PDRCI held its annual general membership meeting on July 3, 2012 at its office at the Commerce & Industry Plaza, McKinley Hills, Taguig City and reelected the Board of Trustees to serve for the term July 2012 to June 2013.
In his report to the members, President Atty. Victor P. Lazatin highlighted PDRCI’s achievements for the preceding 201112 term. This included the inauguration of PDRCI’s new office in June 2011; the mediation workshop for intellectual property law practitioners conducted by the Intellectual Property Office of the Philippines and the World Intellectual Property Office’s Arbitration and Mediation Center, in cooperation with the PDRCI, in December 2011; and the basic arbitration training for government lawyers organized by PDRCI in partnership with the American Bar Association’s Rule of Law Institute and the Office for Alternative Dispute Resolution in March 2012.
In the same term, PDRCI received nine new cases, with claims and counterclaims for royalties, fees, arrearages and damages totaling ₧2.3 billion.
PDRCI admitted six new members: Atty. Patricia Tysmans-Clemente, Atty. Rosauro A. David, Atty. Dina D. Lucenario, Atty. Raymond Joseph Pascua, Atty. Patricia Ann Prodigalidad, and Atty. Ma. Lourdes Rivera.
Atty. Lazatin also announced that PDRCI will hold an international conference on alternative dispute resolution in November 2012, which will be co-sponsored with the Philippine Institute of Arbitrators, Inc. and the Philippine Institute of Construction Arbitrators and Mediators, Inc. PDRCI is updating its internal rules and administrative guidelines, which will be published this year, and will launch its new website.
Going off the record
Turning off the audio recorder can save time and costs.
Oral hearings are an important feature of domestic and international arbitrations. In most cases, the right to be heard, if allowed by law or stipulated by contract, is an essential part of due process [David J. A. Cairns, “Oral Advocacy and Time Control in International Arbitration,” in A.J. van den Berg & Van Den Berg, Arbitration Advocacy in Changing Times 187 (Kluwer, 2011)].
Oral hearings in domestic arbitration The Arbitration Law [Rep. Act No. 876 (1953)] requires the tribunal to hold a hearing within five days from their appointment, if the parties reside within the same city or province, or within 15 days if the parties reside in different provinces. At the hearing, the tribunal may ask both parties for an agreed stipulation of facts and brief statements of the issues (Sec. 15), after which the parties may offer such evidence as they desire and such additional evidence as the tribunal may require (Ibid.).
All the arbitrators appointed must attend all the hearings and hear all the allegations and proofs of the parties (Sec. 14). They shall arrange for the taking of a stenographic record of the testimony when such a record is requested is requested by one or more parties, and when payment of the cost is assumed by such party or parties (Sec. 12, par. four). The tribunal shall receive as exhibits “any document which the parties may wish to submit,” properly identified at the time of submission (Sec. 15).
Oral hearings in international arbitration
The right to a reasonable opportunity to be heard in international arbitration does not necessarily include a right to an oral hearing [Thomas Schultz, Information Technology and Arbitration: A Practitioner’s Guide 111 (Kluwer, 2006)]. Unless the law of the forum guarantees such right, a party can not demand an oral hearing.
The law governing the arbitration procedure, which may provide for a possible right to an oral hearing, varies from country to country but, according to Schulz, there are two possible situations. Either there exists no right to an oral hearing (as is true under English and Swiss law) or there is a right to an oral hearing but it may be waived (which is the case in the Philippines as well as in most jurisdictions such as Germany, France, Italy, the Netherlands, Belgium, Sweden as well as under the UNCITRAL Model Law) [Schultz, at 111-12].
The European Convention on Human Rights, for example, requires an oral hearing only if it is indispensable for the protection of the “interest of the person concerned” and if the person concerned has not waived that right (Ibid.). Hence, an oral hearing is not necessary to comply with the principle of equal treatment of the parties in Article 18 of the UNCITRAL Model Law. However, if so requested by any party, the tribunal shall hold oral hearings “at an appropriate stage of the proceedings.” (Art. 24.1)
Time and cost of oral hearings
The oral hearing, and particularly lengthy oral hearing, is a characteristic of common law procedure (Cairns, at 182). But two common features of international arbitration have successfully reduced the length of oral hearings: (a) the current preference for written submissions, written witness statements, and written briefs; and (b) the displacement of the potential functions of an oral hearing to other parts of the arbitral process, such as the appointment of common experts in place of extensive adversarial evidence by the parties and the submission of written reports in lieu of oral expert testimony (Ibid.). The International Chamber of Commerce, in its manual Techniques for Controlling Time and Cost in Arbitration, has noted that “Hearings are expensive and time-consuming. If the length and number of hearings requiring the physical attendance of the arbitral tribunal and the parties are minimized, this will significantly reduce the time and cost of the proceeding.”
The length and number of hearings depend on several factors such as (1) advocacy skills and procedural efficiency of counsel; (2) due process; and (3) party agreement.
Advocacy skills and procedural efficiency of counsel
The primary function of the oral hearing is the examination of witness, especially cross-examination. Ideally, the parties, witnesses, expert, counsel, and arbitrators must all prepare for the hearing. When that happens, all the participants are fully focused on the case at the same time (Cairns, at 184). In theory, an imminent hearing “concentrates minds wonderfully” and this contemporaneous focus can be a powerful force (Ibid.). As a result, the parties may suddenly settle a matter that previously proved intractable, or counsel may dispense with witnesses and arguments previously deemed indispensable (Ibid.).
In practice, however, multiple professional and work responsibilities leave the counsel, witnesses, and the arbitrators with little or no time to prepare for the hearing. Moreover, counsel who bill on the basis of time or who argue in the presence of the client are tempted to substitute wit for wisdom and commonly fall prey to the tendency to over-examine a witness or over-argue a position. This prompts opposing counsel to respond in kind. The result is a lengthy and costly oral hearing.