Arbitration in The Phils

ARBITRATION IN THE PHILIPPINES
VICTOR P. LAZATIN AND
PATRICIA ANN T. PRODIGALIDAD
I. INTRODUCTION
Globalization has become the buzzword of the new millennium as developing

countries seek to expand international trade and attract foreign investment. Quite
understandably, the opening of domestic doors to foreign investors will inevitably
result in more conflicts arising from the intrinsic complexity of international
commerce as well as the inherent cultural and legal differences between trading
nations. This chapter will discuss the role of commercial arbitration in resolving these
disputes in the Philippines.
Perhaps owing to the Filipino’s aversion to adversarial proceedings, and considering

also the costly and slow process of litigation, commercial many quarters are working
to make arbitration in the Philippines an effective and efficient means of dispute
resolution. For that reason, the Philippine legislation on commercial dispute
resolution is slowly keeping pace with the developments in international trade.
A. History of Arbitration in the Philippines
Arbitration, as an alternative mode of dispute resolution, has long been recognized

and accepted in the Philippines. In 1921, the Philippine Supreme Court, applying
common law, noted that: [t]he settlement of controversies by arbitration is an ancient
practice at common law. In its broad sense, it is a substitution, by consent of the
parties, of another tribunal for the tribunals provided by the ordinary processes of law.
… Its object is the final disposition, in a speedy and inexpensive way, of the matters
2
involved, so that they may not become the subject of future litigation between the
parties.1
Early jurisprudence in the Philippines, however, was not supportive of arbitration.

Despite the recognition accorded to arbitration by tradition and by provisions of the
Civil Code, the use of arbitration as a mode of dispute resolution was discouraged by
the tendency of some courts to nullify arbitration clauses on the ground that the
clauses ousted the judiciary of its jurisdiction.
Propitiously, in the early 1920's, the Philippine Supreme Court began to lay the basis
for the recognition and acceptance of arbitration as a mode of settling disputes in the
following ruling:
In the Philippines fortunately, the attitude of the courts toward arbitration

agreements is slowly crystallizing into definite and workable form…. The rule now is
that unless the agreement is such as to absolutely close the doors of the courts against
the parties, which agreement would be void, the courts will look with favor upon such
amicable agreements and will only with great reluctance interfere to anticipate or
nullify the action of the arbitrator.2
With this blessing bestowed by the courts, arbitration became a viable alternative to
costly and prolonged litigation. In turn, the growing frequency of arbitration led to
pressures for a regulatory law. In 1953, the Philippine Congress enacted Republic Act
No. 876, otherwise known as the Arbitration Law, 3 thereby adopting "the modern
view that arbitration as an inexpensive, speedy and amicable method of settling
1 Chan Linte vs. Law Union and Rock Insurance Co., et al., 42 Phil. 548 (1921).
2 Malcolm, J., dissenting, in Vega vs. San Carlos Milling Co., 51 Phil. 908 (1924); see also
Manila Electric Co. vs. Pasay Transportation Co., 57 Phil. 600 (1932).
3 The full text of Republic Act No. 876 is included at the Philippines tab of the statutory
appendix to this volume.
3
disputes and as a means of avoiding litigation should receive every encouragement

from the courts."4
In 10 June 1958, the Philippines became a signatory to the United Nations
Convention on the Recognition and the Enforcement of Foreign Arbitral Awards of
1958 (the "New York Convention”). On 6 July 1967, the said Convention was
ratified.
Fifty years after the enactment of the Philippine Arbitration Law, the Philippine
Congress enacted, Republic Act No. 9285, otherwise know as the Alternative Dispute
Resolution Act of 2004. The enactment of Republic Act No. 9285 was the Philippines
solution to making arbitration an efficient and effective method in dispute resolution
specially for international arbitration.
Prior to the enactment of Republic Act No. 9285, there were no laws prescribing the
mechanics for the conduct of international arbitration. Instead, when dealing with
disputes regarding international contracts, Philippine entities, including the
Government, are often required to agree to dispute settlement by arbitration in the
foreign country under the rules of foreign arbitral institutions.5 Worse,
notwithstanding the Philippines’ adherence to the New York Convention, no
legislation has been passed providing a specific procedure for the enforcement of
foreign arbitral awards. Thus, there have been instances in which international
arbitral awards have been treated by Philippine courts as akin to foreign judgments for
lack of specific invocation of the New York Convention. As a consequence, foreign
arbitral awards have sometimes been deemed only presumptively valid, rather than
conclusively valid, as required by the New York Convention.6
Under Republic Act No. 9285, the Philippines unequivocally declared that it is its
policy “to actively promote party autonomy in the resolution of disputes or the
4 Eastboard Navigation Ltd. vs. Juan Ysmael & Co., Inc., 102 Phil. 1 (1957).
5 United Nations Commission in International Trade Law (“UNCITRAL”) Model Law Bill,
Explanatory Note.
6 New York Convention, Art. III (“Each contracting state shall recognize arbitral awards as
binding…”).
4
freedom of the parties to make their own arrangements to resolve their disputes” and
“encourage and actively promote the use of Alternative Dispute Resolution (ADR) as
an important means to achieve speedy and impartial justice and declog court
dockets.”7
To keep pace with the developments in international trade, Republic Act No. 9285
also ensured that international commercial arbitration would be governed by the
United Nations Commission in International Trade (“UNCITRAL”) Model Law on
International Arbitration adopted by the United Nations Commission on International
Trade Law on June 21, 1985.8 Republic Act No. 9285 also fortified the use and
purpose of the New York Convention by specifically mandating that it shall govern
the recognition and enforcement of arbitral awards covered by the said convention 9,
while foreign arbitral awards not covered by the New York Convention shall be
recognized and enforced in accordance with the procedural rules to be promulgated by
the Supreme Court.10
Moreover, Republic Act No. 9285 updated the rather antiquated Philippine
Arbitration Law or Republic Act No. 876.
Presently, the Congressional Oversight Committee is reviewing the draft of the

Implementing Rules and Regulations of Republic Act No. 9285. At the same time,
the Supreme Court of the Philippines is formulating the Special Rules of Court on
Alternative Dispute Resolution, which will govern the procedure to be followed when
recourse is made to the courts on any matter, which is subject of arbitration or other
forms of alternative dispute resolution.
B. The Practice of Arbitration in the Philippines Today
7 Republic Act No. 9285, Sec.2.

8 Republic Act No. 9285, Secs. 19-31.
9 Republic Act No. 9285, Sec. 42.
10
Republic Act No. 9285, Sec. 43.
5
At present, arbitration practice in the Philippines is either ad hoc, institutionalized or

specialized.
For ad hoc arbitration, Philippine law grants the parties the right to select an arbitrator
or arbitrators and to choose procedures to govern the proceedings, including rules of
arbitration institutions. So long as the main requirement for arbitration, namely
consent, is present, the State allows the parties to conduct the arbitration in any
manner they stipulate, provided that the arbitration process is not "contrary to law,
morals, good customs, public order or public policy."10
Institutionalized arbitration is conducted through organized bodies such as courts of

arbitration, trade associations, and arbitration centers and institutes, each prescribing
its own different arbitration procedure. Foremost among these institutions in the
Philippines is the Philippine Dispute Resolution Center Inc. ("PDRCI").11 These
institutions do not actually participate in settling the dispute but help administer the
arbitration and provide a set of rules to govern the proceedings. For international
arbitration, the popular institutional rules referred to are those of the International
Chamber of Commerce ("ICC"), the Hongkong International Arbitration Centre
("HKIAC") and the Singapore International Arbitration Centre ("SIAC").12
Nevertheless, the rules of most arbitral institutions, including those of the PDRCI, do
not purport to cover in detail many essential elements of procedure. Instead, these
institutionalized rules cover such matters as the commencement of arbitral
proceedings, the presentation of the answer and counterclaim, the appointment of
arbitrators, the right to be represented by counsel, and the assignment of costs and
fees. Accordingly, in the absence of agreement by the parties, specific procedural
matters are left to the discretion of the arbitral institution or the arbitrator(s).
Furthermore, the institutional rules tend to apply across the board to all arbitrations
and make no distinction between those involving relatively simple issues and those
10 CIVIL CODE, Art. 1306.
11 A copy of the PDRCI Rules of Procedure is included at the Philippines tab of the
appendix to this volume.
12 These various rules are included in the appendix to this volume.

