The Implementing Rules and Regulations (IRR) of the Alternative Dispute Resolution Act of 2004 was offi cially launched by the Department of Justice (DOJ) last January 27, 2010 in Manila. Atty. Custodio Parlade, President Emeritus of PDRCI described the approval of the IRR as “an important milestone in the history of dispute resolution in the Philippines.”
DOJ Secretary Agnes VST Devanadera and DOJ Under-Secretary Jose Vicente Salazar formally launched the IRR. Supporters of ADR in the Philippines attended the event, among them PDRCI President Atty. Victor Lazatin and Deputy Secretary General Atty. Mario Valderrama.
Atty. Parlade was among those invited to speak at the launching. During his remarks, Atty. Parlade expressed the hope that with the IRR in place, together with the Special ADR Rules approved by the Supreme Court, many parties would be encouraged to use ADR in settling their disputes. Atty. Parlade traced the beginnings of the ADR Act, including PDRCI’s active participation in the inception and development of the law since 2002.
Atty. Parlade then highlighted two urgent concerns that came to light with the approval and release of the IRR. Th e first pertains to the participation of the Integrated Bar of the Philippines (IBP) in the arbitration process, particularly the designation of the IBP National President as appointing authority in adhoc arbitration. Atty. Parlade stated that parties should be able to select arbitrators from their own locality. Th is would be possible if the IBP National President would authorize chapter presidents to act as his duly authorized representative.
In addition, according to Atty. Parlade, the IBP can accredit arbitrators and may also provide a procedure when a challenge is unsuccessful and the IBP is requested to decide the challenge. He expressed the hope that the IBP will create a committee to draft guidelines pertaining to ADR and approve and implement them soonest.
Atty. Parlade’s second concern is with regard to the organization of the Office for Alternative Dispute Resolution (OADR) and the of its executive director. He said he hopes that DOJ Secretary Devanadera will appoint a young lawyer from the DOJ to this position and assign support staff from the personnel of the DOJ. He added that the OADR must be provided with adequate office space so that the office can begin performing its functions.
He further suggested that the OADR prioritize certain functions, such as the preparation of guidelines for it to act as appointing authority; the promotion, development and expansion of the use of ADR; the establishment of an ADR library; and the certifi cation of those who have completed OADR training programs for ADR service providers.
Atty. Parlade closed his remarks by expressing his gratitude to those from the DOJ who supported ADR and contributed to the drafting and approval of the IRR, namely, Secretary Devanadera, Undersecretary Jose Vicente B. Salazar, Senior State Counsel Marlyn L. Angeles, State Counsel Lielani R. Fajardo and State Counsel Bernadette C. Ongoco, retired Assistant Chief State Prosecutor Nilo C. Mariano, and State Counsel Bernadette C. Ongoco.
Atty. Parlade also acknowledged other contributors who shared their expertise during the formulation of the ADR Act and its IRR, namely Atty. Anabelle Abaya, Prof. Alfredo Tadiar, Prof. Rowena Daroy Morales, Atty. Victor Lazatin, Atty. Eduardo de los Angeles, Atty. Patricia Tysmans Clemente, Director Victorio Mario Dimagiba, Prof. Mario Valderrama, as well as the Philippine Chamber of Commerce and Industry (PCCI), particularly Atty. Mike Varela and other PCCI officers.
The Role of File Counsel in PDRCI Arbitration
When parties decide to refer a dispute – future or existing – to arbitration, one of the things that they have to decide on is whether they will opt for ad hoc or institutional arbitration. If the parties decide on ad hoc arbitration, they will then administer the arbitration themselves.
While there is nothing wrong with opting for ad hoc arbitration, problems sometimes arise in ensuring that the arbitration proceeds promptly and efficiently. This happens when the parties and their counsel are unfamiliar with arbitration and thus are unable to undertake measures to move the arbitration forward. This is the advantage of institutional arbitration. The private arbitral institution will take care of administering the arbitration for the parties and ensure that the same proceeds promptly and efficiently.
In the Philippines, the Philippine Dispute Resolution Center, Inc. (PDRCI) is the leading private arbitral institution offering services to disputants who may want to resolve their dispute through arbitration. To ensure efficient By Shirley F. Alinea hen parties decide to refer a dispute – future or existing – to arbitration, one of the things that they have to decide on is whether they will opt for ad hoc or institutional arbitration. If the parties decide on ad hoc arbitration, they will then administer the arbitration themselves. proceedings, PDRCI assigns a counsel-in-charge of the file (File Counsel) upon the institution of the arbitration. The File Counsel supervises the newly commenced arbitration until the arbitral tribunal is constituted.
