ADR Reviewer

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LAW 160A ALTERNATIVE DISPUTE RESOLUTION Prof. Arthur AuteaClass Policies: 1) Final Exam 40% a) last day of our regular class October b) problem + objective 2) Class Participation 60% a) attendance 2x b) suprise quizzes 3) Final Exam 40% Relevant Laws / Rules 1) RA 876 Arbitration Law 2) EO No 1008 CIA Law 3) RA 9285 - ADR Act of 2004 4) UNCITRAL Model Law 5) Special ADR Rules 6) UNCITRAL Arbitration Rules 7) ICC Arbitration Rules Cases 1) Vega v. San Carlos Milling Co. Ltd, 51 Phil 908 (1924) 2) California & Hawaiian Sugar Co. v. Pioneer Insurance & Surety Corp. 346 SCRA 214 (2000) 3) Associated Bank v. CA, 233 SCRA 137 (1994) 4) Bloomfield Academy v. CA, 237 SCRA 43 (1994) 5) Mindanao Portland Cement Corporation v. McDonough Construction Co. of Florida, 90 SCRA 808 (1967) 6) Gonzales v. Climax Mining Ltd., 512 SCRA 148 (2007) 7) Oil & Natural Gas Commission v. CA, 293 SCRA 26 (1998) 8) Magellan Capital Mgt. Corp. v. Zosa, 355 SCRA 157 (2001) 9) BF Corporation v. CA, 288 SCRA 267 (1998) 10) Korea Technologies Co. Ltd. v. Lerma, 542 SCRA 1 (2008) 11) Luzon Development Bank v. Luzon Development Bank Employees, 249 SCRA 162 (1995) 12) Toyota Motor Phils. Corp. V. CA, 216 SCRA 336 13) Heirs of Agusto L. Salas, Jr. v. Laperal Realty Corp ., 302 SCRA 620 14) Del Monte Corp. USA v. CA, 351 SCRA 373 - WRONG 15) Homebankers Savings and Trust Co. v. CA, 318 SCRA 558 16) Chung Fu Industries Inc. V. CA, 206 SCRA ___ 17) Adamson v. CA, 232 SCRA 602 (1994) 18) National Steel Corp. v. RTC of Lanao del Norte , 304 SCRA 595 (1999) 19) Asset Privatization Trust v. CA, 300 SCRA 579 20) China Chiang Jiang Energy Corp (Phils) v. Rosal Infrastructure Builders, G.R. 125706, 30 September 1996 21) Hi Precision Steel, 228 SCRA 397 22) ABS CBN v. World, 544 SCRA 308

Law 160A Alternative Dispute Resolution (Prof. A. Autea)Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblacion for her great digests!

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Class Notes - June 11, 2010 INTRODUCTION TO ALTERNATIVE MODES OF DISPUTE RESOLUTIONADR alternative to conventional litigation Arbitration only form of ADR that will result in a final, binding and enforceable award Mediation facilitate communication, cannot impose resolution of the mediator Conventional Litigation Judgment Final Judgment Interlocutory Order P v. D / P v. R Stenographers Arbitration Award Final Award Interim Award Claimant v. Respondent Court Reporters

Agreement + Substantive Claim 10 No. of arbitrators 11 Appointment 12 Grounds for challenge 13 Procedure for challenge 14 Unable to perform 18 Conduct of hearings 19 Determination of rules 29 to 32 Termination of proceedings

Representation in International Arbitration Sec. 23 Confidentiality in Arbitration Proceedings Sec. 24 Referral to Arbitration Sec. 25 Interpretation of the Act Sec. 26 Meaning of Appointing Authority Sec. 27 What Functions May be Performed by Appointing Authority Sec. 28 Grant of Interim Measure of Protection Sec. 29 Further Authority for Arbitrator to Grant Interim Measure of Protection Sec. 30 Place of Arbitration Sec. 31 Language of the Arbitration

ARBITRATIONArbitration v. Litigation {PALPVA} Arbitration Private & confidential Parties may select arbitrator Parties can select governing law that will determine their substantive rights Procedure depends on agreement Venue depends on agremeent Consensual Litigation Public Parties cannot agree on presiding officer; Judge is raffled Philippine law governs

