Adr Midterms

Front 1

When should every civil action or proceeding be suspended accdg to the civil code?

Back 1

a. If willingness to discuss a possible compromise is expressed by one or both parties;

b. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer.

Front 2

May the same persons who enter into a compromise submit their controversies to one or more arbitrators for decision?

Back 2

Yeah! :-)

Front 3

What are the pertinent special laws or rules that govern ADR?

Back 3

a. RA 876 or the arbitration law
b. EO 1008 or the construction arbitration law
c. ciac revised rules of procedure governing construction arbitration, as amended
d. RA 9285 or the ADR act of 2004
e. Special rules of court on ADR
f. DOJ circular no. 98 or the implementing rules and regulations of the ADR act of 2004
g. Model law or the model law on international commercial arbitration

Front 4

Define ADR

Back 4

ADR is 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

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arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof.

Front 5

What is commercial arbitration?

Back 5

An arbitration is commercial if it covers matters arising from all relationships of a commercial nature, whether contractual or not.

It is 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; JV and other forms of industrial or business cooperation.

Front 6

Private Litigation vs Public Litigation

Back 6

In Private Litigation:

There is private-party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes;

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;

Parties have the freedom to choose either accredited or non-accredited to act as arbitrator, mediator, conciliator, neutral party evaluator;
Voluntary dispute resolution;

In Public Litigation:

Disputes are resolved pursuant to the application or interpretation of laws and rules of procedure;

Adjudication of a presiding judge of a court or an officer of a government agency;
Parties do not choose the adjudicator or hearing officer;

Parties are subjected to the operative force (i.e. jurisdiction, compulsory processes, etc.) of the court or government agency;

Front 7

JUDICIAL DISPUTE RESOLUTION vs ARBITRATION

Back 7

In JDR:

The framework is based on the processes of mediation, conciliation or early neutral evaluation which entails the submission of a dispute before a "JDR judge" who shall merely "facilitate settlement" between the parties in conflict or make a "non-binding evaluation or assessment of the chances of each party's case."

The JDR judge lacks the authority to render a resolution of the dispute that is binding upon the parties in conflict.

a. Submission of dispute before an ADR judge
b. He doesn't render a resolution of the dispute

In Arbitration:

The dispute is submitted to an arbitrator, who is a neutral third person or a group of thereof;

An Arbitrator or Arbitral Tribunal shall have the authority to render a resolution binding upon the parties.

a. The dispute is submitted to an arbitrator or neutral third person
b. He has authority to render a resolution

Front 8

What are the exclusions in ADR?

Back 8

LLJVCCCF

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. Civil status of persons;
c. Validity of a marriage;
d. Any ground for legal separation;
e. Jurisdiction of courts;
f. Future legitime;
g. Criminal liability;
h. And those which by law cannot be compromised. (Sec. 6, R.A. No. 9285)

Front 9

What are the MODES OF ADR?

Back 9

NCMMA

Arbitration
Mediation
Conciliation
Negotiation
Neutral Early Evaluation/Mini-Trial

Front 10

What are some ADR providers?

Back 10

Some Institutional Providers:

CIAC (Construction Industry Arbitration Commission)
PDRCI (Philippine Dispute Resolution, Inc.)
ICC (International Chamber of Commerce)
SIAC (Singapore International Arbitration Center)
HKIAC (Hong Kong International Arbitration Center)

Ad Hoc:

Parties have not identified their procedural rules that shall govern their arbitral proceedings;
Parties determine their own procedural rules as they undergo arbitration;

Front 11

Read the ff: Yey!

Back 11

POLICIES (Rule 2.2. Special ADR Rules; Note: KOPPEL CASE).

Arbitration agreement is the law between the parties and that they are expected to abide by it in good faith

Courts shall not refuse to refer parties to arbitration for reasons including, but not limited to, the following:
The referral tends to oust a court of its jurisdiction;
The court is in a better position to resolve the dispute subject of arbitration;
The referral would result in multiplicity of suits;
The arbitration proceeding has not commenced;
The place of arbitration is in a foreign country;
One or more of the issues are legal and one or more of the arbitrators are not lawyers;
One or more of the arbitrators are not Philippine nationals; or
One or more of the arbitrators are alleged not to possess the required qualification under the arbitration agreement or law.

Where court intervention is allowed under ADR Laws or the Special ADR Rules, courts shall not refuse to grant relief for any of the following reasons:
Prior to the constitution of the arbitral tribunal, the court finds that the principal action is the subject of an arbitration agreement; or
The principal action is already pending before an arbitral tribunal.

Front 12

What are the forms of arbitration agreement? Differentiate.

Back 12

FORMS:
Arbitral Agreement or Clause;
Submission Agreement;

ARBITRAL AGREEMENT OR CLAUSE DISTINGUISHED FROM SUBMISSION.

