Alternative Dispute Resolution Midterms PDF

ALTERNATIVE DISPUTE RESOLUTION REVIEWER 4th Year – 1st Semester, S.Y. 2024-2024 Schedule: Monday, 5:00 PM to 8:00 PM Instructor: Atty. Alejandro F. Vivas, III PADAYON, PAÑERA! © BASED ON VARIOUS SOURCES | LECTURES OF ATTY. VIVAS  Alter...

ALTERNATIVE DISPUTE RESOLUTION REVIEWER 4th Year – 1st Semester, S.Y. 2024-2024 Schedule: Monday, 5:00 PM to 8:00 PM Instructor: Atty. Alejandro F. Vivas, III PADAYON, PAÑERA! © BASED ON VARIOUS SOURCES | LECTURES OF ATTY. VIVAS  Alternative Dispute Resolution MIDTERMS friendly, inexpensive, and speedy forum for the settlement of disputes where the parties can freely I. KATARUNGANG PAMBARANGAY explore options for amicably resolving their disputes without resorting to the courts. A. Chapter 7, Title I, Book III, R.A. No. 7160 (Local Government Code of 1991) #CLASSNOTES Definition and Purpose Elements of Katarungang Pambarangay Atty. Babi: Katarungang Pambarangay or Barangay Justice System is a community-based dispute settlement 1. There is a dispute. mechanism that is administered by the basic political unit of the country, the barangay. As a community- 2. The dispute is among the family and barangay based mechanism for dispute resolution, it covers members or the dispute arises from the disputes between members of the same community residences of same municipslity/city. (generally, same city/municipality) and involves the Punong Barangay and other members of the 3. If the dispute fall in the jurisdiction of KB. communities (the Lupon members) as intermediaries (mediators, conciliators, and, 4. The dispute must not be excluded by law. sometimes, arbitrators). 5. The parties must be a natural person. Under the Barangay Justice System, the main strategy for settling disputes is to provide a venue for the Atty. Babi: Regarding #5, can a corporation be a disputing parties to search for a solution that is party to a barangay conciliation proceeding? NO. mutually acceptable. Hence, the primary role of the Only a natural person. system is not to decide disputes and impose a solution on the parties but to assist the parties in discussing the Legal Bases? Universal Robina v. Heirs of Teves. possible amicable settlement of their disputes. UNIVERSAL ROBINA SUGAR MILLING CORP v. The Punong Barangay and the community conciliators HEIRS OF ANGEL TEVES (Lupon members) do not act as judges or adjudicators G.R. No. 128574, September 18, 2002 | Sandoval- of disputes but as facilitators for the disputing Gutierrez, J. parties’ discussion of possible solutions. In this case, one of the issues to be resolved is whether the complaint should have been dismissed The Barangay Justice System provides an alternative for lack of barangay conciliation. mode for dispute resolution to the costly and lengthy process of settling disputes in regular Regarding the third issue, suffice it to state that being a courts. Instead of going through the very technical corporation, petitioner cannot be impleaded as a party procedure of filing formal pleadings and presenting to a barangay conciliation proceeding. Section 1, Rule evidence in courts, the parties of a dispute are given the VI of the Katarungang Pambarangay Rules opportunity to try to talk to each other and resolve their implementing the Katarungang Pambarangay Law disputes amicably. The technical processes and rules provides: that are usually applied in court proceedings are not applied. Filing a case in court, or defending oneself "Section 1. Parties. - Only individuals shall be parties to against such a case, would necessarily entail the services these proceedings either as complainants or of lawyers. In the Barangay Justice System, however, the respondents. No complaint by or against corporations, parties do not partnerships or other juridical entities shall be filed, need to secure the services of lawyers. In fact, the law received or acted upon." (emphasis ours) prohibits the participation of lawyers in the conciliation proceedings. While cases that are tried in courts Objectives generally take years to be resolved, cases that go through the Barangay Justice System would generally The law had the following objectives: take only a few weeks. 1. To promote the speedy administration of justice; Simply put, the Barangay Justice System provides a Reviewer by S.K.A. Francisco | 2  Alternative Dispute Resolution 2. To minimize the indiscriminate filing of cases in Constitution Process courts; A notice to constitute the lupon shall: 3. To minimize the congestion of court dockets and thereby enhance the quality of justice dispensed ▪ Prepared by the PB within 15 days from the start of by the courts; and the term; 4. To perpetuate and recognize the time-honored ▪ Which include the names of proposed members tradition of amicably settling disputes at the who have expressed their willingness to serve; community level. ▪ Posted in 3 conspicuous places in the barangay LOWKEY-NOTE: According to Atty. Babi, ‘yung first 3 continuously for a period of not less than 3 weeks. lang. Appointment LUPONG TAGAPAMAYAPA (SEC. 399) ▪ PB appoints members within 10 days after the Creation and Composition posting period, considering any opposition or recommendations. Created in each barangay a lupong tagapamayapa (lupon) which composed of: ▪ Appointments in writing, signed by the PB, attested by the Barangay Secretary. 1. Punong Barangay (PB) as chairman; ▪ The list of appointed members shall be posted in 3 2. With 10-20 members. conspicuous places in the barangay for the entire duration of their term of office. Who Are Qualified To Be Members Of The Lupon? Indigenous Cultural Communities Any person actually residing or working in the barangay, not otherwise expressly disqualified by law, and In barangays where majority of the inhabitants are possessing integrity, impartiality, independence of members of indigenous cultural communities, local mind, sense of fairness, and reputation for probity, may systems of settling disputes through their councils of be appointed as member of the lupon. datus or elders shall be recognized without prejudice to the applicable provisions of this Code. QUALIFICATION AS DISQUALIFIED TO BE LUPON MEMBERS LUPON MEMBERS OATH AND TERM OF OFFICE (SEC. 400) 1. Any person actually 1. Below 18 years of residing or working, age; Oath in the barangay; 2. Incompetent 3. Convicted of a crime Each Lupon member takes an oath before the PB upon 2. Not otherwise with it penalties of appointment. expressly disqualified perpetual or by law; and temporary Term of Office disqualification 3. Possessing with the from holding public GR: Member shall hold office until a new lupon is following qualities: office; constituted on the third year following his appointment. 4. Elected government XPNs: Unless sooner terminated by: a. Integrity, official; b. impartiality, 5. Member of armed 1. Resignation; c. independence of forces who is in the mind, active service. 2. Transfer of residence or place of work; or d. sense of fairness, and 3. Withdrawal of appointment by the punong e. reputation for barangay with the concurrence of the probity. majority of all the members of the lupon. Reviewer by S.K.A. Francisco | 3  Alternative Dispute Resolution VACANCIES (SEC. 401) ▪ Composition: 3 members chosen by the disputing parties from the list of members of the Lupon. Should a vacancy occur in the lupon for any cause, the PB shall immediately appoint a qualified person who ▪ Should the parties fail to agree -> determined by shall hold office only for the unexpired portion of the lots drawn by the lupon chairman. term. Officers FUNCTIONS OF THE LUPON (SEC. 402) The three members elect a (1) chairman and (1) The lupon shall: secretary from among themselves. 