6
that present complex questions of law or require extensive fact-finding. Of course,

good arbitrators and good lawyers can--and frequently do--fill in the interstices of
general rules as they go along.13 Thus, even in institutional arbitration, the procedural
rules actually followed may vary from case to case.
Specialized arbitration involves particular industries or kinds of disputes. For

example, banking disputes on check clearing are resolved by a specialized system
administered under the auspices of the Bankers' Association of the Philippines. In the
construction industry, the Construction Industry Arbitration Commission (“CIAC”)
was created in 1985 by Executive Order No. 1008 ("E.O. No. 1008") 14 in recognition
of the need for technical expertise to resolve various factual questions in construction
disputes. Subject to the agreement of the parties to submit the dispute to voluntary
arbitration, the CIAC was given original and exclusive jurisdiction over all
construction disputes. Indeed, so comprehensive is the jurisdiction of the CIAC over
construction controversies, that it has been decreed that “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.”15 (This ruling could be reconsidered in the light of the New York
Convention to enforce the international arbitration agreements between parties of
different nationalities made within a contracting state.) As such, the CIAC has become
one of the premier specialized arbitration institutions in the Philippines. From the time
of its creation until 15 January 2000, at least two hundred thirty-five (235) cases have
been filed involving an aggregate amount of =p 7.22 billion (1 U.S. $ = roughly p=
50). Of these 235 cases, 38 (or sixteen percent), involved foreign companies and/or
subsidiaries of multinational companies.
13 Realan Clark and Dieter G. Lange, Recent Changes in English Arbitration Practice, 35
BUSINESS LAWYER 1630 (July 1980).
14 Enacted on February 4, 1985.
15 China Chiang Jiang Energy Corp. v. Court of Appeals, et al., G.R. No. 125706, Sept. 30,
1996; National Irrigation Administration v. Court of Appeals, CIAC, et al., G.R. No. 129169, Nov. 17,
1999, 318 SCRA 255, 268.
7
Despite these various permutations, the fundamental rule in international commercial

arbitration is that the procedure will be dictated by the choice or agreement of the
parties. The parties can either draft their own procedures or refer to existing
arbitration rules, such as the ICC Rules, American Arbitration Association ("AAA")
Rules or the Rules of the United Nations Commission in International Trade Law
(UNCITRAL). In the absence of any agreement of the parties, the law of the forum
will be used to fill the gap. In the Philippines, this means that Republic Act No. 9285
shall principally govern the proceedings.
C. Sources of Law
For international commercial arbitration, Republic Act No. 9285 is now the primary
statute used to supplement the parties’ agreement in governing the arbitration. Also
applicable are Articles 2028 to 2046 of the Civil Code of the Philippines, 17
international
17
The CIVIL CODE of the Philippines provides:
ART. 2028. A compromise is a contract whereby the parties, by making reciprocal
concessions, avoid a litigation or put an end to one already commenced.
ART. 2029. The court shall endeavor to persuade the litigants in a civil case to agree upon
some fair compromise.
ART. 2030. Every civil action or proceeding shall be suspended:
(1) If willingness to discuss a possible compromise is expressed by one or both parties;
or
(2) 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.
The duration and terms of the suspension of the civil action or proceeding and similar matters
shall be governed by such provisions of the rules of court as the Supreme Court shall promulgate. Said
rules of court shall likewise provide for the appointment and duties of amicable compounders.
ART. 2031. The courts may mitigate the damages to be paid by the losing party who has
shown a sincere desire for a compromise.
ART. 2032. The court's approval is necessary in compromises entered into by guardians,
parents, absentee's representatives, and administrators or executors of decedents' estates.
ART. 2033. Juridical persons may compromise only in the form and with the requisites which
may be necessary to alienate their property.
8
ART. 2034. There may be a compromise upon the civil liability arising from an offense; but
such compromise shall not extinguish the public action for the imposition of the legal penalty.
ART. 2035. No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
ART. 2036. A compromise comprises only those objects which are definitely stated therein, or
which by necessary implication from its terms should be deemed to have been included in the same.
A general renunciation of rights is understood to refer only to those that are connected with the
dispute which was the subject of the compromise.
conventions and treaties such as the Model Law and the New York Convention,18 and
settled jurisprudence or judicial decisions of the Supreme Court applying or
interpreting the laws.19
For domestic arbitration, Republic Act No. 9285 is also the primary statute used to
supplement the parties’ agreement in governing their arbitration along with Republic
Act No. 876 and Articles 8, 10, 11, 12, 13, 14, 18 and 19 of the Model Law.
ART. 2037. A compromise has upon the parties the effect and authority of res judicata; but
there shall be no execution except in compliance with a judicial compromise.
ART. 2038. A compromise in which there is mistake, fraud, violence, intimidation,
undue influence, or falsity of documents, is subject to the provisions of article 1330 of this Code.
However, one of the parties cannot set up a mistake of fact as against the other if the latter, by
virtue of the compromise, has withdrawn from a litigation already commenced.
ART. 2039. When the parties compromise generally on all differences which they might have
with each other, the discovery of documents referring to one or more but not to all of the questions
settled shall not itself be a cause for annulment or rescission of the compromise, unless said documents
have been concealed by one of the parties.
But the compromise may be annulled or rescinded if it refers only to one thing to which one of
the parties has no right, as shown by the newly-discovered documents.
ART. 2040. If after a litigation has been decided by a final judgment, a compromise should be
agreed upon, either or both parties being unaware of the existence of the final judgment, the
compromise may be rescinded.
Ignorance of a judgment which may be revoked or set aside is not a valid ground for attacking
a compromise.
ART. 2041. If one of the parties fails or refuses to abide by the compromise, the other party
may either enforce the compromise or regard it as rescinded and insist upon his original demand.
9
ART. 2042. The same persons who may enter into a compromise may submit their
controversies to one or more arbitrators for decision.
ART. 2043. The provisions of the preceding Chapter upon compromises shall also be applicable
to
arbitrations.
ART. 2044. Any stipulation that the arbitrators' award or decision shall be final, is valid,
without prejudice to articles 2038, 2039, and 2040.
ART. 2045. Any clause giving one of the parties power to choose more arbitrators than the
other is void and of no effect.
ART. 2046. The appointment of arbitrators and the procedure for arbitration shall be governed
by the provisions of such rules of court as the Supreme Court shall promulgate.
18
Another such treaty is the Agreement on the Establishment of a Court of Arbitration
and Permanent Conciliation Commission between the Republic of the Philippines and the Spanish
State, 22 December 1948 (Philippine Treaty Series, vol. 2, p. 93).
19
CIVIL CODE, Art. 8.
D. Traditional and Cultural Modes of Dispute Resolution in the Philippines
Although arbitration has become a widely-accepted alternative to litigation, the

cultural mistrust of formal adversarial proceedings has had an impact on the
development of arbitration as a mode of commercial dispute resolution. Commercial
disputes involving corporate entities are principally resolved through consultation and
negotiation among the parties. If negotiations fail, it is common for the parties to seek
the assistance of an independent third party, a so-called ninong (i.e.,
godfather/sponsor), to informally facilitate the solution of the problem through
mediation and conciliation. The mutually selected ninong is usually a common
relative or friend with high status; a political or religious leader; or a reputable
business associate or colleague. The ninong acts as a kind of referee, mediator or
conciliator, and does not impose a settlement or render an award but merely serves as
a means by which issues are clarified; impasses are broken; and amicable settlements
agreed upon.
Acknowledging the importance of traditional modes of dispute resolution, the Local

Government Code expressly recognizes and, for certain cases, mandates arbitration
before the Lupon Tagapamayapa.16 As in other arbitral proceedings, an award of the
16 Republic Act No. 7160, secs. 416 and 417.

