constitution of the arbitral tribunal, and during arbitral

proceedings, a request for interim measures of protection, or modification
thereof, shall be made with the arbitral tribunal. 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. (Article 5.15, par. b, IRR, RA 9285)

108. What are the Rules on interim or provisional Relief that must
be observed?

The following rules on interim or provisional relief shall be observed:

1. Any party may request that the provisional or interim relief be granted
against the adverse party.
2. Such relief may be granted:
a. To prevent irreparable loss or injury;
b. To provide security for the performance of an obligation;
c. To produce or preserve evidence; or
d. To compel any other appropriate act or omissions.
3. The order granting provisional relief may be conditioned upon the
provision of security or any act or omission specified in the order.
4. Interim or provisional relief is requested by written application
transmitted by reasonable means to the arbitral tribunal and the party
against whom relief is sought, describing in appropriate detail the precise
relief, the party against whom the relief is requested, the ground for the
relief and the evidence supporting the request.
5. The order either granting or denying an application for interim relief
shall be binding upon the parties.
6. Either party may apply with the court for assistance in implementing or
enforcing an interim measure ordered by an arbitral tribunal.
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 fee paid in obtaining the order’s judicial
enforcement. (Article 5.16, par. c, IRR, RA 9285)

 CONDUCT OF ARBITRAL PROCEEDINGS

109. Discuss the conduct of Arbitral proceedings

1. On Equal Treatment of Parties

The parties shall be treated with equally and each party shall be given a full
opportunity of presenting his/her/its case. (Article 5.17., IRR, RA 9285)

2. On Determination of Rules of Procedure

a. Subjected to the provisions of these Rules, the parties are free to agree on
the procedure to be followed by the arbitral tribunal in conducting the
proceedings.

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b. Failing such agreement, the arbitral tribunal may subject to the provision
of the ADR Act, conduct the arbitration in such manner as it considers
appropriate. The power conferred upon the arbitral tribunal includes the
power to determine admissibility, relevance, materially and weight of
evidence. (Article 5.18., IRR, RA 9285)

3. On Place of Arbitration

a. 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. (Article 5.19., IRR, RA 9285)

4. On Commencement of Arbitral Proceedings

a. Where there is a prior arbitration agreement between the parties,

arbitration is deemed commenced as follows:
1. In institutional arbitration is commenced in accordance with the
arbitration rules of the institution agreed upon by the parties.
2. In ad hoc arbitration, arbitration is commenced by the claimant upon
delivering to the respondent a demand for arbitration. A demand may be
in any form stating:
 the name, address and description of each of the parties;
 a description of the nature and circumstances of the dispute giving rise
to the claim;
 a statement of the relief sought, including the amount of the claim;
 the relevant agreements, if any, including the arbitration agreement, a
copy of which shall be attached; and
 appointment of arbitrators and / or demand to appoint.

b. If the arbitration agreement provides for the appointment of a sole

arbitrator, the demand shall include an invitation of the claimant to the
respondent to meet and agree upon such arbitrator, the place, time and date
stated therein which shall not be less than thirty (30) days from receipt of
the demand.

c. If the arbitration agreement provides for the establishment of an arbitral

tribunal of three (3) arbitrators, the demand shall name the arbitrator
appointed by the claimant. It shall include the curriculum vitae of the
arbitrator appointed by the claimant and the latter’s acceptance of the
appointment.

d. Where there is no prior arbitration agreement, arbitration may be initiated

by one party through a demand upon the other to submit their dispute to
arbitration. Arbitration shall be deemed commenced upon the agreement by
the other party to submit the dispute to arbitration.

e. The demand shall required the respondent to name his/her/its/ arbitrator

within a period which shall not be less than fifteen (15) days from receipt of

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the demand. This period may be extended by agreement of the parties.
Within said period, the respondent shall give a written notice to the claimant
of the appointment of the respondent’s arbitrator and attach to the notice
the arbitrator’s curriculum vitae and the latter’s acceptance of the
appointment. (Article 5.20., IRR, RA 9285)

5. On Language

a. 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 or Filipino. The language/s agreed, unless otherwise
specified therein, shall be in all hearings and all written statements, orders or
other communication by the parties and the arbitral tribunal.
b. The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed upon
by the parties in accordance with paragraph (a) of this Article. (Article 5.21.,
IRR, RA 9285)

6. On Statement of Claim and Defense

a. Within the period of time agreed by the parties or determined by the

arbitral tribunal, the claimant shall state the facts supporting his/her/its
claim, the points at issue and the relief or remedy sought, and the
respondent shall state his/her defense in respect of these particulars, unless
the parties may have otherwise agreed as to the required elements of such
statements. The parties may submit with their statements all documents
they consider to be relevant or may add a reference to the documents or
other evidence they will submit.

b. Unless otherwise agreed by the parties, either party may amend or

supplement his/her/its claim or defense during the course of the arbitral
proceedings, unless the arbitral tribunal considers it inappropriate to allow
such amendments having regard to the delay in making it. (Article 5.22., IRR,
RA 9285)

7. On Hearing and Written Proceedings

a. In ad hoc arbitration, the procedure determined by the arbitrator, with the

agreement of the parties, shall be followed. In institutional arbitration, the
applicable rules of procedure of the arbitration institution shall be followed.
In default of agreement of the parties, the arbitration procedure shall be as
provided in this Chapter 3, Rule 4, IRR of RA 9285.

b. Within thirty (30) days from the appointment of the arbitrator or the
constitution of an arbitral tribunal, the arbitral tribunal shall call the parties
and their respective counsels to a pre-hearing conference to discuss the
following matters:
1. The venue or place/s where the arbitration proceeding may be
conducted in an office space, a business center, a function room or any
suitable place agreed upon by the parties and the arbitral tribunal,
which may vary per session/hearing/conference;
2. The manner of recording the proceedings;
3. The periods for the communication of the statement of claims with
or without counterclaims, and answer to the counterclaim/s and the
form and contents of such pleadings.

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 4. The definition of the issues submitted to the arbitral tribunal for
determination and the summary of the claims and counterclaims of the
parties;
5. The manner by which evidence may be offered if an oral hearing is
required, the submission of sworn written statements in lieu of oral
testimony, the cross-examination and further examination of
witnesses;
6. The delivery of certain types of communications such as pleadings,
terms of reference, order granting interim relief, final award and the
like that, if made by electronic or similar means, shall require further
confirmation in the form of a hard copy or hard copies delivered
personally or by registered post.
7. The issuance of subpoena or subpoena duces tecum by the arbitral
tribunal to compel the production of evidence if either party shall or is
likely to request it;
8. The manner by which expert testimony will be received if a party will
or is likely to request the arbitral tribunal to appoint one or more
experts, and in such case, the period for the submission to the
arbitrator by the requesting party of the proposed terms of reference
for the expert, the fees to be paid, the manner of payment to the
expert and the deposit by the parties or the requesting party of such
amount necessary to cover all expenses associated with the referral of
such issues to the expert before the expert is appointed;
9. The possibility of either party applying for an order granting interim
relief either with arbitral tribunal or with the court, and, in such case,
the nature of the relief to be applied for;
10. The possibility of a site or ocular inspection, the purpose of such
inspection, and in such case, the date, place and time of the inspection
and the manner of conducting it, and the sharing and deposit of any
associated fees and expenses;
11. The amount to be paid to the arbitral tribunal as fees and the
associated costs, charges and expenses of arbitration and the manner
and timing of such payments; and
12. Such other relevant matters as the parties and the arbitral tribunal
may consider necessary to provide for a speedy and efficient
arbitration of the dispute.

c. To the extent possible, the arbitral tribunal and the parties shall agree
upon any such matters and in default of agreement, the arbitral tribunal shall
have the discretion and authority to make the decision, although in making
decision, regard shall be given to the views expressed by both parties.

d. The arbitral tribunal shall, in consultation with the parties, fix the date/s
and the time of hearing, regard being given to the desirability of conducting
and concluding an arbitration without undue delay.

e. The hearing set shall not be postponed except with the conformity of the
arbitrator and the parties and only for a good and sufficient cause. The
arbitral tribunal may deny a request to postpone or to cancel a scheduled
hearing on the ground that a party has requested or is intending to request
from the court or from the arbitrator an order granting interim relief.

f. A party may, during the proceedings, represent himself/herself/itself or

through a representative, at such hearing.

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g. The hearing may proceed in the absence of a party who fails to obtain an
adjournment thereof or who, despite due notice, fails to be present, by
himself/herself/itself or through a representative, at such hearing.

h. Only parties, their respective representatives, the witnesses and the

administrative staff of the arbitral tribunal shall have the right to be present
if the parties, upon being informed of the presence of such person and the
reason for his/her presence, interpose no objection thereto.

i. Issues raised during the arbitration proceeding relating to (a) the

jurisdiction of the arbitral tribunal over one or more of the claims or counter
claims, or (b) the arbitrability of a particular claim or counter claim, shall be
resolved by the arbitral tribunal as threshold issues, if the parties so request,
unless they are intertwined with factual issues that they cannot be resolved
ahead of the hearing on the merits of the dispute.

j. Each witness shall, before giving testimony, be required to take an oath/

affirmation before the arbitral tribunal, to tell the whole truth and nothing
but the truth during the hearing.

k. The arbitral tribunal shall arrange for the transcription of the recorded
testimony of each witness and require each party to share the cost of
recording and transcription of the testimony of each witness.

l. Each party shall provide the other party with a copy of each statement or
document submitted to the arbitral tribunal and shall have an opportunity to
reply in writing to the other party's statements and proofs.

m. The arbitral tribunal may require the parties to produce such other
documents or provide such information as in its judgment would be
necessary for it to render a complete, fair and impartial award.

n. The arbitral tribunal shall receive as evidence all exhibits submitted by a

party properly marked and identified at the time of submission.

o. At the close of the hearing, the arbitral tribunal shall specifically inquire of
all parties whether they have further proof or witnesses to present; upon
receiving a negative reply, the arbitral tribunal shall declare the hearing
closed.

p. After a hearing is declared closed, no further motion or manifestation or

submission may be allowed except for post-hearing briefs and reply briefs
that the parties have agreed to submit within a fixed period after the hearing
is declared closed, or when the arbitral tribunal, motu proprio or upon
request of a party, allows the reopening of the hearing.

q. Decisions on interlocutory matters shall be made by the sole arbitrator or

by the majority of the arbitral tribunal. The arbitral tribunal may authorized
its chairman to issue or release, on behalf of the arbitral tribunal, its decision
on interlocutory matters.

r. Except as provide in section 17 (d) of the ADR Act. No arbitrator shall act
as a mediator in any proceeding in which he/she is acting as arbitrator even
if requested by the parties; and all negotiations.

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s. Before assuming the duties of his/her office, an arbitrator must be sworn
by any officer authorized by law to administer an oath or be required to
make an affirmation to faithfully and fairly hear and examine the matters in
controversy and make a just award according to the best his/her ability and
understanding. A copy of the arbitrator's oath or affirmation shall be
furnished each party to the arbitration.

t. Either party may object to the commencement or continuation of an

arbitration proceeding unless the arbitrator takes an oath or affirmation as
required in this chapter. If the arbitrator shall refuse to take an oath or
affirmation as required by law and this rule, he/she shall be replaced. The
failure to object to the absence of an oath or affirmation shall be deemed a
waiver of such objection and the proceedings shall continue in due course
and may not later be used as a ground to invalidate the proceedings.

u. the arbitral tribunal shall have the power to administer oaths to, or require
affirmation from, all witnesses directing them to tell the truth, the whole
truth and nothing but the truth in any testimony, oral or written, which they
may give or offer in any arbitration hearing. The oath or affirmation shall be
required of every witness before his/her testimony, oral or written, is heard
or considered.

v. the arbitral tribunal shall have the power to require any person to attend a
hearing as a witness. It shall have the power to subpoena witnesses, to
testify and/or produce documents when the relevancy and materiality
thereof has been shown to the arbitral tribunal. The arbitral tribunal may also
require the exclusion of any witness during the testimony of any other
witness. Unless the parties otherwise agree, all the arbitrators in any
controversy must attend all the hearings and hear the evidence of the
parties. (Article 5.23., IRR, RA 9285)

110. When may the tribunal order interim measures of protection?

The Arbitral Tribunal may order interim measures of protection to any party
under the following circumstances:

a. unless otherwise agreed by the parties, the arbitral tribunal may, at the
request of a party and in accordance with the this Article, order any party to
take such interim measures of protection as the arbitral tribunal may
consider necessary in respect of the subject matter of the dispute of the
procedure, Such interim measures may include, but shall not be limited, to
preliminary injunction directed against a party, appointment of receivers or
detention of property that is the subject of the dispute in arbitration or its
preservation or inspection.

b. After the constitution of the arbitral tribunal, and during the arbitration
proceedings, a request for interim measures of protection, or modification
thereof, may be made with the arbitral tribunal. 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.

c. The following rules on interim or provisional relief shall be observed:

1. Any party may request that provisional or interim relief be granted
against the adverse party.

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 2. Such relief may be granted:
a. To prevent irreparable loss or injury;
b. To provide security for the performance of an obligation;
c. To produce or preserve evidence; or
d. To compel any other appropriate act or omissions.
3. The order granting provisional relief may be conditioned upon the
provision of security or any act or omission specified in the order.
4. Interim provisional relief is requested by written application
transmitted by reasonable means to the arbitral tribunal and the party
against whom relief is sought, describing in appropriate detail of the
precise relief, the party against whom relief is requested the ground for
the relief, and the evidence supporting the request.
5. The order either granting or denying an application for interim relief
shall be binding upon the parties.
6. Either party may apply with the court for assistance in implementing
or enforcing an interim measure ordered by an arbitral tribunal.
7. A party who does not comply with the order shall be liable for all
damages, resulting from noncompliance, including all expenses, and
reasonably attorney’s fees, paid in obtaining the order’s judicial
enforcement.

d. The arbitral tribunal shall be have the power at any time, before rendering
the award, without prejudice to the rights of any party to petition the court to
take measures to safeguard an/or conserve any matter which is the subject
of the dispute in arbitration. (Article 5.24., IRR, RA 9285)

111. What are the possible consequences when there is a default on

either party?

Unless otherwise agreed by the parties, if, without showing sufficient causes.

a. the claimant fails to communicate his/her/its statement of claim in

accordance with paragraph (a) of Article 5.22(Statement of Claim and
Defense), the arbitral tribunal shall terminate the proceedings;

b. the respondent fails to communicate his/her/its statement of defense in

accordance with paragraph (a) of Article 5.22 (Statements of Claim and
Defense), the arbitral tribunal shall continue the proceedings without
treating such failure in itself as an admission of the claimant’s allegations;

c. any party fails to appear at a hearing or to produce documentary

evidence, the arbitral tribunal may continue the proceedings and make the
award based on the evidence before it. (Article 5.26., IRR, RA 9285)

112. May the arbitral tribunal appoint an expert witness?

Yes. An arbitral tribunal may appoint an expert witness under the following
circumstances:

a. Unless otherwise agreed by the parties, the arbitral tribunal,

1. may appoint one or more experts to report to it on specific issues to
be determined by the arbitral tribunal; or
2. may require a party to give the expert any relevant information or to
produce, or to provide access to, any relevant documents, goods or
other property for his/her inspection.