1. Exercise administrative supervision over the Duties of Secretary conciliation panels provided herein; 1. Prepare the minutes of the pangkat proceedings; 2. Meet regularly once a month to: 2. Submit a copy duly attested to by the chairman to a. Provide a forum for exchange of ideas the lupon secretary and to the proper city or among its members and the public on municipal court; matters relevant to the amicable settlement of disputes; and 3. Issue and cause to be served notices to the parties concerned; b. Enable various conciliation panel members to share with one another their observations 4. Issue certified true copies of any public record in and experiences in effecting speedy his custody that is not by law otherwise declared resolution of disputes; and confidential. 3. Exercise such other powers and perform such Vacancies in the Pangkat (405) other duties and functions as may be prescribed by law or ordinance. ▪ Any vacancy in the pangkat shall be chosen by the parties to the dispute from among the other lupon SECRETARY OF THE LUPON (SEC. 403) members. The barangay secretary shall concurrently serve as the ▪ Should the parties fail to agree on a common secretary of the lupon. choice, the vacancy shall be filled by lot to be drawn by the lupon chairman. Functions: CHARCATER OF OFFICE AND SERVICE OF LUPON (SEC. 406) 1. Record the results of mediation proceedings before the punong barangay; Persons in Authority 2. Submit a report thereon to the proper city or The lupon members, while in the performance of their municipal courts. official duties or on the occasion thereof, shall be deemed as persons in authority, as defined in the 3. Receive and keep the records of proceedings Revised Penal Code. submitted to him by the various conciliation panels. Compensation PANGKAT NG TAGAPAGKASUNDO (SEC. 404) ▪ GR: The lupon or pangkat members shall serve without compensation. Formation of Pangkat ▪ XPN: As provided for in Section 393 and without ▪ For each dispute brought before the lupon for prejudice to incentives as provided for in this conciliation there shall be a panel constituted and Section and in Book IV of this Code. known as the pangkat ng tagapagkasundo (“pangkat”) The Local Government Code of 1991 provides that, Reviewer by S.K.A. Francisco | 4  Alternative Dispute Resolution barangay officials shall be compensated in the 5. Where the dispute involves real properties located form of honorarium at an amount not less than in different cities or municipalities P1,000 per month for the Punong Barangay and P600 each per month for the Sangguniang XPN to the XPN: Unless the parties thereto agree Barangay members, Barangay Treasurer and to submit their differences to amicable settlement Barangay Secretary. E. O. No. 332 provides that the by an appropriate lupon; rates of honorarium prescribed in Section 393 (a) of R.A. No. 7160 may be increased/adjusted. 6. Disputes involving parties who actually reside in barangays of different cities or municipalities ▪ The DILG shall provide for a system of granting economic or other incentives to the lupon or XPN to the XPN: Where such barangay units pangkat members who adequately demonstrate adjoin each other and the parties thereto agree to the ability to judiciously and expeditiously resolve submit their differences to amicable settlement by cases referred to them. an appropriate lupon; ▪ While in the performance of their duties, the lupon 7. Such other classes of disputes which the President or pangkat members, whether in public or private may determine in the interest of Justice or upon employment, shall be deemed to be on official the recommendation of the Secretary of Justice. time, and shall not suffer from any diminution in compensation or allowance from said employment 8. Where one of the parties is a corporation. by reason thereof. 9. Where the dispute involves agrarian reform, labor LEGAL ADVICE ON MATTERS INVOLVING disputes, and violence against women and their QUESTIONS OF LAW (SEC. 407) children. The provincial, city legal officer or prosecutor or the NOTE: The court in which non-criminal cases not falling municipal legal officer shall render legal advice on within the authority of the lupon under this Code are matters involving questions of law to the punong filed may, at any time before trial motu propio refer the barangay or any lupon or pangkat member whenever case to the lupon concerned for amicable settlement. necessary in the exercise of his functions in the administration of the katarungang pambarangay. Cases Under Katarungang Pambarangay SUBJECT MATTER FOR AMMICABLE SETTLEMENT 1. Unlawful Use of Means of Publication and Unlawful (SEC. 408) Utterances (Art. 154) 2. Alarms and Scandals (Art. 155) GR: The lupon of each barangay shall have authority to 3. Using False Certificates (Art. 175) bring together the parties actually residing in the same 4. Using Fictitious Names and Concealing True city or municipality for amicable settlement of all Names (Art. 178) disputes. 5. Illegal Use of Uniforms and Insignias (Art. 179) 6. Physical Injuries Inflicted in a Tumultuous Affray XPNs: (Art. 252) 7. Giving Assistance to Consummated Suicide (Art. 1. Where one party is the government, or any 253) subdivision or instrumentality thereof; 8. Responsibility of Participants in a Duel if Only Physical Injuries Are Inflicted or No Physical Injuries 2. Where one party is a public officer or employee, Have Been Inflicted (Art. 260) and the dispute relates to the performance of his 9. Less Serious Physical Injuries (Art. 265) official functions; 10. Slight Physical Injuries and Maltreatment (Art. 266) 11. Unlawful Arrest (Art. 269) 3. Offenses punishable by: 12. Inducing a Minor to Abandon His/Her Home (Art. 271) a. Imprisonment exceeding one 1 year or; 13. Abandonment of a Person in Danger and b. Fine exceeding P5,000. Abandonment of One’s Own Victim (Art. 275) 14. Abandoning a Minor (A Child Under Seven 4. Offenses where there is no private offended party; Years Old) (Art. 276) Reviewer by S.K.A. Francisco | 5  Alternative Dispute Resolution 15. Abandonment of a Minor by Persons Entrusted a. Between persons Lupon of that barangay With His/Her Custody; Indifference of Parents (Art. residing in the 277) same barangay 16. Qualified Trespass to Dwelling (Without the Use of Violence and Intimidation) (Art. 280) b. Between residents In the barangay where the 17. Other Forms of Trespass (Art. 281) of different respondent or any of the 18. Light Threats (Art. 283) barangays within respondents actually 19. Other Light Threats (Art. 285) the same city or resides, at the election of 20. Grave Coercion (Art. 286) municipality the complainant. 21. Light Coercion (Art. 287) c. Involving real In the barangay where the 22. Other Similar Coercions (Compulsory Purchase of property or any real property or the larger Merchandise and Payment of Wages by Means of interest therein portion thereof is situated. Tokens) (Art. 288) d. Arising at the In the barangay where such 23. Formation, Maintenance, and Prohibition of workplace where workplace or institution is Combination of Capital or Labor Through Violence the contending located. or Threats (Art. 289) parties are 24. Discovering Secrets Through Seizure and employed or at the Correspondence (Art. 290) institution where 25. Discovering Secrets Through Seizure and such parties are Correspondence (Art. 290) enrolled for study 26. Theft (If the Value of the Property Stolen Does Not Exceed P50.00) (Art. 309) Objections to Venue: 27. Qualified Theft (If the Amount Does Not Exceed P500) (Art. 310) ▪ Shall be raised in the mediation proceedings 28. Occupation of Real Property or Usurpation of Real before the PB; otherwise, the same shall be Rights in Property (Art. 312) deemed WAIVED. 29. Altering Boundaries or Landmarks (Art. 313) 30. Swindling or Estafa (If the Amount Does Not ▪ Any legal question which may confront the punong Exceed P200.00) (Art. 315) barangay in resolving objections to venue herein 31. Other Forms of Swindling (Art. 316) referred to may be submitted to the Secretary of 32. Swindling a Minor (Art. 317) Justice, or his duly designated representative, 33. Other Deceits (Art. 318) whose ruling thereon shall be binding. 