Philippines - Part G - Arbitration in Asia - 2nd Edition
Custodio O. Parlade is a lawyer who was admitted to the practice of law in the Philippines in 1960. He is a Trustee of the Philippine Institute of Construction Arbitrators and Mediators, Inc., and the Chairman of its Committee Revising Construction Industry Arbitration Commission (CIAC) Rules of Procedure. He is also a regular lecturer on domestic and international commercial arbitration in the Mandatory Continuing Legal Education (MCLE) seminars for the University of the Philippines Institute of Judicial Administration, Arellano University, Ateneo de Manila University, the Integrated Bar of the Philippines, and other MCLE providers. He has been included in the Who’s Who List of International Arbitrators as one of three (3) arbitrators from the Philippines since 2008 and now in the Global Arbitration Review 2016. He is an accredited arbitrator of the CIAC. Outside of the CIAC he has arbitrated several cases under the rules of the International Chamber of Commerce (ICC), and under the rules of the PDRCI. Until 2014, he was the representative of ICC Philippines to the ICC International Court of Arbitration. He is included in the list of arbitrators of the BANI Arbitration Center (Indonesia), the Singapore International Arbitration Centre, and lately, the Kuala Lumpur Regional Arbitration Center. He has authored several publications on arbitration.
Cristina A. Montes is a lawyer who was admitted to the practice of law in the Philippines in 2007. She is a Partner at the Hildawa & Montes Law Offices and is a member of the Philippine Dispute Resolution Center, Inc. (PDRCI). She is also currently a professional lecturer at the San Beda Graduate School of Law and the University of Asia and the Pacific Institute of Law. Previously, she was a law clerk for then-Associate Justice Conchita Carpio-Morales of the Philippine Supreme Court (2005-2009), a research assistant at the University of the Philippines Law Center Institute of International Legal Studies (1998-2001), and a Legislative Staff Officer at the House of Representatives Committee on Economic Affairs (1997). She obtained her A.B. from the University of Asia and the Pacific in 1997, her Ll.B. at the University of the Philippines in 2005, and her Master en Derecho de la Globalización e Integración Social from the Universidad de Navarra in Pamplona, Spain. In 2022, she obtained her Doctor of Juridical Science degree from the San Beda University Graduate School of Law.
Originally from Arbitration in Asia - 2nd Edition
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[1.1] Brief history
The Spanish Civil Code which Spain enforced in the Philippines introduced the rudiments of arbitration when it provided for the appointment by the parties of friendly adjusters to settle their differences. The friendly adjusters were known as juicio de amigables componedores. These Civil Code provisions were held to be procedural in character and were deemed impliedly repealed by the Code of Civil Procedure which the Americans later introduced. This implied repeal deprived arbitral awards of a legal basis for their enforcement.
When the Philippines became a US territory, Philippine courts had to follow US jurisprudence. US courts then regarded “agreements to refer matters in dispute to arbitration … generally as attempts to oust the jurisdiction of the court… not enforced as contrary to public policy.” In the following years, reflecting the changing attitude in the United States towards arbitration as a private mode of dispute settlement, especially after the approval of the Federal Arbitration Act of 1925, the Philippine Supreme Court, in Allen v. Province of Tayabas, said that ousting the court of jurisdiction is not by itself sufficient to declare an arbitration agreement void. Thus, in Vega v. San Carlos Milling Co, the Supreme Court held that “courts will generally not construe an arbitration clause as ousting them of their jurisdiction unless such construction is inevitable.” The doctrine was reiterated that: “Unless the arbitration agreement is such as absolutely to close the doors of the courts against the parties, the courts should look with favor upon such amicable arrangements.”
