International Commercial Arbitration

1. International Commercial Arbitration

2. Arbitration • An agreement by the 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. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (UNCITRAL Model Law)

3. Fundamental features of arbitration • An alternative to national court; • A private mechanism for dispute resolution; • Selected and controlled by the parties; • Final and binding determination of the parties’ rights and obligations.

4. Mediation • A non-binding procedure wherein a mediator assists the parties in reaching their own decision on a settlement of a dispute.

5. Why prefer arbitration over litigation? • Predictability • Competence • Party participation • Finality • Enforceability • Cost • Privacy

6. SEC. 2.Declaration of Policy. - it is hereby declared the policy of the State to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. Towards this end, the State shall 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. As such, the State shall provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases. Likewise, the State shall enlist active private sector participation in the settlement of disputes through ADR. This Act shall be without prejudice to the adoption by the Supreme Court of any ADR system, such as mediation, conciliation, arbitration, or any combination thereof as a means of achieving speedy and efficient means of resolving cases pending before all courts in the Philippines which shall be governed by such rules as the Supreme Court may approve from time to time. Arbitration in the Philippines • RA 9285 – Alternative Dispute Resolution Act of 2004

7. UNCITRAL Model Law • RA 9285 SEC. 19.Adoption of the Model Law on International Commercial Arbitration. - International commercial arbitration shall be governed by the Model Law on International Commercial Arbitration (the "Model Law") adopted by the United Nations Commission on International Trade Law on June 21, 1985 (United Nations Document A/40/17) and recommended approved on December 11, 1985, copy of which is hereto attached as Appendix "A”.

8. NY Convention • SEC. 42.Application of the New York Convention. - The New York Convention shall govern the recognition and enforcement of arbitral awards covered by the said Convention.

9. Arbitration agreement • All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

10. Sources of relevant norms • Party autonomy • Institutional rules • National arbitration law • International agreements • International commercial arbitration practice

11. Limits: Internationally mandatory rules Limits: Internationally mandatory rules Extent of party autonomy Agreement of the parties Chosen arbitration rules International arbitration practice Applicable law International conventions guarantee recognition of party autonomy

12. Arbitration Agreement Arbitral Tribunal Recognition Enforcement Setting aside Formal validity Capacity of the parties Substantive validity Arbitrability of issues Selection and appointment Jurisdiction Challenge, removal and replacement Substance of the Dispute Arbitration Proceedings Inquisitorial or adversarial Timetable, written submissions, hearings Place of hearings Language Time limits Award