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Under the International Commercial Arbitration (ICA), Arbitration is international if any of the what instances occur?
1.Parties and places of business at the time of the conclusion of arbitration agreement is in different states
2.Place of arbitration based on agreement is outside the Philippines
3.Place where significant part of the obligation to be performed is outside the Philippines
4.Subject matter of the arbitration as agreed upon by the parties relates to more than one country.
What are those that you consider in choosing the venues for the proceedings for the recognition and enforcement of a foreign arbitral award, vacating or setting aside and any application with a court for arbitration assistance?
1. Where the arbitration proceedings are conducted;
2. Where the asset to be attached or levied upon or the act to be enjoined is located;
3. Where any of the parties to dispute resides or his place of business; or
4. In the NCJR at the option of the applicant.
Parties are free to determine the number of arbitrators and procedure for appointment but, generally, there are how many arbitrators?
What happens to the objections when the challenge is raised later than the submission of the statement of defense in the answer or in motion to dismiss?
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1. Quantification of the costs and the determination of the party liable or the division between the parties – provided that a reservation for such hearing and quantification has been made by the tribunal
What does article 4.37(a) of the IRR, in conjunction with section48, rule39 of the rules of civil procedure state?
Under article 4.37(a) of the IRR, in conjunction with section48, rule39 of the rules of civil procedure, a non-convention award which does not qualify as an as-in convention award is either “conclusive upon the title to a thing” or at best, is a “presumptive evidence of a right as between the parties and their successors in interest by subsequent title,” provided there is no want of jurisdiction, no want of notice, no collusion, no fraud and no clear mistake of fact or law.
When can an Arbitrator be Challenged?
Only if circumstances exist that give rise to a justifiable doubt as to his: (1) impartiality or independence; or (2) possession of the qualifications agreed upon by the parties
Compare an ICA award rendered in the Philippines and an ICA award rendered outside the Philippines
While both require recognition by RP courts similar to a foreign arbitral award, an ICA award rendered in the RP is susceptible of vacation or setting aside by RP court. An ICA award rendered outside the RP is not and can only be recognized or refused recognition, it being strictly a foreign arbitral award.
The coverage of IRR Provisions applies only to ICA. What is the exception?
Applies to ICA outside the Philippines if they are adopted as rules of procedure by the parties in the exercise of their privilege of party-autonomy and self-determination
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2. Correction of typographical and similar errors initiated by a party – parties may ask the tribunal for the correction of the award within 30 days from receipt of the award and with notice to the other party, for any error in computation, clerical or typographical error. An error is typographical or clerical in nature and therefore correctible even after the decision has become executory, if the error is occasioned by a mistake in copying or typing does not alter the substance of the decision and does not affect or prejudice substantial rights.
The petition for setting aside must be filed within what period?
Within 3 months (90 days) from the date on which the party making that application received the award or from the date on which a request for correction, interpretation or additional award has been disposed of by the tribunal.
As for default Rules which includes provisions of the IRR and applies only in the absence of or in default contained in the what two things?
(1) agreement in force between the Philippines and other states; and (2) an agreement between the parties on the applicable rules
Venue of setting aside proceedings, as well as for the recognition and enforcement of awards and any application for assistance and supervision except appeal, shall be with where?
the RTC where:
1. The arbitration took place;
2. The asset to be attached or levied upon, or the act to be enjoined is located;
3. Any of the parties to the dispute resides or has his place of business; or
4. In the NCR, at the option of the applicant.
An ICA may be concluded or closed in either of these two ways
a. By an award or settlement
b. Termination – Tribunal shall issue an order for termination of arbitration when: 1. The claimant withdraws his claim unless the respondent objects on the basis of legitimate interest in obtaining a final settlement; 2. The parties agree to terminate proceedings in writings; or 3. Tribunal finds that the continuation of the proceedings has become unnecessary or impossible.
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3. Interpretation of the award – within the same period for the correction of typographical errors initiated by the parties, the parties may agree to request the tribunal to give an interpretation of a specific point or part of the award. If the tribunal finds the request for correction justified, it shall make the correction or give the interpretation within 30days from receipt of the request and the interpretation or correction shall form part of the award.
What is the procedure for the Challenge?
1. Challenging party shall send written statement of the reasons for the challenge to arbitral tribunal within 15 days after becoming aware of the circumstance constituting the ground for challenge.
2. If the challenge before the arbitral tribunal is not successful, the challenging party may request the appointing authority within 30 days from notice of the decision rejecting the challenge, to decide the challenge, which decision shall be immediately executory and not subject to a motion for reconsideration or appeal.
As a general rule, records, evidence and awards are confidential and shall not be disclosed except on what 2 circumstances?
(1) when consented by the parties; and (2) for the limited purpose of disclosing to the court relevant documents in cases where resort to court is allowed
When is arbitration commercial?
If it covers matters arising from all relationships of commercial nature, whether contractual or not
if the conclusion of the proceedings is by way of an award or settlement, the tribunal’s mandate extends to what?
1. To correct and interpret the award; 2. To set aside an exclusive recourse against the arbitral award; or 3. When reserved, to the quantification of costs and the determination of the party liable therefore, or the division.
*The arbitral tribunal retains jurisdiction until the award becomes final and executory.
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4. Correction of typographical error initiated by the arbitral tribunal – within 30days from the date of award, the tribunal may motu propio correct any typographical error.
The general rule on receipt of communications in ICA are those provided for by the parties in their arbitration agreement. However, in default, communication is deemed received when?
It is delivered to the addressee personally or at his places of business, habitual residence or mailing address; however, if there is no address, it is delivered by registered letter or any other means.
Costs in ICA include what?
1. Fees of the arbitral tribunal;
2. Travel and other expenses;
3. Costs of expert advise;
4. Travel and other expenses of witnesses;
5. Costs for legal representation and assistance; and
6. Fees and expenses of the appointing authority
What are the grounds for Refusing Recognition and Enforcement?
1. The petitioner furnishes proof that there was:
a. Defect in the arbitration agreement b. Violation of due process c. Lack or excess of jurisdiction on the part of arbitral tribunal d. Violation of arbitration agreement
2. Or the court finds that:
a. The subject of the dispute is not capable of settlement under the laws of RP and b. The award is in conflict with the public policy of the RP.
3 functions of the Appointing Authority in an ICA
a) Take the necessary measures to appoint an arbitrator in case any party or the arbitrators already appointed or any third party fails to perform any function necessary for the appointment of the arbitrator.
b) Decide on the challenge against an arbitrator if arbitral tribunal rejects the challenge.
c) Consider the qualifications of an arbitrator, the necessity of ensuring impartiality and independence of the arbitrator, and the advisability of appointing
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5. Additional award – within 30 days from receipt of the award, a party, with notice to the other party, may request the tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted in the award.