[1] INTRODUCTION
[1.1] Brief history
[2] LEGISLATION
[2.1] Arbitration law
[2.1.1] The Civil Code of the Philippines
[2.1.2] The Arbitration Law, Republic Act No. 876
[2.1.3] Republic Act No. 9285, The Alternative Dispute Resolution Act of 2004
[2.1.4] The Implementing Rules and Regulations (IRR) of the ADR Act of 2004
[2.1.5] The Special ADR Rules of Court (Special ADR Rules)
[2.1.6] Executive Order 1008, Series of 1985
[2.1.7] CIAC Revised Rules of Procedure Governing Construction Arbitration
[2.1.8] Republic Act No. 11232 and the Guidelines on Arbitration of Intra-Corporate Disputes for Corporations
[2.1.9] Executive Order No. 78, Series of 2012 and its Implementing Rules and Regulations
[2.1.10] Judicial precedents
[2.2] Application
[2.2.1] International commercial arbitration
[2.2.2] Domestic arbitration
[2.2.3] Construction arbitration
[2.2.3.1] The jurisdiction of the CIAC
[2.2.3.2] Parties to construction disputes
[2.2.3.3] What construction disputes are
[2.2.4] Arbitration of Intra-Corporate Disputes
[2.3] Arbitrability
[2.4] Arbitration organizations
[2.4.1] CIAC
[2.4.2] Private and semi-private institutions for arbitration
[2.4.2.1] The Philippine Dispute Resolution Center, Inc. (PDRCI)
[2.4.2.2] IPO-PDRCI
[2.4.2.3] WESM (Wholesale Electricity Spot Market)
[2.4.3] The Office for Alternative Dispute Resolution (OADR)
[3] ARBITRATION AGREEMENTS
[3.1] Requirements
[3.1.1] International commercial arbitration
[3.1.1.1] Relief on the issue of existence, validity, enforceability, and scope of arbitration agreement and referral to ADR
[3.1.2] Domestic arbitration
[3.1.3] Construction arbitration
[3.1.3.1] Application of “incorporation by reference” provision
[3.1.3.2] Application and interpretation of “original and exclusive” jurisdiction
[3.1.3.3] Application of competence-competence principle
[3.1.4] Arbitration of Intra-Corporate Disputes
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.1.1] International commercial arbitration
[4.1.2] Domestic arbitration
[4.1.3] Construction arbitration
[4.1.4] Arbitration of Intra-Corporate Disputes
[4.1.3.1] Appointment of foreign arbitrator
[4.2] Selection
[4.2.1] International commercial arbitration
[4.2.2] Domestic arbitration
[4.2.3] Construction arbitration
[4.2.4] Arbitration of Intra-Corporate Disputes
[4.3] Number of arbitrators
[4.3.1] International commercial arbitration
[4.3.2] Domestic arbitration
[4.3.3] Construction arbitration
[4.3.4] Arbitration of Intra-Corporate Disputes
[4.4] Challenging an arbitrator
[4.4.1] International commercial arbitration
[4.4.2] Domestic arbitration
[4.4.3] Construction arbitration
[4.4.4] Arbitration of Intra-Corporate Disputes
[4.5] Replacement of arbitrators
[4.5.1] International commercial arbitration
[4.5.2] Domestic arbitration
[4.5.3] Construction arbitration
[4.5.4] Arbitration of Intra-Corporate Disputes
[5] ARBITRATION PROCEDURE
[5.1] Interim relief
[5.1.1] International commercial arbitration
[5.1.2] Domestic arbitration
[5.1.3] Construction arbitration
[5.1.4] Arbitration of Intra-Corporate Disputes
[5.2] Fact-finding
[5.2.1] International commercial arbitration
[5.2.2] Domestic arbitration
[5.2.2.1] Ocular inspection
[5.2.2.2] Court assistance in taking evidence
[5.2.3] Construction arbitration
[5.3] Conduct of arbitral proceedings
[5.3.1] International commercial arbitration
[5.3.1.1] Arbitration rules
[5.3.1.2] Place of arbitration; venue of proceedings
[5.3.1.3] Form and contents of pleadings
[5.3.1.4] Confidentiality of arbitration proceedings
[5.3.2] Domestic arbitration
[5.3.2.1] Confidentiality of arbitration proceedings
[5.3.3] Construction arbitration
[6] AWARDS
[6.1] Settlement agreements
[6.1.1] International commercial arbitration
[6.1.2] Domestic arbitration
[6.1.3] Construction arbitration
[6.2] Form and content of the award
[6.2.1] International commercial arbitration
[6.2.2] Domestic arbitration
[6.2.3] Construction arbitration
[6.3] Revision and interpretation of awards
[6.3.1] International commercial arbitration
[6.3.2] Domestic arbitration
[6.3.3] Construction arbitration
[6.4] Recognition or setting aside of awards
[6.4.1] International commercial arbitration
[6.4.2] Domestic arbitration
[6.4.3] Construction arbitration
[6.4.4] Arbitration of Intra-Corporate Disputes
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[8] RECOGNITION AND ENFORCEMENT OF AWARDS
[9] PRACTICAL INFORMATION
[9.1] Visa requirements
[9.2] Foreign counsel
[9.3] Taxation
[10] APPENDICES (ONLINE)
[10.1] The Alternative Dispute Resolution Act of 2004 (Republic Act. No. 9285)
[10.2] The Arbitration Law (Republic Act No. 876)
[10.3] The Construction Industry Arbitration Law, (Executive Order No. 1008 (1985))
[10.4] CIAC Revised Rules of Procedure Governing Construction Arbitration
[10.5] Arbitration Rules of the Philippine Dispute Resolution Center, Inc.
[10.6] Administrative Guidelines of the Philippine Dispute Resolution Centre, Inc.
[10.7] The Special Rules of Court for Alternative Dispute Resolution
[--]The UNCITRAL Model Law
[--]The New York Convention
[10.8] Memorandum Circular No. 01-2020
Guidelines on the Conduct of On-line or Virtual Proceedings for CIAC Cases
[10.9] Executive Order No. 78
Mandating the inclusion of Provisions on the Use of Alternative Dispute Resolution Mechanisms in All Contracts
Involving Public-Private Partnership Projects, Build-Operate and Transfer Projects, Joint Venture Agreements between the
Government and Private Entities and Those Entered into by Local Government Units
[10.10] Implementing Rules and Regulations of Executive Order No. 78