Arbitral Agreement or Clause (Pre-causal consent) – the parties to any contract agree in such contract to settle by arbitration a controversy thereafter arising between them.

Submission Agreement (Present causal consent) – no pre-existing arbitration agreement, but parties subsequently agree to submit to arbitration any controversy existing between them at the time of the submission and which may be the subject of an action.

Front 13

Discuss the preliminary procedure in arbitration

Back 13

ARBITRATION LAW (under R.A. No. 876).
PRELLIMINARY PROCEDURE:

IN CASE OF ARBITRAL AGREEMENT/CLAUSE:

DNARS

Demand/request for arbitration; (Not applicable in controversies covered by CIAC)
Such demand shall state the nature of the controversy;
Amount involved, if applicable;
Relief sought;
together with the true copy of the contract providing the arbitration;
The demand shall be served upon any party either in person or registered mail;

Front 14

What is the procedure in cases of hearing by court because of failure, neglect or refusal to arbitrate?

Back 14

HEARING BY COURT IN CASE OF FAILURE, NEGLECT OR REFUSAL TO ARBITRATE.

File an application by way of a verified petition with the RTC for an order directing that such arbitration to PROCEED in the manner provided in the agreement;

Notice to the defaulting party;

RTC shall summarily hear the parties:
If the RTC is satisfied that the making of the agreement or such failure to comply therewith is not in issue, it shall issue an order directing the parties to proceed to proceed to arbitration in accordance with the terms of the agreement;
If the making of the agreement or default be in issue, the RTC shall proceed to summarily hear such issue;

Should it be found that there is no agreement or no default, the proceeding shall be dismissed;

Should it be found that there was written provision for arbitration was made or there is a default in proceeding thereunder, the RTC shall direct the parties to proceed with the arbitration in accordance with the terms thereof;

Front 15

What are the qualifications of an arbitrator?

Back 15

ARBITRATOR(S).
QUALIFICATIONS:
Must be of legal age;
In full-enjoyment of his civil rights;
Knows how to read and write;
Not related by blood or marriage within the 6TH degree to either party to the controversy;
No financial, fiduciary or other interest in the controversy or cause to be decided or in the result of the proceeding, or
Has no 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 champion or to advocate his cause.

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: 
to waive the presumptive disqualifying circumstances; or
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, R.A. No. 876) This is also known as the " model law"

Front 16

Discuss the implication of challenge of arbitrators. What are the grounds under the model law?

Back 16

CHALLENGE OF ARBITRATOR(S).
The arbitrators may be challenged only for the reasons mentioned in Sec 10, R.A. No. 876 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 RTC 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 on arbitration shall be suspended, and it shall be continued immediately after the court has delivered an order on the challenging incident. (Sec.11, R.A. No. 876)

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

Front 17

Before filing of petition on court, how should the notice and service of petition be given to respondent?

Back 17

SERVICE AND FILING OF PETITIONS IN SUMMARY PROCEEDINGS.

Before filing in court, service of the verified petition coupled by a notice of hearing unto the respondent through:
Personal service, proven by an affidavit of the server;
Registered mail, shown by the signed courier proof of delivery (postal registry return cards);
Private courier, proven by an affidavit executed by the responsible officer of the private courier service showing the transmittal; or by the signed courier proof of delivery.
In case of refusal or failure, by an affidavit of the server stating the facts and circumstances of refusal or failure to receive. (Rule 1.9.)

Front 18

Discus the JUDICIAL RELIEF ON THE ISSUE OF EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE ARBITRATION AGREEMENT (PRELIMINARY QUESTIONS)

Back 18

JUDICIAL relief bEFORE THE COMENCEMENT OF ARBITRATION.

Service of verified petition upon the respondent.
Filing of verified petition with certification against forum shopping before the RTC.
Respondent has 15 days from notice to take a comment/ opposition.
RTC must exercise judicial restraint conformably with the policy on competence-competence principle.
Arbitral proceedings may nevertheless commenced and render an arbitral award despite pendency of judicial relief.
RTC prima facie determination upholding the existence, validity or validity of arbitration agreement is not subject to motion for reconsideration, appeal or certiorari.
But same issue(s) may still be raised before the arbitral tribunal;
Or in a latter action to vacate or set aside the arbitral award.

JUDICIAL RELIEF AFTER THE COMENCEMENT OF ARBITRATION.

Within 30 days from notice, file a verified petition (with certification against forum shopping) assailing the ruling of the arbitral tribunal on the preliminary question upholding or declining its jurisdiction.
Respondent has 15 days from notice to take a comment/opposition.
Arbitration proceedings shall continue and render its award thereon.
No court may enjoin the arbitration proceedings pending the petition in court.