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b. unless otherwise agreed by the parties, if a party so request or if the
arbitral tribunal considers it necessary, the expert shall, after delivery of
his/her written or oral report, participate in a hearing where the parties have
the opportunity to put questions to him/her and to present expert witnesses
in order to testify on the points at issue.

c. upon agreement of the parties, the finding of the expert engaged by the
arbitral tribunal on the matter/s referred to him shall be binding upon the
parties and the arbitral tribunal. (Article 5.26., IRR, RA 9285)

113. May the Arbitral tribunal request assistance in taking evidence

and other matters?

Yes. The arbitral tribunal may request the following from the court:

a. The arbitral tribunal or a party, with the approval of the arbitral tribunal
may request from a court, assistance in taking evidence such as the
issuance of subpoena ad testificandum and subpoena duces tecum,
deposition taking, site or ocular inspection, and physical examination of
properties. The court may grant the request within its competence and
according to its rules on taking evidence.

b. The arbitral tribunal or a party to the dispute interested in enforcing an

order of the arbitral tribunal may request from a competent court, assistance
in enforcing orders of the arbitral tribunal, including but not limited, to the
following:
1. Interim or provision relief;
2. Protective orders with respect to confidentiality;
3. Orders of the arbitral tribunal pertaining to the subject matter of the
dispute that may affect third persons and/or their properties; and/or
4. Examination of debtors. (Article 5.27., IRR, RA 9285)
114. What are the rules applicable to the substance of dispute?

a. The arbitral tribunal shall decide the dispute in accordance with such law
as is chosen by the parties, In the absence of such agreement, Philippine law
shall apply.

b. The arbitral tribunal may grant any remedy or relief which it deems just
and equitable and within the scope of the agreement of the parties, which
shall include, but not be limited to, the specific performance of a contract.

c. In all cases, the arbitral tribunal shall decide in accordance with the terms
of the contract and shall take into account the usages of the trade applicable
to the transaction. (Article 5.28., IRR, RA 9285)

115. Explain how the arbitral tribunal renders decision?

a. The arbitration proceedings with more than one arbitrator, any decision of
the arbitral tribunal shall be made, unless otherwise agreed by the parties,
by a majority of all its members, However questions of procedure may be
decided by the chairman of the arbitral tribunal, if so authorized by the
parties or all members of the arbitral tribunal.

b. Unless otherwise agreed upon by the parties, the arbitral tribunal shall
render its written award within thirty (30) days after the closing of all
hearings and/or submission of the parties’ respective briefs or if the oral

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hearings shall have been waived, within thirty(30) days after the arbitral
tribunal shall have declared such proceedings in lieu of hearing closed. This
period may be further extended by mutual consent of the parties. (Article
5.29., IRR, RA 9285)

116. What is the consequence if during the arbitral proceedings, the

parties settle the dispute?

a. If, during arbitral proceedings, the parties settle the dispute, the arbitral
tribunal, record the settlement in the form of an arbitral award on agreed
terms, consent award or award based on compromise.

b. An award as rendered above shall be made in accordance with the

provisions of Article 5.31 (Form and Contents of Award) and shall state that it
is an award. Such an award has the same status and effect as any other
award on the merits of the case. (Article 5.30., IRR, RA 9285)

117. Cite the required form and contents of award.

a. The award shall be made in writing and shall be signed by the arbitral
tribunal. In arbitration proceedings with more than one arbitrator, the
signatures of the majority of all members of the arbitral tribunal shall suffice,
provided that the reason for any omitted signature us stated.

b. The award shall state the reasons upon which is based, unless the parties
have agreed that no reasons are to be given or the award on agreed terms,
consent award based on compromise under Article 5.30 (Settlement).

c. The award shall state its date and the placed of arbitration as determined
in accordance with the paragraph (a) of Article 5.19 (Place of Arbitration).
The award shall be deemed to have made at that place.

d. After the award is made, a copy signed by the arbitrators in accordance

with the paragraph (a) of this Article shall be delivered to each party.

e. The award of the arbitral tribunal need not be acknowledged, sworn to

under oath, or affirmed by the arbitral tribunal unless so required on writing
by the parties. If despite such requirement, the arbitral tribunal shall fail to
do as required, the parties may, within thirty days from the receipt of said
award, request the arbitral tribunal to supply the omission. The failure of the
parties to make an objection or make such request within the said period
shall be deemed a waiver or such requirement and may no longer be raised
as a ground to invalidate the award. (Article 5.31., IRR, RA 9285)

118. How is the Arbitral proceedings terminated?

The arbitration proceedings are terminated by the final award or by an order

of the arbitral tribunal in accordance with paragraph (b) of this Article5. 32,
Chapter 3, IRR of RA 9285. (Article 5.32, par. b, IRR, RA 9285)

119. When should the Arbitral issue an order of termination?

The arbitral tribunal shall issue an order for the termination of the arbitration
proceedings when:
1. The claimant withdraws his claim, unless the respondents objects
thereto for the purpose of prosecuting his counterclaims in the same

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 proceedings of the arbitral tribunal recognizes a legitimate interest on
his part in obtaining a final settlement of the dispute; or
2. The parties agree on the termination of the proceedings; or
3. The arbitral tribunal finds that the continuation of the proceedings
has for any other reason before unnecessary or impossible; or
4. The required deposits are not paid in full in accordance with
paragraph (d) of Article 5.46 (Fees and Costs). (Article 5.32, par. b, IRR,
RA 9285)

120. When does the mandate of arbitral tribunal end?

Article 5.32. Termination of Proceedings.

a. The arbitration proceedings are terminated by the final award or by an

order of the arbitral tribunal in accordance with paragraph (b) of this Article.

b. The arbitral tribunal shall issue an order for the termination of the
arbitration proceedings when:

1. The claimant withdraws his claim, unless the respondents objects

thereto for the purpose of prosecuting his counterclaims in the same
proceedings of the arbitral tribunal recognizes a legitimate interest on
his part in obtaining a final settlement of the dispute; or
2. The parties agree on the termination of the proceedings; or
3. The arbitral tribunal finds that the continuation of the proceedings
has for any other reason before unnecessary or impossible; or
4. The required deposits are not paid in full in accordance with
paragraph (d) of Article 5.46 (Fees and Costs).

c. The mandate of the arbitral tribunal ends with the termination of the
arbitration proceedings, subject to the provisions of Article 5.33 (Correction
and Interpretation of Award) and Article 5.34 (Application for Settings Aside
in Exclusive Recourse Against the Arbitral Award).

d. Except as otherwise provided in the arbitration agreement, no motion for

reconsideration correction and interpretation of award or additional award
shall be with the arbitral tribunal. The arbitral tribunal, by releasing its final
award, loses jurisdiction over the dispute and the parties to the arbitral
tribunal, by releasing its final award, loses jurisdiction over the dispute and
the parties to the arbitration. However, where is shown that the arbitral
tribunal failed to resolved an issue. Submitted to him or determination a
verified motion to complete a final award may be made within thirty(30)
days from its receipt.

e. Notwithstanding the foregoing, the arbitral tribunal may for special reason,
reserved in the final award in order a hearing to quantity costs and
determine which party shall bear the costs or apportionment thereof as may
be determined to be a equitable. Pending determination of this issue, the
award shall not be deemed final for purposes of appeal, vacations,
correction, or any post-award proceedings. Article 5.33. Correction and
Interpretation of Award, Additional Award.

a. Within thirty (30) days from receipt of the award, unless another
period of time has been agreed upon by the parties.

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 1. A party may, with notice to the other party, the arbitral
tribunal to correct in the awards any errors in computation, any
clerical or typographical errors or any errors similar nature

2. If so agreed by the parties, with notice to the other party,

may request the arbitral tribunal to give an interpretation of a
specific point or
part of the award. If the arbitral tribunal considers the request
to be justified, it shall make the connection or give the
interpretation within thirty (30) days from receipt of the
request. The interpretation shall form part of the award.

b. The arbitral tribunal may correct any errors of the type referred to in
paragraph (a) of this Article on its own initiative within thirty (30) days
of the date of the award.

c. Unless otherwise agreed by the parties, a party may, with notice to

the other party, may request within thirty (30) days of receipt of the
award, the arbitral tribunal to make an additional award as to claims
presented in the arbitral proceedings but omitted from the award., If
the arbitral tribunal considers the request to be justified, it shall make
the additional award within sixty (60) days.

d. The arbitral tribunal may extend, if necessary, the period of time

within which it shall make a correction, interpretation or an additional
award under paragraphs (a) and (c) of this Article.

e. The provisions of Article 5.31 (Form and Contents of Award) shall

apply to a correction or interpretation of the award to an additional
award.

121. What must the court do upon application for setting aside an
award?

The court when asked to set aside an award, may, where appropriate and so
requested by a party, suspend the setting aside proceedings for a period of
time determined by it in order to give the arbitral tribunal an opportunity to
resume the arbitral proceedings or to take such other action as in the arbitral
tribunal’s opinion will eliminate the grounds for setting aside an award.
(Article 5.34., IRR, RA 9285)

122. What are the grounds to vacate an Arbitral award?

The arbitral award may be questioned, vacated or set aside by the

appropriate court in accordance with the Special ADR Rules only on the
following
grounds:
1. The arbitral award was procured by corruption, fraud or other undue
means; or
2. There was evident partially or corruption in the arbitral tribunal or
any of its members; or
3. The arbitral tribunal was guilty of misconduct or any form of
misbehavior that has materially prejudiced the rights of any party such
as refusing to postpone the hearing upon sufficient cause shown or to
hear evidence pertinent and material to the controversy; or

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 4. One or more of the arbitrators was disqualified to act as such under
this Chapter and willfully refrained from disclosing such
disqualification; or
5. The arbitral tribunal exceeded its powers, or so imperfectly executed
them, such that a complete, final and definite award upon the subject
matter submitted to it was not made.

Any other ground raised to question, vacate or set aside the

arbitral award shall be disregarded by the court. (Article 5.35, par. a.,
IRR, RA 9285)

123. What may the parties do when a petition to award or set aside
an award is filed?

Where a petition to vacate or set aside an award is filed, the petitioner may
simultaneously, or the oppositor may in the alternative, petition the court to
remit the case to the same arbitral tribunal for the purpose of making a new
or revised final and definite award or to direct a new hearing before the
same or new arbitral tribunal, the members of which shall be chosen in the
manner originally provided in the arbitration agreement or submission. In the
latter case, any provision limiting the time. In which the arbitral tribunal may
make a decision shall be deemed applicable to the new arbitral tribunal and
to commence from the date of the court’s order. (Article 5.35, par. b, IRR, RA
9285)

124. Where a party files a petition with the court to vacate or set
aside an award by reason of omission/s that do not affect the merits
of the case and may be cured or remedied, what may the adverse
party do?

Where a party files a petition with the court to vacate or set aside an award
by reason of omission/s that do not affect the merits of the case and may be
cured or remedied, the adverse party may oppose that petition and instead
request the court to suspend the vacation or setting aside the proceedings
for a period of time to give the arbitral tribunal an opportunity to cure or
remedy the award or resume the arbitration proceedings or take such other
action as will eliminate the grounds for vacation or setting aside. (Article
5.35, par. c, IRR, RA 9285)

 RECOGNITION AND ENFORCEMENT OF AWARDS

125. What must the party moving for an order confirming,

modifying, correcting, or vacating an award do?

(Article 5.1., IRR, RA 9285)

126. When may the court enter its judgment?

(Article 5.1., IRR, RA 9285)

127. When may a decision of the Court confirming, vacating, setting

aside, modifying or correcting an arbitral award be appealed to?

(Article 5.1., IRR, RA 9285)

128. What is the nature of the proceedings for the following?

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 a. Recognition and enforcement of an arbitration agreement or
b. Vacation or setting aside of an arbitral award, and
c. Any application with a court for arbitration assistance and
supervision, except appeal.

Proceedings for recognition and enforcement of an arbitration

agreement or for vacation or setting aside an arbitral award, and any
application with a court for arbitration assistance and supervision,
except appeal shall be deemed as special proceedings. (Article 5.39.,
IRR, RA 9285)

129. Where is the venue of the said proceedings?

The same shall be filed with the Court;

a. where the arbitration proceedings are conducted;
b. where the asset to be attached or levied upon, or the act to be
enjoined is located;
c. where any of the parties to the dispute resides or has its place of
business; or
d. in the National Capital Judicial Region at the option of the applicant.
(Article 5.39., IRR, RA 9285)

130. Is notice to parties required in a special proceedings for

recognition and enforcement of an Arbitral award?

(Article 5.1., IRR, RA 9285)

131. In domestic Arbitration, is a party entitled to legal

representation?

a. In domestic arbitration conducted in the Philippines, a party may be

represented by any person of his/her/its choice: Provided, that such
representative, unless admitted to the practice of law in the Philippines, shall
not be authorized to appear as counsel in any Philippine Court, or any other
quasi-judicial body whether or such appearance is in relation to the
arbitration in which he/she appears.
b. No arbitrator shall act as mediator in any proceeding in which he/she is
acting as arbitrator and all negotiations towards settlement of the dispute
must take without the presence of the arbitrators. (Article 5.41., IRR, RA
9285)

132. Is the Arbitration proceedings privileged?

Yes. The arbitration proceedings, including the records, evidence and the
arbitral award and other confidential information, shall be considered
privileged and confidential and shall not be published except –
1. with consent of the parties; or
2. for the limited purpose of disclosing to the court 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. (Article 5.42., IRR, RA 9285)

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133. What is the consequence of the death of the party?

Where a party dies after making a submission or a contact to arbitrate as

prescribed in Rules on Recognition and Enforcement of Awards, the
proceeding may be begun or continued upon the application of, or notice to,
his/her executor or administrator, or to temporary administrator of his/her
estate. In any such case, the court may issue an order extending the time
within which notice of a motion to recognize or vacate an award must be
served. Upon recognizing an award, where a party has died since it was filed
or delivered, the court must enter judgment in the name of the original
party; and the proceedings thereupon are the same as where a party dies
after a verdict. (Article 5.43., IRR, RA 9285)

134. What are the rules in multi-party arbitration?

(Article 5.1., IRR, RA 9285)

135. May the parties agree on consolidation of proceedings and

holding of concurrent hearings?

(Article 5.1., IRR, RA 9285)

136. What are the rules in fees and costs?

(Article 5.1., IRR, RA 9285)

 ARBITRATION OF CONSTRUCTION DISPUTES

137. What agency governs arbitration of construction disputes?

(Article 5.1., IRR, RA 9285)

 OTHER ADR FORMS

138. If a dispute is already before a court, may a party, before and

during pre-trial, file a motion to refer the parties to other ADR
forms/processes?

 NEUTRAL OR EARLY NEUTRAL EVALUATION

139. Cite the rules in the appointment of a Neutral or Early Neutral

Evaluation

 MINI-TRIAL

140. How mini-trial is conducted?

 MEDIATION-ARBITRATION

141. What are the Rules on mediation-arbitration?

a. A Mediation-Arbitration shall be governed by the rules and procedure

agreed upon by the parties, In the absence of said agreement, Chapter 5 on
Mediation shall first apply and thereafter, Chapter 5 on Domestic Arbitration.