PDRCI’s Administrative Guidelines approved on October 17, 2005 broadly stated in Part A, par. 8 that “(t)he Secretary-General or his authorized representative shall act as the Administrator in charge of the file.” However, subsequent experience in a few arbitrations administered by PDRCI underscored the need for more definitive guidelines to define the role of the File Counsel.
In one case, a party questioned the propriety of filing the arbitration with the PDRCI because the arbitration clause contained in the main agreement contained an error in the name of PDRCI as the administering body. The File Counsel played a critical role in moving the arbitration forward so the arbitral tribunal could be constituted. In another case, the arbitrators appointed by the parties were not experienced arbitrators. The File Counsel became involved in advising the arbitral tribunal and the parties on the procedure to ensure that the arbitration proceeded with dispatch.
Recognizing the important role played by the File Counsel, PDRCI’s Board of Trustees approved on September 15, 2008 Part II of the Administrative Guidelines. The Introduction of the new Guidelines explains the role of File Counsel.
As a general rule, the File Counsel does not intervenes directly in the conduct of an arbitration except in case of “manifest violation” of the PDRCI Arbitration Rules. He is available to the parties and arbitrators for information and advice with respect to PDRCI arbitration practice, e.g., the procedures to be followed, presenting arguments and evidence, and making awards. There are, of course, necessary limits to the assistance that can be extended by the File Counsel.
In addition, the File Counsel monitors the arbitration through his access to the case record, including pleadings, papers and communications from a party to another party, or from a rarty to the tribunal, or from the tribunal to the parties or from PDRCI to the tribunal and the parties. He may also attend hearings and meetings of the tribunal and the parties, unless the tribunal expressly directs otherwise.
The File Counsel is required under the Guidelines to regularly inform the PDRCI SecretaryGeneral of the progress of or lack of progress in the case.
With the proactive role of the File Counsel, PDRCI arbitrations will proceed with even more dispatch and effi ciency, helping the parties achieve a speedy resolution of their disputes.
PDRCI welcomes new members
The Board of Trustees of PDRCI, upon the recommendation of the Committee on Membership headed by Atty. Victoriano Orocio, re-Committee on Membership headed by Atty. Victoriano Orocio, re-Committee on Membership headed by Atty. Victoriano Orocio, re-Committee on Membership headed by Atty. Victoriano Orocio, recently accepted three applicants for membership, two of whom were foreign arbitrators.
The first new member, Atty. Constantino Oraa, was recommended by PDRCI member Atty. Tomas Guno. Atty. Oraa is the managing partner of Oraa Ruaro and Tolentino Law Offices and is a professor of law at Adamson University.
Atty. Oraa obtained his Bachelor of Laws degree from Ateneo de Manila University and his Master of Laws from San Beda College. Early in his career, Atty. Oraa served as legal counsel for the Offi ce of Sen. Ernesto Maceda. He was also connected with the Department of Justice, where he was appointed as Assistant Prosecutor for the city of Pasay. After his stint in government, he went on to establish Oraa and Associates in Manila, now known as Oraa Ruaro and Tolentino Law Offices.
The PDRCI Board also approved the inclusion of two applicants in the Panel of Foreign Arbitrators: Mr. Randall A. Whitecotton of the United States and Mr. Hugh D. McArdle of Australia.
Mr. Whitecotton obtained his Juris Doctor degree from the Whittier College School of Law. After obtaining his license to practice in all California and federal courts in 1991, he joined Hagenbaugh and Murphy as an insurance defense associate. He became a partner of CBH Law Corp. in 2000, where he honed his expertise in litigation. In 2004, joined MBW Swim, LLC, a manufacturing company as general corporate counsel, a position he held until 2009. Mr. Whitecotton is based in Huntington Beach, California.
Mr. McArdle is an Australian arbitrator, lawyer and mediator based in Kew, Victoria, Australia. He holds Bachelor of Juris prudence and Bachelor of Laws degrees as well as a Master’s degree in Law and a Professional Certificate in Arbitration. He is a Barrister and Solicitor of the Supreme Court of Victoria and the High Court of Australia. Mr. McArdle is a member of several professional associations, including the Institute of Arbitrators and Mediators Australia, the Chartered Institute of Arbitrators (UK), the Australian Centre for International Commercial Arbitration, the Law Institute of Victoria and the Industrial Relations Society of Victoria.