34. Removal, Sale, or Pledge of Mortgaged Property (Art. 319) PROCEDURE FOR AMICABLE SETTELEMENT (SEC. 35. Special Cases of Malicious Mischief (If the Value of 410) the Damaged Property Does Not Exceed P1,000.00) (Art. 328) Initiating the Complaint 36. Other Mischiefs (If the Value of the Damaged Property Does Not Exceed P1,000.00) (Art. 329) ▪ Who may initiate proceeding? Upon payment of 37. Simple Seduction (Art. 338) the appropriate filing fee, any individual who has a 38. Acts of Lasciviousness With the Consent of the cause of action against another individual involving Offended Party (Art. 339) any matter within the authority of the lupon may 39. Threatening to Publish and Offering to Prevent complain. Such Publication for Compensation (Art. 356) 40. Prohibiting Publication of Acts Referred to in the ▪ How to file? File the complaint orally or in writing Course of Official Proceedings (Art. 357) to the Lupon Chairman of the barangay. 41. Incriminating Innocent Persons (Art. 363) 42. Intriguing Against Honor (Art. 364) Mediation by the Lupon Chairman 43. Issuing Checks Without Sufficient Funds (BP 22) 44. Fencing of Stolen Properties if the Property ▪ Upon receipt of the complaint, the lupon chairman Involved Is Not More Than P50.00 (PD 1612) shall within the next working day summon the respondent(s), with notice to the complainant(s) for VENUE (SEC. 409) them and their witnesses to appear before him for a mediation of their conflicting interests. DISPUTE VENUE Reviewer by S.K.A. Francisco | 6  Alternative Dispute Resolution ▪ Mediation period: The Chairman attempts to constitution of the pangkat. mediate the dispute for up to fifteen (15) days from the first meeting of the parties before him. ▪ If a party moves to disqualify any member of the pangkat for the reasons mentioned above, the ▪ What if he fails in his mediation effort? If matter shall be resolved by the affirmative vote of mediation fails, the Chairman shall forthwith set a the majority of the pangkat whose decision shall be date for the constitution of the pangkat in final. Should disqualification be decided upon, the accordance with the provisions of this Chapter. resulting vacancy shall be filled as herein provided for. Suspension of Prescriptive Period Period to Arrive at a Settlement ▪ While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses GR: The pangkat shall arrive at a settlement or and cause of action under existing laws shall be resolution of the dispute within 15 days from the day it interrupted upon filing the complaint with the convenes in accordance with this section. punong barangay. XPN: Extendible for another period at the discretion of ▪ The prescriptive periods shall resume upon receipt the pangkat, which shall not exceed 15 days, except in by the complainant of the: clearly meritorious cases. 1. Complainant; or Form of Settlement (Section 411) 2. Certificate of repudiation; or All amicable settlements shall be in: 1. Writing; 3. Certification to file action issued by the lupon or pangkat secretary. 2. Language or dialect known to the parties; PROVIDED, however, That such interruption shall 3. Signed by the parties; and not exceed 60 days from the filing of the complaint with the punong barangay. 4. Attested by the lupon chairman or the pangkat Constitution and Hearing by Pangkat chairman, as the case may be. ▪ The Pangkat, a three-member conciliation panel, is NOTE: When the parties to the dispute do not use the constituted by the Lupon Chairman and shall same language or dialect, the settlement shall be convene not later than 3 days from its constitution, written in the language known to them. on the day and hour set by the lupon chairman to: CONCILIATION (SEC. 412) 1. Hear both parties and their witnesses; Pre-condition to Filing of Complaint in Court 2. Simplify issues; and GR: No complaint, petition, action, or proceeding involving any matter within the authority of the lupon 3. Explore all possibilities for amicable shall be filed or instituted directly in court or any other settlement. government office for adjudication. ▪ The pangkat may issue summons for the personal XPNs: appearance of parties and witnesses before it. 1. There has been a confrontation between the ▪ Grounds for Disqualification: parties before the lupon chairman or the pangkat; 1. Relationship; 2. No conciliation or settlement has been reached 2. Bias, interest; or as certified by the lupon secretary or pangkat secretary as attested to by the lupon or pangkat 3. Any other similar grounds discovered after the chairman; or Reviewer by S.K.A. Francisco | 7  Alternative Dispute Resolution 3. The settlement has been repudiated by the AQUINO v. AURE parties thereto. G.R. No. 153567, February 18, 2008 | Chico-Nazario, J. Here, the only issue to be resolved is whether non- #CLASSNOTES recourse to the barangay conciliation process is a jurisdictional flaw that warrants the dismissal of the AGBAYANI v. COURT OF APPEALS ejectment suit filed with the MeTC. Aquino posits G.R. No. 183623, June 25, 2012 | Reyes, J. that failure to resort to barangay conciliation makes Here, the CA held that the DOJ committed no grave the action for ejectment premature and, hence, abuse of discretion in causing the dismissal thereof dismissible. on the ground of non-compliance with the provisions of the Local Government Code of 1991, We do not agree. on the Katarungang Pambarangay conciliation procedure. It is true that the precise technical effect of failure to comply with the requirement of Section 412 of Undeniably, both petitioner Agbayani and the Local Government Code on barangay respondent Genabe are residents of Las Piñas City conciliation (previously contained in Section 5 of and both work at the RTC, and the incident which is Presidential Decree No. 1508) is much the same the subject matter of the case happened in their effect produced by non-exhaustion of workplace. Agbayani’s complaint should have administrative remedies -- the complaint becomes undergone the mandatory barangay conciliation for afflicted with the vice of pre-maturity; and the possible amicable settlement with respondent controversy there alleged is not ripe for judicial Genabe, pursuant to Sections 408 and 409 of determination. The complaint becomes vulnerable Republic Act No. 7160 or the Local Government Code to a motion to dismiss. Nevertheless, the conciliation of 1991 which provide: process is not a jurisdictional requirement, so that non-compliance therewith cannot affect the Sec. 408. Subject Matter for Amicable Settlement; jurisdiction which the court has otherwise acquired Exception thereto. – The lupon of each barangay shall over the subject matter or over the person of the have authority to bring together the parties actually defendant. residing in the same city or municipality for amicable settlement of all disputes, except: x x x As enunciated in the landmark case of Royales v. Intermediate Appellate Court: Sec. 409. Venue. x x x (d) Those arising at the workplace where the contending parties are employed or x x x shall Ordinarily, non-compliance with the condition be brought in the barangay where such workplace or precedent prescribed by P.D. 1508 could affect the institution is located. sufficiency of the plaintiff's cause of action and make his complaint vulnerable to dismissal on ground of lack of The compulsory process of arbitration is a pre- cause of action or prematurity; but the same would not condition for the filing of the complaint in court. prevent a court of competent jurisdiction from Where the complaint (a) did not state that it is one exercising its power of adjudication over the case before of excepted cases, or (b) it did not allege prior it, where the defendants, as in this case, failed