Arbitration clause stipulation that parties wil submit dispute to arbitration Request for Arbitration arbitrable dispute Legislative History: 1) RA 876 (1953) Arbitration Law 2) New York Convention (1958) a) Convention on the recognition & enforcement of foreign arbitral awards b) Need to prove authenticity only e.g. NAIA 3 case 3) RA 9285 (2004) ADR Act of 2004 a) Covers domestic & international arbitration b) Covers all forms of ADR 4) EO No. 1008 (1985) CIAC a) Covers all disputes in the construction industry 5) Special ADR Rules (October 13, 2009) a) Clarified problems in RA 876 and RA 9285 6) UNCITRAL MODEL LAW part of Philippine law a) Sec. 33 of ADR Act of 2004 Sec. 33 Applicability to Domestic ArbitrationUncitral Model Law 8 Arbitration Preceding Ch. 4 Sec. 22 Legal

Rules of Court applies Rules of Court governs; Venue may also depend on agreement Not consensual

Note: A voluntary arbitrator has the same status as an RTC judge. What is the nature of ADR? Consensual cannot be compelled to submit to arbitration; but once you agree, youre bound by it What is an arbitration agreement? Arbitration agreement determines the rights, obligations, procedure & rules; - may be in a separate agreement or may be a clause in a contract

Law 160A Alternative Dispute Resolution (Prof. A. Autea)Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblacion for her great digests!

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1) Arbitration clause Any dispute arising out of this contract shall be resolved by arbitration. 2) Container contract Contract containing the arbitration clause Note: Doctrine of separability applies.Rule 2.2. Policy on arbitration. XXX The Special ADR Rules recognize the principle of separability of the arbitration clause, which means that said clause shall be treated as an agreement independent of the other terms of the contract of which it forms part. A decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

PDRCI Singapore International Arbitration Centre Hongkong International Arbitration Centre ICSPI Disp. American Arbitration Association Japan Commercial Arbitration Kuala Lumpur RCA KCAB ICC International Court of Arbitration ICA not a court of adjudication Sample arbitration clause: Any dispute arising out of this contract shall be resolved by arbitration under the ICC Rules of Arbitration. Overview ICC Arbitration Rules / Principles: 1) Submit request for arbitration 2) Assessment of non-refundable fee + cost of arbitration a) Non-refundable fee - $2,500 b) Arbitration cost i) Fees of arbitrators professional fees (1) 40% - chair (2) 30% - members ii) Claimant 1 iii) Respondent 1 iv) Appointee of Appointing Authority - 1 v) Administrative expenses 3) Highly confidential 4) Counsel in arbitration does not have to be a lawyer a) ADR Rates - $300 / hour b) IBP Rates P3,000 / appearance i) Senior - P7 to 10T / hour ii) Associate P1-1,500 / hour 5) ICA can modify the form of the awardSee provisions, page 31.

Domestic v. International Arbitration 1) Domestic not International (RA 9285) 2) International Article 1.3 (UNCITRAL Model Law)RA 9285, Sec. 32. Law Governing Domestic Arbitration. Domestic arbitration shall continue to be governed by Republic Act No. 876, otherwise known as "The Arbitration Law" as amended by this Chapter. The term "domestic arbitration" as used herein shall mean an arbitration that is not international as defined in Article (3) of the Model Law. Uncitral Model Law, Article 1 - xxx 3) An arbitration is international if: 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 State in which the parties have their places of business: i) the place of arbitration if determined in, or pursuant to, the arbitration agreement: ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country. 4) For the purposes of paragraph (3) of this article: 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 habitual residence.

What is the principle of Party Autonomy? Party autonomy freedom of the parties to determine the rules / law governing the mode of resolving their disputeRule 2.1. General policies. It is the policy of the State to actively promote the use of various modes of ADR and to respect party autonomy or the freedom of the parties to make their own arrangements in the resolution of disputes with the greatest cooperation of and the least intervention from the courts. To this end, the objectives of the Special ADR Rules are to encourage and promote the use of ADR, particularly arbitration and mediation, as an important means to achieve speedy and efficient resolution of disputes, impartial justice, curb a litigious culture and to de-clog court dockets. RA 9285, Sec. 2 Declaration of Policy

Institutional v. Adhoc Arbitration 1) Adhoc arbitration 2) Institutional conducted under the auspices of an institution Examples: International Chamber of Commerce CIAC

Law 160A Alternative Dispute Resolution (Prof. A. Autea)Salma F. Angkaya | AY 2010-2011, 1st semester Special thanks to Krizelle Poblacion for her great digests!

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-To actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes -To encourage and actively promote the use of ADR to achieve speedy and impartial justice & de-clog court dockets Uncitral Model Law, Article 19 - [Determination of rules of procedure] 1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. 2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power c