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Transcript of Clear Send Out
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Involved in Arbitration / ADR?
We know the different processes.
We can help you dissect and analyze them,
refine and combine them, create hybridprocedures to make them suitable forparticular relationships, as well as develop
strategies and point you to the right direction.
Philippine Institute ofArbitrators
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COMPREHENDING ARBITRATIONS
CLEARING-UP THE CONFUSIONby
MARIO E. VALDERRAMA AB, LLB, FCIArb, FHKIArb, FPIArb
CIArb Approved TutorResident Representative to the Regional Sub-Committee
The Chartered Institute of Arbitrators
East Asia Branch
Contact DetailsTel No 367 4001; Telefax 362 1867
Mobile 0917 411 4594
E-mail
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THE CONFUSION: ARBITRATION ANDSTATUTE BASED ARBITRATIONS
There are several processes called arbitration in the Philippines.
Classes:
a. Arbitration (traditional/agreementbased)
b. Statute based arbitrations
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CLEARING-UP THE CONFUSION
CONCEPT OF ARBITRATION (AGREEMENTBASED)
Arbitration is a device whereby thesettlement of a question, which is ofinterest for two or more persons, isentrusted to one or more other persons the arbitrator or arbitrators- who derivetheir powers from a private agreement,not from the authorities of a State, andwho are to proceed and decide the case onthe basis of such an agreement Fouchard, Gaillard, Goldman on
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CLEARING-UP THE CONFUSION
In contrast, in statute basedarbitrations the arbitrator orarbitrators derive their powersfrom the authorities of a State.
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CLEARING THE CONFUSION:
STATUTE BASED ARBITRATIONS
Sub Classification
Optional - needs stipulation to arbitrate,
e.g. CIAC and voluntary laborarbitrations
Imposed does not require agreement
to arbitrate, e.g. consumer and
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CLEARING-UP THE CONFUSION: AGREEMENT BASED ARBITRATION
Contractual; synonymous with the conceptof party autonomy in the resolution of
disputes Tribunal an instrumentality of the parties Award is product of private dispute
resolution processes, hence the need for judicial recognition of confirmation
Principle of finality of awards is based oncontract & core component of the process
Validity issues: award treated just like a
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ARBITRATION
Contractual Nature
Arbitration is a creature of contract,not of law. It is based on the contractprinciple of party autonomy or the
will of the parties, expressed as thefreedom to contract.
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ARBITRATION
Award a Product of Dispute ResolutionProcess; Need forConfirmation/Recognition
A vacated award x x x was aninternational award which was notintegrated in the legal system of that
State x x x (Hilmarton v OTV, 1994 BULLCIV. A, No. 104, Court de Cassation,March 23, 1994. From Carbonneu).
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ARBITRATION
Principle of Finality of Award isContractual
x x x arbitrators are judges chosen by theparties to decide the matters submitted to. them, finally and without appeal x x x(Burchell v Marsh, 58 U.S.. 344, 15 L.Ed.96 (1854).
The essence of the arbitration process isthat an arbitral award shall put the disputeto rest x x x. Arbitral finality is a corecomponent of the parties agreement tosubmit to arbitration. Thus, an arbitration
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ARBITRATION
Validity Issues: Award is Treated Just Likea Contractual Stipulation
An award is ignored or vacated if bad;recognized or confirmed and enforced ifgood; subject to the principle ofseparability.
An added saving grace is referral back to
the Tribunal which was introduced by
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STATUTE BASED ARBITRATIONS Established by statute Hybrid processes Freedom of parties to select arbitrators
and craft procedure heavily curtailed Tribunal an instrumentality of
Government Resultant award deemed integrated into
the legal system No agreement exists that the award is
final, hence a merits review is available
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STATUTE BASED ARBITRATIONS
Created by statute: There is hereby established in the
CIAP a body to be known as theConstruction Industry ArbitrationCommission (E.O. 1008 Section 3).
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STATUTE BASED ARBITRATIONS
Hybrid Processes
A perusal of the procedures will show acombination of the precepts of agreementbased arbitration and litigation.
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STATUTE BASED ARBITRATIONS
Curtailment of freedom to choosearbitrators:
Generally, only CIAC accredited arbitratorsmay be appointed in CIAC panels.
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STATUTE BASED ARBITRATIONS
Curtailment of freedom to craft procedure: The Arbitral Tribunal shall at all times adopt the
most expeditious procedure for the introductionand reception of evidence, and SHALL HAVECOMPLETE CONTROL OVER THE PROCEEDINGS,but in any case shall afford full and equal
opportunity to all parties to present relevantevidence (CIAC Rules Sec. 13.4).
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STATUTE BASED ARBITRATIONS
Tribunal an instrumentality of theGovernment
Obviously, as CIAC was created bystatute.
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STATUTE BASED ARBITRATIONS
Award subject to appeal
Rule 43 Section 1. Scope. This Rule shallapply to appeals from awards x x x.
Among these agencies are the x x x
Construction Industry ArbitrationCommission.
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WANT TO KNOW MORE?
Attend our courses and seminars.
Contact us for schedules.
Philippine Institute of Arbitratorsc/o Atty. Mario E. Valderrama
Tel. No. (632) 367 4001
Telefax (632) 362 1867
E-mail: [email protected]