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b. No Person shall having been engage and having acted as mediator of a
dispute between the parties, following a failed mediation, act as arbitrator of
the same dispute, unless the parties, in a written agreement, expressly
authorize the mediator to hear and decide the case as an arbitrator.

c. The mediator who becomes an arbitrator pursuant to the Rule on

Mediation-Arbitration shall make an appropriate disclosure to the parties as if
the arbitration proceeding had commenced and will proceed as a new
dispute resolution process, and shall, before entering upon his/her duties,
executive the appropriate oath or affirmation of office as arbitrator in
accordance with the Rule on Mediation-Arbitration. (Article 7.8., IRR, RA
9285)

Terms to Ponder:

1. ADR Provider means the Institutions or persons accredited as mediators,

conciliators, arbitrators, neutral evaluators or any person exercising similar
functions in any Alternative dispute resolution system. This is without
prejudice to the rights of the parties to choose non-accredited individuals to
act as mediator, conciliator, arbitrator or neutral evaluator of their dispute.
2. Alternative Dispute Resolution System means any process or
procedures 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 the ADR Act, in which neutral third person participates
to assist in the resolution of issues, Including arbitration, mediation,
conciliation, early neutral evaluation, mini-trial or any combination thereof.

3. Arbitration means a voluntary dispute resolution process in which one or

more arbitrators, appointed in accordance with the agreement of the parties
or these Rules, resolve a dispute by rendering an award.

4. Arbitration Agreement means agreement by the parties to submit to

arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether contractual
or not. An arbitration agreement may be in the form of an arbitration clause
in a contract or in the form of a separate agreement.

5. Authenticate means to sign, execute, adopt a symbol or encrypt a

record or establish the authenticity of a record or term.

6. Award means any partial or final decision by an arbitrator in resolving the

issue or controversy.

7. Confidential Information means any information, relative to the subject

of mediation or arbitration, expressly intended by the source not to
disclosed, or obtained under circumstances that would create reasonable
expectation on behalf of the source that the information shall not be
disclosed. It shall include:
(a) communication, oral or written, made in a dispute resolution
proceeding, including any memoranda, notes or work product of the
neutral party or non-party
participant;
(b) an oral or written statement made or which occurs during
mediation or for purposes of considering, conducting, participating,
initiating, continuing or reconvening mediation or retaining a mediator;
and

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 (c) pleadings, motions, manifestations, witness statements, reports
filed or submitted in arbitration or for expert evaluation.
8. Counsel means a lawyer duly admitted to the practice of law in the
Philippines and in good standing who represents a party in any ADR process.
9. Court means Regional Trial Court Except insofar as otherwise defined
under Model Law.
10. Government Agency means any governmental entity, office or officer,
other than a court that is vested by law with quasi-judicial power or the
power to resolve or adjudicate disputes involving the government, its
agencies and instrumentalities or private persons.
11. Model Law means the Model on International Commercial Arbitration
adopted by the United Nations Commission on International Trade Law on 21
June 1985.
12. Proceedings means judicial, administrative or other adjudicative
process, including related pre-hearing or post hearing motions, conferences
and discovery.
13. Record means information written on a tangible medium or stored in an
electronic or other similar medium, retrievable in a perceivable form.
14. Roster means a list of persons qualified to provide ADR services as
neutrals or to serve as arbitrators.
15. Special ADR Rules means the Special Rules of Court on Alternative
Dispute Resolution issued by the Supreme Court on September 1, 2009.

SEGMENT VIII: ARBITRATION LAW (REPUBLIC ACT NO. 876)

142. What is Republic Act No. 876?

This Act shall be known as "The Arbitration Law."

143. What are the subject matters of Arbitration law?

Two or more persons or parties may submit to the arbitration of one or more
arbitrators any controversy existing between them at the time of the
submission and which may be the subject of an action, or the parties to any
contract may in such contract agree to settle by arbitration a controversy
thereafter arising between them. Such submission or contract shall be valid,
enforceable and irrevocable, save upon such grounds as exist at law for the
revocation of any contract. Such submission or contract may include
question arising out of valuations, appraisals or other controversies which
may be collateral, incidental, precedent or subsequent to any issue between
the parties. (Sec. 2, RA 876)

144. Who are disqualified to arbitrate?

A controversy cannot be arbitrated where one of the parties to the

controversy is an infant, or a person judicially declared to be incompetent,
unless the appropriate court having jurisdiction approve a petition for
permission to submit such controversy to arbitration made by the general
guardian or guardian ad litem of the infant or of the incompetent. But where
a person capable of entering into a submission or contract has knowingly
entered into the same with a person incapable of so doing, the objection on
the ground of incapacity can be taken only in behalf of the person so
incapacitated. (Sec. 2, RA 876)

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145. What are the controversies or cases not subject to RA No. 876?

This Act shall not apply to controversies and to cases which are subject to
the jurisdiction of the Court of Industrial Relations or which have been
submitted to it as provided by Commonwealth Act Numbered One hundred
and three, as amended. (Sec. 2, RA 876)

146. What is the form of the Arbitration Agreement?

A contract to arbitrate a controversy thereafter arising between the parties,

as well as a submission to arbitrate an existing controversy shall be in
writing and subscribed by the party sought to be charged, or by his lawful
agent.

The making of a contract or submission for arbitration described in section

two hereof, providing for arbitration of any controversy, shall be deemed a
consent of the parties to the jurisdiction of the Court of First Instance of the
province or city where any of the parties resides, to enforce such contract or
submission. (Sec. 4, RA 876)

147. Discuss the Preliminary Procedure of Arbitration.

An Arbitration shall be instituted by:

a. In the case of a contract to arbitrate future controversies by the service
by either party upon the other of a demand for arbitration in accordance
with the contract. Such demand shall be set forth the nature of the
controversy, the amount involved, if any, and the relief sought, together
with a true copy of the contract providing for arbitration. The demand
shall be served upon any party either in person or by registered mail. In
the event that the contract between the parties provides for the
appointment of a single arbitrator, the demand shall be set forth a specific
time within which the parties shall agree upon such arbitrator. If the
contract between the parties provides for the appointment of three
arbitrators, one to be selected by each party, the demand shall name the
arbitrator appointed by the party making the demand; and shall require
that the party upon whom the demand is made shall within fifteen days
after receipt thereof advise in writing the party making such demand of
the name of the person appointed by the second party; such notice shall
require that the two arbitrators so appointed must agree upon the third
arbitrator within ten days from the date of such notice.

b. In the event that one party defaults in answering the demand, the
aggrieved party may file with the Clerk of the Court of First Instance
having jurisdiction over the parties, a copy of the demand for arbitration
under the contract to arbitrate, with a notice that the original demand
was sent by registered mail or delivered in person to the party against
whom the claim is asserted. Such demand shall set forth the nature of the
controversy, the amount involved, if any, and the relief sought, and shall
be accompanied by a true copy of the contract providing for arbitration.

c. In the case of the submission of an existing controversy by the filing

with the Clerk of the Court of First Instance having jurisdiction, of the
submission agreement, setting forth the nature of the controversy, and
the amount involved, if any. Such submission may be filed by any party
and shall be duly executed by both parties.

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 d. In the event that one party neglects, fails or refuses to arbitrate under
a submission agreement, the aggrieved party shall follow the procedure
prescribed in subparagraphs (a) and (b) of Section 5 of RA 876. (Sec. 5,
RA 876)

148. How is the hearing by court in Arbitration conducted?

A party aggrieved by the failure, neglect or refusal of another to perform

under an agreement in writing providing for arbitration may petition the
court for an order directing that such arbitration proceed in the manner
provided for in such agreement. Five days notice in writing of the hearing of
such application shall be served either personally or by registered mail upon
the party in default. The court shall hear the parties, and upon being
satisfied that the making of the agreement or such failure to comply
therewith is not in issue, shall make an order directing the parties to proceed
to arbitration in accordance with the terms of the agreement. If the making
of the agreement or default be in issue the court shall proceed to summarily
hear such issue. If the finding be that no agreement in writing providing for
arbitration was made, or that there is no default in the proceeding
thereunder, the proceeding shall be dismissed. If the finding be that a
written provision for arbitration was made and there is a default in
proceeding thereunder, an order shall be made summarily directing the
parties to proceed with the arbitration in accordance with the terms thereof.
The court shall decide all motions, petitions or applications filed under the
provisions of this Act, within ten days after such motions, petitions, or
applications have been heard by it. (Sec. 7, RA 876)

149. When may a civil action be stayed?

If any suit or proceeding be brought upon an issue arising out of an

agreement providing for the arbitration thereof, the court in which such suit
or proceeding is pending, upon being satisfied that the issue involved in such
suit or proceeding is referable to arbitration, shall stay the action or
proceeding until an arbitration has been had in accordance with the terms of
the agreement: Provided, That the applicant, for the stay is not in default in
proceeding with such arbitration. (Sec. 7, RA 876)

150. How are Arbitrators appointed?

If, in the contract for arbitration or in the submission described in section two
(2) of RA 876, provision is made for a method of naming or appointing an
arbitrator or arbitrators, such method shall be followed; but if no method be
provided therein the Court of First Instance shall designate an arbitrator or
arbitrators. The Court of First Instance shall appoint an arbitrator or
arbitrators, as the case may be, in the following instances:
a. If the parties to the contract or submission are unable to agree
upon a single arbitrator; or
b. If an arbitrator appointed by the parties is unwilling or unable to
serve, and his successor has not been appointed in the manner in
which he was appointed; or
c. If either party to the contract fails or refuses to name his arbitrator
within fifteen days after receipt of the demand for arbitration; or
d. If the arbitrators appointed by each party to the contract, or
appointed by one party to the contract and by the proper Court, shall
fail to agree upon or to select the third arbitrator.

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 e. The court shall, in its discretion appoint one or three arbitrators,
according to the importance of the controversy involved in any of the
preceding cases in which the agreement is silent as to the number of
arbitrators.
f. Arbitrators appointed under this section shall either accept or
decline their appointments within seven days of the receipt of their
appointments. In case of declination or the failure of an arbitrator or
arbitrators to duly accept their appointments the parties or the court,
as the case may be, shall proceed to appoint a substitute or
substitutes for the arbitrator or arbitrators who decline or failed to
accept his or their appointments. (Sec. 8, RA 876) What are the
qualifications of an Arbitrator? (Sec. 2, RA 876)

151. May additional Arbitrators be appointed?

Yes, Sec. 9 provides: “Where a submission or contract provides that two or

more arbitrators therein designated or to be thereafter appointed by the
parties, may select or appoint a person as an additional arbitrator, the
selection or appointment must be in writing. Such additional arbitrator must
sit with the original arbitrators upon the hearing.” (Sec. 9, RA 876)

152. What must the Arbitrator do if, after appointment but before or
during hearing, a person appointed to service as an arbitrator shall
discover any circumstance likely to create a presumption of bias, or
which he believes might disqualify him as an impartial Arbitrator?

If, after appointment but before or during hearing, a person appointed to

serve as an arbitrator shall discover any circumstances likely to create a
presumption of bias, or which he believes might disqualify him as an
impartial arbitrator, the arbitrator shall immediately disclose such
information to the parties. Thereafter the parties may agree in writing:
a. to waive the presumptive disqualifying circumstances; or
b. to declare the office of such arbitrator vacant. Any such vacancy
shall be filled in the same manner as the original appointment was
made. (Sec. 10, RA 876)

153. Discuss the challenge to Arbitrators.

The arbitrators may be challenged only for the reasons mentioned in the
preceding section which may have arisen after the arbitration agreement or
were unknown at the time of arbitration. The challenge shall be made before
them. If they do not yield to the challenge, the challenging party may renew
the challenge before the Court of First Instance of the province or city in
which the challenged arbitrator, or, any of them, if there be more than one,
resides. While the challenging incident is discussed before the court, the
hearing or arbitration shall be suspended, and it shall be continued
immediately after the court has delivered an order on the challenging
incident. (Sec. 11, RA 876)

154. What is the procedure to be followed by the Arbitrator?

Subject to the terms of the submission or contract, if any are specified

therein, are arbitrators selected as prescribed herein must, within five days
after appointment if the parties to the controversy reside within the same
city or province, or within fifteen days after appointment if the parties reside
in different provinces, set a time and place for the hearing of the matters

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submitted to them, and must cause notice thereof to be given to each of the
parties. The hearing can be postponed or adjourned by the arbitrators only
by agreement of the parties; otherwise, adjournment may be ordered by the
arbitrators upon their own motion only at the hearing and for good and
sufficient cause. No adjournment shall extend the hearing beyond the day
fixed in the submission or contract for rendering the award, unless the time
so fixed is extended by the written agreement of the parties to the
submission or contract or their attorneys, or unless the parties have
continued with the arbitration without objection to such adjournment. The
hearing may proceed in the absence of any party who, after due notice, fails
to be present at such hearing or fails to obtain an adjournment thereof. An
award shall not be made solely on the default of a party. The arbitrators shall
require the other party to submit such evidence as they may require for
making an award. No one other than a party to said arbitration, or a person
in the regular employ of such party duly authorized in writing by said party,
or a practicing attorney-at-law, shall be permitted by the arbitrators to
represent before him or them any party to the arbitration. Any party desiring
to be represented by counsel shall notify the other party or parties of such
intention at least five days prior to the hearing. The arbitrators shall arrange
for the taking of a stenographic record of the testimony when such a record
is requested by one or more parties, and when payment of the cost thereof is
assumed by such party or parties. Persons having a direct interest in the
controversy which is the subject of arbitration shall have the right to attend
any hearing; but the attendance of any other person shall be at the
discretion of the arbitrators. (Sec. 12, RA 876)

155. Are Arbitrators required to take an oath?

Yes. Before hearing any testimony, arbitrators must be sworn, by any officer
authorized by law to administer an oath, faithfully and fairly to hear and
examine the matters in controversy and to make a just award according to
the best of their ability and understanding. Arbitrators shall have the power
to administer the oaths to all witnesses requiring them to tell the whole truth
and nothing but the truth in any testimony which they may give in any
arbitration hearing. This oath shall be required of every witness before any of
his testimony is heard. (Sec. 13, RA 876)
156. Do Arbitrators have the power to issue subpoena duces tecum
and ad testificandum?

Yes. Arbitrators shall have the power to require any person to attend a
hearing as a witness. They shall have the power to subpoena witnesses and
documents when the relevancy of the testimony and the materiality thereof
has been demonstrated to the arbitrators. Arbitrators may also require the
retirement of any witness during the testimony of any other witness. All of
the arbitrators appointed in any controversy must attend all the hearings in
that matter and hear all the allegations and proofs of the parties; but an
award by the majority of them is valid unless the concurrence of all of them
is expressly required in the submission or contract to arbitrate. (Sec. 14, RA
876)

157. Do Arbitrators have the power to take measures to safeguard

and/or conserve any matter subject of the dispute in Arbitration?