RELIEFS FROM A COURT ACTION:
Motion for reconsideration;
But not subject to appeal;
A ruling by the court affirming the jurisdiction of the arbitral tribunal shall not be subject to petition for certiorari (under Rule 65).
A ruling by the court denying the jurisdiction of the arbitral tribunal may be the subject of petition for certiorari (under Rule 65).

Front 19

Does a ruling by the arbitral tribunal deferring resolution on the issue of its jurisdiction until final award subject to recon, appeal or petition for certiorari?

Back 19

NO! A ruling by the arbitral tribunal deferring resolution on the issue of its jurisdiction until final award is not subject to a motion for reconsideration, appeal or a petition for certiorari.

Front 20

If a court appoints an arbitrator, shall the order be immediately executory? What may be t recourse if the petition is denied?

Back 20

APPOINTMENT OF ARBITRATOR.
Relief against court action:
If the court appoints an arbitrator, the order appointing an arbitrator shall be immediately executory and shall not be the subject of a motion for reconsideration, appeal or certiorari.
An order of the court denying the petition for appointment of an arbitrator may be the subject of a motion for reconsideration, appeal or certiorari. (Rule 6.9.)

Front 21

What are the GROUNDS TO VACATE AN ARBITRAL AWARD?

Back 21

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a. Arbitral award was procured through corruption, fraud or other undue means;

b. There was evident partiality or corruption in the arbitral tribunal or any of its members;

c. 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 a hearing upon sufficient cause shown or to hear evidence pertinent and material to the controversy;

d. 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 them was not made.

e. One or more of the arbitrators was disqualified to act as such under the law and willfully refrained from disclosing such disqualification; or



The award may also be vacated on any or all of the following grounds:

The arbitration agreement did not exist, or is invalid for any ground for the revocation of a contract or is otherwise unenforceable; or

A party to arbitration is a minor or a person judicially declared to be incompetent. (Rule 11.4)

Front 22

What are the GROUNDS TO CORRECT/MODIFY AN ARBITRAL AWARD?

Back 22

MAOI

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;

b. Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matter submitted;

c. Where the arbitrators have omitted to resolve an issue submitted to them for resolution; or

d. 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. (Rule 11.4)

In a petition to vacate an award or in petition to vacate an award in opposition to a petition to confirm the award, the petitioner may simultaneously apply with the Court to refer the case back to the same arbitral tribunal for the purpose of making a new or revised award or to direct a new hearing, or in the appropriate case, order the new hearing before a new arbitral tribunal, the members of which shall be chosen in the manner provided in the arbitration agreement or submission, or the law. (Rule 11.9.)

Front 23

Who may petition for recognition and enforcement or setting aside an award in international commercial arbitration?

Back 23

Any party to an international commercial arbitration in the Philippines.

PERIOD TO FILE PETITION FOR RECOGNITION AND ENFORCEMENT.
Any time from receipt of award.
If, however, a timely petition to set aside an arbitral award is filed, the opposing party must file therein and in opposition thereto the petition for recognition and enforcement of the same award within the period for filing an opposition. (Rule 12.2.)

PERIOD TO FILE PETITION TO SET ASIDE AN ARBITRAL AWARD.
Within three (3) months from the time the petitioner receives a copy thereof.
If a timely request is made with the arbitral tribunal for correction, interpretation or additional award, the three (3) month period shall be counted from the time the petitioner receives the resolution by the arbitral tribunal of that request. (Ibid.)

Front 24

What is the principle of competence-competence?

Back 24

It means that the arbitral tribunal may initially 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 a request for arbitration.

Front 25

Arbitration vs Arbitrator

Back 25

Arbitration means a VDR voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to this act, resolve a dispute by rendering an award.

Arbitrator means person appointed to render an award, alone or with others, in a dispute that is the subject of an arbitration agreement.

Front 26

Early Neutral Evaluation vs Mini-Trial

Back 26

Early Neutral Evaluation 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.

Mini-trial 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.

Front 27

In international arbitration, may a party be legally represented? Is there any condition?

Back 27

Yeah, in international arbitration conducted in the Philippines, a party may be presented by any person of his choice.

Provided, that such representation 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 appears.

Front 28

Are arbitration proceedings deemed confidential? Are there exceptions?

Back 28

Yes, the arbitration proceedings, including the records, evidence and the arbitral award, shall be considered confidential and shall not be published

except
(1) with the consent of the parties,
or (2) for the limited purpose of disclosing to the court of relevant documents in cases where resort to the court is allowed herein.

Front 29

Where is the place of arbitration? What if there is failure to agree on a place?

Back 29

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.

Front 30

State the coverage of arbitration of construction disputes

Back 30

Construction disputes which fall within the original and exclusive jurisdiction of the Construction Industry Arbitration Commission (the "Commission") shall include those between or among parties to, or who are otherwise bound by, an arbitration agreement, directly or by reference whether such parties are

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project owner, contractor, subcontractor, quantity surveyor, bondsman or issuer of an insurance policy in a construction project.