to object availment of said conciliation process, or (c) did not to such exercise of jurisdiction in their answer and even have a certification that no conciliation had been during the entire proceedings a quo. reached by the parties, the case should be dismissed. While petitioners could have prevented the trial Here, petitioner Agbayani failed to show that the instant court from exercising jurisdiction over the case by case is not one of the exceptions enumerated above. seasonably taking exception thereto, they instead invoked the very same jurisdiction by filing an #CLASSNOTES answer and seeking affirmative relief from it. What is more, they participated in the trial of the case by Atty. Babi: Does conciliation and mediation is cross-examining respondent Planas. Upon this mandatory and jurisdictional? NO. It is mandatory but premise, petitioners cannot now be allowed not jurisdictional. belatedly to adopt an inconsistent posture by attacking the jurisdiction of the court to which they Legal Bases? Aquino v. Aure. had submitted themselves voluntarily. x x x (Emphasis supplied.) Reviewer by S.K.A. Francisco | 8  Alternative Dispute Resolution In the case at bar, we similarly find that Aquino cannot ▪ The agreement to arbitrate may be repudiated be allowed to attack the jurisdiction of the MeTC over within 5 days from the date thereof for the same Civil Case No. 17450 after having submitted herself grounds and in accordance with the procedure voluntarily thereto. We have scrupulously examined hereinafter prescribed. Aquino’s Answer before the MeTC in Civil Case No. 17450 and there is utter lack of any objection on her Difference from Mediation or Conciliation part to any deficiency in the complaint which could oust the MeTC of its jurisdcition. In mediation or conciliation, the Lupon Chairperson or Pangkat simply assists the parties in defining issues and Moreover, the Court takes note that the defendant exploring solutions to develop a mutually accepted [Aquino] herself did not raise in defense the settlement. In arbitration, the Lupon Chairperson or aforesaid lack of conciliation proceedings in her Pangkay is given the power to render decisions of the answer, which raises the exclusive affirmative dispute with a prior agreement of the parties to be defense of simulation. By this acquiescence, bound by it. The parties shall present evidence as to the defendant [Aquino] is deemed to have waived such facts and merits of the case to the arbitrator. objection. As held in a case of similar circumstances, the failure of a defendant [Aquino] in an ejectment suit On the basis of these facts, the arbitrator makes a to specifically allege the fact that there was no decision, on what he/she believes to be fair or just. In compliance with the barangay conciliation procedure this case, the arbitrator must be neutral and impartial in constitutes a waiver of that defense. x x making the decision which must also be suitable to the disputing parities. Where Parties May Go Directly to Court? Issuance of Arbitration Award The parties may go directly to court in the following instances: ▪ The arbitration award shall be made after the lapse of the period for repudiation and within 10 days 1. Where the accused is under detention; thereafter. 2. Where a person has otherwise been deprived of ▪ Language of Award: personal liberty calling for habeas corpus proceedings; a. Same language → If both parties use the same language or dialect, the award shall be written 3. Where actions are coupled with provisional in that language. remedies such as preliminary injunction, attachment, delivery of personal property and b. Different language → If parties use different support pendente lite; and languages or dialects, the award shall be written in a language or dialect known to the 4. Where the action may otherwise be barred by the parties. statute of limitations. PROCEEDINGS OPEN TO THE PUBLIC (SEC. 414) Conciliation Among members of Indigenous GR: All proceedings for settlement shall be public and Cultural Communities informal. The customs and traditions of indigenous cultural XPN: The lupon chairman or the pangkat chairman, as communities shall be applied in settling disputes the case may be, may motu proprio or upon request of between members of the cultural communities. a party, exclude the public from the proceedings in the ARBITRATION (SEC. 413) interest of privacy, decency, or public morals. Agreement to Arbitrate APPEARANCE OF PARTIES IN PERSON (SEC. 415) ▪ When to agree? The parties may, at any stage of GR: In all katarungang pambarangay proceedings, the the proceedings, agree in writing that they shall parties must appear in person without the assistance of abide by the arbitration award of the lupon counsel or representative. chairman or the pangkat. XPNs: Minors and incompetents who may be assisted Reviewer by S.K.A. Francisco | 9  Alternative Dispute Resolution by their next-of-kin who are not lawyers. 1. Specific performance + damages (Art. 1170, NCC) EFFECT OF AMICABLE SETTLEMENT AND 2. Recission of contract/ cancellation + damages ARBITRATION AWARD (SEC. 416) (Art. 1170, NCC) GR: The amicable settlement and arbitration award shall 3. Damages – breach of contract have the force and effect of a final judgment of a court upon the expiration of 10 days from the date thereof. TRANSMITTAL OF SETTLEMENT AND ARBITRATION (SEC. 419) XPNS: Award to the Court 1. Repudiation of the settlement has been made; or ▪ The secretary of the lupon shall transmit the (Section 418) Any party to the dispute settlement or the arbitration award to the may, within 10 days from the date of the appropriate city or municipal court within 5 days settlement, repudiate the same by filing from the date of the award or from the lapse of the with the lupon chairman a statement to ten-day period repudiating the settlement; and that effect sworn to before him, where the consent is vitiated by fraud, violence, or ▪ Shall furnish copies thereof to each of the parties intimidation. to the settlement and the lupon chairman. Such repudiation shall be sufficient basis POWER TO ADMINISTER OATHS (SEC. 420) for the issuance of the certification for filing a complaint as hereinabove provided. The punong barangay, as chairman of the lupong tagapamayapa, and the members of the pangkat are 2. A petition to nullify the award has been filed hereby authorized to administer oaths in connection before the proper city or municipal court. with any matter relating to all proceedings in the implementation of the katarungang pambarangay. NOTE: This provision shall not apply to court cases settled by the lupon under the last paragraph of Section ADMINISTRATION; RULES AND REGULATIONS 408 of this Code, in which case the compromise or the (SEC. 421) pangkat chairman shall be submitted to the court and upon approval thereof, have the force and effect of a ▪ The city or municipal mayor, as the case may be, judgment of said court shall see to the efficient and effective implementation and administration of the EXECUTION (SEC. 417) katarungang pambarangay. The amicable settlement or arbitration award may be ▪ The Secretary of Justice shall promulgate the rules enforced by: and regulations necessary to implement this Chapter. 