The Law On Alternative Dispute Resolution: Private Justice in The Philippines
The Law On Alternative Dispute Resolution: Private Justice in The Philippines
Caveat: This is merely a summary of the book. You should read the book at least once. This
reviewer does not contain some essential definitions because such are already defined in the
law, RA 9285. No copyright infringement is intended.
CHAPTER 1
History of ADR
Pre-hispanic era-Jose Rizal noted the custom of the inhabitants of the Philippines before the
Spaniards reached its shores. They submitted the decision of their elders, which they respected
and carried out. According to Jose Rizal, it was better that the “..Judges were persons of the
locality, forming a jury, elected by both parties who knew the case, the customs and usages
better than the gowned judge from the outside to make his fortune, to judge the case he does
not know and who does not know the usage customs and language of the locality”. It is easy to
surmise that our ancestors practiced ADR.
Hispanic Era-Discontented parties had to resort to going to the SC of spain which was a 36-day
trip. Procedure for civil action, akthough similar to the criminal cases, was definitely more costly
and drawn-out. The high cost and unwarranted delays ensured that only the Europeans and the
rich merchants in the city and the wealthy landowners in the rural areas could afford the
prosecution of the civil suit.
1) The misuse of the due process and the abuse of legal technicalities;
3) Sheer weight of the court litigations arising from development and growth;
5) The lawyers propensity to elevate their cases to the appellate courts and needlessly
filing petitions for mandamus, prohibition and certiorari for the purpose of reviewing
the interlocutory orders of the lower courts.
But a more serious factor behind the “law’s delay” in the Philippines involves the billing practice
of lawyers. (Billable hours, number of court appearances) Delaying tactics to consume time.
The choice between a litigation and settlement is clear. He would rather cut through the chase
and solve his disputes swiftly and move on with his life.
AGAN v. PIATCO (GR> NO. 15501)-SC ordered all affected parties to comment made by one of
the parties that PIATCO commences arbitration proceedings by filing a request for arbitration
with the secretariat of the Internation chamber of commerce, International Court of
arbitration.
-Private “Courts” are managed by private organizations, called ADR providers to serve
those who need to resolve most types of consumer, civil, corporate and commercial disputes.
-Parties generally agree to enter the private court system for one main reason: the
public court system is too chaotic and unwieldly.
-“vigilante justice”
-Judges, selected by the parties and are paid on an hourly or a per session basis, are for
rent not for sale. They are paid for their time and their expertise, not their expected favors.
CON: Creates a dual court system-one rich and one poor. No means a perfect system, it
offers enormous savings in time, effort, anxiety, money in the long haul.
CHAPTER 2
Two fundamental reasons for failure of trial courts according to Ralph Warner and Stephen
Elias:
1) Court Rules and Procedures are so complicated and inefficient that lawyer fees and
other costs end up being a bigger problem than the dispute itself.
2) Winner take-all sustem defies logic, encourages lying and generally brings out the worst
in all participants.
1) Conflict starts when parties perceive their differences-they go though feelings of anziety
and frustration.
2) Realization or expression of grievances and the assessment of all angles in the conflict.
-some parties get afflicted with AVOIDANCE SYNDROME (disregarding the existence of
the problem because of relative powerlessness high risks and costs involved)
3) Parties choose their conflict resolution methods and select their strategies to settle
their disagreements.
ADR aims to solve the conflict not win the lawsuit which is the aim of litigation.
5) Problem solving-involves an agreement in which both sides meet their objective and
affective needs.
When a person wins through a lawsuit can compare it as a Pyrrhic victory (pronounced /ˈpɪrɪk/)
which is a victory with devastating cost to the victor; it carries the implication that another such
will ultimately cause defeat.