10
Lupon Tagapamayapa has the “force and effect of a final judgment of a court” and
“may be enforced by execution by the Lupon within six (6) months from the date of
settlement. After the lapse of time, the settlement may be enforced in an action in the
appropriate city or municipal court.”17
Another cultural mode of dispute resolution specific to the members of the ethnic
Filipino-Chinese community is negotiation, conciliation or mediation conducted by
the "Community-based or Family Associations" where a tribunal composed of
members of a particular Chinese lineage or group with the same family name assumes
the role of referee between the disputing individuals.
Parties may also utilize mediation/conciliation facilities offered by arbitration

institutions such as PDRCI and CIAC. The Supreme Court has also been keen on
promoting court-annexed mediation and, in fact, has trained and accredited court
mediators. The formal conciliation or mediation procedures prescribed in the rules of
the PDRCI and CIAC (including those sponsored by courts) are still, however, in their
infancy. Their development as acceptable modes of alternative dispute resolution is
now the thrust of the CIAC and PDRCI (including the courts) in the new millennium.
II. CHOICE OF PHILIPPINE LAW: CONSEQUENCES FOR THE

ARBITRATION AGREEMENT AND ARBITRABILITY OF THE
DISPUTE
Arbitration, being essentially consensual in nature, is dependent on the existence of

an agreement that is valid as to form and substance. Without an agreement that
constitutes the basis of arbitral competence, the arbitrator or the arbitral tribunal are
without jurisdiction to conduct any proceedings, much less render any decision
binding on the parties or on States in which enforcement may be sought.
17 Teresita V. Idolor v. Court of Appeals, et al., G.R. No. 141853, February 7, 2001.
11
A. Domestic Arbitration
Subject to the doctrine of forum non conveniens, parties to an arbitration are

free to choose which law would govern the arbitration proceedings. The parties'
choice of law is usually expressly provided in the arbitration clause/submission
agreement, which constitutes the basis of arbitral competence and serves as the legal
basis for the arbitration. If the parties agree that Philippine law would govern their
arbitration proceedings, the following should be borne in mind:
1. Binding Effect of Arbitral Agreements
Arbitration agreements are treated like any other contract governed by the
Philippine Civil Code provisions on contracts. Thus, provided the parties agree to be
bound by the terms of the arbitration agreement, 18 and those terms are not contrary to
law, morals and good customs, public order or public policy, 19 that agreement is
binding on them. Section 2 of Republic Act No. 876 mirrors that sentiment, to wit:
Sec. 2. Persons and matters subject to arbitration. — Two or more persons or

parties may submit to the arbitration of one or more arbitrators any controversy
existing between them at the time of the submission and which may be the subject of
an action, or the parties to any contract may in such contract agree to settle by
arbitration a controversy thereafter arising between them. Such submission or contract
shall be valid, enforceable and irrevocable, save upon such grounds as exist at law for
the revocation of any contract.
Consequently, it has been decided that where the parties agree to arbitrate their
disputes, their agreement is binding on them and they are expected to abide in good
18 Philippine Civil Code, Article 1305.

19 Ibid, Article 1306.
12
faith with the arbitral clause of their contract. 20 The presence of a third party does not
make the arbitral agreement unenforceable or void.21
The Philippine Arbitration Law enforces the binding effect of an arbitration

agreement when it mandates courts to suspend actions filed by a party in disregard of
the arbitral agreement.22 The Philippine Arbitration Law further mandates the court
before which an action is brought in a matter, which is subject of an arbitration
agreement to refer the parties to arbitration unless it is proven that the arbitration
agreement is null and void, inoperative, or incapable of being performed.23
2. Scope of the Arbitration Clause/Arbitral Issues
The question of whether a particular dispute is within the ambit of an

arbitration clause depends upon the terms of the clause itself. 24 Parties are free to
stipulate which disputes and to what issues may be referred to arbitration. It must be
noted, however, that the following cannot be referred to arbitration:
a. labor disputes, which are covered by Presidential Decree No. 442;
b. disputes involving the civil status of persons;
c. disputes on the validity of marriage;
d. disputes concerning any ground for legal separation;
e. disputes involving the jurisdiction of courts;
20 Toyota Motor Philippines Corp. r. Court of Appeals, G.R. No. 102881, Dec. 7, 1992, 216
SCRA 236.
21 Ibid.
23 Section 33 in relation to Section 24 of Republic Act No. 9285; Chapter 4, Rule 4.2, Article
4.2.8 of the IRR of Republic Act No. 9285; Section 33 of Republic Act No. 9285 in relation to Article
8 of the Model Law.
24 Report of the Secretary General, UNCITRAL Arbitration Rules, Eighth Session, Geneva,
1 April 1975.
13
f. disputes on future legitime;
g. disputes involving criminal liability; and
h. those disputes, which by law cannot be compromised.25
The case of Western Minolco Corporation v. Court of Appeals 26

illustrates a situation involving a limited arbitration clause. In that case, the parties
agreed to refer to arbitration only the issues on the meaning, application and effect of
the agreement, and the amount and computation of royalties. Thus, when one of the
parties referred the matter of deductions or other items of expense, a controversy
relating to the “breach of faith” or “double dealing” by one of the parties to
arbitration, the Philippine Supreme Court ruled that that issue is beyond the scope of
the arbitral agreement.
In domestic arbitration, it is the court that decides the issue of whether a

dispute is within the ambit of the arbitral clause.27 If the court finds that the issue is
arbitrable, it shall order the parties to proceed to arbitration.
3. Interim Remedies
“It is not incompatible with an arbitration agreement for a party to request, before the
constitution of the arbitral tribunal, from a Court an interim measure of protection and
for the Court to grant such measure.” 28 “After constituting the arbitral tribunal and
during arbitration proceedings, a request for an interim measure of protection…may
be made with the arbitral tribunal”. 29 Nevertheless, if the arbitral tribunal has no
power to act or is unable to act effectively, the parties are not precluded from
26 Western Minolco Corporation r,. Court of Appeals, G.R. No. L-51996, Nov. 23. 1988, 167 SCRA
592.
27 Republic Act No. 876, Secs. 6 and 7.
28 Republic Act No. 9285, Section 28.
29 Ibid.
14
requesting the Court to grant an interim measure of protection. Significantly, parties

may also apply with a Philippine court for assistance in enforcing an interim measure
granted by the arbitral tribunal.30
An arbitral tribunal or Philippine court may grant a party interim relief for the
following purposes:
a. to prevent irreparable loss or injury, e.g., attachment;
b. to require security for the performance of an obligation;
c. to require the production and preservation of any evidence; and
d. to compel any other act or omission.31
In granting interim relief to a party, the arbitral tribunal or Philippine court

may require that party to post a bond to cover damages that may be suffered by the
party against whom relief is sought should it later be found that the relief was
unwarranted.32 Conversely, the Philippine court or arbitral tribunal may allow the
party against whom the relief is sought to post a counter-bond that would suspend the
effects of the relief granted and cover damages that may result from such suspension.33
Republic Act No. 9285 requires that the application for a interim relief be in writing
and served upon both the court or the arbitral tribunal and the party against whom the
relief is sought.34 The application must also detail the relief sought, the persons
30 Id.
32 Ibid.
33 Id.
34 Id.
39
Id.
15
against whom relief is sought, the grounds for the relief and the evidence supporting
the request.39
4. Finality of Arbitral Award
Within one month from the time an arbitral award is rendered, any party may
apply with the Philippine court having jurisdiction over the same for an order
confirming that award.35 “Upon the granting of an order confirming, modifying or
correcting an award, judgment may be entered therewith in the court wherein said
application was filed.”36 Once the order confirming the arbitral award together with
the award itself is entered in the book of entries of judgment, the arbitral award
becomes final and executory.37
It is worthy to note, however, that a CIAC arbitral award is executory and need
not be confirmed by a Philippine court.38
Moreover, an agreement by the parties that the arbitral award or decision shall
be final is valid under Philippine law. According to one Supreme Court case, 39
however, that agreement does not deter the courts from reviewing an arbitral award
where appropriate. Thus, where there are grounds for vacating, modifying or
rescinding an arbitral award, the injured party may still seek judicial relief, even if
there exists a contractual stipulation that the decision of the arbitrator shall be final
and unappealable.40
35 Republic Act No. 9285, Section 40 in relation to Section 23 of Republic Act No. 876.
37 Rules of Court, Rule 36, Section 2.
39 Chung Fu Industries (Phils.), Inc. v. Court of Appeals, G.R. No.96283, Feb. 25, 1992, 206
SCRA 545.
40 Chung Fu case.
16
B. International Arbitration
Under the Model Law, parties are likewise free to stipulate on their choice of
law, both as to rules applicable to the substance of the dispute 41 as well as with respect
to the rules of procedure42 applicable to the arbitration proceedings. Given the express
application of the Model Law, the following parallel aspects to domestic arbitration
should also be noted:
1. Binding effect of arbitral agreements
Parties may constitute arbitration agreements, which by definition are “those

agreements of parties to submit to arbitration all or certain disputes which have arisen
or which may arise between them in respect of a defined legal relationship, whether
contractual or not”, and may either be “in the form of an arbitration clause in a
contract or in a separate agreement”.43
Similar to domestic arbitration, where an action is brought in a matter subject of

an arbitration agreement, the court must refer the parties to arbitration unless it finds
that the agreement is “null and void, inoperative or incapable of being performed”. 44
Even where such action has been brought, arbitral proceedings may nevertheless be
commenced or continued, and an award may be made, while the issue is pending
before the court.45
41 Chapter VI, Article 28 of the Model Law.