Yes. The arbitrator or arbitrators shall have the power at any time, before
rendering the award, without prejudice to the rights of any party to petition

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the court to take measures to safeguard and/or conserve any matter which is
the subject of the dispute in arbitration. (Sec. 14, RA 876)

158. How is the hearing of Arbitration conducted?

Arbitrators may, at the commencement of the hearing,

 ask both parties for brief statements of the issues in controversy
and/or an agreed statement of facts.
 Thereafter the parties may offer such evidence as they desire, and
shall produce such additional evidence as the arbitrators shall require
or deem necessary to an understanding and determination of the
dispute.
 The arbitrators shall be the sole judge of the relevancy and materiality
of the evidence offered or produced, and shall not be bound to conform
to the Rules of Court pertaining to evidence.
 Arbitrators shall receive as exhibits in evidence any document which
the parties may wish to submit and the exhibits shall be properly
identified at the time of submission. All exhibits shall remain in the
custody of the Clerk of Court during the course of the arbitration and
shall be returned to the parties at the time the award is made.
 The arbitrators may make an ocular inspection of any matter or
premises which are in dispute, but such inspection shall be made only
in the presence of all parties to the arbitration, unless any party who
shall have received notice thereof fails to appear, in which event such
inspection shall be made in the absence of such party. (Sec. 15, RA
876)

159. When may the parties’ briefs be filed?

At the close of the hearings, the arbitrators shall specifically inquire of all
parties whether they have any further proof or witnesses to present; upon
the receipt of a negative reply from all parties, the arbitrators shall declare
the hearing closed unless the parties have signified an intention to file briefs.
Then the hearing shall be closed by the arbitrations after the receipt of briefs
and/or reply briefs. Definite time limit for the filing of such briefs must be
fixed by the arbitrators at the close of the hearing. Briefs may filed by the
parties within fifteen days after the close of the oral hearings; the reply
briefs, if any, shall be filed within five days following such fifteen-day period.
(Sec. 16, RA 876)

160. May a hearing be re-opened?

Yes. The hearing may be reopened by the arbitrators on their own motion or
upon the request of any party, upon good cause, shown at any time before
the award is rendered. When hearings are thus reopened the effective date
for the closing of the hearings shall be the date of the closing of the
reopened hearing. (Sec. 17, RA 876)

161. May parties submit their dispute to Arbitrator other than by

oral hearing?

Yes. The parties to a submission or contract to arbitrate may, by written

agreement, submit their dispute to arbitration by other than oral hearing.
The parties may submit an agreed statement of facts. They may also submit
their respective contentions to the duly appointed arbitrators in writing; this
shall include a statement of facts, together with all documentary proof.

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Parties may also submit a written argument. Each party shall provide all
other parties to the dispute with a copy of all statements and documents
submitted to the arbitrators. Each party shall have an opportunity to reply in
writing to any other party's statements and proofs; but if such party fails to
do so within seven days after receipt of such statements and proofs, he shall
be deemed to have waived his right to reply. Upon the delivery to the
arbitrators of all statements and documents, together with any reply
statements, the arbitrators shall declare the proceedings in lieu of hearing
closed. (Sec. 18, RA 876)

162. When is the proper time to render award?

Unless the parties shall have stipulated by written agreement the time within
which the arbitrators must render their award, the written award of the
arbitrators shall be rendered within thirty days after the closing of the
hearings or if the oral hearings shall have been waived, within thirty days
after the arbitrators shall have declared such proceedings in lieu of hearing
closed. This period may be extended by mutual consent of the parties. (Sec.
19, RA 876)

163. What must be the form and contents of the award?

The award must be made in writing and signed and acknowledged by a

majority of the arbitrators, if more than one; and by the sole arbitrator, if
there is only one. Each party shall be furnished with a copy of the award. The
arbitrators in their award may grant any remedy or relief which they deem
just and equitable and within the scope of the agreement of the parties,
which shall include, but not be limited to, the specific performance of a
contract.
In the event that the parties to an arbitration have, during the course
of such arbitration, settled their dispute, they may request of the arbitrators
that such settlement be embodied in an award which shall be signed by the
arbitrators. No arbitrator shall act as a mediator in any proceeding in which
he is acting as arbitrator; and all negotiations towards settlement of the
dispute must take place without the presence of the arbitrators.
The arbitrators shall have the power to decide only those matters
which have been submitted to them. The terms of the award shall be
confined to such disputes.
The arbitrators shall have the power to assess in their award the
expenses of any party against another party, when such assessment shall be
deemed necessary. (Sec. 20, RA 876)

164. Is Arbitration a special proceeding?

Yes. (Arbitration under a contract or submission shall be deemed a special

proceeding, of which the court specified in the contract or submission, or if
none be specified, the Court of First Instance for the province or city in which
one of the parties resides or is doing business, or in which the arbitration was
held, shall have jurisdiction. Any application to the court, or a judge thereof,
hereunder shall be made in manner provided for the making and hearing of
motions, except as otherwise herein expressly provided. (Sec. 22, RA 876)

165. When may the order of confirmation of award be made?

At any time within one month after the award is made, any party to the
controversy which was arbitrated may apply to the court having jurisdiction,

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as provided in section twenty-eight, for an order confirming the award; and
thereupon the court must grant such order unless the award is vacated,
modified or corrected, as prescribed herein. Notice of such motion must be
served upon the adverse party or his attorney as prescribed by law for the
service of such notice upon an attorney in action in the same court. (Sec. 23,
RA 876)

166. What are the grounds to vacate an award?

In any one of the following cases, the court must make an order vacating the
award upon the petition of any party to the controversy when such party
proves affirmatively that in the arbitration proceedings:
a. The award was procured by corruption, fraud, or other undue
means; or
b. That there was evident partiality or corruption in the arbitrators or
any of them; or
c. That the arbitrators were guilty of misconduct in refusing to
postpone the hearing upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy; that one or
more of the arbitrators was disqualified to act as such under section
nine hereof, and willfully refrained from disclosing such
disqualifications or of any other misbehavior by which the rights of any
party have been materially prejudiced; or
d. That the arbitrators exceeded their powers, or so imperfectly
executed them, that a mutual, final and definite award upon the
subject matter submitted to them was not made.

Where an award is vacated, the court, in its discretion, may

direct a new hearing either before the same arbitrators or before a new
arbitrator or arbitrators to be chosen in the manner provided in the
submission or contract for the selection of the original arbitrator or
arbitrators, and any provision limiting the time in which the arbitrators
may make a decision shall be deemed applicable to the new arbitration
and to commence from the date of the court's order.
Where the court vacates an award, costs, not exceeding fifty
pesos and disbursements may be awarded to the prevailing party and
the payment thereof may be enforced in like manner as the payment
of costs upon the motion in an action. (Sec. 24, RA 876)

167. What are the grounds to modify or correct an award?

In any one of the following cases, the court must make an order modifying or
correcting the award, upon the application of any party to the controversy
which was arbitrated:

a. Where there was an evident miscalculation of figures, or an evident

mistake in the description of any person, thing or property referred to
in the award; or

b. Where the arbitrators have awarded upon a matter not submitted to

them, not affecting the merits of the decision upon the matter
submitted; or

c. Where the award is imperfect in a matter of form not affecting the

merits of the controversy, and if it had been a commissioner's report,
the defect could have been amended or disregarded by the court. The

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 order may modify and correct the award so as to effect the intent
thereof and promote justice between the parties. (Sec. 25, RA 876)

168. When should a notice of a motion to vacate, modify or correct

the award be served?

Notice of a motion to vacate, modify or correct the award must be served

upon the adverse party or his counsel within thirty days after award is filed
or delivered, as prescribed by law for the service upon an attorney in an
action. (Sec. 26, RA 876)

169. When may the judgment be made?

Upon the granting of an order confirming, modifying or correcting an award,

judgment may be entered in conformity therewith in the court wherein said
application was filed. Costs of the application and the proceedings
subsequent thereto may be awarded by the court in its discretion. If
awarded, the amount thereof must be included in the judgment. (Sec. 27, RA
876)

170. What are the papers that must accompany the motion to
confirm, modify, correct or vacate the award?

The party moving for an order confirming, modifying, correcting, or vacating

an award, shall at the time that such motion is filed with the court for the
entry of judgment thereon also file the following papers with the Clerk of
Court;

a. The submission, or contract to arbitrate; the appointment of the arbitrator

or arbitrators; and each written extension of the time, if any, within which to
make the award.

b. A verified of the award.

c. Each notice, affidavit, or other paper used upon the application to confirm,
modify, correct or vacate such award, and a copy of each of the court upon
such application.

The judgment shall be docketed as if it were rendered in an action.

The judgment so entered shall have the same force and effect in all
respects, as, and be subject to all the provisions relating to, a judgment in an
action; and it may be enforced as if it had been rendered in the court in
which it is entered. (Sec. 28, RA 876)

171. When may an appeal be taken?

An appeal may be taken from an order made in a proceeding under this Act,
or from a judgment entered upon an award through certiorari proceedings,
but such appeals shall be limited to questions of law. The proceedings upon
such an appeal, including the judgment thereon shall be governed by the
Rules of Court in so far as they are applicable. (Sec. 29, RA 876)

172. What is the consequence if a party if a party dies after making

a submission or a contract to arbitrate?

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Where a party dies after making a submission or a contract to arbitrate as
prescribed in this Act, the proceedings may be begun or continued upon the
application of, or notice to, his executor or administrator, or temporary
administrator of his estate. In any such case, the court may issue an order
extending the time within which notice of a motion to confirm, vacate,
modify or correct an award must be served. Upon confirming an award,
where a party has died since it was filed or delivered, the court must enter
judgment in the name of the original party; and the proceedings thereupon
are the same as where a party dies after a verdict. (Sec. 30, RA 876)

Chapter 2

KATARUNGANG PAMBARANGAY LAW

(Sections 399 – 422 of the Local Government Code)
&
Restorative Justice

Section 399. Lupong Tagapamayapa. -

(a) There is hereby created in each barangay a lupong tagapamayapa,

hereinafter referred to as the lupon, composed of the punong
barangay, as chairman and ten (10) to twenty (20) members. The
lupon shall be constituted every three (3) years in the manner
provided herein.

(b) Any person actually residing or working, in the barangay, not

otherwise expressly disqualified by law, and possessing integrity,
impartiality, independence of mind, sense of fairness, and reputation
for probity, may be appointed a member of the lupon.

(c) A notice to constitute the lupon, which shall include the names of
proposed members who have expressed their willingness to serve,
shall be prepared by the punong barangay within the first fifteen (15)
days from the start of his term of office. Such notice shall be posted in
three (3) conspicuous places in the barangay continuously for a period
of not less than three (3) weeks;

(d) The punong barangay, taking into consideration any opposition to

the proposed appointment or any recommendations for appointment
as may have been made within the period of posting, shall within ten
(10) days thereafter, appoint as members those whom he determines
to be suitable therefor. Appointments shall be in writing, signed by the
punong barangay, and attested to by the barangay secretary.

(e) The list of appointed members shall be posted in three (3)

conspicuous places in the barangay for the entire duration of their
term of office; and

(f) In barangays where majority of the inhabitants are members of

indigenous cultural communities, local systems of settling disputes
through their councils of datus or elders shall be recognized without
prejudice to the applicable provisions of this Code.

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Section 400. Oath and Term of Office. - Upon appointment, each lupon
member shall take an oath of office before the punong barangay. He shall
hold office until a new lupon is constituted on the third year following his
appointment unless sooner terminated by resignation, transfer of residence
or place of work, or withdrawal of appointment by the punong barangay with
the concurrence of the majority of all the members of the lupon.

Section 401. Vacancies. - Should a vacancy occur in the lupon for any
cause, the punong barangay shall immediately appoint a qualified person
who shall hold office only for the unexpired portion of the term.

Section 402. Functions of the Lupon. - The lupon shall:

(a) Exercise administrative supervision over the conciliation panels

provided herein;

(b) Meet regularly once a month to provide a forum for exchange of

ideas among its members and the public on matters relevant to the
amicable settlement of disputes, and to enable various conciliation
panel members to share with one another their observations and
experiences in effecting speedy resolution of disputes; and

(c) Exercise such other powers and perform such other duties and
functions as may be prescribed by law or ordinance.

Section 403. Secretary of the Lupon. - The barangay secretary shall

concurrently serve as the secretary of the lupon. He shall record the results
of mediation proceedings before the punong barangay and shall submit a
report thereon to the proper city or municipal courts. He shall also receive
and keep the records of proceedings submitted to him by the various
conciliation panels.

Section 404. Pangkat ng Tagapagkasundo. -

(a) There shall be constituted for each dispute brought before the
lupon a conciliation panel to be known as the pangkat ng
tagapagkasundo, hereinafter referred to as the pangkat, consisting of
three (3) members who shall be chosen by the parties to the dispute
from the list of members of the lupon.

Should the parties fail to agree on the pangkat membership, the same
shall be determined by lots drawn by the lupon chairman.

(b) The three (3) members constituting the pangkat shall elect from
among themselves the chairman and the secretary. The secretary shall
prepare the minutes of the pangkat proceedings and submit a copy
duly attested to by the chairman to the lupon secretary and to the
proper city or municipal court. He shall issue and cause to be served
notices to the parties concerned.

The lupon secretary shall issue certified true copies of any public
record in his custody that is not by law otherwise declared confidential.

Section 405. Vacancies in the Pangkat. - Any vacancy in the pangkat shall
be chosen by the parties to the dispute from among the other lupon

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members. Should the parties fail to agree on a common choice, the vacancy
shall be filled by lot to be drawn by the lupon chairman.

Section 406. Character of Office and Service of Lupon Members. -

(a) The lupon members, while in the performance of their official duties
or on the occasion thereof, shall be deemed as persons in authority, as
defined in the Revised Penal Code.

(b) The lupon or pangkat members shall serve without compensation,

except as provided for in Section 393 and without prejudice to
incentives as provided for in this Section and in Book IV of this Code.
The Department of the Interior and Local Government shall provide for
a system of granting economic or other incentives to the lupon or
pangkat members who adequately demonstrate the ability to
judiciously and expeditiously resolve cases referred to them. While in
the performance of their duties, the lupon or pangkat members,
whether in public or private employment, shall be deemed to be on
official time, and shall not suffer from any diminution in compensation
or allowance from said employment by reason thereof.

Section 407. Legal Advice on Matters Involving Questions of Law. - The

provincial, city legal officer or prosecutor or the municipal legal officer shall
render legal advice on matters involving questions of law to the punong
barangay or any lupon or pangkat member whenever necessary in the
exercise of his functions in the administration of the katarungang
pambarangay.

Section 408. Subject Matter for Amicable Settlement; Exception Thereto. -

The lupon of each barangay shall have authority to bring together the parties
actually residing in the same city or municipality for amicable settlement of
all disputes except:

(a) Where one party is the government, or any subdivision or

instrumentality thereof;

(b) Where one party is a public officer or employee, and the dispute
relates to the performance of his official functions;

(c) Offenses punishable by imprisonment exceeding one (1) year or a

fine exceeding Five thousand pesos (P5,000.00);

(d) Offenses where there is no private offended party;

(e) Where the dispute involves real properties located in different cities
or municipalities unless the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;

(f) Disputes involving parties who actually reside in barangays of

different cities or municipalities, except where such barangay units
adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;

(g) Such other classes of disputes which the President may determine
in the interest of Justice or upon the recommendation of the Secretary
of Justice.

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 The court in which non-criminal cases not falling within the authority of
the lupon under this Code are filed may, at any time before trial motu
propio refer the case to the lupon concerned for amicable settlement.

Section 409. Venue. -

(a) Disputes between persons actually residing in the same barangay

shall be brought for amicable settlement before the lupon of said
barangay.

(b) Those involving actual residents of different barangays within the

same city or municipality shall be brought in the barangay where the
respondent or any of the respondents actually resides, at the election
of the complaint.

