Class notes for Comm Arb: September 4

Recit:
Ms. Aglibot
Da
Mr. Ordon
Ms. Gabriel - absent rin!
Mr. Samonte
Mel
Edel
Cha
Jaja
Mr. Purganan
JP
Monch

Absent
Ms. Gabriel
Ms. Corije
Mr. miura



*note: Parang kapihan lang (in law school terms: bawal open notes!)

REVIEW

MINI-TRIAL: Arguments of the parties submit their arguments before the senior decision makers of the parties
-See Definition under Section 3 (u)
-Ms. Aglibot was asked to demonstrate how Mini-trial would be conducted
*note: the presence of a 3rd party is not always the case
*RESULT: Negotiated settlement

SEC 3(Q) MEDIATION: voluntary process
...In which a mediator, selected by the parties, facilitates communication and assist the parties in reaching a voluntary agreement re: dispute
*RESULT: MEDIATED SETTLEMENT (SABI NI DEAN LEONEN)
WHAT IS VOLUNTARY IN MEDIATION: IT IS THE PROCESS WHICH IS VOLUNTARY. YOU CANNOT BE COMPELLED TO MEDIATE, BUT UNDER COURT ANNEXED MEDIATION, YOU ARE SEEMED TO BE COMPELLED TO MEDIATE

Court Annexed Mediation vs. Court Referred Mediation

ARBITRATION

Med-Arb

*liability of ADR practitioners under RA 9285: same as those of Public Officers
>Malice
>Gross negligence
>Bad faith

Who are ADR Practitioners?
-shall refer to individuals acting as mediator, conciliator, arbitrator or neutral evaluator (Sec3b, par2)
-no need to be credited

Confidentiality in Mediation
-any information acquired during the proceeding
GR: PRIVILEGED
X: under exceptions provided by law

Who are bound? (6)
SIR: "Nanonood ka ng Sesame Street Ms. Aglibot?"
Ms. Aglibot: "Sesame Street sir? Yes sir, inabot ko pa po..."
SIR: "Para lang yang... (singing) 'Who are the people in your neighborhood?'"

(1) the parties to the dispute;
(2) the mediator or mediators;
(3) the counsel for the parties;
(4) the nonparty participants;
-who is a nonparty participant? Witnesses
(5) any persons hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and
(6) any other person who obtains or possesses confidential information by reason of his/her profession.

*these persons cannot be compelled to testify and may compel other people not to testify
NOTE: Di ba ung 3 lang ang pede magcompel ng other persons NOT TO TESTIFY: party, non-party participant, mediator???

IF INFO MADE PART OF THE RECORDS, failed to object. What to do?
Motion to strike out. Inadmissible.

Waiver of Confidentiality (SEC10)
1. Waived in record
2. Waived orally during a proceeding by the mediator and the mediation parties
3. By a nonparty, if the information is provided by such non-party participant


Exceptions to Privilege
1. By agreement evidenced by a record authenticated by all parties to the agreement
2. Available to the public
…made during a session of a mediation w/c is open
…required by law to be open to the public
3. Communication is a threat or statement of a plan to inflict
...bodily injury
…crime of violence
4. Intentionally used to
...plan a crime
…attempt to commit
…commit a crime
Or conceal an ongoing crime or criminal activity
5. Sought to be offered to prove or disprove
...abuse
…neglect
…abandonment
…exploitation
In a proceeding in which a public agency is protecting the interest of an individual protected by law
DOES NOT APPLY when CHILD PROTECTION MATTER
6. Sought or offered to prove or disprove a claim/complaint of
...professional misconduct
…malpractice
Filed vs. mediator
7. Sought to prove or disprove a claim of complaint of professional misconduct or malpractice
8. If need for the communication substantially outweighs the interest in protecting confidentiality
>crime
>claim or defense that under the law is sufficient to reform/avoid a liability on a contract arising out of the mediation

RESULT OF Medition: MEDIATED SETTLEMENT

HOW TO ENFORCE:
1. Petition filed with the RTC where the Mediated settlement was deposited to enforce the mediated settlement
2. In the settlement agreement, the mediating parties may agree to transform the mediation into arbitration - so enforce under RA 876 - "This is the life story of all of us!"
a. Labor disputes under Labor Code - also excluded from 9285
b. Civil Status of persons
c. Validity of marriage
d. Any ground for Legal Separation
e. Jurisdiction of courts
f. Future Legitime
g. Criminal liability
h. Accdg to Law, cannot be compromised
A2035 of Civil Code, 6 issues which cannot be compromised!