42 Chapter V, Article 19 of the Model Law.
43 Chapter II, Article 7 of the Model Law.
44 Model Law, Article 8.
45 Chapter II, Article 8 of the Model Law.
17
2. Scope of the Arbitration Clause/Arbitral Issues
Under the Model Law, the arbitral tribunal may rule on its own jurisdiction,
including any objections with respect to the existence or validity of the arbitration
agreement.46 “If arbitral tribunal rules as a preliminary question that it has
jurisdiction, any party may request, within thirty days after having received notice of
that ruling, [a
Philippine court] to decide the matter, which decision shall be subject to no appeal.”47
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 request not later than
the pretrial 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.48
3. Interim Remedies
In international arbitration, arbitral tribunal is also empowered to order interim

measures of protection unless the parties agree otherwise.49 If the arbitral tribunal has
not been appointed or is incapable of granting the interim relief, parties may apply
with the court for the appropriate relief.50
The type of relief that may be applied for and the manner by which the parties
may apply for the relief is the same as that provided by the ADR Act for domestic
arbitration.
46 Chapter IV, Article 16 of the Model Law.

18
4. Finality of Arbitral Award
Within thirty days from receipt of the arbitral award, the parties may request
the arbitral tribunal to correct typographical error or errors in computation, 51 and/or to
make an additional award as to claims presented in the arbitral proceedings but
omitted from the award.52 Within the same period and if the parties agree, a party may
also request the arbitral tribunal to interpret a specific point or part in the arbitral
award.53
Within three months from receipt of the arbitral award or amended arbitral
award, a party may petition the court to set aside the award on grounds, which, among
others, include incapacity of a party to the arbitration agreement, invalidity of the
arbitration agreement, no notice given of the appointment of an arbitrator or of the
arbitral proceedings, dispute beyond the scope of the terms of submission to
arbitration, composition of the tribunal or the arbitral procedure not in accordance
with the agreement of the parties, public policy.59
IV. ENFORCEMENT OF ARBITRATION AGREEMENTS 54
Philippine law treats an arbitration agreement, whether it is domestic or

international in character, as contract. Consequently, an arbitration agreement is
enforceable between the parties unless it is found to be void, inoperative or incapable
of being performed.55 In that regard, a party to an arbitration agreement may compel
the other party to comply with the terms of thereof by instituting an action against him
for specific performance with the courts and/or proceed ex parte with the arbitration
proceedings without the defaulting party.
51 Model Law, Article 33 (1) (a).

52 Ibid, Article 33 (3).
53 Ibid, Article 33 (1) (b).
54 Chapter VII, Article 34 of the Model Law; See also Chapter 5, Rule 5.5, Article 5.5.35 of
the IRR to the ADR Act on the grounds to vacate an arbitral award by the appropriate court.
19
Under Republic Act No. 9285, courts are mandated to refer the parties to
arbitration where an action is brought in a matter, which is the subject matter of a
valid arbitration agreement if at least one party so request, not later than the pre-trial
conference, or upon the request of both parties thereafter.56
It is important to note, however, that parties to an arbitration agreement may

subsequently mutually decide to refer their dispute to the court. Further, the inaction
of a party who seeks to enforce an arbitration agreement may also constitute on a
waiver on his part to arbitrate.
1. Petition to Compel Arbitration
To compel arbitration, which is domestic in character, there is no need for a

party to petition a court to compel arbitration. This is because a party to a domestic
arbitration need only apply to the Appointing Authority, or in its default, the court, to
appoint an arbitrator or arbitrators. After, when the arbitral tribunal has been
constituted, a party to any arbitration agreement may lodge its plea to compel
arbitration with the arbitral tribunal.57
Parenthetically,
A party who knows that any provision of the [Model Law] from which the
parties may derogate or any requirement under the arbitration agreement has not been
complied with and yet proceeds with the arbitration without stating his objection to
such non-compliance without under delay or, if a time-limit provided therefore, within
such period of time, shall be deemed to have waived his right to object.58
56 Ibid.
57 Model Law, Section 16; Republic Act No. 9285, Section 28.
20
2. Ex Parte Proceedings
Failure of a party to participate in a domestic arbitration proceeding will not give rise
to a dismissal or suspension of that proceeding. Hearings conducted by the arbitral
tribunal “may proceed in the absence of any party who, after due notice, fails to be
present at such hearing or fails to obtain the adjournment thereof.” 59 Nevertheless,
“an award shall not be made solely on the default of a party” and the party that fails
to appear may still be given an opportunity to submit evidence if it is required by the
arbitral tribunal for making the award.60
1. Petition to Compel Arbitration
For international arbitration, there is also no need for a party to petition a court
to compel arbitration. As in domestic arbitration, a party to an international arbitration
need only apply to the Appointing Authority, or in its default, the court, to appoint an
arbitrator or arbitrators. After, when the arbitral tribunal has been constituted, a party
to any arbitration agreement may lodge its plea to compel arbitration with the arbitral
tribunal.61
Parenthetically,
A party who knows that any provision of the [Model Law] from which the
parties may derogate or any requirement under the arbitration agreement has not been
complied with and yet proceeds with the arbitration without stating his objection to
such non-compliance without under delay or, if a time-limit provided therefore, within
such period of time, shall be deemed to have waived his right to object.62

60 Ibid.
61 Model Law, Section 16; Republic Act No. 9285, Section 28.
21
2. Ex Parte Proceedings
Unless otherwise agreed by the parties, if, without showing sufficient cause:
(a) the claimant fails to communicate his statement of claim in

accordance with Article 23(1), the arbitral tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defense in

accordance with Article 23(1), the arbitral tribunal shall continue the proceedings
without treating such failure in itself as an admission of the claimant’s allegations;
(c) any party fails to appear at hearing or to produce documentary

evidence, the arbitral tribunal may continue the proceedings and make the award on
the evidence before it.63 T
If any of the parties to the arbitration proceedings brings an action before the court on
a matter subject of the arbitration agreement, the arbitral proceedings may proceed
and an award may be issued even if the matter brought before the court is still
pending.64
V. ESTABLISHMENT OF THE ARBITRAL TRIBUNAL
While it is Philippine policy to actively promote party autonomy in the resolution of

disputes and to give the parties freedom to make their own arrangements to resolve
their disputes,65 Philippine law places a limit on the parties’ freedom to choose
arbitrators. Article 2045 of the Philippine Civil Code specifically provides that, ‘any
clause giving one of the parties the power to choose more arbitrators than the other is
void and of no effect.” That restriction applies to both domestic and international
arbitration.
22
The discussions below will provide the similarities and differences in the
establishment of the arbitral tribunal for domestic and international arbitration.
1. The Number of Arbitrators
Except for the limitation provided by Article 2045 of the Civil Code, parties
are free to determine the number of arbitrators.66 In the absence of an agreement on
the number of arbitrators, the number of arbitrators shall be three. 67 It must be noted,
however, that in the event that the parties seek the aid of the Appointing
Authority or court in appointing an arbitrator or arbitrators because of the

parties’ refusal or failure to make such an appointment, “the [Appointing Authority
or] court shall in its discretion appoint one or three arbitrators, according to the
importance of the controversy” if “the agreement is silent as to the number of
arbitrators.”68
Under the Republic Act No. 9285, the default Appointing Authority is the
same for both domestic and international arbitration. “Appointing Authority” is
defined as “the person or institution named in the agreement as the appointing
authority; or the regular arbitration institution under whose rules the arbitration is
agreed to be conducted.”69 In the event that the parties fail to name an appointing
authority, it is understood that the Appointing Authority will be the President of the
Integrated Bar of the Philippines, and if he fails to act, the Regional Trial Court.70 The
Appointing Authority’s functions are essentially to aid the parties in the appointment,
66 Model Law, Article 10 in relation to ADR Act, Section 33.