1) When you need to establish a legal precedent, such as the validity of the patent which
your company holds;
2) When you need to publicy prove the truth, such as when a customer’s complaint about
the product quality or safety has received wide attention in the media product’s good
name;
3) When your company’s legal rights have been infringed and you stand a good chance of
collecting substantial damages in court;
I. Introduction
A. Definitions
Alternative Dispute Resolution – a process or procedure used to resolve a dispute or controversy, other than
adjudication of a presiding judge of a court or an officer of a government agency as defined in this Act, in which a
neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial or any combination thereof (R.A. 9285, Sec 3(a))
Arbitration – means a voluntary dispute resolution process in which one or more arbitrators, appointed in
accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by
rendering an award (R.A. 9285, Sec 3(d))
Mediation – means a voluntary process in which a mediator, selected by the disputing parties, facilitates
communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute.
Conventional Arbitration
Litigation
Nature Not Consensual Consensual –
cannot be
compelled to
submit to
arbitration; but
once you agree,
you’re bound
by it
Who
presides
Participation Parties cannot agree on Parties may
in choosing presiding officer; judge select arbitrator
presiding is raffled
officer
Composition Judge Arbitrator(s)
of tribunal
Who bears Philippine government
the cost for
salary of
presiding
officer
Governing Philippine law governs Parties can
law and select
rules in governing law
settling the that will
dispute determine their
substantive
rights
Venue Venue depends on Rules of Court
agreement applies; Venue
may also
depend on
agreement
Speed of Longer shorter
Procedure
Parties Petitioner v. Claimant v.
Defendant, Petitioner Respondent
v. Respondent
Public Private
II. Arbitration
1. Ad hoc – A kind of arbitration where the parties are responsible for determining and agreeing on their own
arbitration procedures rather than being supervised by the procedures of an arbitral institution.
2. Institutional – a kind of arbitration which is conducted under the auspices of an institution.
a. the parties to an arbitration agreement have at the time of the conclusion of that agreement, their places of
business in different States; or
b. one of the following places is situated outside the State in which the parties have their places of business:
a. the place of arbitration if determined in, or pursuant to, the arbitration agreement:
b. any place where a substantial part of the obligations of the commercial relationship is to be
performed or the place with which the subject-matter of the dispute is most closely
connected; or
c. The parties have expressly agreed that the subject-matter of the arbitration agreement relates to
more than one country.
a) if a party has more than one place of business, the place of business is that which has the closest
relationship to the arbitration agreement;
b) if a party does not have a place of business, reference is to be made to his habitual residence.
authorize arbitration
19 June 1953
Enactment of arbitration law
Republic Act. 876
20 May 1965
Convention on the recognition and enforcement of foreign
UNCITRAL
Model law which the Philippines committed its adherence.
Judiciary Action
Legislative Action:
Special domestic legislation passed the prescription of
Concerning:
Unfair Labor Practice
Termination of Employment
Conditions of Employment
Level Arbitration
arbitration
19 November 2005 – CIAC revised rules of procedure
to resolve dispute
Provides solutions that is less time consuming, less
Principles of ADR
Promotion of party autonomy and self – determination in
dispute resolution
Recognition of ADR as an efficient tool and an alternative
Features of ADR
ADR means used to resolve a dispute or controversy
proceeding
ADR utilize means and methods allowed by law
Sources of ADR
Domestic Laws and Rules
Constitution
Civil Code
Arbitration Law
Acts of the Executive Branch
Forms of ADR
Arbitration – arrangement of the and abiding by the judgment
manner
Neutral – lawyers are brought to present the summary of the
case
Early – Neutral – availed of in pre – trial case
Mini – trial – merits of the case ar argued in front of a panel
Any combination of the foregoing
Partial – only two or three issues involve are resolved but not
all
As to the role of evidence in the proceedings
Evidentiary
Independent
Philippines
International – when the place of business involved two states
AD – HOC – temporary
Institutional – permanent
Components of ADR
Contending parties
Dispute or controversy
Form of ADR
Exception:
Jurisdiction of courts
Future legitime
Criminal Liability
or controversy
Mediated Settlement agreement – contract executed by the
parties
Compromise or compromise agreement – avoidance of
Preferences of ADR