adr report--bacolta and barrete

7/30/2019 ADR Report--Bacolta and Barrete

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Main Reference: www.philippinesforum.com


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SpanishLaw of

Civil

Procedure

R.A. No.876 (The

Arbitration

Law)

New York

Convention on

the Recognition

& Enforcement

of Foreign

Arbitral Awards

The New Civil Code that was passed in 1949 containedseveral provisions on arbitration,

but these provisions did not provide a comprehensive legalframework. They merely laid

down certain principles.


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Then, in 2004, Congresspassed Republic Act No.

9285, otherwise knownas the

Alternative Dispute

Resolution Act of 2004.


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The efforts of Congress and the judiciary at

improving the system of arbitration

are welcome and timely. Today, two

contemporary circumstances, one a localproblem, the other an international

phenomenon, acutely highlight the need to

further promote and

develop arbitration:

and .


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Arbitration is an alternative to, or

a substitute for, traditional

litigation in court.

Why do we need an alternative to

the traditional court litigation?

A review of relevant statistics

relating to our courts provides the

answer.


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Recent data from the Supreme Court shows

that, for the period January to

November 2005, the cases filed continue to

the cases resolved at the Regional

Trial Court (RTC), Metropolitan Trial Court

(MeTC), Municipal Trial Court in Cities

(MTCC), Municipal Trial Court (MTC),Municipal Circuit Trial Court (MCTC) levels.


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As of 30 November2004, the total number

of pending cases was

, with

the trial courts bearing

the brunt of the caseloadas follows:


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Not surprisingly, the data

likewise shows that the

problem of the

has persisted through

the years. The vacancy rate

has hovered at around onaverage.


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This shortage in judges is largely due to the relatively

low pay of judges. Based on figures as of January

2005, an:

RTC judge

receives

monthly in

salary and

allowances

MeTC judgereceives

MCTC and MTC

judges receive

monthly in

salary and

allowances


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The obvious solution to the problem is tothe number of judges.

However, this is easier said than done. Thesalaries of the judges are not determined by

market forces but are subject toand the of our

lawmakers.


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The result is that our courts have not

been able to function efficiently. While

there is no ready data on the average

number of years that it takes the courts

to resolve

disputes, anecdotal evidence shows that

it usually takes for a case to be

resolved at the trial court level, and

another for a case to beresolved on appeal.


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Under the circumstances, the need topromote arbitration becomes pressing.

Arbitration directly benefits the parties andindirectly benefits the courts since it divertscases away from them and into the hands of

arbitrators with much lesser caseloads.

This indirect benefit has been recognizedboth by Congress and the Supreme Court.


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The enactment of R.A. No. 9285...

It came after

the passage of the

countrys first

arbitration law,

Republic Act No. 876,

and almost

after the

countrys accession tothe New York

Convention.

It is certainly a

welcome

development and,perhaps not

coincidentally, arrives

at a time when the

countrys

economy is moving

forward once again.

It provides a more

and

framework for

the development of an

alternative dispute

resolution system.


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The courts are directed to

give due regard to the

policy of

arbitration

Prior to the passage of R.A.

No. 9285, an arbitration

agreement could be defeatedby impleading or joining either

as plaintiff or defendant a

person who was not a party to

the arbitration agreement.


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It provides for a system of

arbitration, i.e., InternationalCommercial Arbitration and

Domestic Arbitration.

It expressly declares arbitration

proceedings, including the

records, evidence, and arbitral

award, to be .


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It expressly provides that arbitration

may nevertheless be commenced or

continued, and an award may be

made, despite the pendency of a

related issue before the court.

It provides that, unless otherwise

agreed by the parties, the arbitrator

may be of nationality. With this

clarification, the parties now have a

larger pool of arbitrators to choose

from.


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May include but shall not be limited

to preliminary injunction directedagainst a party, appointment of

receivers or detention, preservation,

inspection of property that is the

subject of the dispute in arbitration.

It expressly declares that any

ground other than the grounds

specified under the law for vacating

a domestic arbitral award shall be

disregarded.


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It declares that any ground other than

the grounds specified in Article V of the

New York Convention for vacating aforeign arbitral award shall be

disregarded.

Lack of a valid arbitration agreement;

Violation of due process;

Excess of the arbitral tribunals authority;

Irregularity in the composition of the

arbitral tribunal or arbitral procedure;

andThe award has been set aside


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A. TRANSFIELD PHILIPPINES, INC. vs. LUZONHYDRO CORPORATION, G.R. No. 146717,May 19, 2006

:

Enforceability of foreign arbitral awards; and

Right of parties to an arbitration proceedingto obtain provisional relief from the courts


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B. GONZALES vs. CLIMAX MINING LTD.G.R. Nos. 161957 and 167994, Jan. 22, 2007

:

, it held that a underRule 45 is the proper mode of appeal inchallenging the orders of the trial court in anaction to compel arbitration.


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B. GONZALES vs. CLIMAX MINING LTD.G.R. Nos. 161957 and 167994, Jan. 22, 2007

:

, modifying its earlier ruling,

the Supreme Court in Gonzales introducedthewidely-accepted doctrine of separability,which states that the validity of thecontaining the agreement to submit to

arbitration does not affect the applicability ofthe itself.


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Under the

circumstances,

arbitration is truly

worth cultivating.It possesses many

features, as

follows:


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First, unlike

judges, arbitrators

are burdened

by heavy

caseloads.

Second, there is a

of

arbitrators to draw

from. Unlike thetraditional

judges, arbitrators

do not have to be

lawyers.

Third, the fees of

arbitrators are

fixed by law. They

are flexible and

adjustaccording to the

complexities of the

case and the

reputation of the

arbitrator.


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Fourth, arbitration

has the indirect

benefit of

the court

dockets by

diverting cases

away from them.

Fifth, for those of the

perception that the

courts are unable to

protect investors inan

manner, arbitration

addresses the

concern of partiality.

Sixth, the costs of

arbitration are

by the parties.


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The Philippines hascome a long way since

arbitration made its firstappearance in

the Spanish Code of CivilProcedure. Now that the

wave is upon us, thechallenge is to and

it.


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Main Reference: www.philippinesforum.com

!

Reported by: Estella Marie Barrete and Jessica J Bacolta

adr report--bacolta and barrete

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