67 Model Law, Article 10 in relation to ADR Act, Section 33.
68 Republic Act No. 876, Section 8 (e).
70 Ibid, Section 26.
23
challenge, and termination of the mandate, of an arbitrator or arbitrators where the

parties are unable to agree.71
2. Time Limits
For domestic arbitration, the parties are free to determine the period within
which the arbitral tribunal shall be constituted. 72 Nevertheless, Philippine law,
provides for the period when a party may begin to seek the aid of the Appointing
Authority, or in its default, the court to appoint an arbitrator.
Section 8 of the Republic Act No. 876 states that the aggrieved party may seek
the aid of the Appointing Authority, or in its default, the court in appointing an
arbitrator “if either party to the contract fails or refuses to name his arbitrator within
[thirty days]78 after receipt of the demand for arbitration.”
If the two arbitrators fail to agree on the third arbitrator within the same period
of time, the aggrieved party may request the Appointing Authority, or the court as the
case may be to appoint the arbitrator.73
The Philippine Arbitration Law also mandates that the arbitrator appointed by
the Appointing Authority or court must accept or decline the appointment within
seven days from being notified of the appointment.74
Notably, there is no time period for the Appointing Authority or the court, as
the case may be, to appoint an arbitrator. Nevertheless, the appointment should be
made within a reasonable period.
71 Id.
72 Republic Act No. 876, Section 8; Model Law, Article
11. 78 See Republic Act No. 9285, Sec. 32 in relation to
Sec. 33.
73 Model Law, Article 11 (3) in relation to Republic Act No. 9285, Section 33.
24
3. Manner of Appointment
Arbitrators are invariably appointed in accordance with the Submission

Agreement/Arbitration Clause75 by the nomination of specific person(s), nomination
of ascertainable person(s), stipulation of a specific method, or reference to
institutional arbitration rules or arbitration laws.
If the parties agree on the manner of appointment of an arbitrator but one of them
fails to act in accordance with the procedure or there is a failure to abide by the
procedure, the parties may refer the appointment to the Appointing Authority or court,
as the case may be, which shall appoint the arbitrator in the manner it deems
appropriate.76 Likewise, in the absence of an agreement on the manner of appointment
of an arbitrator, the parties may also refer the appointment to the Appointing
Authority or court, as the case may be.
4. Qualifications
For domestic arbitration, the Philippine Arbitration Law provides specific

qualifications that an arbitrator must have to avoid being challenged. Those
qualifications are that the arbitrator must:
a. be of legal age;
b. have full enjoyment of his civil rights;
c. know how to read and write;
d. not be related by blood or by marriage within sixth degree to

either party;
75 Ibid..
76 Model Law, Section 11 (4) in relation to Section 33 of Republic Act No. 9285.
25
e. have or have had no financial, fiduciary, or other interest in the

controversy or cause to be decided or in result of the proceeding; and
f. have no personal basis which might prejudice the right of any

party to a fair and impartial award.77
An arbitrator cannot act as champion or advocate for either of the parties to

arbitration.78 Neither can he act as mediator nor be present in the negotiations for the
settlement of the dispute.79
The afore-mentioned qualifications are not exclusive as the parties may agree that the
arbitrator possesses other additional qualifications.
When a person is approached in connection with his possible

appointment as an arbitrator, he shall disclose any circumstance 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.80
Upon learning that the arbitrator does not possess the required qualifications, the
parties may decide to retain the arbitrator or challenge his appointment.81
5. Challenge
Previously, the arbitrator [of a domestic arbitration] may only be challenged

upon a showing that he lacks the qualifications for arbitrators enumerated in Section
77 Ibid.
78 Id.
79 Id.
80 Model Law, Article 12 (1) in relation to Section 33 of Republic Act No. 9285.
26
10 of Republic Act No. 876, “which [qualifications] may have arisen after the
arbitration agreement or were known at the time of the arbitration”.82 With the
enactment of Republic Act No. 9285, an arbitrator may challenged not only for lack of
the qualifications provided by Section 10 of Republic Act No. 876, but also if there are
justifiable doubts as to his impartiality and independence, or if he does not possess
qualifications agreed to by the parties.83 Moreover, “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.”84
The parties are free to agree on the challenge procedure.85 If there is no

agreement on the challenge procedure, “a party who intends to challenge an arbitrator
shall, within fifteen days after becoming aware of the constitution of the arbitral
tribunal [or the circumstances that would give rise to a challenge], send a written
statement of the reasons for the challenge to the arbitral tribunal.”86
The arbitral tribunal shall decide the challenge.87 If the challenge is rejected,
any of the parties may petition the Appointing Authority, or in its default, the court, to
decide on the challenge.88 That petition should be made within thirty days from receipt
of the notice of rejection.89 Any decision of the Appointing Authority, or court, as the
case may be, cannot be appealed.90
Previously, the rule was that arbitration proceedings are suspended while the
court decides on the challenge.91 Now, Republic Act No. 9285 in relation to Article 13
(3) of the Model Law provides that, while the challenge is pending with the

84 Ibid.
85 Model Law, Section 13 (1) in relation to Republic Act No. 9285, Section 33.
86 Model Law, Section 13 (2) in relation to Republic Act No. 9285, Section 33.
87 Republic Act No. 876, Section 11; Model Law, Article 13 (2).
89 Ibid.
90 Id.
27
Appointing Authority or court, “the arbitral tribunal, including the challenged

arbitrator, may continue the arbitral proceedings and make and award.”
6. Fees
With respect to domestic arbitration, Section 21 of Republic Act No. 876 states
that the fees of the arbitrators shall be fifty pesos, or approximately U.S. $ 1.00, per
day unless the parties agree otherwise in writing prior to the arbitration. As such fee is
quite unreasonable for the arbitrator, the proposed Rules and Regulation Implementing
Republic Act No. 9285 include guidelines in fixing the arbitrators fees and other
expenses.
1. The Number of Arbitrators
Similar to domestic arbitration, parties to an international arbitration are free to

determine the number of arbitrators98 provided that, neither party may choose more
arbitrators than the other party. In the absence of an agreement on the number of
92
arbitrators, the number of arbitrators shall be three.93
2. Time Limits
Like domestic arbitration, parties to an international arbitration are free to stipulate

when arbitrators shall be appointed.94 Further, parties to an international arbitration
may also seek the aid of the Appointing Authority or court in the appointment of the
arbitrator if a party fails to appoint an arbitrator within thirty days from receipt of the
request to do so, or if the two arbitrators fails to agree on the third arbitrator within
thirty days of their appointment.95
92 Model Law, Article 10 in relation to Republic Act No. 9285, Section 33.
93 Model Law, Article 10 in relation to Republic Act No. 9285, Section 33.
95 Model Law, Article 11 (3) (a).
28
Moreover, there is also no specified period for the Appointing Authority or court to
appoint an arbitrator.
Unlike in domestic arbitration, however, there is no specific period provided for when
an arbitrator must accept or decline his appointment. Nevertheless, the acceptance or
rejection must be made within a reasonable period.
3. Manner of Appointment
The rules relating to the manner of appointment of an arbitrator to an

international arbitration are the same as those applicable to domestic arbitration.
4. Qualifications
The rules applicable to international arbitration do not provide specific

qualifications for arbitrators. Under the Model Law, parties may provide for such
qualifications under their broad authority to constitute an appointment procedure.96 In
any case, the Model Law simply emphasizes the importance of the arbitrator’s
impartiality or independence.
A person requested to be an arbitrator must nevertheless “…disclose any

circumstance likely to give rise to justifiable doubts as to his impartiality or
independence.” 97 “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.”98
96 Ibid, Article 11(2).

97 Id, Article 12 (1) in relation to Section 33 of Republic Act No. 9285.
98 Id., Article 12 (1) in relation to Section 33 of Republic Act No. 9285.
29
5. Challenge
For international arbitration, an arbitrator may be challenged if there are

justifiable doubts as to his impartiality and independence, or if he does not possess
qualifications agreed to by the parties.99 Moreover, “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.”100
The parties are free to agree on the challenge procedure. 101 If there is no
agreement on the challenge procedure, “a party who intends to challenge an arbitrator
shall, within fifteen days after becoming aware of the constitution of the arbitral
tribunal [or the circumstances that would give rise to a challenge], send a written
statement of the reasons for the challenge to the arbitral tribunal.”102
The arbitral tribunal shall decide the challenge. 103 If the challenge is rejected,
any of the parties may petitioner the Appointing Authority, or in its default, the court,
to decide on the challenge. 104 That petition should be made within thirty days from
receipt of the notice of rejection.105 Any decision of the Appointing Authority, or
court, as the case may be, cannot be appealed.106
While the challenge is pending with the Appointing Authority or court, “the
arbitral tribunal, including the challenged arbitrator, may continue the arbitral
proceedings and make and award.”107
6. Fees
99 Id., Article 12 (2).

