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
It is therefore not clear whether Philippine courts may still entertain applications for interim measures of protection when an emergency arbitrator has been appointed, considering that the arbitral tribunal, strict - ly speaking, has not been constituted at that point in time. It is also not clear whether Philippine courts can assist in implementing or enforcing an interim meas - ure that has been ordered by an emergency arbitrator, given that the latter is separate and distinct from the arbitral tribunal. Having said that, Philippine courts may consider the issuance of an interim measure of protection by an emergency arbitrator at their discre - tion if this supports their own case for issuing interim relief. 6.3 Security for Costs The ADR Act and the Special ADR Rules do not expressly identify security for costs as a standalone interim measure. They authorise interim relief to pro - vide security for the performance of an obligation and to compel an appropriate act or omission. Parties are free to agree on the procedure to be fol - lowed by the arbitral tribunal. In the absence of an agreement, the arbitral tribunal may conduct the arbitration in such manner as it considers appropri - ate subject to Chapter 4, Rule 5 of the ADR Act’s IRR, which provides that, unless considered inappropriate by the arbitral tribunal, the 1976 UNCITRAL Arbitration Rules will apply. Under the ADR Act, international commercial arbitra - tion seated in the Philippines would be primarily gov - erned by the UNCITRAL Model Law. 7.2 Procedural Steps Although the parties and the arbitral tribunal have broad procedural autonomy, the process remains sub - ject to mandatory safeguards, including equal treat - ment and a full opportunity for each party to present its case. The applicable law and rules also prescribe requirements concerning notice, hearings and the communication of evidence and other information. A party that proceeds without timely objection to non- 7. Procedure 7.1 Governing Rules
compliance with a provision or the arbitration agree - ment may be deemed to have waived the objection. 7.3 Powers and Duties of Arbitrators Philippine law mandates that the parties must be treated equally, and each party must be given full opportunity to present its case. The law imposes the following duties on arbitrators. • To hold hearings if requested by a party, unless the parties agreed otherwise. • To give sufficient advance notice to parties of any hearing and any meeting of the arbitral tribunal for the purpose of inspecting goods, other property or documents. • To decide the dispute in accordance with such rules of law that: (a) are chosen by the parties as appropriate for the substance of the dispute; or (b) in the absence of such choice, are determined by the conflict of law rules considered applica - ble by the arbitrators. • To decide ex aequo et bono or as amiable com - positeur only if the parties have expressly author - ised them to do so. • To decide in accordance with the terms of the con - tract in all cases, taking into account any applica - ble trade usages. Philippine law recognises the power of an arbitral tri - bunal, inter alia, to do the following. • Determine the admissibility, relevance, materiality and weight of any evidence. • Order that any documentary evidence be trans - lated into the language of the proceedings. • Disallow amendments by a party of its statement of claim or defence when the delay in making the amendment is considered inappropriate. • Request assistance from a Philippine court in taking evidence or allow a party to make such a request. • Administer oaths to – or require affirmation from – witnesses. • Require any person to: (a) attend a hearing as a witness; or (b) produce documents through a subpoena.
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