(c) All disputes involving real property or any interest therein shall be
brought in the barangay where the real property or the larger portion
thereof is situated.

(d) Those arising at the workplace where the contending parties are
employed or at the institution where such parties are enrolled for
study, shall be brought in the barangay where such workplace or
institution is located.

Objections to venue shall be raised in the mediation proceedings

before the punong barangay; otherwise, the same shall be deemed
waived. Any legal question which may confront the punong barangay
in resolving objections to venue herein referred to may be submitted to
the Secretary of Justice, or his duly designated representative, whose
ruling thereon shall be binding.

Section 410. Procedure for Amicable Settlement. -

(a) Who may initiate proceeding - Upon payment of the appropriate

filing fee, any individual who has a cause of action against another
individual involving any matter within the authority of the lupon may
complain, orally or in writing, to the lupon chairman of the barangay.

(b) Mediation by lupon chairman - Upon receipt of the complaint, the

lupon chairman shall within the next working day summon the
respondent(s), with notice to the complainant(s) for them and their
witnesses to appear before him for a mediation of their conflicting
interests. If he fails in his mediation effort within fifteen (15) days from
the first meeting of the parties before him, he shall forthwith set a date
for the constitution of the pangkat in accordance with the provisions of
this Chapter.

(c) Suspension of prescriptive period of offenses - While the dispute is

under mediation, conciliation, or arbitration, the prescriptive periods
for offenses and cause of action under existing laws shall be
interrupted upon filing the complaint with the punong barangay. The
prescriptive periods shall resume upon receipt by the complainant of
the complainant or the certificate of repudiation or of the certification
to file action issued by the lupon or pangkat secretary: Provided,
however, That such interruption shall not exceed sixty (60) days from
the filing of the complaint with the punong barangay.

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 (d) Issuance of summons; hearing; grounds for disqualification - The
pangkat shall convene not later than three (3) days from its
constitution, on the day and hour set by the lupon chairman, to hear
both parties and their witnesses, simplify issues, and explore all
possibilities for amicable settlement. For this purpose, the pangkat
may issue summons for the personal appearance of parties and
witnesses before it. In the event that a party moves to disqualify any
member of the pangkat by reason of relationship, bias, interest, or any
other similar grounds discovered after the constitution of the pangkat,
the matter shall be resolved by the affirmative vote of the majority of
the pangkat whose decision shall be final. Should disqualification be
decided upon, the resulting vacancy shall be filled as herein provided
for.

(e) Period to arrive at a settlement - The pangkat shall arrive at a

settlement or resolution of the dispute within fifteen (15) days from the
day it convenes in accordance with this section. This period shall, at
the discretion of the pangkat, be extendible for another period which
shall not exceed fifteen (15) days, except in clearly meritorious cases.

Section 411. Form of settlement. - All amicable settlements shall be in

writing, in a language or dialect known to the parties, signed by them, and
attested to by the lupon chairman or the pangkat chairman, as the case may
be. When the parties to the dispute do not use the same language or dialect,
the settlement shall be written in the language known to them.

Section 412. Conciliation. -

(a) Pre-condition to Filing of Complaint in Court. - No complaint,

petition, action, or proceeding involving any matter within the
authority of the lupon shall be filed or instituted directly in court or any
other government office for adjudication, unless there has been a
confrontation between the parties before the lupon chairman or the
pangkat, and that no conciliation or settlement has been reached as
certified by the lupon secretary or pangkat secretary as attested to by
the lupon or pangkat chairman or unless the settlement has been
repudiated by the parties thereto.

(b) Where Parties May Go Directly to Court. - The parties may go

directly to court in the following instances:

(1) Where the accused is under detention;

(2) Where a person has otherwise been deprived of personal

liberty calling for habeas corpus proceedings;

(3) Where actions are coupled with provisional remedies such as

preliminary injunction, attachment, delivery of personal property
and support pendente lite; and

(4) Where the action may otherwise be barred by the statute of

limitations.

(c) Conciliation among members of indigenous cultural communities. -

The customs and traditions of indigenous cultural communities shall be

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 applied in settling disputes between members of the cultural
communities.

Section 413. Arbitration. -

(a) The parties may, at any stage of the proceedings, agree in writing
that they shall abide by the arbitration award of the lupon chairman or
the pangkat. Such agreement to arbitrate may be repudiated within
five (5) days from the date thereof for the same grounds and in
accordance with the procedure hereinafter prescribed. The arbitration
award shall be made after the lapse of the period for repudiation and
within ten (10) days thereafter.

(b) The arbitration award shall be in writing in a language or dialect

known to the parties. When the parties to the dispute do not use the
same language or dialect, the award shall be written in the language or
dialect known to them.

Section 414. Proceedings Open to the Public; Exception. - All proceedings

for settlement shall be public and informal: Provided, however, That the
lupon chairman or the pangkat chairman, as the case may be, may motu
proprio or upon request of a party, exclude the public from the proceedings
in the interest of privacy, decency, or public morals.

Section 415. Appearance of Parties in Person. - In all katarungang

pambarangay proceedings, the parties must appear in person without the
assistance of counsel or representative, except for minors and incompetents
who may be assisted by their next-of-kin who are not lawyers.

Section 416. Effect of Amicable Settlement and Arbitration Award. - The

amicable settlement and arbitration award shall have the force and effect of
a final judgment of a court upon the expiration of ten (10) days from the date
thereof, unless repudiation of the settlement has been made or a petition to
nullify the award has been filed before the proper city or municipal court.

However, this provision shall not apply to court cases settled by the lupon
under the last paragraph of Section 408 of this Code, in which case the
compromise or the pangkat chairman shall be submitted to the court and
upon approval thereof, have the force and effect of a judgment of said court.

Section 417. Execution. - The amicable settlement or arbitration award may

be enforced by execution by the lupon within six (6) months from the date of
the settlement. After the lapse of such time, the settlement may be enforced
by action in the appropriate city or municipal court.

Section 418. Repudiation. - Any party to the dispute may, within ten (10)
days from the date of the settlement, repudiate the same by filing with the
lupon chairman a statement to that effect sworn to before him, where the
consent is vitiated by fraud, violence, or intimidation. Such repudiation shall
be sufficient basis for the issuance of the certification for filing a complaint
as hereinabove provided.

Section 419. Transmittal of Settlement and Arbitration. - Award to the

Court. - The secretary of the lupon shall transmit the settlement or the
arbitration award to the appropriate city or municipal court within five (5)
days from the date of the award or from the lapse of the ten-day period

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repudiating the settlement and shall furnish copies thereof to each of the
parties to the settlement and the lupon chairman.

Section 420. Power to Administer Oaths. - The punong barangay, as

chairman of the lupong tagapamayapa, and the members of the pangkat are
hereby authorized to administer oaths in connection with any matter relating
to all proceedings in the implementation of the katarungang pambarangay.

Section 421. Administration; Rules and Regulations. - The city or municipal

mayor, as the case may be, shall see to the efficient and effective
implementation and administration of the katarungang pambarangay. The
Secretary of Justice shall promulgate the rules and regulations necessary to
implement this Chapter.

Section 422. Appropriations. - Such amount as may be necessary for the

effective implementation of the katarungang pambarangay shall be provided
for in the annual budget of the city or municipality concerned.

Terms to Ponder:

1. Adjudication is the power of courts or quasi-judicial agencies to decide

cases filed before them and falling within their jurisdiction.
2. Amicable Settlement is an agreement reached during mediation and
conciliation proceedings.
3. Arbitration is a process wherein the third party from outside the judicial
system is chosen by parties to hear and decide their dispute.
4. Arbitration Award is the decision reached by either the lupon
chairperson or pangkat, as the case may be, upon prior agreement in writing
by the parties to a dispute for the adjudicators to resolve it.
5. Attachment is a provisional remedy in the form of an order issued by a
judge before whom the case is pending by which the property is taken into
legal custody as security for satisfaction of a judgment obtained by the
prevailing party, either at the commencement of the action or any time after
the filing of the case before the final judgment.
6. Complainant — plaintiff (one complaining before the Barangay Captain).
7. Complaint is a concise statement of ultimate facts constituting the
plaintiff’s cause and causes of action.
8. Conciliation is a process wherein the Pangkat forgoes the power to
decide or recommend but assist the parties to isolate issues and options to
reach a settlement by consensus that jointly satisfies their needs
9. Delivery of Personal Property (Replevin) is provisional remedy by
which a judge before whom an action is pending for the recovery of personal
property issues an order for the delivery of such property to the movant or
the party filing the petition upon filing of a bond to guarantee its return or to
answer for the damages.
10. Execution is the process of exacting satisfaction for on or both of the
parties through compulsory or coercive means. It entails the enforcement of
the terms of the amicable settlement or arbitration award in so far as this
may enjoin or command any of the parties to perform an act, give something
or refrain from doing some act
11. Habeas Corpus is a judicial proceeding for the purpose of releasing a
person who is illegally deprived of liberty or restoring rightful custody to the
person who has been deprived of.
12. Incompetent means a person who is suffering the penalty of civil
interdiction; or who is a hospitalized. leper, prodigal, deaf and dumb who is
unable to communicate; one who is of unsound mind, even though he has a

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lucid intervals and a person not being unsound mind but by reason of age,
disease, weak mind, and other similar causes, cannot, without outside aid,
take care of himself and mange his property, becoming thereby an easy prey
for deceit and exploitation.
13. Jurisdiction is an authority to hear and decide a case and given by law
and cannot be agreed by the parties.
14. Katarungang Barangay (KP) is a system of justice administered at the
barangay level for the purpose of amicable settling disputes through
mediation, conciliation or abitration among the family or barangay without
resorting to the courts.
25. Lupong Tagapamayapa (Lupon) is a body organized in every
barangay composed of Punong Barangay as the chairperson and not less
than ten (10) and more than twenty from which the members of every
Pangkat shall be chosen.
26. Mediation is a process wherein the Lupon chairperson or Barangay
Chairperson assists the disputing parties to reach a settlement by consensus
that jointly satisfies their needs.
27. Minor is a person below eighteen (18) years of age.
28. Next of Kin is an individual who is a relative or a responsible friend with
whom the minor or incompetent lives.
29. Pangkat Tagapagkasundo (Pangkat) is a conciliation panel
constituted from the Lupon membership for every dispute brought before the
Lupon consisting of three (3) members after the Punong Barangay has failed
in his mediation efforts.
30. Preliminary injunction is a provisional remedy in the form of an order
issued by a judge before whom the case is pending at any stage before the
final judgment requiring a person to refrain from a particular act.
31. Repudiation is an act of rejecting the validity or refusing to accept the
terms and conditions of agreement on the ground of vitiation of consent by
fraud, violence or intimidation.
32. Respondent — defendant (one being charged).
33. Statute of Limitations is the law which bars or does not allow the
institution or filing of an action or case against another after the expiration of
the period prescribe d for such action or offense
34. Support Pendente Lite is a provisional remedy in a form of an order
issued by a judge before whom the case is pending granting allowance,
dwelling, clothing, education and medical attendance to the person entitled
thereof.
35. Venue is the place where the case is to be heard and decided. This is
not fixed by law except in criminal cases, and can be agreed upon by the
parties.

Segment X: Concept and principles of restorative justice

1. Define Restorative Justice. State briefly the justification of

introducing the Restorative Justice.

Restorative justice refers to a principle which requires a process of resolving

conflicts with the maximum involvement of the victim, the offender and the
community. It seeks to obtain reparation for the victim; reconciliation of the
offender, the offended and the community; and reassurance to the offender
that he/she can be reintegrated into society. It also enhances public safety
by activating the offender, the victim and the community in prevention
strategies. It embraces a wide range of human emotions – healing,

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mediation, compassion, forgiveness, mercy, and reconciliation. (Par q, Sec 4
of RA 9344)
Justification of introducing restorative justice: The current Philippine criminal
justice system, after considering the duties and functions of its different
pillars, reveals its defects and they are the following:
a.The victims of a crime may not pursue a criminal case against the
perpetrator because of lack of support from the government especially
the person arrested for the commission of a crime or the accused
persons have numerous rights compared to the victims of a crime;
b.The suspects who are actually fall guys may be convicted because
they have no money to spend especially in hiring experienced and
skilled lawyers to defend them;
c.The criminal cases may be dismissed because of insufficiency of
evidence or technicality even if the accused confessed that he was the
one who committed the crime;
d.The accused may be convicted of a charge and a penalty is imposed
by the court but the victim or the society as a whole is not yet
contented of the suffering that the accused may undergo;
e.The trial of a case may take a very period of time notwithstanding
the presence of the Speedy Trial Act;
f.Even if a perpetrator is imprisoned or has undergone a community –
based treatment, he may not be reformed or rehabilitated; and

In fact, correction is known as the weakest pillar of the Criminal Justice

System because of its failure to reform and rehabilitate offenders.

g.The persons who were imprisoned by reason of the crime they

committed may not be effectively reintegrated in the community. This
is because they may always be called ex – convicts and most
employers do not hire persons with a criminal record.
As a result of these defects, the victims of a crime may again be
victimized by the system to suffer financially and emotionally especially if
the perpetrator is not directed by the court to pay anything to them. Because
of this, the restorative justice was introduced. It is the purpose of restorative
justice to settle the issue between the offender and the offended party with
their active participation. The members of the community must also give
their active participation for the offended and the offender to be as much as
possible satisfied with the penalty imposed.
It may be true that the restorative justice may be abused by the
offender by just paying the offended party with a certain amount of money
but consider the fact that human beings cannot really establish a perfect
criminal justice system. It is still believed that the restorative justice will
lessen the numerous problems encountered in our present criminal justice
system. In fact, it may be concluded that the abolition of Republic Act 7659
or the Death Penalty Law has deepened our understanding of the character
and
dynamics of the Philippine criminal justice system, particularly its punitive
and retributive orientation. (Tradio, 1996; Pangda, 2007 &
www.restorativejustice.org/university.../ philippines)

After the abolition of the Death penalty law, Republic Act 9285 was
enacted to further strengthen the restorative justice. Said law is 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. (Title of RA 9285)

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Take Note: 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, 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. (Par 1, Sec 3 of RA 9285)

2. Aside form the Alternative Dispute Resolution System, the court

may also conduct Judicial Dispute Resolution. What is the process to
be observed in conducting Alternative Dispute Resolution?

The following is the process to be observed in conducting Judicial Dispute

Resolution before the court:
a.Before trial, the judge may refer the case to the Mediation Center for
conciliation, mediation, or arbitration;
b. If there is no settlement in the Mediation Center, the judge will
conduct a judicial dispute resolution; and
c. If the Judicial Dispute Resolution again fails, the judge will conduct
trial to determine the guilt of the accused and impose the proper
penalty in case of conviction. (Personal interview with Atty. Tom
Mocnangan, November 17, 2010)

3. One of the justifications of penalty is retribution. What are the

distinctions between retributive justice and restorative justice?