100 Id.
101 Id., Section 13 (1) in relation to Republic Act No. 9285, Section 33.
102 Id., Section 13 (2) in relation to Republic Act No. 9285, Section 33.
103 Id., Article 13 (2).
104 Id., Article 13 (2) in relation to Republic Act No. 9285, Section 33.
105 Ibid.
106 Id.
107 Id., Article 13 (3).
30
With respect to international arbitration, the Model Law, Republic Act No.
9285’s provisions on international commercial arbitration, do not provide for
arbitrator’s fees. In the practice in international arbitration, however, the parties and
the arbitrator agree on the fees.
VI. PROCEDURE OF THE ARBITRATION
Preliminarily, it must be stressed that, for domestic arbitration and international

arbitration, parties are free to decide on the rules of procedure to be followed by the
Arbitral Tribunal in conducting the proceedings.108 Absent such agreement, the
applicable governing arbitration law would apply to grant the arbitrators the authority
to devise the same.109
1. Basic Pleadings
Submission Agreement
A submission is nothing more than a written document wherein the parties agree to
submit to arbitration an already existing dispute. The submission agreement invariably
comes into being when the parties do not have a written arbitration agreement at the
time a dispute arises. Conceivably, if the parties have a very restrictive arbitration
clause in a contract, they might wish to have a matter that seems to be beyond the
confines of the clause arbitrated. This can be done under a submission agreement.
Demand/Request for Arbitration
108 Section 33 of the Republic Act No. 9285 in relation to Article 19 of the Model Law;
Chapter IV, Rule 4.5, Article 4.5.19 of the IRR to the Republic Act No. 9285.
109 Ibid.
31
The demand (or request) for arbitration presupposes that there exists an
arbitration agreement. This is because the right of a party to demand arbitration from
another arises from the arbitration agreement itself.
In Philippine practice, the demand (or request) for arbitration is treat as

complaint or petition wherein the ultimate facts involved in the dispute, the causes of
action and relief demanded are already asserted. Effectively, therefore, the demand (or
request) to arbitration is considered the claimant’s statement of claim.
2. Form of Basic Pleadings
There is no specific form prescribed for the submission agreement, only, it

must be in writing and signed by the party against whom arbitration is sought or by his
lawful agent.110 There is likewise no prescribed form for the demand (or request) to
arbitrate except that it be in writing and served upon the other party in person or by
registered mail.111
3. Basic Contents of the Submission Agreement or Demand/Request for
Arbitration
A submission agreement for domestic arbitration must at the minimum

contain a statement that the parties agree to submit an existing dispute to arbitration.
Other than that, a parties may include other matter in the submission such as the
procedure for appointing an arbitrator, the governing arbitration law, the language of
the arbitration, the arbitration procedure, and such other matters as the parties require
to give effect to arbitration.
A demand (or request) to arbitrate “shall set forth the nature of the controversy, the
amount involved, if any, and the relief sought, together with a true copy of the contract
providing for arbitration.”112 “In the event that the contract between the parties

111 Ibid, Section 5.
112 Id., Section 5 (a).
32
provides for the appointment of a single arbitrator, the demand shall set forth a specific
time within which the parties shall agree upon such arbitrator.”113
If the contract between the parties provides for the appointment of three
arbitrators, one to be selected by each party, the demand shall name the arbitrator
appointed by the party making the demand; and shall require that the party upon
whom the demand is made shall within fifteen days after receipt thereof advise in
writing the party making such demand of the name of the person appointed by the
second party; such notice shall require that the two arbitrators so appointed must
agree upon the third arbitrator within ten days from the date of such notice.114
In addition to those basic requirements, the demand (or request) to arbitrate
may contain a Prefatory Statement/Introduction to put in the advocate's perspective or
slant of the facts and issues, a Reservation of the right to raise other claims/issues
ascertained and identified in the course of the arbitration, and occasionally a
compilation of the party's documentary evidence.
4. Answer and Counterclaim
Necessity and Time to File
As Philippine law treats a demand (or request) to arbitrate as akin to the

claimant’s statement of claims, the answer to the demand (or request) to arbitrate is
actually the respondent’s statement of defense. That law does not, however, make the
filing of an answer mandatory. Further, the failure of the respondent to file an answer
does not suspend the arbitral proceedings. To protect his rights, however, the
respondent should file an answer specifically denying the material allegations of the
demand (or request) to arbitrate and should set forth what he claims to be the facts.
The time within which to file an answer depends on the agreement of the parties. In
cases where parties fail to provide a period to file the answer, Philippine law does not
provide a period within which the answer should be filed. It is believed, however, that
the respondent should answer within a reasonable period of time.
113 Id.
114 Id.
33
Content of the Answer
There is no hard-and-fast rule as to what the content of an answer filed in a

domestic arbitration proceeding. From a practical standpoint however, it would be a
poor strategy for a respondent not to answer the claim of the claimant in his demand
for arbitration. The arbitrator(s) will not only have a one-sided view of the dispute,
i.e., the claimant's side, worse, the arbitrator(s) may likely misinterpret and draw
negative conclusions from defendant/respondent's failure/ neglect to answer. If only
for practical considerations, it is certainly worthwhile to file an answer. The Answer
becomes essential when the defendant/respondent has affirmative defenses which he
desires to prove.
The Counterclaim
The counterclaim is practically a cross-action set by the defendant, or

respondent in arbitration. The defendant alleges that he has a valid claim and is entitled
to some relief or a remedy against the plaintiff in respect of any matter (whenever and
however arising), and may, instead of bringing a separate action, make a counterclaim,
and add it to his defense. A counterclaim is governed by the same rules of pleading as
a statement of claim.
5. Reply and its Necessity
The reply is the answer, which the claimant may deliver to a counterclaim. In
the reply, claimant may raise all matters, which he intends to rely in rebuttal of the
allegations in the defense and his defense to the counterclaim. A reply is neither
necessary not essential in domestic arbitration proceedings.
1. Basic Pleadings
34
Submission Agreement
A submission agreement for an arbitration, which is international in character is no

different from the submission agreement in domestic arbitration.
Demand/Request for Arbitration
For international arbitration, the right of a party to demand arbitration from

another also arises only if an arbitration agreement exists. Unlike in domestic
arbitration, however, the demand (or request) for arbitration, which is international in
character, is treated differently from claimant’s statement of claim. In international
arbitration, a demand (or request to arbitrate simply specifies the basis of the
claimant’s right to arbitrate as well as an outline of the issues to be arbitrated. It is
later, during the arbitral proceedings, that the claimant will submit his statement of
claims, which will have to contain the facts supporting his claim, the points at issue,
and the relief he seeks.115
115 Id., Article 23 (1).

35
2. Form of Basic Pleadings
Republic Act No. 9285 and the Model Law are silent with respect to the form
of the submission agreement. Nevertheless, as a submission agreement is in fact an
arbitration agreement, only it is made after the dispute arises, then, such submission
must likewise comply with the requirement of form of an arbitration agreement. In
that regard, the submission agreement must be in writing. 116 “An agreement is in
writing if it is contained in a document signed by the parties or in an exchange of
letters, telex, telegrams or other means of telecommunications which provide a record
of the agreement.”123
Republic Act No. 9285 and the Model Law are also silent about the form of a
demand (or request) for arbitration. The demand (or request) to arbitrate should,
however, be in writing because it would serve as proof first that a request exists and
latter that that request was sent to the other party.
3. Basic Contents of the Submission Agreement or Demand/Request for

Arbitration
In international arbitration, a submission agreement must at the minimum

contain a statement that the parties agree to submit an existing dispute to arbitration.
Other than that, a parties may include other matter in the submission such as the
procedure for appointing an arbitrator, the governing arbitration law, the language of
the arbitration, the arbitration procedure, and such other matters as the parties require
to give effect to arbitration.
Unlike domestic arbitration, the law does not provide for what a demand (or request)
to arbitrate a dispute, which is international in character, should contain. However,
the demand (or request) to arbitrate must at least detail the dispute involved and must
show that the dispute is covered by an arbitration agreement.
116 Id., Article 7 (1).

Id.
36
123
This is necessary because the demand (or request) to arbitrate determines when the
arbitral proceedings commence.117
4. Answer and Counterclaim
Necessity and Time to File
In international arbitration, the parties may agree, or the Arbitral Tribunal may
determine, the period within which respondent may submit his statement of defense or
answer.118 If the respondent fails to communicate his defense, the Arbitral Tribunal
shall continue the proceedings without treating such failure itself as an admission of
the claimant’s allegation.119
Parenthetically, either party may amend or supplement his claim or defense during
the course of the arbitral proceedings unless there is an agreement to the contrary.120
Content of the Statement of Defense or Answer
Respondent’s statement of defense shall state his defense in respect of the facts and
issues that the claimant raised in his statement of claims.121 The statement of defense
should also contain other matter that the parties agreed it should contain.122 The
respondent may also chose to refer to, or submit, together with his statement of
defense, evidence in his behalf.130
117 See Model Law, Section 21.