Front 31

May a foreign arbitrator be appointed? Are there any conditions?

Back 31

Yup! The Construction Industry Arbitration Commission (CIAC) shall promulgate rules to allow for the appointment of a foreign arbitrator or coarbitrator or chairman of a tribunal a person who has not been previously accredited by CIAC: Provided, That:

(a) the dispute is a construction dispute in which one party is an international party

(b) the person to be appointed agreed to abide by the arbitration rules and policies of CIAC;

(c) he/she is either coarbitrator upon the nomination of the international party; or he/she is the common choice of the two CIAC-accredited arbitrators first appointed one of whom was nominated by the international party; and

(d) the foreign arbitrator shall be of different nationality from the international party.

Front 32

How should a domestic arbitral award be enforced? How shall it be made?

Back 32

A domestic arbitral award when confirmed shall be enforced in the same manner as final and executory decisions of the Regional Trial Court.

The confirmation of a domestic award shall be made by the regional trial court in accordance with the Rules of Procedure to be promulgated by the Supreme Court.

Note: The nationality or professional qualification of an arbitrator is not a ground to challenge an arbitrator unless the parties have specified in their arbitration agreement a nationality and/or professional qualification for appointment as arbitrator.

Front 33

What are the objective of the Office for ADR? What are the powers and functions of the Office for ADR?

Back 33

The objective of the office are:

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(a) to promote, develop and expand the use of ADR in the private and public sectors; and

To assist the government to monitor, study and evaluate the use by the public and the private sector of ADR, and recommend to Congress needful statutory changes to develop. Strengthen and improve ADR practices in accordance with world standards.

SEC. 50. Powers and Functions of the Office for Alternative Dispute Resolution. - The Office for Alternative Dispute Resolution shall have the following powers and functions:

(a) To formulate standards for the training of the ADR practitioners and service providers;

(b) To certify that such ADR practitioners and ADR service providers have undergone the professional training provided by the office;

(c) To coordinate the development, implementation, monitoring, and evaluation of government ADR programs;

(d) To charge fees for their services; and

(e) To perform such acts as may be necessary to carry into effect the provisions of this Act.

Front 34

How do you appoint an arbitrator? How about additional arbitrator?

Back 34

Appointment of arbitrators. - If, in the contract for arbitration or in the submission described in section two, 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.

(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.

Section 9. Appointment of additional arbitrators. - 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.

Front 35

What is the jurisdiction of the CIAC? The jurisdiction of the CIAC may include but is not limited to violation of what?

Back 35

Jurisdiction. The CIAC shall have original and exclusive jurisdiction over disputes arising from, or connected with, contracts entered into by parties involved in CONSTRUCTION in the Philippines, whether the dispute arises before or after the completion of the contract, or after the abandonment or breach thereof. These disputes may involve government or private contracts. For the Board to acquire jurisdiction, the parties to a dispute must agree to submit the same to voluntary arbitration.

The jurisdiction of the CIAC may include but is not limited to violation of

STIMD

specifications for materials and workmanship;

violation of the terms of agreement;

interpretation and/or application of contractual time and delays;

maintenance and defects; payment,

default of employer or contractor and changes in contract cost.

Excluded from the coverage of this law are disputes arising from employer-employee relationships which shall continue to be covered by the Labor Code of the Philippines.

Front 36

Mediation vs Court-annexed mediation

Back 36

Mediation" means a mediator, selected by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute.

"Court-Annexed Mediation" means any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute;

Front 37

What is the doctrine of separability?

Back 37

It means in particular that an arbitration agreement that 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 shall not entail automatically the invalidity of the arbitration agreement. As a consequence, the arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

Front 38

When is the time for rendering an award? How much are the fees of arbitration?

Back 38

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.

The fees of the arbitrators shall be fifty pesos per day unless the parties agree otherwise in writing prior to the arbitration.

Front 39

3 stages of arbitration

Back 39

a. Recognition of arbitration agreement;
b. Proceedings;
c. Recognition or enforcement of award.

Front 40

Tuna Processing, Inc., vs. Philippine Kingford, Inc., G.R. No. 185582, February 29, 2012.)

Back 40

A foreign corporation not licensed to do business in the Philippines, but which collects royalties from entities in the Philippines, have legal capacity to sue for the recognition and enforcement of foreign arbitral award in accordance with the provisions of the Alternative Dispute Resolution Act of 2004 [R.A. No. 9285] .

When a party enters into a contract containing a foreign arbitration clause and, in fact, submits itself to arbitration, it becomes bound by the contract, by the arbitration and by the result of arbitration, conceding thereby the capacity of the other party to enter into the contract, participate in the arbitration and cause the implementation of the result. (Ibid.)

