PHILIPPINES Law and Practice Contributed by: Ricardo Ma P. G. Ongkiko, John Christian Joy A. Regalado and Ma Patricia B. Paz-Jacoba, SyCip Salazar Hernandez & Gatmaitan
5.4 Standard of Judicial Review for Jurisdiction/Admissibility
tunity to rule upon issues of jurisdiction and compe - tence. Unless the court concludes (on no more than a prima facie basis) that the arbitration agreement is null and void, inoperative or incapable of being performed, the court must suspend the action before it and refer the parties to arbitration pursuant to the arbitration agree - ment. 5.2 Circumstances for Court Intervention The courts may address the issue of an arbitral tribu - nal’s jurisdiction: • immediately after the arbitral tribunal makes a pre - liminary determination of such issue; or • at the enforcement stage, when the party against which an award is issued contests the award on the ground of the arbitral tribunal’s lack of jurisdic - tion. Before the commencement of arbitration, the court action is limited to a prima facie determination of the existence, validity and enforceability of the arbitra - tion agreement. Under the Special ADR Rules, when a court is asked to rule upon issues affecting an arbi - tral tribunal’s competence or jurisdiction, the court is mandated to exercise judicial restraint and defer to the competence or jurisdiction of the arbitral tribunal by allowing the arbitral tribunal the first opportunity to rule upon the issue of its competence or jurisdiction. 5.3 Timing of Challenge As Philippine courts must follow the principle of judi - cial restraint, parties have the right to challenge the jurisdiction of an arbitral tribunal only after the arbitral tribunal makes such a determination. The challenge may be filed: • within 30 days from notice being given of the arbitral tribunal’s preliminary determination of its jurisdiction; or • at the enforcement stage, when the party against whom an award is issued contests the award on the ground of the arbitral tribunal’s lack of jurisdic - tion.
Before the arbitral tribunal has ruled on jurisdiction, a court asked to refer the parties to arbitration makes only a prima facie determination of the existence, validity and enforceability of the arbitration agreement. A party may petition the regional trial court within 30 days after receiving a preliminary ruling by the arbitral tribunal upholding or declining jurisdiction. The arbi - tration proceedings may continue while that petition is pending. If the arbitral tribunal defers its jurisdictional ruling until the final award, the aggrieved party must wait for the award before seeking the appropriate judicial recourse. A post-award review of the tribunal’s rul - ing on the existence, validity or enforceability of the arbitration agreement is no longer limited to a prima facie determination, although the limited grounds and standards for reviewing arbitral awards remain appli - cable. Philippine arbitration legislation and rules do not prescribe a separate judicial appeal from a tribu - nal’s determination of questions of admissibility. 5.5 Breach of Arbitration Agreement When a party to an arbitration agreement commences court proceedings in breach of an arbitration agree - ment, Philippine courts must refuse to exercise juris - diction and instead refer the matter to arbitration, pro - vided that at least one party so requests no later than the pre-trial conference. After the pre-trial conference, the court will only act upon the request for referral if it is made with the agreement of all parties to the case. 5.6 Jurisdiction Over Third Parties Philippine laws generally do not allow an arbitral tribu - nal to assume jurisdiction over individuals or entities that are neither party to an arbitration agreement nor signatories to the contract containing the arbitration agreement, for as long as such individuals or entities refuse to submit their dispute to arbitration.
6. Preliminary and Interim Relief 6.1 Types of Relief
If a request for interim relief was made after the con - stitution of the arbitral tribunal then the tribunal may
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