The following are the distinctions between retributive justice and restorative
justice:
a.Retributive justice is an approach focused on determining the
following:
 What law was broken;
 Who broke it; and
 How shall offenders be punished?
Restorative justice, on the other hand, is an approach focused on
determining the following:
 What is the harm resulted from the crime;
 What needs to be done to repair the harm; and
 Who is responsible for repairing the harm?

b.Retributive justice considers a crime as an act against the State, while

restorative justice considers a crime as an act against the victim and the
community;

c. In retributive justice, the control of crimes lies to the criminal justice

system, while in restorative justice, the control of crimes lies to the
community;

d. In retributive justice, the community is represented by the State, while in

restorative justice, the community is the facilitator in the restorative process;

e.Retributive justice focuses on the past by determining the person to be

blamed for the crime committed, while restorative justice focuses on the
future to determine the matters to be considered so that the crime will not
be repeated;

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f. Retributive justice focuses on the offender’s past behavior, while
restorative justice focuses on the consequences of offender’s behavior;

g.Retributive justice emphasizes the adversarial relationship, while

restorative justice emphasizes dialogue and negotiations;

h.Retributive justice considers crime as an individual act with individual

responsibility, while restorative justice considers crime as both individual and
social responsibility; and

i. Retributive justice is based on the principle of lex talliones, while

restorative justice is based on forgiveness and reconciliation.

Take Note: “Lex talliones” is a law of equal and direct retribution. In the
words of the Hebrew scriptures, Le talliones means "an eye for an eye, a
tooth for a tooth, an arm for an arm, a life for a life." The earliest written
code of laws was the Code of Hammurabi, the most famous of the Old
Babylonian, or Amorite, kings of Mesopotamia. Hammurabi's code of laws is
almost entirely based on the principle of equal and direct retribution; it
betrays the origin of law in retributive violence. Since the lex talionis is often
the earliest form that law takes, from it we can conclude that the basic
function of law is revenge
and retribution. Unlike direct retribution, however, the law is administered by
the State or by individuals that cannot be victims of revenge in return.
(en.wikipilipinas.org/index.php?title=Lex_Talionis_Fraternitas)

It must be stressed further, however, that lex talliones is the law of

proportionality. Hence, if a property worth 100 gold coins is stolen, the victim
cannot claim 200 gold coins in return.

The fundamental principles of Restorative Justice are the following:

a. Justice requires that all must work to restore those who have been injured
like the victims, the community, and even the offenders;

b. Those most directly involved and affected by crime should have the
opportunity to participate fully in the response if they wish; and

c. The government is responsible for preserving a just public order and the
community establishes peace.

The provisions of the Holy Bible which may be bases of restorative justice:
The following are the provisions of the Holy Bible which may be bases of
restorative justice:
a. Jesus specifically rejects “an eye for an eye” and tells that if anyone hits
you on the right cheek, offer him the other one as well. (Matthew 5:38 – 39)
b. Jesus called on followers to love their neighbors and enemies too.
(Matthew 5:43 – 44)
c. Jesus called for unlimited love and said our forgiveness should be beyond
calculation by forgiving others until seventy times seven. (Matthew 18:21 –
22)
(Other sources: Philippine Bible Society, 1987; Bloomsbury, 2007; Reyes,
2008; Diamante, 2010; Personal interview with Rev. Gloria Mapangdol,
October 2, 2010; Classroom Discussion of Corpuz, 2010)

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 CRISIS MANAGEMENT CONCEPTS

The Situation:

Being located along the circum-Pacific rim of volcanoes and typhoons,

the Philippines plays host to a procession of natural disasters. Volcanic
eruptions, earthquakes, typhoons and tsunamis regularly wreak havoc on
lives and properties.
Aggravating these natural disasters are man-made ones like civil
disturbances, terrorist activities, hijacking and hostage-taking.
Such disasters naturally cause public anxiety, loss of lives and
properties and cause embarrassment to the government. Somehow, these
crises situations may be predicted, prevented or their adverse effects
minimized.

Crisis and Emergency

Crisis, came from the Greek word crisis, which means to separate. As
defined
Wagnalls, crisis is a turning point in the progress of an affair or a series of
events.
Through crisis is often used interchangeably with emergency, and
crisis develop from an emergency and vice versa, these terms have certain
degree of difference.

Emergency came from the Latin word emergentia meaning a dipping;

plunging. Funk and Wagnalls defined emergency as a sudden condition or
state of affairs calling for immediate action.

Crisis Management

It is the expert handling of crisis or emergency to reduce or eliminate

danger or damage or to like, especially on the part of the Government.

Crisis management is the proper utilization of all available resources

and the formulation of policies and procedures to effectively deal with
progressive sequence of events (crisis) and sudden or unforeseen state
(emergency).

Disaster

Refers to an event that causes serious loss, destruction hardship,

unhappiness or death. It is something that falls completely, especially in a
way that it is distressing, embarrassing, or even laughable.
In a broader point of view, DISASTER is a sudden, unforeseen,
extraordinary event that is caused by man or nature resulting to the wide
spread of death or injury as well as serious loss or damage to property.

Disaster Management

Refers to the systematic handling/dealing with a disaster from the

initial stage until its termination stage using various tools/methods to
minimize loss of life, damage to property, and enhance rehabilitation. It
maybe defined also as the range of activities designed to maintain control
over disaster or emergency situations and to provide frame work (plan) for
helping victims to recover from the impact or disaster, and simultaneously

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securing potential victims to avoid impact of the disaster. Take note that
disaster management deals with situations that happen prior to, during and
after the disaster.

Police Emergency

is a tactical situation related to police works which requires special

procedures to be used by people with special skills to neutralize whatever
threat to public safety thus save life and property.

State of Calamity

A condition involving mass casualty and/or major damages to property,

disruption of means of livelihoods, roads & normal way of life of people in the
affected areas as a result of the occurrence of natural or human-induced
hazard.

Types of Crisis/Emergency

NATURAL CRISES/EMERGENCIES:

(1) Fire
(2) Marine/Air Disasters
(3) Structural collapse
(4) Hazardous spills
(5) Utilities failure (power, water, telephone)
(6) Nuclear accidents
(7) Food Scarcity/famine
(8) Fuel shortage Pestilence/epidemic
(9) Pestilence/Epidemic
(10) Floods
(11) Volcanic Eruption
(12) Earthquake Tsunami
(13) Tidal Wave
(14) Typhoons
(15) Drought

MAN-MADE CRISES/EMERGENCIES:

a. Man-Made Crises/Emergencies
(1) Civil disturbance

(a) Violent labor strikes

(b) Riots
(c) Anarchy
(d) Disorderly Mass Demonstrations

(2) Revolt

(a) Mutiny
(b) Insurrection
(c) Coup d `etat
(3) Revolution
(4) Boarder incident
(5) War
a. Conventional

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 b. Nuclear
(6) Kidnapping
(7) Hijacking
(a) Air
(b) Sea
(c) Land
(8) Hostage-taking
(9) Terroristic activities (bombing, arson, assassination/liquidation,
extortion, intimidation, etc.)
(10) Attacks/raids on government installations/ facilities and vital
facilities

Laws Related to Crisis/emergency/disaster

Executive Order 320 (March 20, 1988) – National Peace and Order Council
amended by E.O. No. 773 Further Reorganizing the Peace and Order Council.
PD 1566 – National Disaster Coordinating Council (NDCC)
RA 10121 – Philippine Disaster Risk Reduction and Management Act of 2010
NDCC to National Disaster Risk Reduction and Management Council
(NDRRMC). An Act Strengthening the Philippine Risk Reduction and
Management System, providing for the National Risk Reduction and
Management Framework and Institutionalizing the National Risk Reduction
and Management Plan, Appropriating funds therefore & other Purposes.
Approved on: May 27, 2010
E.O. No. 137 declares July as the National Disaster Consciousness Month
(NDCM)

PUBLIC CRISIS

Involves more than 1 person or one family. It is a form of crisis that is

tantamount to public emergency or police emergency.

INDIVIDUAL CRISIS

It refers to the feeling that arises when a person faces unpleasant

situation such as frustrations and conflicts.

Types of Crisis

1. Physical Crisis those that are related to health problems or bodily

sickness/sufferings.
2. Economic Crisis the deprivation of the basic necessities of life like
food and material things.
3. Emotional Crisis when an individual is affected by negative feelings
like emotional disturbances, fear, etc.
4. Social Crisis the experiencing lack of interest, confidence and social
skills to relate meaningful, harmonious relationship with others.
5. Moral Crisis the person has an irrational or distorted concepts of what
is right or wrong, lack of moral values and integrity of the person.
6. Psychosexual Crisis failure of the person to assume ones sex role
and identity as a man or woman. The person has an inappropriate sex
objective, inadequate and distorted expression of affection.

OBJECTIVES OF CRISIS MANAGEMENT

1. Resolve w/out further incident.

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2. Safety of all participants.
3. Apprehension of all perpetrators.
4. Accomplish the task w/in the framework of current community standards.

CONCEPTUAL FRAMEWORK

The 4P Crisis Management Model

Crisis incidents occur when they are least expected. What make these
incidents me crises situations is when they go out of control and cause
destruction to lives property or endanger public safety. The 4P Crisis
Management Model is envisioned dress crises situations in two-phases the
Proactive and the Reactive in four Prediction, Prevention, Preparation and
Performance.

Phases of Crisis Management

Crisis management is continuing activity that has two distinct phases:

The Pro-active and the Re-active phase.

a. The Proactive Phase. This phase is designed to predict or prevent the

probability of occurrence the same time prepare to handle them when they
occur. It encompasses 3Ps of the 4P Crisis Management Model prediction,
prevention and preparation.

(1) Prediction

This stage involves foretelling of the likelihood of crises occurring or

man-made through the continuous assessment of the all possible threats and
threats groups, as well as the analysis of developing or reported events and
incidents.
Crises incidents can be predicted through updated inputs from
intelligence reports as well as the continuous monitoring and analysis of the
confluence of related events. In case of man-made crises/emergencies, and
some natural crises/ emergencies, this stage requires continuous study of
the targets of existing threats, specifically the threat groups, their probable
targets and the vulnerabilities of critical installations and facilities.
All threats and threat groups should be considered whether they are
internal
or external to any organization or facility.

(2) Prevention

When most man-made crises/emergencies, this stage involves the

institution of passive and active security measures, as well as the remedy or
solution of destabilizing factors and/insecurity flaws leading to such
crises/emergencies. On the other hand, most natural crises/emergencies at
this stage require vigilance and alertness to signs and manifestations of
developing crises/ emergencies. Warning/alert systems have to be
established to increase the chances or odds of preventing the occurrences of
crises/emergencies.
Preventive actions may well be applied to both natural and manmade
crises/emergencies to prevent them from developing to uncontrollable
proportions.

(3) Prepare

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 Preparation for crises/emergencies entails planning, organization,
training and stockpiling of equipments and supplies needed for such
crises/emergencies. Simulated drills at unspecified days and times test the
effectiveness of preparations, bring out flaws and weaknesses, and
corrections/remedies effected to heighten levels of readiness of systems,
procedures, organization, equipment and logistics to better cope with actual
crises/emergencies.

b. The Reactive Phase – Performance

This phase covers the last of the 4Ps, Performance, which is the actual
execution or implementation of any of contingency plan when a crisis
situation occurs despite the pro-active measures.

The objectives in this stage are: to ensure a high probability of success

in neutralizing the perpetrator(s); to minimize, or cushion the adverse effects
of the crisis incident; and, to ensure a smooth and speedy rehabilitation or
return to normalcy.

The performance of crisis management action for terrorist-based crises!

management is done in three stages:

(1) Initial Action

All Unit Commanders are required to understand and acquaint

themselves on Crisis Management doctrine. As such, they will be held
responsible for all their actions. Any military/police unit taking cognizance of
a crisis incident shall immediately undertake appropriate actions to contain
the crisis situation and report the matter to the cognizant agencies through
channels, regardless such crisis situation is within or beyond its capability to
handle.
The initial action includes monitoring of the progress of the incident,
securing the scene, protecting itself, establishing perimeter security,
evacuating innocent civilians, if possible, preventing the escape of the
perpetrators, until the designated security and tactical elements/units
augment its unit as they arrive. Other than the afore cited tasks, the initial
action unit shall not engage in any tactical action against the perpetrators
except in its own defense.
(2) Action

The action phase begins as soon as the On-Scene Command Post

(OSCP) is established and the Tactical intervention, service support units,
Negotiations Teams and the Public Affairs personnel arrive and are deployed.
The On-Scene Commander (OSC) gradually relieves the initial action unit
commander and completes staffing of the OSCP. The OSC discusses the
incident with the commanders and staff of the units and agencies involved
and plans what actions to take and establish positive contact with Crisis
Management Committee (CMC) to ensure that all his succeeding actions are
cleared. The action phase consists of two distinct activities: negotiation and
tactical action/intervention which may take place independently either
simultaneously or in succession; In any case, however, both activities are
under the complete control and supervision of the On-Scene
Commander.

(3) Post Action

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 This stage begins as soon as the perpetrators surrender, or when they
are captured or neutralized and the crisis situation is deemed cleared. The
on-scene Commander ensures that necessary Post Action activities are
undertaken to restore normalcy and bring responsible to court.

CRISIS MANAGEMENT POLICIES

Subscription to Anti-Terrorism Covenants

The Republic of the Philippines subscribes to all international

conventions and initiatives against terrorism and will participate in all
endeavors designed to strengthen international cooperation in order to
prevent and neutralize terroristic acts.

Coordinated and Calculated Response Against Terrorism

The government shall effectively utilize the National Peace and Order
Council (NPOC) through the Crisis Management Committees to undertake
comprehensive planning and research in order to develop a coordinated and
calculated response against terrorism, in accordance with our culture, values
and justice system.

Terrorism Considered a Criminal Act

The government considers all terrorist actions, regardless of

motivation, as criminal acts and shall undertake all lawful measures to
prevent same and bring to justice those who commit such terroristic acts.

Lawful Means and Peaceful Resolution of Crisis

The government shall exhaust all lawful means and seek peaceful
resolution of any crisis in order to minimize, if not prevent the loss of lives
and destruction of properties. However, it will not accede to blackmail or
terrorist demands nor grant concession.

Crisis Situation Involving Foreign Nationals

In crisis situations involving foreign nationals or in crisis incidents

inside embassies or foreign occupied facilities, the government will act in
accordance with existing bilateral understanding or agreement with the
foreign government involved. In the absence of such understanding or
agreement, the government will act in accordance with its policies and
maintain close contract and coordination with the foreign government whose
personnel or property are involved.

Involvement of Filipino Nationals in Crisis Incidents Abroad

Similarly, if Filipino nationals are involved as perpetrators in similar

incidents in foreign countries, the government will also maintain close and
continuous contact with the host government and provide requested
information relevant to the situation. If Filipino nationals are the victims, the
government shall provide the necessary assistance for their immediate relief
or repatriation to the Philippines.

DND-AFP-DILG-PNP POLICY

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General
In addressing crises situations, the Crisis Management Organizations
and the military/police shall be generally guided by the foregoing national
policies and strictly implement same.

Graduated Armed Response

Armed actions shall be employed in a graduated manner only after

exhausting all peaceful means, using appropriate and necessary means
commensurate to the situation.

No Compromise with Terrorists

The government will not compromise nor make concessions to

terrorists even if it involves its personnel and property. The government will
act promptly, decisively and effectively, choosing from the whole range of
military/police actions appropriate to the circumstances.