The New York Convention shall govern the recognition and enforcement of arbitral awards covered by the said Convention. (Sec. 42, R.A. No. 9285)

Also, international commercial arbitration is governed by the Model Law on International Commercial Arbitration (the “Model Law”) adopted by the United Nations Commission on International Trade Law (UNCITRAL) on 21 June 1985.

Exclusive grounds for opposition in the application for recognition and enforcement of arbitral award.
Article V
1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, 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 the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling 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 authority 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 took place; or
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country. (New York Convention)

Front 41

National Irrigation Administration (NIA), vs. Honorable court of Appeals [4th Division], Construction Industry Arbitration Commission, and Hydro Resources Contractors Corporation, G.R. No. 129169. November 17, 1999.

Back 41

The Construction Industry Arbitration Commission (CIAC) has original and exclusive jurisdiction over disputes arising from, or connected with contracts entered into by parties involved in construction in the Philippines, whether the dispute arises before or after the completion of the contract, or after the abandonment or breach thereof.

Jurisdiction of a court is determined by the law in force at the time of the commencement of the action.

The disputes may involve government or private contracts.

As long as the parties agree to submit to voluntary arbitration, regardless of what forum they may choose, their agreement will fall within the jurisdiction of the CIAC, such that, even if they specifically choose another forum, the parties will not be precluded from electing to submit their dispute before the CIAC because this right has been vested upon each party by law, i.e., E.O. No. 1008.

Front 42

LM Power Engineering Corporation vs. Capitol Industrial Construction Groups, Inc., G.R. No. 141833, March 26, 2003.

Back 42

Whenever there is an arbitration clause, there is no more need to file request with the CIAC in order to vest it with jurisdiction to decide a construction dispute.

A prematurely filed complaint before the RTC without prior recourse to arbitration, the proper procedure to enable the CIAC to decide on the dispute is to request the stay or suspension of such an action, as provided under Sec. 7, R.A. No. 876 (the Arbitration Law).

“Sec. 7. Stay of Civil Action. — 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.”

Front 43

JPlus Asia Development Corporation vs. Utility Assurance Corporation, G.R. No. 199650, June 26, 2013.

Back 43

CIAC arbitral award is final and executory.

A CIAC arbitral award need not be confirmed by the RTC to be executory as provided under E.O. No. 1008.

Domestic arbitral award, not falling under CIAC, shall be confirmed by way of a petition for such an order within 30 days before the RTC. (Sec. 23 in relation to Sec. 28, Arbitration Law [R.A. No. 876])

The judgment in the confirmation of a domestic arbitral award is docketed as if it were rendered in an action. (Ibid.).

The judgment in the confirmation of a domestic arbitral award so entered have the same force and effect in all respects, as, and be subject to all 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. (Ibid.)

Front 44

Koppel, Inc. vs. Makati Rotary Club Foundation, Inc., G.R. No. 198075, September 4, 2013.

Back 44

Doctrine of Separability – Under the doctrine of separability, an arbitration agreement is considered as independent of the main contract. Being a separate contract in itself, the arbitration agreement may thus be invoked regardless of the possible nullity or invalidity of the main contract.

Even the very party who repudiates or assails the validity of such contract may invoke the arbitration clause.

The operation of the arbitration clause is not at all defeated by the failure of the party to file a formal "request" or application therefor. The filing of a "request" pursuant to Section 24 of R.A. No. 9285 is not the sole means by which an arbitration clause may be validly invoked in a pending suit.
Section 24 of R.A. No. 9285 reads:
Sec. 24. Referral to Arbitration. — A court before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if at least one party so requests not later that the pre-trial conference, or upon the request 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.
The "request" referred to in the above provision is, in turn, implemented by Rules 4.1 to 4.3 of A.M. No. 07-11-08-SC or the Special Rules of Court on Alternative Dispute Resolution (Special ADR Rules):
RULE 4: REFERRAL TO ADR
Rule 4.1.Who makes the request. — A party to a pending action filed in violation of the arbitration agreement, whether contained in an arbitration clause or in a submission agreement, may request the court to refer the parties to arbitration in accordance with such agreement.
Rule 4.2. When to make request. — (A) Where the arbitration agreement exists before the action is filed. — The request for referral shall be made not later than the pre-trial conference. After the pre-trial conference, the court will only act upon the request for referral if it is made with the agreement of all parties to the case.
(B) Submission agreement. — If there is no existing arbitration agreement at the time the case is filed but the parties subsequently enter into an arbitration agreement, they may request the court to refer their dispute to arbitration at any time during the proceedings.
Rule 4.3. Contents of request. — The request for referral shall be in the form of a motion, which shall state that the dispute is covered by an arbitration agreement.
Apart from other submissions, the movant shall attach to his motion an authentic copy of the arbitration agreement.
The request shall contain a notice of hearing addressed to all parties specifying the date and time when it would be heard. The party making the request shall serve it upon the respondent to give him the opportunity to file a comment or opposition as provided in the immediately succeeding Rule before the hearing. Attention must be paid, however, to the salient wordings of Rule 4.1. It reads: "[a] party to a pending action filed in violation of the arbitration agreement . . . may request the court to refer the parties to arbitration in accordance with such agreement."
In using the word "may" to qualify the act of filing a "request" under Section 24 of R.A. No. 9285, the Special ADR Rules clearly did not intend to limit the invocation of an arbitration agreement in a pending suit solely via such "request." After all, non-compliance with an arbitration agreement is a valid defense to any offending suit and, as such, may even be raised in an answer as provided in our ordinary rules of procedure.

