INSTRUCTIONS

1. Read each question very carefully and write your answers in your Examination
Notebook or in a separate Word Document answering in the same order of the
questions. Answer the essay questions legibly, clearly, and concisely.

2. Your answers should demonstrate your ability to analyze the facts, apply the
pertinent laws and jurisprudence, and arrive at sound and logical conclusions.
Answers must fully explain even if the questions do not expressly require
explanations. A "Yes" or "No" answer sans explanation or discussion will not be
given full credit.

3. Submission options:

a. Word Document – You can submit your answers in a Microsoft Word

Document file format to the email address atty.treptor.exams@gmail.com.
A sample format for the answers is contained in the last page of this file.
There is no specific format required, just make sure the font used is easy
to read.

b. Scanned Examination Notebook – You can submit your answers written in

an Examination Notebook by scanning its contents and sending a digital
copy to the email address atty.treptor.exams@gmail.com. In the email that
you will send, please provide your name, subject, and your section.

4. The answers to this examination must be submitted on or before 11:59PM of

May 18, 2020. Late submissions will not be accepted absent any valid
explanation in the email containing the answers.

Good luck!

I.

Explain the following concepts in relation to Alternative Dispute Resolution Law:

a) Competence-Competence Principle. (5%)

b) Separability Principle. (5%)

II.

Company ABC entered into a contract with Company XYZ. In their contract, they
included an arbitration agreement. When Company ABC failed to comply with its
obligation, Company XYZ filed a case in court. Company ABC then moved for the
referral of the case to arbitration based on the arbitration agreement contained in the
contract.

a) What is the policy in the ADR law concerning the role of the court in cases
covered by an arbitration agreement? (5%)

b) Suppose the judge denied the motion of Company ABC for the referral of the
case to arbitration because according to the judge the court already acquired
jurisdiction. Is the judge correct to deny the motion based on said ground? (10%)
ARBITRAL AGREEMENT

An agreement to arbitrate is a contract and as such the arbitration agreement

must satisfy the essential requisites of a valid contract.

Similar with mediation and ICA, the consent to arbitrate can either be pre- causal
consent (agreement to submit to arbitration) when the parties agree in a contract
to settle by arbitration a controversy that will arise between them; or present
causal consent (submission agreement) when the controversy already exist
between the parties at the time of the submission to arbitration. The submission
and contract shall be valid, enforceable and irrevocable except upon grounds
provided by law for the revocation of contracts.

An arbitration agreement must be in writing and subscribed by the party sought

to be charged or by his lawful agent/s.

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

arbitration agreement shall, if at least one party requests not later than the pre-
trial conference, or upon the request of both parties, refer to arbitration unless it
finds that the arbitration agreement is null and void, inoperative or incapable of
being performed. If the parties request in the same manner the court may stay
the proceedings during the pendency of the arbitration (Ormoc Sugarcane
Planters Assoc. vs. CA). In such case, the court does not lose its jurisdiction over
the case and the proceedings are merely stayed to await the rendition of the
arbitral award, which shall be enforced by the court (Benguet Corp. vs. DENR-
Mines and Adjudication Board, 545 SCRA 196 [2008])
When the court action is multi-party and one or more but not all of them are
parties to an arbitration agreement, the court shall refer those who are parties to
the arbitration agreement to arbitration and proceed with the court action as to
those who are not bound by such arbitration agreement.

REFERRAL TO ADR

While the subtitle of rule4 of the Special ADR rules is “Referral to ADR” this rule
actually pertains to the referral of a pending court action to arbitration rather than
any other form of ADR. The situation contemplated by this rule is that where: 1.
There is already pending court action. 2. There is either a pre-action agreement –
if executed prior to the filing of an action, or a present action agreement – if
executed after the filing of the action. 3. And one or both parties desire to
undergo arbitration.

If there is a pre-action agreement, which may either be an agreement to submit

to arbitration or a submission agreement, the request for referral to arbitration
may be made by any one of the parties not later than the pre-trial conference. A
requeset made after the pre-trial conference must be with the agreement of both
parties.