Handling Hostage Situations

a. The AFP/PNP shall ensure the safety of civilian hostage(s) as a paramount

consideration that shall take precedence over all others;
b. Understand and minimize the mental anguish and agony of the victims’
family, relatives and friends;
c. Achieve the early liberation of the hostage(s) or victim(s);
d. Ensure the recovery and return of the loot or the fruits of the crime;
e. Ensure the successful case build-up and prosecution of cases against the
perpetrator(s)/suspect(s); and
f. Attain effective integration of the efforts of the operating units for optimum
results, to minimize duplication and unnecessary competition and promote
efficiency.

Respect for Human Rights

In all their actions in any crisis situation, all AFP/PNP personnel shall
respect the human rights of the victims and the perpetrators. Unit
commanders shall be held responsible that no human rights violations shall
take place in the course of its operations and in handling of those involved in
any crisis.

Development of AFP/PNI’ Nationwide Capability to Cope with

Terrorist- based Crises/Emergencies

The AFP major services and the PNP shall organize, train, equip and
maintain special units based at GHQ, AFP and NHQ, PNP; with capability for
nationwide deployment.

Handling of Crisis at the Lowest Levels Possible

All terrorist-based crises/emergencies which are basically police

matters, shall be handled as much as possible, at the lowest level and
resolved at the earliest possible time.

Organization of AFP,PNP Special Action/Reaction Units at all Levels

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 Basically, pertinent provisions of Executive Order No. 216 series of
1995 shall govern the organization of AFP and/or PNP units reacting to
terrorist-based crises/emergencies.

Development of AFP/PNP Anti-Terrorism Doctrines

The AFP/PNP shall continuously develop doctrines, concepts and

procedures for containing terrorism taking into consideration our own
culture, values and justice system.

Guidelines in Addressing Crisis Situations Arising from Threats to

National Security Pursuant to Executive Order No. 216, s. 1995.
a. General Principles

(1) The AFP shall be employed to address external security threats and
such other threats posed by organized armed groups on the national
security and territorial integrity requiring the employment of large
tactical units and military weaponry. The PNP shall support the AFP in
the accomplishment of this function, and shall, in certain instances,
initially confront until such time that the AFP shall have deployed
units/elements for the purpose. (As practicable, the PNP units/elements
shall furnish the APP its holdings and assessments on the particular
threat to ensure its continuity and to preclude the occurrences of a
security gap).

(2) The PNP shall enforce laws and ordinances and perform other law
enforcement functions. In the performance of these functions, it shall
have unimpeded access to the operational area upon prior
coordination, and it may call upon, and shall be assisted by the APP.
However, the APP and its units and personnel shall not have law
enforcement authority unless the exercise of such is in support of the
PNP or other law enforcement agency or as a private citizen within the
purview of Section 6 of Rule 113 of the Rules of the Court.

(3) The PNP shall play a supportive role to the APP during national
emergencies, including disasters and calamities.

(4) In the performance of their respective functions, the spirit of

cooperation, coordination and accommodation shall prevail. Direct
liaison, including regular inter-service intelligence exchanges and
socials among those concerned is encouraged.

(5) Service courtesies, particularly in regard to those accorded rank

and seniority, shall be observed among personnel of both the P1P and
APP, especially during the conduct of official business.

(6) Whenever units/elements of both the AFP and the PNP are involved
in an
internal security operation, the unit/element of the agency with the
primary role shall have operational direction and supervision over the
units and elements of the agency playing the supportive role. The
same procedure shall immediately be assumed the case of’
conjunction of’ units/ elements of the two agencies in the course of
independent operations.

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 (7) The units/elements of one agency placed in support of the unit?
element of the other agency shall continue to perform its primary
mission and statutory functions. Such support unit/element shall
provide sufficient assistance in terms of personnel and resources
without jeopardizing the accomplishment of its primary mission and
statutory functions.

b. Strategic Concept

(1) Pursuant to RA 6975, the DILG-PNP assumes primary responsibility

of preserving the internal security of the State to include the
suppression of insurgency effective 1 January 1995. However, by virtue
of Executive Order Nr. 216, the DND- AFP is called upon to assume
primary responsibility for preserving the internal security in certain
areas of the country, as may be determined by the President upon
recommendation of the Peace and Order Council.

(2) Notwithstanding the retention of primary responsibility over the

internal security in certain areas by the DND-AFP, eventual compliance
with the intent and
spirit of the law (i.e. ,.,DILG-PNP to have primary responsibility) shall be
sought.

(3) Pursuant to Section 12 of Republic Act Nr. 6975 and Section 5 of

Executive Order Nr. 216, s. 94, the President, upon the
recommendation of the appropriate Peace and Order Council, may call
upon the AFP to assume the primary role in other areas or approve
turn-over of the same to the PNP in others, depending upon the
internal security situation in each particular area.

(4) The turn-over of primary responsibility for internal security from the
PNP to the AFP and vice versa in accordance with the procedures and
parameters provided in these guidelines shall be in increments of at
least a whole province.

(5) General law enforcement functions nationwide shall be the primary

concern of the DILG-PNP.

TERRORIST-BASED CRISIS MANAGEMENT PROCEDURES

Section I. PROACTIVE PHASE

Predict

The first and foremost concern of crisis management is to be able to

predict likelihood of crises occurring through the continuous
gathering/updating of inputs analysis of the threat. The inputs consist
basically of Intelligence and Events.

a. Intelligence

This involves collection, evaluation, processing, updating dissemination

of information obtained from all possible sources. Intelligence for this
management may be categorized as strategic, tactical and operational. The
requirements and sources of intelligence are indicated below.

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(1) Strategic Intelligence (International Threat Groups)
(a) Requirements

- Identity of Groups, leaders and members, known travel, recruitment

- Background, organizations, training, financing, logistics: support, weapons
- Usual areas of operation, international connections. state support
- Usual methods of operation
- Likely targets

(b) Sources
- Police and military
- Diplomatic channels
- Friendly intelligence
- Press
- Clandestine reporting

(2) Tactical Intelligence (Local / operating threat groups)

(a) Requirements (Same as Strategic Intelligence)

(b) Sources
- Police and military
- Intelligence Service
- Captured/surrendered members of threat groups
- Concerned citizens
- Press

(3) Operational Intelligence (Needed for Specific Incident)

(a) Requirements
- Number, location, identities and background of threat groups
- Number, location, identities and background of hostages
- Weapons and explosives in the hands of threat groups
- Detailed information on site of the incident and environs
* Building design and construction, floor plans, utilities, locks, access points
* Aircraft design and construction, communication equipment on board, and
access points
* Ship design and construction, communication equipment on board
* Vehicle design and construction
* Terrain features of area and access routes
* Airfield data
* Weather data

b) Sources
- Observers at scene
- Witnesses at scene when incident began
- Building plans
- Aircraft design plans and airport layout, designers
- Security and maintenance personnel
- Airport and airline personnel
- Released or escaped hostages
- Hostage negotiators
- Technical operators
- Ship design and layout, naval architecture

b. Events

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 All significant information on events/incidents which could have a been
on the types of crises herein addressed or data obtained during occurrence
of similar incidents or actual crisis, serve as inputs which can facilitate
analyses necessary for the identification of probable threat groups and
targets, or for formulating preventive measures, security procedures and
probable courses of action when similar incidents occur.

c. Threat Analysis

AFP/PNP units must be able to identify the threat, its nature.

characteristics, operational capabilities and probable targets and know their
of vulnerabilities so that steps can be taken to keep a potential threat from
becoming reality. Threats may come in the form of kidnapping,
assassination, ambuscade arson, bombing, take- over of vital or high-value
installations or disruption of important national/international events.

d. The Threat Groups

(1) Broad Categories of Threat Groups

(a) Political Terrorists

These are ideologically-inspired individuals or groups. They want

prestige and power for a collective goal or higher cause. Many of its
members have extensive criminal backgrounds. They often recruit new
members from prisons. beginning their indoctrination and training while
still confined thereat. These recruits see membership in the terrorist
group s an opportunity to exercise violent behavior and they have
pathological need for the support and identification provided by group
membership.
The CPP/NPA, MILF and MNLF Lost Command are basically considered
as belonging to the category of political terrorists, being called Dissident
Terrorists (DTs) and Southern Philippine Terrorists (SPTs), respectively.
The ultra armed elements are likewise classified under this category.
While these groups advocate different ideologies, their characteristics,
organizations, and modus operandi re similar in that they may follow
violent patterns of terrorist actions such as hostage takings,
assassinations, bombing of buildings, bridges and power lines, arsons,
ambuscade, etc.

(b) Criminals

These are people who commit terrorists acts for personal either than
ideological gain. Some of their terroristic acts such as kidnapping or
extortion, are planned. Others are not planned, but happen as a result of
the confrontation and encounter with law enforcement agencies to an
on-going crime. For instance, a number of bank robberies have evolved
into hostage-taking situations when policemen arrive in response to an
alarm while the robbery is still in progress.

(c) Mentally-Damaged Individuals

These people commit terrorists acts during a period of psychiatric

disturbance. This type maybe the most difficult terrorists to deal with.
Many of them are impulsive and unpredictable.

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 (d) Religious Extremists

Mainly belonging to Southern Religious Fundamentalists orient of other

faiths,
they are apt to execute hostages belonging to other religious groups.

(e) Economically-motivated groups/individuals mainly belonging

labor groups.
Depending on their ideological orientations, motivations and long
understanding
situation, recourse to violence may be resorted to many reasons
favorable them.

(2) Terrorist Characteristics

(a) Common Characteristics - The following are characteristics common to

terrorist
groups:
- They promote fear.
- Usually militarily weaker than the opposing security force.
- Do not necessarily equate tactical with mission success. Publicly may
be the
main terrorist objective.
- Highly mobile.
- Exploit the fact that terror is cheap. A few perpetrators with
inexpensive
small arms can create disruptions
affecting whole nations.
- Possess limited resources.
- Operate most often under cover.
- Believe small groups means security and efficiency.

(3) Threat Characteristics Matrix - The threat characteristics are

categorized into four: ORGANIZATIONAL, BEHAVIORAL, RESOURCE
AND OPERATIONAL.

(4) Terrorist Goals

(a) Immediate Goals
- Obtain worldwide, national, or local recognition for their cause;
- Cause government reaction, over-reaction, and repression leading to
immediate public dissension;
- Harass, weaken or embarrass government, military police or other
security forces;
- Show government’s inability to protect its citizenry;
- Obtain money or equipment;
- Disrupt or destroy means of mobility or communications;
- Demonstrate power or threat credibility;
- Prevent or delay executive decisions or legislations;
- Cause strikes or work slowdown
- Discourage impending foreign investments or foreign government
assistance programs or important events;
- Influence elections;
- Free prisoners; and
- Satisfy vengeance

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 (b) Long-Range Goals
- Cause dramatic changes in government such as revolution, civil war or
war between nations;
- Turn the tide favorably to their side during guerrilla warfare;
- Influence local, national, or international policy decisions.. and
- Gain political recognition as the legal body representing an ethnic,
national, religious or political group.

(5) Terrorist Groups

(a) Cooperation Among Terrorist Groups

Today, there is apparent worldwide conspiracy among the groups. This

include sharing of resources, expertise, and safe havens joint cooperation.
Certain foreign governments have encouraged cooperation. terrorist groups.
These governments provide logistical supports, organize between leaders
from different groups, and assist in operations. These government consider
the use of terrorism as a cheaper alternative to conventional essence, that
terrorist groups also receive assistance from social, ethnic and groups in
their area of operations. These front groups collect funds from the
sympathetic ‘to the terrorist group cause. They may also provide transfer
intelligence, guides and safe conduct/havens for group members.

(b) Organizational of Terrorist Groups

The way a terrorist group is organized is determined by these need for

security and the number of people in the group. Generally, larger arc
penetrable and less secured while smaller groups can maintain a high
degree often, but usually have limited operational capabilities.
- Group Size - Organizational growth create administrative and
support burdens. The larger groups can only succeed over the long
term in a weak political environment.
- Group Security - Government forces attempt to describe terrorist
groups or keep them in defensive position to discourage them from
mobilize new terror. To
reduce the effectiveness of the government agencies, terrorist must be
extremely
covert.

(6) Terrorist Operations

Terrorist operation are covert and well-executed. They are usually

carried out by specially-trained, specially-equipped and specially-organized
clandestine elements.

(a) Weapons
Terrorist usually use basic arms and explosives during operations.
However, they continue to seek access to advanced weaponry.
(b) Training
Terrorist often undertake training activities away from their homeland,
usually in countries known to be sympathetic to terrorist activities. They
really train on subversion, weaponry, infiltration and negotiation
practices. Generally, specially- trained terrorist are of above-average
intelligence.

(c) Methods

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 Terrorists usually operate as small bands of trained personnel carrying
light automatic weapons, hand grenades, basic explosives, light rations,
ammunition for several days and light communication equipment (This
allow them main aware of public reaction to their acts). They mask their
activities by merging the local populace. Teams include assault and
security elements. Leaders serve negotiators.
During the hostage- taking/barricading, kidnapping, or skyjacking
personnel of both
assault and security elements take turns at providing security. They
warn the victims and watch entrances and exits. They watch out for
counter-terrorist sites, maintain their fields of fire and keep their
weapons loaded and ready. Hostages e usually separated to prevent
connivance/ cooperation, escape planning, or intelligence gathering.

(d) Sequence of Terrorist Actions

Pre-Incident
Pre-operational activities include reconnaissance missions, thirty periods of
training, and rehearsals. Plans are conceived by the command rents while
target and area reconnaissance teams and actual perpetrators do not et
Information are passed down through intermediaries, liaisons, or by message
drops. Most terrorist contingency plans include alternative targets,
alternative negotiation demands, departure or escape routes and reassembly
points.

Initiation Phase

It is this phase that terrorist move to their target covertly, singly or in pairs
along separate routes. They use fictitious names, fake identification papers
and passports. Weapons and other items are sent separately to pre-arranged
locations where they are to be given to perpetrators. When the terrorist
decide that a hostage/barricade or other similar undertaking is a worthwhile
endeavor, they may use the negotiation phase to gain publicity. The
negotiation may include certain specific demands that often require inter-
government negotiations at the highest level, There may be trade-off,
especially when the demands are more than the government is able to meet.
Conversely, there may be no negotiations at all and the climax phase could
immediately follow the initiation phase.

Post-Incident Phase

During the post-incident phase, the terrorist members regroup, critique and
criticize the operation. They learn their successes and failures. This learning
is often shared with other terrorist groups.

(7) Terrorist Tactics

(a) Bombing
- Delivery to target is done through:
• Vehicle Bombs - Booby trapped vehicles with attached devices and
car bombs.
• Laid Charges - bombs placed by hand.
• Projected Bombs - bombs thrown by hand, launched from rifles, or
projected by a mortar device.
• Postal/Mail Bombs - bombs sent through letters, parcels and other
items sent by mail.

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 Activation means

Command Activation - by radio, electric leads, pull wire, or

mechanical strikers.
Action by the Subject/Target - Trip wire, pressure device, light
sensitive device, electric switch.
Time Delay - clock, burning, fuse, chemical delay, atmospheric
pressure.

(b) Arson
This is used to destroy or disrupt targets such as public utilities, official
headquarters, economic and industrial facilities.

(c) Hijacking

Hijacking and skyjacking are very popular means used by the

Terrorists. Terrorists hijack vehicles with supply, ammunition, fuel
cargoes. Hijacked a closed military installation. Skyjacking of
commercial aircraft.