In this case, it is conceded that petitioner was not able to file a separate "request" of arbitration before the MeTC. However, it is equally conceded that the petitioner, as early as in its Answer with Counterclaim, had already apprised the MeTC of the existence of the arbitration clause in the 2005 Lease Contract and, more significantly, of its desire to have the same enforced in this case. This act of petitioner is enough valid invocation of his right to arbitrate.

The fact that the parties already underwent through JDR proceedings before the RTC, will not make the subsequent conduct of arbitration between the parties unnecessary or circuitous. The JDR system is substantially different from arbitration proceedings.

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Define negotiation

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It is a form of direct or indirect communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between them.

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Effect of Rendition of arbitral award before court decision on petition from arbitral tribunal’s preliminary ruling on jurisdiction.

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- If the arbitral tribunal renders a final arbitral award and the Court has not rendered a decision on the petition from the arbitral tribunal’s preliminary ruling affirming its jurisdiction, that petition shall become ipso facto moot and academic and shall be dismissed by the Regional Trial Court. The dismissal shall be without prejudice to the right of the aggrieved party to raise the same issue in a timely petition to vacate or set aside the award.

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Effect of Rendition of arbitral award before court decision on petition from arbitral tribunal’s preliminary ruling on jurisdiction.

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- If the arbitral tribunal renders a final arbitral award and the Court has not rendered a decision on the petition from the arbitral tribunal’s preliminary ruling affirming its jurisdiction, that petition shall become ipso facto moot and academic and shall be dismissed by the Regional Trial Court. The dismissal shall be without prejudice to the right of the aggrieved party to raise the same issue in a timely petition to vacate or set aside the award.

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When may a party to a pending action filed in violation of an arbitration agreement request the court to refer the parties to arbitration in accordance with such agreement?

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Rule 4.2. When to make request. - (A) Where the arbitration agreement exists before the action is filed. - The request for referral shall be made not later than the pre-trial conference. After the pre-trial conference, the court will only act upon the request for referral if it is made with the agreement of all parties to the case.

(B) Submission agreement. - If there is no existing arbitration agreement at the time the case is filed but the parties subsequently enter into an arbitration agreement, they may request the court to refer their dispute to arbitration at any time during the proceedings.

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Who may ask for interim measures of protection? When to petition?

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Rule 5.1. Who may ask for interim measures of protection. - A party to an arbitration agreement may petition the court for interim measures of protection.

Rule 5.2. When to petition. - A petition for an interim measure of protection may be made (a) before arbitration is commenced, (b) after arbitration is commenced, but before the constitution of the arbitral tribunal, or (c) after the constitution of the arbitral tribunal and at any time during arbitral proceedings but, at this stage, only to the extent that the arbitral tribunal has no power to act or is unable to act effectively.

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What if there is conflict or inconsistency between interim measure of protection issued by the court and by the arbitral tribunal?

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- Any question involving a conflict or inconsistency between an interim measure of protection issued by the court and by the arbitral tribunal shall be immediately referred by the court to the arbitral tribunal which shall have the authority to decide such question.

Note: The court shall not set aside or vacate the award of the arbitral tribunal merely on the ground that the arbitral tribunal committed errors of fact, or of law, or of fact and law, as the court cannot substitute its judgment for that of the arbitral tribunal.

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What is the scope of Online Dispute Resolution?

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- Online Dispute Resolution shall refer to all electronic forms of ADR including the use of the internet and other web or computed based technologies for facilitating ADR.

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Effect of Rendition of arbitral award before court decision on petition from arbitral tribunal’s preliminary ruling on jurisdiction.

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- If the arbitral tribunal renders a final arbitral award and the Court has not rendered a decision on the petition from the arbitral tribunal’s preliminary ruling affirming its jurisdiction, that petition shall become ipso facto moot and academic and shall be dismissed by the Regional Trial Court. The dismissal shall be without prejudice to the right of the aggrieved party to raise the same issue in a timely petition to vacate or set aside the award.

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model law

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Arbitration agreement” is an agreement by the parties to submit to arbitra- tion all or certain disputes which have arisen or which may arise between them in respect of a defi ned legal relationship, whether contractual or not.