1. Execution by the lupon within 6 months from the date of the settlement. APPROPRIATIONS (SEC. 422) 2. Action in the appropriate city or municipal court, Such amount as may be necessary for the effective after the lapse of such time. implementation of the katarungang pambarangay shall be provided for in the annual budget of the city or #CLASSNOTES municipality concerned. Atty Babi: Execution by the Barangay: B. Revised Manual for Prosecutors, Vol. 1, 2017 Ed 1. Within 6 months – barangay/lupon 4.7.4 INITIAL ACTION BY THE INVESTIGATING PROSECTOR OF THE COMPLAINT FILED 2. After 6 months – execution by proper court of jurisdiction Within 10 days from receipt of the complaint, Remedies under OBLICON B. The prosecutor shall dismiss the complaint. Reviewer by S.K.A. Francisco | 10  Alternative Dispute Resolution ▪ Grounds for Dismissal: 3. Arts. 2028-2046, R.A. No. 386 – Civil Code of the Philippines, Title XIV, Compromises and 1. The offense charged in the complaint was Arbitrations committed outside the territorial jurisdiction of the office of the IP; 4. DOJ Circular No. 98 (s. 2009) – Implementing Rules and Regulations of the Alternative Dispute 2. At the time of the filing of the complaint, Resolution Act of 2004 the offense/s charged therein had already prescribed; 5. A.M. No. 07-11-08-SC – Special Rules of Court on Alternative Dispute Resolution [also known as the 3. Complainant is not authorized under the Special ADR Rules] provisions of pertinent laws to file the complaint; DENR v. UPCI G.R. No. 212081, February 23, 2015 | Perlas-Bernabe, J. 4. Complainant failed to submit a barangay The issue here is whether the CA erred in applying certification for offenses covered by the the provisions of the Special ADR Rules, resulting in Katarungang Pambarangay Law; the dismissal of petitioner’s special civil action for certiorari. 5. No clearance from the Department of Labor and Employment or from any The Special ADR Rules do not automatically govern the regional office thereof is attached to the arbitration proceedings itself. A pivotal feature of complaint where the complainant is an arbitration as an alternative mode of dispute employer, and the respondent is his resolution is that it is a product of party autonomy employee. or the freedom of the parties to make their own arrangements to resolve their own disputes. Thus, C. Revised Rules on Summary Procedure Rule 2.3 of the Special ADR Rules explicitly provides that "parties are free to agree on the procedure to be REFRERRAL TO LUPON (SEC. 18) followed in the conduct of arbitral proceedings. Failing such agreement, the arbitral tribunal may Cases requiring referral to Lupon for conciliation under conduct arbitration in the manner it considers the provisions of PD. 1508 where there is no showing of appropriate. compliance with such requirement, shall be dismissed without prejudice and may be revived only after such In the case at bar, the Consultancy Agreement requirement shall have been complied with. This contained an arbitration clause. Hence, respondent, provision shall not apply to criminal cases where the after it filed its complaint, moved for its referral to accused was arrested without a warrant. arbitration which was not objected to by petitioner. By its referral to arbitration, the case fell within the II. Governing Laws, Rules, Regulations coverage of the Special ADR Rules. Under Section 17. 2, Rule 17 of the CIAC Rules, no A. Basic Statutes and Rules motion for reconsideration or new trial may be sought, but any of the parties may file a motion for correction 1. RA 9285 (2004) – An Act to Institutionalize the Use of the final award. Moreover, the parties may appeal the of an Alternative Dispute Resolution System in the final award to the CA through a petition for review Philippines and to Establish the Office for under Rule 43 of the Rules of Court. Records do not Alternative Dispute Resolution, and for Other show that any of the foregoing remedies were availed Purposes [also known as the Alternative Dispute of by petitioner. Instead, it filed the May 19, 2010 Resolution Act of 2004] Motion for Reconsideration of the Arbitral Award, which was a prohibited pleading under the Section 17.2, Rule 2. RA 876 (1953) – An Act to Authorize the Making 17 of the CIAC Rules, thus rendering the same final and of Arbitration and Submission Agreements, to executory. Provide for the Appointment of Arbitrators and the Procedure for Arbitration in Civil Controversies During the confirmation proceedings, petitioners did [also known as the Arbitration Law] not oppose the RTC’s confirmation by filing a petition to vacate the Arbitral Award under Rule 11.2 (D)71 of Reviewer by S.K.A. Francisco | 11  Alternative Dispute Resolution the Special ADR Rules. Neither did it seek disputes, including conciliation, and shall enforce their reconsideration of the confirmation order in accordance mutual compliance therewith to foster industrial peace. with Rule 19.1 (h) thereof. Instead, petitioner filed only on September 10, 2012 a special civil action for certiorari NOTE: Employers and employees are encouraged to go before the CA questioning the propriety of (a) the RTC ADR under the Constitution for the purpose of Order dated September 12, 2011 granting respondent’s obtaining industrial peace. motion for issuance of a writ of execution, and (b) Order dated July 9,2012 denying its motion to quash. IV. ALTERNATIVE DISPUTE RESOLUTION SYSTEM The petition for certiorari permitted under the Special ADR Rules must be filed within a period of fifteen (15) days from notice of the judgment, order or resolution A. Process or Procedures sought to be annulled or set aside. Hence, since petitioner’s filing of its certiorari petition in CA-G.R. SP Alternative Dispute Resolution No. 126458 was made nearly two months after its receipt of the RTC’s Order dated July 9, 2012,or on Any process or procedure used to resolve a dispute or September 10, 2012,81 said petition was clearly controversy, other than by adjudication of a presiding dismissible. judge of a court or an officer of a government agency in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, III. PARTY AUTONOMY mediation, conciliation, early neutral evaluation, mini- trial, or any combination thereof. [Sec. 3(a), RA 9285] A. Party Autonomy; Definition Q: In what ways ADR is implemented? The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem A: convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. 1. Arbitration – A voluntary dispute resolution [Art. 1306, NCC] process in which one or more arbitrators, appointed in accordance with the agreement of B. Declaration of Policy (RA 9285) the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an award. It is hereby declared the policy of the State: [Sec. 3(d), RA 9285] 1. To actively promote party autonomy in the 2. Mediation – A voluntary process in which a resolution of disputes or the freedom of the party mediator, selected by the disputing parties, to make their own arrangements to resolve their facilitates communication and negotiation, and disputes. assist the parties in reaching a voluntary agreement regarding a dispute. [Sec. 3(n), RA 2. Shall encourage and actively promote the use of 9285] ADR as an important means to achieve speedy and impartial justice and declog court dockets. 3. Early Neutral Evaluation – An ADR process wherein parties and their lawyers are brought 3. Shall provide means for the use of ADR as an together early in a pre-trial phase to present efficient tool and an alternative procedure for the summaries of their cases and receive a resolution of appropriate cases. nonbinding assessment by an experienced, neutral person, with expertise in the subject in the 4. Shall enlist active private sector participation in the substance of the dispute. [Sec. 3(q), RA 9285] settlement of disputes through ADR. [Sec. 2, RA 9285] 4. Mini-Trial – A structured dispute resolution method in which the merits of a case are argued Q: What is the Constitutional basis of ADR? before a panel comprising senior decision makers with or without the presence of a neutral third A: Article 13. The State shall promote the principle of person after which the parties seek a negotiated shared responsibility between workers and employers settlement. [Sec. 3(u), RA 9285] and the preferential use of voluntary modes in settling Reviewer by S.K.A. Francisco | 12  Alternative Dispute Resolution 5. Mediation-Arbitration or Med-Arb – A step 2. Mini-trial dispute resolution process involving both mediation and