(d) Assassination/Liquidation

This is the oldest but still the most widely used terrorist tactic. Targets
are often predictable, and invariably, the terrorist will claim
responsibility for the assassination. All three categories of terrorists
operate against government officials, corporate executives, military,
police and security officials. The CT's sparrow operations are
considered under this type of terrorist tactics.

(e) Ambush

This is a well-planned, generally well-thought-out, properly rehearsed

and precisely executed operation. The terrorist have time on his side
and will spend considerable time preparing for an operation. Terrorists
have an advantage in that they can choose their time and place on
operation.

(f) Kidnapping

Kidnapping for ransom is the most common form of this tactics. The
victim is normally confined in a secret hideaway and the kidnapper
makes material demands.

(g) Hostage- Taking

The hostage-taker confronts the authorities and openly holds the

victims for ransom. His demands are often more than just material in
mature. Political concessions are frequently demanded in exchange for
the hostages’ lives media. Second, the fact that live hostages are
involved increases the drama of the event, thus pressure can be
applied by the terrorists to force accessions hostage is a tangible-asset
to the terrorist, something with which to bargain.

(h) Robbery/ Extortion

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 Terrorist operations are expensive. To help finance their activities,
terrorist rob banks and armoured vehicles and persons carrying large
sums of cash. Bank robberies are also used as graduation exercises for
terrorist training programs and
viewed as a tactical operation. They conduct reconnaissance, plan
escape routes and operate with a high degree of efficiency.

(i) Progressive Taxation

The progressive taxation scheme of the CPP/NPA is a form of extortion

through coercion or use of force against the victim or his property.

(j) Raids/Attacks
Target may not necessarily be vital, isolated or large ones what is
important is the raid/attack will attract public/media attention.

POSSIBLE TARGETS OF TERRORIST

A. Military/Police – they targets of terrorist because military, para- military

and police elements are sources of arms, explosives and other weaponry.
B. Engineering and Emergency System – hydro electric plants, gas facility
site, dams etc.
C. Communication and Supplies – equipment warehouses, lines and facilities
of communication, chemical storage sites and the like.
D. Transportation Facilities – rail lines, cars, bus depots, airports and aircraft,
main land routes and bridges
E. VIPs – diplomatic corps, government officials, corporate executives, police
and the like.

Policies in Handling Crisis/Hostage Situation

TERMS TO PONDER:

1. Hostage – a person or entity who is held by a captor. Someone who is

seized by a criminal abductor in order to compel another party such as a
relative, employer, law enforcement, or government to act, or refrain from
acting, in a particular way, often under threat of serious physical harm to the
hostage(s) after expiration of an ultimatum.
2. Hostage Taker – a person or party who seize(s) or hostage(s) is/are known
as hostage takers.
3. Hostage Negotiation – a mutual discussion between authorities and a
hostage-taker or barricaded offender leading to an agreement concerning the
release of hostages or the surrender of the offender.
4. Special Threat –any situation involving a sniper, barricaded criminals,
terrorist activity, or hostage-taker(s) that is beyond the capacity of standard
police equipment, manpower, & training.
5. Special Reaction Team –refers to any team of military/police personnel
(SWAT/SAF) especially trained, armed, & equipped to contain & neutralize a
special threat.
6. Negotiation –the process of interpersonal communication in which
interested parties resolve disputes, agree upon courses of action, bargain for
individual or collective advantage, &/or attempt to craft outcomes which
serve their mutual interest. It is usually regarded as a form of alternative
dispute resolution.

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CATEGORIES OF HOSTAGE TAKER

1. PROFESSIONAL HOSTAGE TAKER

•the professional criminal who has his escape blocked during the
commission of a crime.
•Usually the easiest type of hostage taker to deal with is the
professional criminal.
•He is considered a relatively rational thinker who, after assessing the
salutation & weighing the odds, in most cases comes to terms w/ the
police & refrains from
unnecessary violence or useless killing.

2. Psychotic Hostage Taker - are mentally ill people who take hostages
during a period of psychiatric disturbance.

3. Person in Crisis- are people who take hostages during a period of

prolonged frustration, despair & problems.

4. Common Criminals – are people who take hostages for personal, rather
than ideological reasons. Reasons why common criminals take hostages:
escape, money, & transportation.

5. Prisoners – are people who take hostages because of dissatisfaction &

discontent regarding their living conditions in prison.

6. Terrorist or Fanatic Hostage Taker – are ideologically-inspired

individuals or groups of people who take hostages because of political &
ideological beliefs.

PHASES OF HOSTAGE SITUATION

1. Capture Phase - In terrorists situation, the strike team is brought

together and briefed on the specific primary and alternate targets. They
conduct final rehearsals to fine tune the operation, move to the attack site, &
then carry out the plan.

2. Transportation/Consolidation Phase – In some case, the hostage

takers have enough freedom to transport their victim's to a site they deemed
adequate as a confinement area. In other case, the hostage taker are forced
or choose to make do with what they have & remain at or near the capture
site, setting up a defensive perimeter.

3. Holding Phase (HP) – known as the “lengthiest phase”. In many ways,

this is the safest phase for the hostage. The situation has had a chance to
stabilize. There is little or no direct action taken by the authorities. The HP is
a waiting period and is filled w/ negotiations.

4. Termination Phase – is generally a very tense time for all people

involved in the crisis. The easiest & safest termination for the hostage is a
voluntary release followed by hostage takers surrender. More dangerous is
the escape, & most dangerous is the rescue by an outside force or the killing
of the hostages as a means to end the crisis.

Why Negotiate?

Negotiation has many advantages.

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During negotiation, information is gathered about the offender as well as the
hostages to allow invaluable communication & gaining of a sense of
understanding between the offender, law enforcement officials, & his victim.
Thus, there is decrease in stress and anxiety.
Time used in negotiating allows the hostage taker to reevaluate his position
and to consider alternatives to the present course of action.
Time- is an important factor working for the police. As a general rule, Dr.
Schlossberg notes: “The more time the felon spends with the hostage, the
less likely he is to take the hostage's life, because they become acquainted
and develop feelings for one another.”
the passage of time also gives the police an opportunity to prepare for
different eventualities & permits the felon to make a mistake
Negotiators refer to these quiet intervals as “dynamic inactivity”. As long as
time passes without any harm to persons involved, the negotiators are
making progress. Field commanders should keep in mind that patience is a
virtue.

3 Main Categories of Negotiation Team

1. Primary Negotiator – This negotiator actually communicates with the

subject.
2. Secondary (Backup) Negotiator – This negotiator assist the primary
negotiator by offering advice, monitoring the negotiations, keeping notes, &
ensuring that the primary negotiator sees & hears everything in the proper
perspective.
3. Third Negotiator – These intelligence negotiator interviews person
associated with the suspect to compile a criminal history & a history of
mental illness, as well as to gather other relevant information.

Who is a Detective Negotiator?

It takes a singular type of individual to deal unarmed, face-to-face, with an

armed felon holding a hostage.
He must be cool, resourceful, mature, & most of all, effective in verbal
communication.
The ff criteria are being used to select the members of the negotiating team:
• volunteers only;
• good physical condition;
• mature appearance;
• good speaking voice;
• skilled interrogator; and
• representative of various ethnic & racial groups with, if possible, the ability
to speak a foreign language.

Must Training of Hostage Negotiation Team

1. Psychology – The greatest emphasis was placed on intensive

psychological training to prepare team members to various situations and
develop strategies using psychological techniques rather than force to obtain
the safe release of hostages.
2. Physical Training – This encompassed general upgrading of physical
condition as well as weapon-disarming methods and techniques of unarmed
self-defense.
3. Firearms – Firearms training includes the .38 revolver, 9-mm sub machine
gun, .223-caliber sniper scope rifle, shotgun (double barbell & pump), 37-mm

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tear gas launcher, .25-caliber automatic, & .22 caliber Derringer w/
bulletproof vest during the firing of all weapons.
4. Electronic Equipment- All members must be familiar with & had to
qualify in the use of a mini phone wireless transmitter & recorder and in the
use of electronic tracking devices w/c utilize range & relative bearing features
that can be quite valuable.
5. Emergency Rescue Ambulance – Each team must learn to operate the
emergency rescue ambulance, a full armored personnel carrier. This includes
the use of its auxiliary equipment, that is, the public address system,
intercom, radio equipment, fire-fighting system, & first- aid gear.
6. Vehicle Operation – Instructions must be given in the operation of the
specially equipped escape & chase vehicles, including auxiliary equipment.
Special attention must be paid to those streets & routes from various
locations in the city to airports or other destinations that would offer the best
tactical advantage.
7. Retraining – In addition to this initial program, debriefing are scheduled
to critique every significant hostage situation that takes place anywhere.
8. Liaison Training – This training could teach or guide the members of the
negotiation team how to develop relationship or connection to other
personnel needed during the negotiation process.

What to do when Hostage Crisis occur?

A. First Arrival – Police will go on a hostage scene before a negotiator and

may be trained to use the ICER concept.

1. Isolate (I) - Isolate the hostage zone, creating an outer perimeter &
keeping keep onlookers beyond the police safety line.
2. Contain (C) - Limit the mobility of the hostage taker to the smallest area
possible (the
inner perimeter) & prevent them from observing the police activity.
3. Evaluate (E) - Evaluate the original information provided, which may be
from the hostage taker or a representative, or perhaps a member of the
public. W/out causing escalation, gather as much additional information as
possible, including the number of hostage takers & hostages, their
appearance, weapons & so on. Assess the threat & estimate the resources
that may be needed to handle the situation.
4. Report (R) -Report all available information gathered, including on the
hostage takers & hostages, events, weapons, zones, routes & so on,
informing other officers & the chain of command.

B. Assessing the Hostage Situation:

1. Preventing Early Harm – The first job of the hostage negotiator is to create
safety.
2. Getting Organized – The next step is to organize communications with the
hostage-takers.
3. Finding Information – The negotiator will want to find as much information
about the situation as possible, including:
a. the numbers & names of the hostage-takers
b. what they are demanding & what they really want
c. their emotional state & how close they are to harming hostages
d. the numbers & general health of hostages
4. Getting Close – A critical process used in many hostages negotiations is to
get close to them, to gain their trust.

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5. Creating Normality – While there may be chaos & panic on all sides, the
negotiator first seeks to create calm. They talk in a calm voice & do a great
deal of listening. In particular, they seek to establish a sense of normality
amongst the emotion, a space in w/c the hostage-takers can talk w/ the
negotiator as reasonable people, much as you would talk with any normal
person on the phone. The negotiator is always there & always ready to talk.
6. Creating Humanity – W/in the normality, the negotiator listens uncritically
to hostage-taker, accepting them as they are & creating a sense of humanity.
From that humanity, they then can extend to discussing the hostages, how
they are bearing up & whether they are unwell.
7. Developing Authority – The negotiator may also seek to position himself as
an authority figure. This may start being authoritative on behalf of the
hostage, for example in getting them communications & food.

C. Developing the Scene

Once a relationship is established, the negotiator can seek to move the

situation forward.

1. Small Step – Progress maybe in small steps, as trust and

relationships continue to be built. Food and medicine may be given.
Conversation with a hostage may be requested. Everyday chat creates
normality. Depending on the urgency of the situation, the negotiator
may seek to speed up or slow down the talking. If hostages are hurt,
then speed may be needed. If the hostages are hurt, then speed may
be needed. If the hostage-takers are requiring transport or other things
that would
lead to more problems, then it may be more prudent to insert delays,
such as saying you are “looking into it”.

2. Managing Stress – Stress and tension will continue throughout the

negotiation in some may deliberately manage this, reducing stress to
create hostage safety, but also possibly increasing stress to wear down
the hostage-taker.

3. Exploring Solutions – Talks will eventually get around to what can be

done in resolving the situation. The negotiator may ask the hostage-
taker for his thoughts and may offer possibilities themselves. Of course
the safe release of the hostages is always an important element. The
goal of the hostage-taker may simply to escape and may be for
publicity or other gain. If this is not acceptable to the authorities, for
example release of a captured terrorist leader, then other alternatives
must be
resorted.

D. Releasing the Hostages:

1. Wearing Down – Sometimes, just talk, talk, talk is enough to wear

down the hostage-takers and for them to give themselves up. High
emotions do not last forever and are followed by exhaustion. The ideal
negotiations thus ends with the hostage- taker agreeing to let everyone
go.

2. Releasing the Weak – Depending on the number of people taken

hostage, a release of children, old people & those w/ medical conditions
may be negotiated. It allows the hostage-takers to show that they are

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 not “bad “people after all & also rids them of the problems of illness &
wailing children.

3. Concessions for People – People may also be exchanged for various

concessions, from food to publicity. When something is given to the
hostage-takers, especially if it is on their list of demands, then a
concession may be requested in return, with the ultimate concession of
hostage release.

4. The Final Assault – It is a very delicate balance for the negotiator

when no clear exchange can be found and the hostage-takers look like
they are going to kill hostages. Which they are seeking to create
exchange, the negotiator must also find the point at which they pull the
plugs & let armed forces take over. Even though some hostages may be
killed, fore may ultimately be the best solution to minimize total harm.

Syndromes in Hostage Negotiation

A. Stockholm Syndrome (SS)

• is used to describe a paradoxical psychological phenomenon wherein
hostages express adulation and have positive feelings towards their captors
that appear irrational in light of the danger or risk endured by the victims.
• is a theory that has shown that the longer the hostage-taker spends with
his hostages, a bond develops that creates a close relationship of
understanding between the parties involved. This is positive for the hostages
since they are less likely to be harmed; however, hostages may later refuse
to testify in court against the hostage-taker or refuse release to safety until
the crisis is over.

B.Lima Syndrome - An inverse of SS, in which abductors develop sympathy

for their hostages. Named after the abduction at Japanese Embassy in Lima,
Peru in 1996.

C.London Syndrome - A condition that is the polar of the SS. One or more
hostages respond to captors w/ belligence & non-cooperation.

“Be quick, not hasty. When crisis strikes, response times are paramount, but a
rushed reply can make matters worse. Preparation beforehand will help your
team know how to respond with consideration and get ahead of the situation
without looking frazzled or fractured,” Cyndee Harrison.

BIBLIOGRAPHY
Books:

Festin, G. (2016). The alternative dispute resolution and the arbitration law.
Rex Book Store.

PNP Manuals:

Manual on Crisis Management (1996)

Revised Philippine National Police Operational Procedures (2013)
Hostage Negotiators Handbook (2011)

Laws:

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Philippine Congress. (1953). Republic Act No. 876: An act to authorize the
making of arbitration and submission agreements, to provide for the
appointment of arbitrators and the procedure for arbitration in civil
controversies, and for other purposes. Official Gazette.
Philippine Congress. (2004). Republic Act No. 9285: 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. Official Gazette.
Philippine Congress. (1978). Presidential Decree No. 1508: Establishing a
system of amicably settling disputes at the barangay level. Official
Gazette.
Department Circular No. 98. Implementing Rules and Regulations of the
Alternative Dispute Resolution Act of 2004

References:

arbitration. (n.d.-b). LII / Legal Information Institute.

https://www.law.cornell.edu/wex/arbitration
Hostage Negotiations | Office of Justice Programs. (n.d.).
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