118 Model Law, Article 23 (1).
119 Ibid, Article 25.
120 Id., Article 23 (2).
121 Id, Article 23 (1).
122 Id.
Id.
37
130
The Counterclaim
The nature of, and rules governing, counterclaim in domestic arbitration are
the same as those for international arbitration.
5. Reply and its Necessity
As with domestic arbitration, a reply is neither necessary not essential in

international arbitration proceedings.
VII. THE AWARD
1. Time to Render the Award
Generally, the arbitral tribunal would render the award within the period
agreed upon by the parties. In the absence of an agreement, Section 19 of Republic
Act No. 876 specifically provides that the arbitral tribunal must render a written award
within thirty days after closing of the hearing. Such period may be extended by mutual
consent of the parties.
2. Form and Content of the Award
The award in a domestic arbitration must be in writing and signed by the

arbitrator or arbitrators.123 “In arbitral proceedings with more than one arbitrator, the
signature of the majority of all members of the arbitral tribunal shall suffice, provided
that the reason for any omitted signature is stated.”132 Unless the parties
123 Id., Section 31 (1) in relation to Republic Act No. 9285 Section 33.
Id.
38
132
Id.
39
agree otherwise, the award should state the reasons upon which it is based. 124 The
award should also state the date and place of arbitration.134
3. Grounds and Procedure to Quash/Vacate the Award
Section 41 of Republic Act No. 9285 provides that:
A party to a domestic arbitration may question the arbitral award with the
appropriate Regional Trial Court in accordance with rules of procedure to be
promulgated by the Supreme Court only on those grounds enumerated in Section 25
of [the Philippine Arbitration Law]. Any other ground raised against a domestic
arbitral award shall be disregarded by the Regional Trial Court.
Section 25 of Republic Act No. 876 refers, however to the grounds for
modification or correction of an award, and not to grounds to vacate an award.
Notably, it is Section 24 of the Republic Act No. 876 that enumerates the grounds to
vacate and award. It appears, therefore, that there was a typographical error in
printing the final version of the ADR Act with regard to that matter.
The proposed Implementing Rules and Regulation of Republic Act No. 9285
tries to cure the apparent typographical error by re-establishing the grounds to vacate
an award as provided by Section 24 of the Republic Act No. 876, which grounds
include:
a. Corruption, fraud or other means in procuring the award;
b. Evident partiality or corruption in the arbitrators or any of them;
c. Misconduct of the arbitrators in refusing to postpone the hearing
124 Id., Article 31 (2) in relation to Republic Act No. 9285 Section 33.
134
., Article 31 (3) in relation to Republic Act No. 9285 Section
33.
Id
40
upon sufficient cause shown or misconduct in refusing to hear pertinent and material
evidence;
d. Disqualification of one or more arbitrators and said arbitrator(s)
refrained from disclosing such disqualification;
e. Any other misbehavior of the arbitrators by which the right of any

of the parties have been materially prejudice; or
f. The arbitrators exceeded their powers or imperfectly executed

them such that a mutual, final and definite award was not made.125
Should the Joint Philippine Congressional Committee approve the proposed

Implementing Rules and Regulations of Republic Act No. 9285, parties would have
clearer and more established parameters to support a position to vacate an award.
With respect to the procedure for vacating a domestic arbitral award, the Philippine
Supreme Court has yet to promulgate the rules of procedure for this matter. In the
meantime, the procedure for vacating an award, which is currently being employed, is
that relative to a case for specific performance.
4. Confirmation and Enforcement of the Award
With respect to domestic arbitration, Republic Act No. 9285 expressly states
that the confirmation of the domestic arbitral award shall be governed by “Section 23
of [the Philippine Arbitration Law” and that the domestic arbitral award shall be
enforced in the same manner as final and executory decisions of the Regional Trial
Court.126
Under Republic Act No. 876, any party to the controversy may, within one
month after the award is made, file with the Regional Trial Court having jurisdiction a
motion to have the award confirmed with notice to the adverse party or his attorney.
125 Id., Secs. 24 and 26.
41
Unless the award is vacated, modified or corrected, the court must grant the motion
for confirmation of award.127 Upon granting of an order confirming an award,
judgment may be entered in conformity therewith by the Court.128 The judgment so
entered which will be docketed as if rendered in a special civil action, shall have the
same force and effect and be subject to all the provisions relating to a judgment in an
action and may be enforced as if it had been rendered in the court in which it has been
entered. Confirmation of the award is essential before the same can be judicially
enforced. Hence, a successful party cannot secure a writ of execution to enforce an
arbitral award in his favor without said award first confirmed by the courts of law. An
exception is an award rendered under the Construction Industry Arbitration Law, 129
which authorizes the issuance of a writ of execution to enforce the arbitral award upon
the finality thereof. 130
Note that “an arbitration ... has also the effect of res judicata, because under
Article 2043 of the Civil Code, the provision on Compromise is also applicable to
arbitration. Article 2037 expressly provides that a compromise has the effect or
authority or res judicata ... and consequently can no longer (be appealed)”. 131 This is
of course not to mention Sections 27 and 28 of R.A. No. 876 which make the
confirmed award subject to immediate execution.
1. Time to Render the Award
In international arbitration, the arbitral tribunal would also render the award
within the period agreed upon by the parties. 132 In the absence of such an agreement,
the award must be rendered within a reasonable period.133
127 Ibid.
129 Executive Order No. 1008, eff. Feb. 4, 1985.
130 The Construction Industry Arbitration Law, Executive Order No. 1008, Sec. 20.
131 Republic Act No. 876. Sec. 28.
132 Model Law, Section 28 (1).
133 See Model Law, Article 19.
42
2. Form and Content of the Award
The requirements as to the form and contents of an award in a domestic

arbitration are the same for awards rendered in international arbitration.
3. Grounds and Procedure to Set Aside an International Arbitral Award
The following are the grounds for setting aside (vacating) a foreign arbitral
award:134
(1) An arbitral award may be set aside by the Regional Trial Court only if:
(a) the party making the application furnishes proof that:
(i) 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 thereon, under the law of the Philippines; or
(ii) 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
(iii) 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, provided that, if the
decisions on matters submitted to arbitration can be separated from those not so
submitted, only the part of the award which contains decisions on matters not
submitted to arbitration may be set aside; or
(iv) the composition of the Arbitral Tribunal

or the arbitral
43
procedure was not in accordance with the agreement of the parties, unless such
agreement was in conflict with a provision of the ADR Act from which the parties
cannot derogate, or failing such agreement, was not in accordance with the ADR Act;
or
(b) the Court finds that:
(i) the subject matter of the dispute is not

capable of
settlement by arbitration under the law of the Philippines; or
(ii) the award is in conflict with the public

policy of the Philippines.
Similar to the rules applicable to domestic arbitration, the Philippine Supreme Court
has yet to promulgate the rules of procedure in cases involving the setting aside of
international arbitral awards. In the meantime, the procedure for vacating an award,
which is currently being employed, is that relative to a case for specific performance.
4. Confirmation and Enforcement of the Award
With respect to international commercial arbitration awards, Section 40 of

Republic Act No. 9285 expressly states that, “the recognition and enforcement of an
award in an international commercial arbitration shall be governed by Article 35 of
the Model Law”. Article 35 of the Model Law provides:
(1) An arbitral award, irrespective of the country in which it was

made, shall be recognized as binding and, upon application in writing to the
competent court, shall be enforced subject to the provisions of this article and of
Article 36.
(2) The party relying on an award or applying for its enforcement

44
shall supply the duly authenticated original award or a duly certified copy thereof, and
the original arbitration agreement referred to in Article 7 or a duly certified copy
thereof. If the award or agreement is not made in an official language of this State,
the party shall supply a duly certified translation thereof into such language.
The foregoing provision has been adopted under the procedure for recognition
and enforcement of awards under international commercial arbitration in the IRR to
Republic Act No. 9285135:
“The party relying on an award or applying for its enforcement shall file with the
Regional Trial Court the original or duly authenticated copy of the award and the
original arbitration agreement referred to in Article 4.6.7 or a duly authenticated copy
thereof. If the award or agreement is not made in an official language of the
Philippines, the party shall supply a duly certified translation thereof into such
language.”
With respect to foreign arbitral awards, Republic Act No. 9285 distinguishes
between awards made under the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (“New York Convention”, which was
ratified by the Philippine Senate under Senate Resolution No. 71) and those not thus
covered by the New York Convention:136
a. As to arbitral awards covered by the New York Convention.
The petitioner shall establish that the country in which the foreign
arbitration award was made is a party to the New York Convention.137
b. As to arbitral awards not covered by the New York Convention.
135 Chapter IV, Rule 4.6, Article 4.6.35 of the IRR to Republic Act No. 9285.
136 Chapter 7(B) of the Republic Act No. 9285.
137 Section 42 of Republic Act No. 9285; Section 4.6.35.1(a) of the IRR to Republic Act
No. 9285.
45
The recognition and enforcement of these awards shall be done in

accordance with the procedural rules to be promulgated by the Supreme Court. The
Court may, on grounds of comity and reciprocity, recognize and enforce a
nonconvention award as a Convention award.138
The recognition and enforcement of these awards shall be filed with the
Regional Trial Court in accordance with the rules of procedure to be promulgated by
the Supreme Court. The party relying on the award or applying for its enforcement
shall file with the Regional Trial Court the original or duly authenticated copy of the
award and the original arbitration agreement or a duly authenticated copy thereof. If
the award or agreement is not made in an official language of the Philippines, the
party shall supply a duly certified translation thereof into such language.139
If the Regional Trial Court has recognized the arbitral award but an application
for (rejection and/or) suspension of enforcement of that award is subsequently made,
the Regional Trial Court may, if it considers the application to be proper, vacate or
suspend the decision to enforce that award and may also, on the application of the
party claiming recognition or enforcement of that award, order the other party seeking
rejection or suspension to provide appropriate security.140
Finally, it must be stressed that a foreign arbitral award, when confirmed by a