arbitration. [Sec. 3(t), RA 9285] 3. Mediation-arbitration CHAPTER 7: OTHER ADR FORMS NOTE: Submission is made to the court where the case is pending. [Rule 1, Art. 7.5, DOJ Circular No. 98] Scope of Application and General Principles Neutral or Early Neutral Evaluation (Rule 2) GR: This Chapter shall apply and supply the deficiency in the agreement of the parties for matters involving the GR: The neutral or early neutral evaluation shall be following forms of ADR: governed by the rules and procedure agreed upon by the parties. a. early neutral evaluation; b. neutral evaluation; XPN: In the absence of said agreement, this Rule shall c. mini-trial; apply. d. mediation-arbitration; e. a combination thereof; or RULES: f. any other ADR form. If the parties cannot agree on, or fail to provide for: XPN: Except as otherwise agreed. [Rule 1, Art. 7.1, DOJ Circular No. 98] i. The desired qualification of the neutral third person; Applicability of the Rules on Mediation ii. The manner of his/her selection; If the other ADR form/process is more akin to arbitration (neutral third person merely assists parties in reaching a iii. The appointing authority (not IBP) who shall voluntary agreement): have the authority to make the appointment of a neutral third person; or → Chapter 3 governing Mediation shall apply suppletorily. iv. If despite agreement on the foregoing and the lapse of the period of time stipulated for the → Application is to the extent that it does not conflict appointment, the parties are unable to select a with the parties' agreement or this Chapter. [Rule neutral third person or appointing authority, 1, Art. 7.2, DOJ Circular No. 98] Then, either party may request the default Referral appointing authority, as defined under paragraph C1 of Article (Definition of Terms), to make the If a dispute is already before a court, either party may: appointment taking into consideration the nature of the dispute and the experience and expertise of 1. File a motion for the court to refer the parties to the neutral third person. other ADR forms/processes before and during pre- trial. ▪ The parties shall submit and exchange position papers containing the issues and statement of the 2. Jointly move for suspension/dismissal of the action relevant facts and appending supporting at any time during court proceedings, even after documents and affidavits of witnesses to assist the pre-trial, pursuant to Article 2030 of the Civil Code neutral third person in evaluating or assessing the of the Philippines. [Rule 1, Art. 7.4, DOJ Circular No. dispute. 98] Submission of Settlement Agreement ▪ The neutral third person may request either party to address additional issues that he/she may Either party may submit any settlement agreement consider necessary for a complete resulting from: evaluation/assessment of the dispute. 1. Neutral or early neutral evaluation ▪ Evaluation Process: Reviewer by S.K.A. Francisco | 13  Alternative Dispute Resolution ▪ A mini-trial shall be conducted either as: 1. The neutral third person may structure the evaluation process in any manner he/she i. a separate dispute resolution process; or deems appropriate. In the course thereof, the neutral third person may: ii. a continuation of mediation, neutral or early neutral evaluation or any other ADR i. identify areas of agreement, process. ii. clarify the issues, iii. define those that are contentious, and ▪ The parties may agree that a mini-trial be iv. encourage the parties to agree on a conducted with or without the presence and definition of issues and stipulate on facts participation of a neutral third person. or admit the genuineness and due execution of documents. ▪ If a neutral third person is agreed upon and chosen, he/she shall preside over the minitrial. 2. The neutral third person shall issue a written evaluation or assessment within 30 days from o The parties may agree to appoint one or the conclusion of the evaluation process. The more (but equal in number per party) opinion shall be non-binding and shall set senior executive/s, on its behalf, to sit as forth how the neutral third person would have mini-trial panel members. ruled had the matter been subject to a binding process. The evaluation or assessment shall o The senior executive/s chosen to sit as indicate the: mini-trial panel members must be duly authorized to negotiate and settle the i. relative strengths and weakness of the dispute with the other party. positions of the parties, ii. the basis for the evaluation or o The appointment of a mini-trial panel assessment, and member/s shall be communicated to the iii. an estimate, when feasible, of the other party. amount for which a party may be liable to the other if the dispute were made o This appointment shall constitute a subject to a binding process. representation to the other party that the mini-trial panel member/s has/have the ▪ There shall be no ex-parte communication authority to enter into a settlement between the neutral third person and any party to agreement binding upon the principal dispute without the consent of all parties. without any further action or ratification by the latter. ▪ All papers and written presentations communicated to the neutral third person, ▪ Each party shall submit a brief executive including any paper prepared by a party to be summary of the dispute in sufficient copies as communicated to the neutral third person or to the to provide one copy to each mini-trial panel other party as part of the dispute resolution member and to the adverse party. The summary process, and the neutral third person’s written non- shall identify the specific factual or legal issue binding assessment or evaluation, shall be treated or issues. Each party may attach to the summary as confidential. [Rule 2, Art. 7.6, DOJ Circular No. a more exhaustive recital of the facts of the 98] dispute and the applicable law and jurisprudence. Mini-Trial (Rule 3) ▪ Mini-Trial Proceedings: GR: A mini-trial shall be governed by the rules and procedure agreed upon by the parties. 1. At the date time and place agreed upon, the parties shall appear before the mini- XPN: In the absence of said agreement, this Rule shall trial panel members. apply. 2. The lawyer of each party and/or authorized RULES: representative shall present his/her case Reviewer by S.K.A. Francisco | 14  Alternative Dispute Resolution starting with the claimant followed by the will proceed as a new as a new dispute respondent. resolution process, and shall; 3. The lawyer and/or representative of each 2. Before entering upon his/her duties, party may thereafter offer rebuttal or sur- executive the appropriate oath or affirmation rebuttal arguments. of office as arbitrator in accordance with these Rules. [Rule 4, Art. 7.8, DOJ Circular No. 4. Unless the parties agree on a shorter or 98] longer period, the presentation-in-chief shall be made, without interruption, for 1 Cost and Fees hour and the rebuttal or sur-rebuttal shall be 30 minutes. GR: Before entering his/her duties as ADR Provider , he/she shall agree with the parties on the cost of the 5. At the end of each presentation, rebuttal or ADR procedure, the fees to be paid and manner of sur-rebuttal, the mini-trial panel member/s payment for his her services. may ask clarificatory questions from any of the presentors. XPN: In the absence of such agreement, the fees for the services of the ADR provider/practitioner shall be 6. After the mini-trial, the mini-trial panel determined as follows: members shall negotiate a settlement of 1. If the ADR procedure is conducted under the the dispute by themselves. rules and/or administered by an institution NOTE: In cases where a neutral third person is regularly providing ADR services to the general appointed, the neutral third person shall assist the public, the fees of the ADR professional shall be proceedings shall be governed by Chapter 3 of determined in accordance with schedule of fees Mediation. [Rule 3, Art. 7.7, DOJ Circular No. 98] approved by such institution, if any; Mediation-Arbitration (Rule 4) 2. In ad hoc ADR, the fees shall be determined in accordance with the schedule of fees approved GR: A Mediation-Arbitration shall be governed by the by the OADR; rules and procedure agreed upon by the parties. 