International Commercial Arbitration
What is the significance of UNCITRAL Model Law?
RP "adopts" UNCITRAL MODEL LAW. UNCITRAL Model Law is now part and parcel of our law
This is a deviation from what we learned from Law School. It is not law created by Congress nor part of jurisprudence.
-it "governs": it applies to international commercial agreements

FORMAL REQUISITES FOR FORMALITY OF ARBITRATION AGREEMENTS
1. IN WRITING
When in writing (5 daw sabi ni sir eh)? Article 7, Par2
a. Stipulated in the document
b. Contained in the communications between the parties
e.g. a domestic corporation and a foreign corporation enters into a contract, there's a dispute
One of the parties sends a fax to the other, saying "can we submit the dispute under the UNCITRAL model law?"
The other party writes on the fax received, "yes" signs it, then send the same fax to the former party
(at that time, no text yet!)
c. Contained in the statements of claims and defenses of the parties and it is not denied
Claimant files: Statement of claims
Respondent files: Statement of defense
*for b and c, there is no physical evidence of the arbitration agreement.

*why important: BF Corp vs. CA

1. SUBSCRIBED BY THE PARTIES
Interpreted in BF Corp vs. CA (Shang): to write underneath, as one's name; to sign at the end of a document. That word may sometimes be construed to mean to give consent to or to attest.

CONFIDENTIALITY IN ARBITRATION
(SEC23)
What are confidential?
1. Proceedings
2. Records
3. Evidence
4. Arbitration award

EXCEPT:
1. w/ consent of parties
2. For limited purpose of disclosing to the court of relevant documents in cases where resort to the court is allowed

Protective order to prevent or prohibit disclosure of documents or info containing
1. Secret processes, Developments & Research
2. other info where it is shown that the applicant shall be materially prejudiced by disclosure

RA 876 Review: Grounds for vacating an award (4)
1. Award procured by corruption, fraud, undue means
2. There was evident partiality or corruption in the arbitrators
3. Guilty of misconduct
…one was disqualified to act as such under section 9
…one wilfully refrained from disclosure of disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced
4. Exceeded their powers or so imperfectly executed

Examples: when arbitration proceedings
Example 1: During the arbitration proceedings, one of the arbitrators is partial
>>Challenge the arbitrators! DENIED
>>GO TO RTC. Renew the challenge in courts. Here, you're going to disclose the partiality of the arbitrators
You could disclose relevant documents to the court:
>Arbitration Agreement
>Motion for Disqualify (before the Arbitrator)
>Order of Denial of the Arbitrator

*When apply for interim reliefs
*When you want to enforce an arbitration agreement
*Seek confirmation of the arbitration award
*Vacate
*Modify
*Court assistance to enforce order in arbitration award

Gonzales vs. Climax-Arimco Mining
Gonzales and Climax-Arimco entered into concessions. Climax-Arimco entered another contract with Australasian. Gonzales now wants to void the contracts it entered with Climax-Arimco and the contracts entered by Australasian
*highlight on Separability Clause
Where is separability doctrine contained in law?
Section 16, UNCITRAL MODEL LAW. Know it by heart.

ONGC
Is this an international commercial arbitration?
YES

What makes you say this is an international commercial arbitration?
See ADR law

*one of the parties reside outside the Philippines
*the place of arbitration is outside the Philippines

BF Corp vs. CA (Shang)
-BF was contracted by Shang to constructed EDSA Shang Mall
SHANG: BF failed to finish the project
BF: Shang failed to pay the PROGRESS BILLING (PB)

BF filed Action for Collection
Shang filed Motion for Stay Civil Actions (Section 7, RA 876), saying there's an arbitration clause, RTC denied motion
CA: there was an arbitration agreement!

BF Says that there is no arbitration agreement, as the document which contained the arbitration clause was not signed.
Shang says there was an arbitration agreement because the main contract was signed by the parties and it states that the other documents containing the other agreements of the parties forms part of 1 single contract. Thus, the signature on the main contract binds the other sub-agreements. Thus, arbitration agreement is binding!

Applying UNCITRAL MODEL LAW…
Reference churva...