Article 9. Arbitration agreement and interim measures by court

It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.

Article 10. Number of arbitrators

(1) The parties are free to determine the number of arbitrators.

(2) Failing such determination, the number of arbitrators shall be three.

Article 11. Appointment of arbitrators
(1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.
(3) Failing such agreement,
(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty 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 days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specifi ed in article 6;
(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specifi ed in article 6.

Article 17. Power of arbitral tribunal to order interim measures

(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures.

(2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is fi nally decided, the arbitral tribunal orders a party to:

(a) Maintain or restore the status quo pending determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself;
(c) Provide a means of preserving assets out of which a subsequent award may be satisfi ed; or
(d) Preserve evidence that may be relevant and material to the resolu- tion of the dispute.

Article 17 A. Conditions for granting interim measures

(1) The party requesting an interim measure under article 17(2)(a), (b) and
(c) shall satisfy the arbitral tribunal that:
(a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and
(b) There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subse- quent determination.

(2) With regard to a request for an interim measure under article 17(2)(d), the requirements in paragraphs (1)(a) and (b) of this article shall apply only to the extent the arbitral tribunal considers appropriate.

Section 2. Preliminary orders

Article 17 B. Applications for preliminary orders and conditions for granting preliminary orders

(1) Unless otherwise agreed by the parties, a party may, without notice to any other party, make a request for an interim measure together with an application for a preliminary order directing a party not to frustrate the purpose of the interim measure requested.

(2) The arbitral tribunal may grant a preliminary order provided it considers that prior disclosure of the request for the interim measure to the party against whom it is directed risks frustrating the purpose of the measure.

(3) The conditions defi ned under article 17A apply to any preliminary order, provided that the harm to be assessed under article 17A(1)(a), is the harm likely to result from the order being granted or not.

2) The arbitral tribunal shall issue an order for the termination of the arbi- tral proceedings when:
(a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a fi nal settlement of the dispute;
(b) the parties agree on the termination of the proceedings;
(c) the arbitral tribunal fi nds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

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How do you appoint an arbitrator?

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GR: Parties shall appoint

Exceptions: The court may appoint in the following instances: FAR

a. Parties failed or refuse to appoint or the two designated arbitrators failed to appoint a third arbitrator and the appointing authority is unable to appoint;

b. In all instances where arbitration is ad hoc and the parties failed to provide a method for appointing or replacing an arbitrator, or substitute arbitrator, or the method agreed upon is ineffective, and the National President of the IBP or his duly authorized representative fails or refuses to act within such period as may be agreed upon by the parties, or in the absence thereof, within 30 days from receipt of such request for appointment;

c. Where appointment shall be made by the Appointing Authority and the latter fails or refuses to act or appoint an arbitrator within a reasonable time from receipt of the request to do so.

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Challenge / termination of arbitrator

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Any of the parties to an arbitration may challenge an arbitrator.

Termination of the mandate of arbitrator: Any of the parties to an arbitration may request for the termination of the mandate of an arbitrator when an arbitrator becomes du jure or due facto unable to perform his functions or for other reasons fails to act without undue delay and that arbitrator, upon request of any party, fails or refuses to withdraw from his office.

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Preliminary procedure in arbitration law

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ARBITRATION LAW (under R.A. No. 876).

PRELLIMINARY PROCEDURE:

IN CASE OF ARBITRAL AGREEMENT/CLAUSE:

a. Demand/request for arbitration; (Not applicable in controversies covered by CIAC)
b. Statement of the nature of the controversy;
c. Amount involved, if applicable;
d. Relief sought;
e. Attached true copy of the contract providing the arbitration;
f. Demand shall be served in person or registered mail;
g. Should the contract provides for the appointment of single arbitrator:
- Indicate the time and date within which the parties shall agree upon such arbitrator;
h. Should the contract provides for the appointment of three arbitrators:
- Indicate the name of the arbitrator appointed;
- Require the other party within 15 days from notice/receipt to make an advice in writing the name of the person appointed by the second party;

The 2 arbitrators appointed must agree on the third arbitrator within 10 days from the date of such notice;

In case of default by the other party in answering the demand, aggrieved party may file, through a verified petition, with the RTC having jurisdiction of the parties:

A copy of the demand/request for arbitration;

A statement that an original demand was sent and which set forth:

The nature of the action;
Amount involved, if applicable;
Relief sought;
Attached true copy of the contract providing for arbitration;

SAME PROCEDURE TO BE FOLLOWED IN SUBMISSION AGREEMENTS.

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CHALLENGE OF ARBITRATOR(S).