Court of a foreign country, shall be recognized and enforced as a foreign arbitral
award and not as a judgment of a foreign Court. 141 When a foreign arbitral award is
138 Section 43 of Republic Act No. 9285; Sections 4.6.35.1(b) and 4.6.36.2 of the IRR to
Republic Act No. 9285.
139 Section 42 of Republic Act No. 9285; Section 4.6.35.2 of the IRR to Republic Act No.
9285.
140 Sections 42 and 45 of the ADR Act; Sections 4.6.35.5, 4.6.36.1, and 4.6.36.3, of the IRR
to Republic Act No. 9285.
141 Section 44 of the ADR Act; Section 4.6.35.3 of the IRR of Republic Act No. 9285.
46
recognized by the Regional Trial Court, it shall be enforced in the same manner as
final and executory decisions of the courts of law of the Philippines.142
VIII. APPEAL
Under Republic Act No. 9285, a decision of the Regional Trial Court
confirming, vacating, setting aside, modifying, or correcting a domestic or
international arbitral award may be appealed to the Court of Appeals in accordance
with the rules of procedure to be promulgated by the Supreme Court. The losing party
who appeals from the judgment of the court recognizing and enforcing an arbitral
award shall be required by the appellate court to post a counter-bond executed in favor
of the prevailing party equal to the amount of the award in accordance with the rules
to be promulgated by the Supreme Court.143
IX. JUDICIAL INTERVENTION
Judicial intervention comes into play in the following circumstances:
a. in the determination of the validity and enforceability of the arbitration

agreement and its provisions by the Arbitral Tribunal;
b. in the determination of whether a particular dispute comes within the

ambit
of the arbitration agreement by the Arbitral Tribunal;144
c. in a petition to compel arbitration;145
d. interim remedies to conserve the subject matter of arbitration pending
144 See discussion of 3.2.2, supra.
145 Sec discussion of 3.3.1., supra.
47
appointment of the arbitrators;146
e. petition to quash or vacate the award;147
f. confirmation and enforcement of the award;148

g. in the appointment or challenge of an arbitration in the event default of the
Appointing Authority; and
h. appeals from a judgment of the court.149
X. RECOGNITION AND ENFORCEMENT OF FOREIGN

ARBITRAL AWARDS
As earlier stated, the Philippines adopted the 1958 New York Convention in
1965 under Senate Resolution No. 71.150 The New York Convention has been
expressly recognized by our Supreme Court as a system of settling commercial
disputes of an international character.151 Hence, Philippine courts will recognize and
enforce arbitration awards made in countries, which are signatories to the Convention
on the basis of reciprocity and other forms of that Convention. In the same manner,
arbitral awards handed down by Philippine arbitration bodies can similarly be
enforced through the courts of other signatory countries.
Foreign arbitral awards may likewise be enforced in the Philippines by the

filing of an application with the Regional Trial Court having jurisdiction of a petition
or application attaching (1) the duly authenticated original award or a duly certified
copy thereof, and (2) the original agreement providing for arbitration or a duly
certified copy thereof. If the award agreement is not in an official language of the
146 Sec discussion of 3.2.3., supra.

147 See discussion of 3.6.3., supra.
150 61 O.G. 8344, Dec. 27, 1965.
151 National Union Fire Insurance Company of Pittsburg v. Stolz-Nielsen Philippines, Inc.,
G.R. No. 87958, Apr. 26, 1990, 184 SCRA 682.
48
Philippines. then the party applying for recognition and enforcement shall produce a
translation of the award and/or agreement into an official language of the Philippines
duly certified by an official or sworn translation or by a diplomatic or consular
agent.152
XI. Conclusion
Commercial arbitration is fast gaining ground in the Philippines and globally as the
most practicable of all alternative dispute resolution methods. Understandably, and
rightly so, arbitration has been touted as the “‘wave of the future’ in international
relations.”153
In the Philippines, arbitration is steadily becoming the favored mode of settling

international controversies. Oftentimes, however, arbitration agreements with foreign
entities provide for the venue to be in Singapore or Hong Kong. However, the
Philippines could easily become another important Asian center for arbitration. With
enactment of Republic Act No. 9285, the general population's facility with the
English language, the rise of institutionalized arbitration before the PDRCI and
CIAC, the increasing number of experts in various fields including engineering,
construction, finance and banking as well as the supremacy of law and due process,
the Philippines could serve as an ideal venue for international commercial arbitration.

153 Sea-Land Service, Inc. v. Court of Appeals, et al., G.R. No. 126212, March 2, 2000, 327
SCRA 135; BF Corporation vs. Court of Appeals, G.R. No. 120105, March 27, 1998, 288 SCRA 267,
286.

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ARBITRATION IN THE PHILIPPINES

VICTOR P. LAZATIN AND

PATRICIA ANN T. PRODIGALIDAD

Globalization has become the buzzword of the new millennium as developing

Perhaps owing to the Filipino’s aversion to adversarial proceedings, and considering

A. History of Arbitration in the Philippines

Arbitration, as an alternative mode of dispute resolution, has long been recognized

Early jurisprudence in the Philippines, however, was not supportive of arbitration.

In the Philippines fortunately, the attitude of the courts toward arbitration

disputes and as a means of avoiding litigation should receive every encouragement

Presently, the Congressional Oversight Committee is reviewing the draft of the

B. The Practice of Arbitration in the Philippines Today

7 Republic Act No. 9285, Sec.2.

At present, arbitration practice in the Philippines is either ad hoc, institutionalized or

Institutionalized arbitration is conducted through organized bodies such as courts of

12 These various rules are included in the appendix to this volume.

that present complex questions of law or require extensive fact-finding. Of course,

Specialized arbitration involves particular industries or kinds of disputes. For

Despite these various permutations, the fundamental rule in international commercial

Although arbitration has become a widely-accepted alternative to litigation, the

Acknowledging the importance of traditional modes of dispute resolution, the Local

16 Republic Act No. 7160, secs. 416 and 417.

Parties may also utilize mediation/conciliation facilities offered by arbitration

II. CHOICE OF PHILIPPINE LAW: CONSEQUENCES FOR THE

Arbitration, being essentially consensual in nature, is dependent on the existence of

Subject to the doctrine of forum non conveniens, parties to an arbitration are

1. Binding Effect of Arbitral Agreements

Sec. 2. Persons and matters subject to arbitration. — Two or more persons or

18 Philippine Civil Code, Article 1305.

The Philippine Arbitration Law enforces the binding effect of an arbitration

The question of whether a particular dispute is within the ambit of an

a. labor disputes, which are covered by Presidential Decree No. 442;

b. disputes involving the civil status of persons;

c. disputes on the validity of marriage;

d. disputes concerning any ground for legal separation;

e. disputes involving the jurisdiction of courts;

f. disputes on future legitime;

g. disputes involving criminal liability; and

h. those disputes, which by law cannot be compromised.25

The case of Western Minolco Corporation v. Court of Appeals 26

In domestic arbitration, it is the court that decides the issue of whether a

requesting the Court to grant an interim measure of protection. Significantly, parties

a. to prevent irreparable loss or injury, e.g., attachment;

b. to require security for the performance of an obligation;

c. to require the production and preservation of any evidence; and

d. to compel any other act or omission.31

In granting interim relief to a party, the arbitral tribunal or Philippine court

4. Finality of Arbitral Award

1. Binding effect of arbitral agreements

Parties may constitute arbitration agreements, which by definition are “those

Similar to domestic arbitration, where an action is brought in a matter subject of

41 Chapter VI, Article 28 of the Model Law.

2. Scope of the Arbitration Clause/Arbitral Issues

A court before which an action is brought in a matter which is the subject

In international arbitration, arbitral tribunal is also empowered to order interim

46 Chapter IV, Article 16 of the Model Law.

4. Finality of Arbitral Award

Philippine law treats an arbitration agreement, whether it is domestic or

51 Model Law, Article 33 (1) (a).