In the case of a present-action arbitration agreement, which is necessarily a

submission agreement, the parties may request the referral to arbitration at any
time during the proceedings.

Hereunder are the rules: 1. Request/Motion 2. Comment/opposition 3. Court

action 4. Relief against court action
In accordance with the principle of preference for ADR, courts are prohibited from
denying for the request for referral of some or all of the parties to arbitration for
 any of the following reasons: 1. Not all of the disputes subject of the civil action
may be referred to arbitration;

2. Not all of the parties to the civil action are bound by the arbitration agreement
and referral to arbitration would result in multiplicity of suits; 3. The issues raised
in the civil action could be speedily and efficiently resolved in its entirety by the
court rather than in an arbitration; 4. Referral to arbitration does not appear to be
the most prudent action; or 5. The stay of the action would prejudice the rights of
the parties to the civil action who are not bound by the arbitration agreement.

c) If you were the lawyer for Company ABC, would you appeal the denial by the
judge? (10%)

III.

a) Enumerate the grounds to vacate a domestic arbitral award. (5%)

b) Enumerate the grounds to refuse recognition of a foreign arbitral award.

(5%)

IV.

a) What are the roles of a counsel in mediation proceedings? (5%)

b) Outline the process of enforcing a mediation agreement from the time the dispute
is settled. (10%)

ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS

Any parties to a mediated settlement agreement, which was deposited, upon

breach, file a verified petition to enforce the agreement with the court where the
agreement was deposited. If the agreement has not been deposited, the
petitioner has to deposit the agreement first before the filing the petition in court.

The petition should contain an authentic copy of the mediated settlement

agreement and the certificate of deposit.

The adverse party may file an opposition to the petition within 15days from
receipt of notice or the service of petition.
The court shall conduct a summary hearing to determine whether or not the
mediated settlement agreement is valid and the respondent has breached the

MEDIATED SETTLEMENT AGREEMENTS

- The concluding argument in a successful mediation is called the mediated settlements

agreement or settlement agreement.
- The following principles apply to these concluding arrangements a. Settlement
agreement following a successful mediation shall be prepared by the parties with the
assistance of a lawyer. b. Parties and their respective counsels, shall sign the
settlement agreement and shall certify the contents. c. If the parties agree, settlement
may be jointly or deposited d. When there is a need to enforce the settlement
agreement e. Parties may agree In the settlement agreement that mediator shall
become a sole arbitrator for the dispute and shall treat the agreement as an arbitral
award which shall be subject to enforcement.
V.
Company ABC entered into a contract with Company XYZ. When Company ABC failed
to comply with its obligation, both companies agreed to settle their dispute through
mediation. During the start of the mediation proceedings, Company ABC waived its right
to counsel. Later on, Company ABC realized that it needed the services of counsel, so
Company ABC hired Attorney Kim Choco Martin for assistance in the mediation
proceedings. Attorney Kim Choco Martin refused because according to her, she can no
longer assist in the proceedings because there was already a waiver of right to counsel
made by Company ABC. Is Attorney Kim Choco Martin correct? (10%)

VI.

a) Define at least two modes of alternative dispute resolution and briefly explain
their concept and how they resolve disputes. (10%)

MEDIATION IN GENERAL

- Among the forms of ADR, mediation and arbitration are the most common and
popular. - Defined as voluntary process in which a mediator, selected by the disputing
parties, facilitates communication and negotiation and assists the parties in reaching a
voluntary agreement regarding a dispute. - Excluded from the coverage of ADR act are
the court-annexed mediation, which is a mediation process conducted under the
auspices of the court, and court-referred mediation, which is a mediation ordered by a
court to be conducted in accordance with the agreement of the parties. - Likewise
excluded from the coverage is the conciliation conducted by Pangkat ng
Tagapagkasundo and JDR.

CLASSIFICATION OF MEDIATION

- Mediation is non-evidentiary or non-merit based. a. Mediation focuses on the

facilitation of communication and negotiation between the parties in order to encourage
them to voluntarily settle their dispute. b. A mediator must refrain from giving legal or
technical advise or otherwise engaging in counselling advocacy and must abstain from
expressing his personal opinion on the rights and duties of the parties and the merits of
any proposal made.