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The arbitrators may be challenged only for the reasons mentioned in Sec 10, R.A. No. 876 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 RTC 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 on arbitration shall be suspended, and it shall be continued immediately after the court has delivered an order on the challenging incident. (Sec.11, R.A. No. 876)

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CONFIRMATION, CORRECTION OR VACATION OF AWARD IN DOMESTIC ARBITRATION.
PERIODS:

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CONFIRMATION, CORRECTION OR VACATION OF AWARD IN DOMESTIC ARBITRATION.
PERIODS:

Confirmation. - At any time after the lapse of thirty (30) days from receipt by the petitioner of the arbitral award, he may petition the court to confirm that award.

Correction/Modification. - Not later than thirty (30) days from receipt of the arbitral award, a party may petition the court to correct/modify that award.

Vacation. - Not later than thirty (30) days from receipt of the arbitral award, a party may petition the court to vacate that award.

A petition to vacate the arbitral award may be filed, in opposition to a petition to confirm the arbitral award, not later than thirty (30) days from receipt of the award by the petitioner. A petition to vacate the arbitral award filed beyond the reglementary period shall be dismissed.

A petition to confirm the arbitral award may be filed, in opposition to a petition to vacate the arbitral award, at any time after the petition to vacate such arbitral award is filed. The dismissal of the petition to vacate the arbitral award for having been filed beyond the reglementary period shall not result in the dismissal of the petition for the confirmation of such arbitral award.

The filing of a petition to confirm an arbitral award shall not authorize the filing of a belated petition to vacate or set aside such award in opposition thereto.
A petition to correct an arbitral award may be included as part of a petition to confirm the arbitral award or as a petition to confirm that award. (Rule 11.2.)

RECOGNITION AND ENFORCEMENT OR SETTING ASIDE OF AN AWARD IN INTERNATIONAL COMMERCIAL ARBITRATION.

Who may petition for recognition and enforcement or setting aside?
Any party to an international commercial arbitration in the Philippines.

PERIOD TO FILE PETITION FOR RECOGNITION AND ENFORCEMENT.
Any time from receipt of award.
If, however, a timely petition to set aside an arbitral award is filed, the opposing party must file therein and in opposition thereto the petition for recognition and enforcement of the same award within the period for filing an opposition. (Rule 12.2.)

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Recognition and Enforcement of a Foreign Arbitral Award

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General Rule: A Philippine court shall not set aside a foreign arbitral award.

Exception: It may refuse recognition and enforcement on any or all of the following grounds:

1. If the party making the application proves that (intab)

a. 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 thereof, under the law of the country where the award was made; or

b. 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

c. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; 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 arbitration took place; or

e. The award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which that award was made; or

2. The court finds that: (SPD)

a. The subject matter of the dispute is not capable of settlement or resolution by arbitration under Philippine Law; or

b. The recognition or enforcement of the award would be contrary to public policy;

c. The court shall disregard any ground for opposing the recognition and enforcement of a foreign arbitral award other than those enumerated above.

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Recognition and enforcement or setting aside of an International Commercial Arbitration Award

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Grounds to set aside or resist enforcement: The court may set aside or refuse the enforcement of the arbitral award only if:

1. The party making the application furnishes proof that:

a. 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 thereof, under Philippine Law; or

b. The party making the application to set aside or resist enforcement 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

c. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration;

d. 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 Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law;

2. The court finds that:

a. The subject matter of the dispute is not capable of settlement by arbitration under the law of the Philippines; or

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

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Recognition and enforcement or setting aside of an International Commercial Arbitration Award

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Grounds to set aside or resist enforcement: The court may set aside or refuse the enforcement of the arbitral award only if:

1. The party making the application furnishes proof that:

a. 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 thereof, under Philippine Law; or

b. The party making the application to set aside or resist enforcement 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

c. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration;

d. 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 Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law;

2. The court finds that:

a. The subject matter of the dispute is not capable of settlement by arbitration under the law of the Philippines; or

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

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Recognition and enforcement or setting aside of an International Commercial Arbitration Award

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Grounds to set aside or resist enforcement: The court may set aside or refuse the enforcement of the arbitral award only if:

1. The party making the application furnishes proof that:

a. 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 thereof, under Philippine Law; or

b. The party making the application to set aside or resist enforcement 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

c. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration;

d. 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 Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law;

2. The court finds that:

a. The subject matter of the dispute is not capable of settlement by arbitration under the law of the Philippines; or

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

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An arbitration is international if:

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An arbitration is international if:

(a) the parties to an arbitration agreement have, at the time of the conclu- sion 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 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 con- nected; or

(c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

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Recognition and enforcement or setting aside of an International Commercial Arbitration Award

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Grounds to set aside or resist enforcement: The court may set aside or refuse the enforcement of the arbitral award only if:

1. The party making the application furnishes proof that:

a. 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 thereof, under Philippine Law; or

b. The party making the application to set aside or resist enforcement 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

c. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration;

d. 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 Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law;

2. The court finds that:

a. The subject matter of the dispute is not capable of settlement by arbitration under the law of the Philippines; or

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