3. In the absence of a schedule of fees approved XPN: In the absence of said agreement, Chapter 5 on by the ADR institution or by the OADR, the fees Mediation shall first apply and thereafter, Chapter 5 on shall be determined by the ADR institution or Domestic Arbitration by the OADR, as the case may be, and complexity of the process, the amount in RULES: dispute and the professional standing of the ADR professional. ▪ Mediator Acting as Arbitrator NOTE: A contingency fee arrangement shall not be GR: No Person shall having been engage and allowed. The amount that may be allowed to an ADR having acted as mediator of a dispute between professional may not be made dependent upon the the parties, following a failed mediation, act as success of his/her effort in helping the parties to settle arbitrator of the same dispute. their dispute. [Rule 5, Art. 7.9, DOJ Circular No. 98] XPN: Unless the parties, in a written agreement, B. Exceptions to the Application of the ADR Law expressly authorize the mediator to hear and decide the case as an arbitrator. The provisions of the ADR law shall not apply to resolution or settlement of the following: ▪ Disclosure and Oath a. Labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor Code of 1. The mediator who becomes an arbitrator the Philippines, as amended and its IRR; pursuant to this Rule shall make an appropriate disclosure to the parties as if the b. Civil status of persons; arbitration proceeding had commenced and Reviewer by S.K.A. Francisco | 15  Alternative Dispute Resolution c. The validity of a marriage; 2. Right of attorney to compromise for his client The Rules of Court require a ‘special authority’ d. Any ground for legal separation; before an attorney can compromise on behalf of his client. The authority may be in writing or maybe e. The jurisdiction of courts; oral. f. Future legitime; Suspension of Civil Actions g. Criminal liability; and Every civil action or proceeding shall be suspended: h. Those which by law cannot be compromised. 1. If willingness to discuss a possible compromise is [Sec. 5, RA 9285] expressed by one or both parties; or No compromise upon the following questions shall be 2. If it appears that one of the parties, before the valid: commencement of the action or proceeding, offered to discuss a possible compromise but the 1. The civil status of persons; other party refused the offer. 2. The validity of a marriage or a legal separation; The duration and terms of the suspension of the civil action or proceeding and similar matters shall be 3. Any ground for legal separation; governed by such provisions of the rules of court as the Supreme Court shall promulgate. Said rules of court 4. Future support; shall likewise provide for the appointment and duties of amicable compounders. [Art. 2030, NCC] 5. The jurisdiction of courts; NOTE: The courts may mitigate the damages to be paid 6. Future legitime. [Sec. 2035, NCC] by the losing party who has shown a sincere desire for a compromise [Art. 2031, NCC] V. COMPROMISE Court Approval in Certain Compromises A. Compromises and Arbitrations (Arts. 2028-2041, The court's approval is necessary in compromises Ch. 1, Title XIV, Book IV, R.A. No. 386) entered into by: Definition 1. Guardians; A compromise is a contract whereby the parties, by 2. Parents; making reciprocal concessions, avoid a litigation or put an end to one already commenced. [Art. 2028, NCC] 3. Absentee’s representative; and Kinds of Compromise Agreement 4. Administrators or executors of decedent’s estates. [Art. 2032, NCC] 1. Judicial – puts an end to a pending litigation; and Compromise by Juridical Persons 2. Extrajudicial – which is to avoid litigation [Art. 2028, NCC] Juridical persons may compromise only in the form and with the requisites which may be necessary to alienate Art. 2029, NCC. The court shall endeavor to persuade their property [Art. 2033, NCC] the litigants in a civil case to agree upon some fair compromise. Compromise on Civil Liability from Offenses 1. Duty of the court to persuade litigants to There may be a compromise upon the civil liability compromise arising from an offense; but such compromise shall not Reason: Litigation must, if possible, be avoided or extinguish the public action for the imposition of the minimized. legal penalty [Art. 2034, NCC] Reviewer by S.K.A. Francisco | 16  Alternative Dispute Resolution Questions where Compromise shall NOT be Valid contrary to law and public policy, even if said contract was executed and submitted for approval Refer to the discussion in page 15 of this material. by both parties. UY v. CHUA A judgment void for want of jurisdiction is no judgment G.R. No. 183965, September 18, 2009 | Chico- at all. It cannot be the source of any right or the creator Nazareno, J. of any obligation. All acts performed pursuant to it and In this case, the petitioner filed a petition for a all claims emanating from it have no legal effect. Hence, decree of illegitimate filiation against respondent. it can never become final, and any writ of execution Prior to the case, the petitioner had filed a similar based on it is void. petition, which resulted in a compromise agreement in which the petitioner acknowledged no blood In sum, Special Proceeding No. 12562-CEB before relationship between her and respondent. In RTC-Branch 24 is not barred by res judicata, since exchange, respondent agreed to pay her ₱2 million. RTC-Branch 9 had no jurisdiction to approve, in its The RTC dismissed the petition on the ground of res Decision dated 21 February 2000 in Special Proceeding judicata. The earlier compromise agreement, No. 8830-CEB, petitioner and respondent’s Compromise approved by a co-equal court, was final and Agreement, which was contrary to law and public policy; executory, barring further claims on the same issue. and, consequently, the Decision dated 21 February 2000 in Special Proceeding No. 8830-CEB, being null and void The Compromise Agreement between petitioner and for having been rendered by RTC-Branch 9 without respondent, executed on 18 February 2000 and jurisdiction, could not have attained finality or been approved by RTC-Branch 9 in its Decision dated 21 considered a judgment on the merits. February 2000 in Special Proceeding No. 8830-CEB, obviously intended to settle the question of petitioner’s What Comprises Compromise status and filiation, i.e., whether she is an illegitimate child of respondent. In exchange for petitioner and her A compromise comprises: brother Allan acknowledging that they are not the children of respondent, respondent would pay 1. Only those objects which are definitely stated petitioner and Allan ₱2,000,000.00 each. Although therein, or unmentioned, it was a necessary consequence of said Compromise Agreement that petitioner also waived 2. Which by necessary implication from its terms away her rights to future support and future legitime as should be deemed to have been included in the an illegitimate child of respondent. Evidently, the same. [Art. 2036(1), NCC] Compromise Agreement dated 18 February 2000 between petitioner and respondent is covered by the NOTE: A general renunciation of rights is understood to prohibition under Article 2035 of the Civil Code. refer only to those that are connected with the dispute which was the subject of the compromise. [Art. 2036(1), It is settled, then, in law and jurisprudence, that the NCC] status and filiation of a child cannot be compromised. Public policy demands that there be Effect of Compromise upon the Parties no compromise