- Mediation is either institution when administered by, and conducted under the rules of
mediation and ad hoc if it is other than institutional.

- An agreement to submit a dispute to a mediation by an institution shall include an

agreement: a. To be bound by the internal mediation and administrative policies of such
institution; b. To have such rules govern the mediation of the dispute and for the
mediator, the parties and their respective counsels and non-party participants to abide
by such rules. PLACE OF MEDIATION

- Parties to mediation are given the freedom to agree on the place of mediation. In the
absence of such agreement, place of mediation shall be any place convenient and
appropriate to all parties.

STAGES IN MEDIATION

In general, the mediation process consist of the following stages: 1. Opening statement
of the mediator; 2. Individual narration by the parties;

3. Exchange by the parties; 4. Summary of issues; 5. Generalization and evaluation of

options; 6. Closure
The foregoing stages are not obligatory and the parties under the principle of self-
determination and party autonomy may choose the procedure that will govern their
mediation.

Mediation process shall be held in private unless the parties consent to the presence of
persons other than themselves, their representatives and the mediator.

Mediation shall be closed and concluded by: a. Execution of settlement agreement by

the parties; or b. By the withdrawal of any party from mediation; or c. By the written
declaration of the mediator that any further effort at mediation would not be helpful.

ADVANTAGES OF MEDIATION
1. Confidentiality in the mediation process; 2. Prompt, economical and amicable
resolution of disputes; and 3. The decision-making authority rests in the parties.

2. Mediation - A voluntary process in which a mediator, selected by the disputing

parties, facilitates communication and negotiation and assists the parties in
reaching a voluntary agreement regarding the dispute. - The basic distinction
between arbitration and mediation is that in arbitration an arbitral tribunal or
arbitrator evaluates the evidence and the merits of the case and renders an
arbitral award based on his appreciation; whereas in mediation the parties to
controversy are convinced by a mediator to settle their controversy through
voluntary agreement of the parties themselves.

Arbitration - Is an arrangement for taking and abiding by the judgment of selected

persons in some disputed manner, instead of carrying it to established tribunals of
justice and is intended to avoid the formalities, the delay, the expense and vexation of
ordinary litigation. - For purpose of ADR Act of 2004, it is a voluntary dispute resolution
process in which one or more arbitrators, appointed in accordance with the agreement
of the parties.

ARBITRATION

As defined, arbitration is 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 the ADR Act, resolve a dispute by rendering an award.

An arrangement for taking and abiding by the judgment of selected persons in some
disputed matter, instead of carrying it to established tribunals of justice and is intended
to avoid formalities, the delay, the expense and vexation of ordinary litigation (Uniwide
Sales Realty vs. Titan-Ikeda Construction 511 SCRA 335, 2006)
As to the role of evidence and merits of the case, arbitration is a merit evidence based
form of ADR.

POLICY ON ARBITRATION

Being an inexpensive, speedy and amicable method of settling disputes arbitration –

along with mediation, conciliation and negotiation – is encouraged by SC. Aside from
unclogging judicial dockets, arbitration also hastens the resolution of disputes,
especially of the commercial kind. It is thus regarded as the “wave of the future” in
international civil and commercial disputes. Brushing aside a contractual agreement
calling for arbitration between the parties would be a step backward. (Korea
Technologies Ltd. Vs. Lerma 542 SCRA 1, 2008)

OBJECTIVES OF ARBITRATION
 The basic objective of arbitration is to provide a speedy and inexpensive method of
settling disputes by allowing the parties to avoid formalities, delay, expense and
aggravation which commonly accompany ordinary litigation, especially litigation which
goes through the hierarchy of courts.

b) What are the grounds to enable the court to appoint arbitrators? (10%)

c) BONUS. (10%).

Name: Ronic Albert D. Treptor

Subject: XXX
Section: XXX

ANSWERS

I.
a.

xxxxxxx

I.
b.

xxxxxx

I.
c.

xxxxxxxx