on the status and filiation of a child. A compromise has upon the parties the effect and Paternity and filiation or the lack of the same, is a authority of res judicata; but there shall be no execution relationship that must be judicially established, and except in compliance with a judicial compromise. [Art. it is for the Court to declare its existence or absence. It cannot be left to the will or agreement of the 2037, NCC] parties. Compromise When Voidable Being contrary to law and public policy, the A compromise in which there is mistake, fraud, violence, Compromise Agreement dated 18 February 2000 intimidation, undue influence, or falsity of documents, is between petitioner and respondent is void ab initio subject to the provisions of article 1330 of this Code. and vests no rights and creates no obligations. It [Art. 2038(1), NCC] produces no legal effect at all. NOTE: A contract where consent is given through RTC-Branch 9 had no authority to approve and give mistake, violence, intimidation, undue influence, or effect to a Compromise Agreement that was fraud is voidable. VITIATED CONSENT IS VOIDABLE. Reviewer by S.K.A. Francisco | 17  Alternative Dispute Resolution [Art. 1330, NCC] You can enter a compromise contract as long as there is no final judgment. Dahil mas matimbang ang However, one of parties cannot set up a mistake of fact agreement of the parties kaysa sa decision ng court. as against the other if the latter, by virtue of the compromise, has withdrawn from a litigation already If nag-file ng Motion for Reconsideration, pwede pa rin commenced. [Art. 2038(2), NCC] mag-enter sa compromise agreement dahil wala pang finality ng judgment. Where there is Discovery of Documents Referring to One or More but Not to All of the Questions Settled VI. ARBITRATION Shall Not Itself be a Cause for Annulment or Recission of the Compromise A. Mediation, Conciliation and Arbitration GR: When the parties compromise generally on all Distinctions differences which they might have with each other, the discovery of documents referring to one or more but #CLASSNOTES not to all of the questions settled shall not itself be a cause for annulment or rescission of the compromise. Atty. Babi Table of Comparison [Art. 2039(1), NCC] MEDIATION/ ARBITRATION XPN: Unless said documents have been concealed by CONCILIATION one of the parties. As to definition A voluntary process in A voluntary dispute NOTE: The compromise may be annulled or rescinded which a mediator, resolution process in if it refers only to one thing to which one of the parties selected by the disputing which one or more has no right, as shown by the newly-discovered parties, facilitates arbitrators, appointed in documents. [Art. 2039(2), NCC] communication and accordance with the negotiation, and assist agreement of the parties, When Compromise should be Agreed Upon or may the parties in reaching a or rules promulgated be Rescinded voluntary agreement pursuant to this Act, regarding a dispute. resolve a dispute by 1. Compromise should be agreed upon – If after a rendering an award. litigation has been decided by a final judgment, As to purpose To come up to amicable To settle dispute by 2. Compromise may be rescinded – When both settlement. having an arbitral award. parties being unaware of the existence of the final As to 3 person rd judgment, the compromise may be rescinded. Mediation – Mediator Appointed arbitrator [Art. 2040, NCC] Conciliation – Conciliator NOTE: Ignorance of a judgment which may be revoked As to purpose of 3rd person or set aside is not a valid ground for attacking a He is the one who Determine the facts and compromise. [Art. 2040, NCC] facilitates and assists law applicable to the parties to come up with case. Effect of Failure or Refusal to Abide by the the agreement. Compromise As to who will render the arbitral award? The parties themselves Arbitrator If one of the parties fails or refuses to abide by the through the principle of compromise, the other party may either enforce the party autonomy. compromise or regard it as rescinded and insist upon his original demand. [Art. 2041, NCC] B. Arts. 2042-2046, Ch. 2, Title XIV, Book IV, R.A. No. 386 #CLASSNOTES CIVIL CODE OF THE PHILIPPINES Atty. Babi: If the new contract cannot be enforced, what will be the remedy? Go back to the original ARTICLE 2042. The same persons who may enter into a contract. compromise may submit their controversies to one or more arbitrators for decision. Reviewer by S.K.A. Francisco | 18  Alternative Dispute Resolution ARTICLE 2043. The provisions of the preceding Chapter arbitration that is not international as defined in Article upon compromises shall also be applicable to (3) of the Model Law. arbitrations. When is Arbitration International? ARTICLE 2044. Any stipulation that the arbitrators’ award or decision shall be final, is valid, without An arbitration is international if: prejudice to articles 2038, 2039, and 2040. 1. The parties to an arbitration agreement have, at ARTICLE 2045. Any clause giving one of the parties the time of the conclusion of that agreement, power to choose more arbitrators than the other is void their places of business in different states; or and of no effect. 2. One of the following places is situated outside ARTICLE 2046. The appointment of arbitrators and the the State in which the parties have their places of procedure for arbitration shall be governed by the business: provisions of such rules of court as the Supreme Court shall promulgate. a. The place of arbitration if determined in, or pursuant to, the arbitration agreement; #CLASSNOTES b. Any place where a substantial part of the Qualifications of Arbitrators obligations of the commercial relationship is to be performed or the place with which the Any person appointed to serve as an arbitrator must be: subject-matter of the dispute is most closely connected; or 1. Of legal age; 3. The parties have expressly agreed that the 2. In full-enjoyment of his civil rights; and subject-matter of the arbitration agreement relates to more than one country. [UNCITRAL 3. Know how to read and write. Model Law, Article 1.3] 4. Not be related by blood or by marriage within NOTE: International commercial arbitration shall be sixth degree to either party; governed by the Model Law on International Commercial Arbitration (the “Model Law”) adopted by 5. Have or have had no financial, fiduciary, or other the United Nations Commission on International Trade interest in the controversy or cause to be decided Law on 21 June 1985 (UN Document A/40/a7) and or in result of the proceeding; and recommended for enactment by the General Assembly in Resolution No. 40/72 approved on 11 December 6. Have no personal basis which might prejudice the 1985. right of any party to a fair and impartial award. ADDITIONAL NOTE: In international arbitration C. United Nations Commission on International conducted in the Philippines, a party may be Trade Law (UNCITRAL) Model Law on represented by any person of his choice: Provided, That International Commercial Arbitration, 21 June such representative, unless admitted to the practice of 1985 (Model Law) law in the Philippines, shall not be authorized to appear as counsel in any Philippine court, or any other quasi- Domestic v. International Arbitration judicial body whether or not such appearance is in relation to the arbitration in which he appears. [Sec. 22, 1. Domestic – not International (RA 9285) RA 9285] 2. International – Article 1.3 (UNCITRAL Model Law) D. Lazatin, V. P. and Prodigalidad, P. T., Arbitration What is Domestic Arbitration? in the Philippines RA 9285, Sec. 32. Law Governing Domestic Arbitration. History of Arbitration in the Philippines - Domestic arbitration shall continue to be governed by Republic Act No. 876, otherwise known as "The 1. Early Recognition and Common Law Arbitration Law" as amended by this Chapter. The term