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
11. Review of an Award 11.1 Grounds for Appeal
• ex aequo et bono or by amiable compositeur, if expressly authorised by the parties; or • under the terms of the contract (in all cases), taking into account the trade usages that apply. However, the arbitral tribunal cannot exceed its authority. Thus, it may not grant any remedy for a dis - pute that is not contemplated by – or does not fall within – the terms of its submission to arbitration. 10.3 Recovering Interest and Legal Costs Philippine laws allow parties to recover their legal costs and interests. The ADR Act’s IRR provide that the arbitral tribunal must fix the costs of arbitration in its award, which include: • fees of the arbitral tribunal; • travel and other expenses incurred by the arbitra - tors; • cost of expert advice and other assistance required by the arbitral tribunal; • travel and other expenses for witnesses, to the extent that such expenses are approved by the arbitral tribunal; • cost of legal representation and assistance for the successful party, to the extent deemed reasonable by the arbitral tribunal, if such costs are claimed; and • any fees and expenses for the appointing authority. Under the ADR Act’s IRR, the costs of arbitration will, in principle, be borne by the unsuccessful party. However, taking into account the circumstances of the case, the arbitral tribunal may apportion these costs between the parties if it deems this reasonable. The arbitral tribunal has discretion to allocate the costs of arbitration. Under the ADR Act IRR, those costs include the fees and expenses of the arbitral tribunal and appointing authority, specified witness and expert expenses, and the successful party’s rea - sonable costs of legal representation and assistance if claimed during the arbitration. Costs are, in principle, borne by the unsuccessful party, but the tribunal may apportion them between the parties when reasonable under the circumstances.
An arbitral award in an international commercial arbi - tration cannot be appealed merely on the ground that the arbitral tribunal committed errors of fact or errors of law. Rule 19.7 of the Special ADR Rules provides that an agreement to refer a dispute to arbitration means that the arbitral award will be final and binding. The same provision prohibits a party to an arbitration from filing an appeal or petition for certiorari to ques - tion the merits of an arbitral award. Specifically, Rule 12.5 of the Special ADR Rules expressly prohibits the filing of an appeal, petition for review or petition for certiorari against an international commercial arbitral award. Instead, the losing party may file a petition to set aside the arbitral award in an international commercial arbi - tration no later than three months after receiving the award. This is the exclusive recourse against such an arbitral award. The courts can vacate or set aside the arbitral award only on the grounds cited under Article 34 of the UNCITRAL Model Law, to wit: • incapacity of a party to the arbitration agreement; • invalidity of the arbitration agreement under the law to which the parties have subjected it or, failing any indication thereof, under Philippine law; • lack of proper notice of an arbitrator’s appointment or of the arbitration proceedings; • inability of the party making the application to set aside the arbitral award to present their case; • the award being beyond the scope of the arbitra - tion agreement or resolving a dispute outside the scope of the submission to arbitration; • the arbitration procedure or the composition of the arbitral tribunal not being in accordance with the parties’ agreement or, in the absence of such agreement, not being in accordance with Philippine law; • the fact that the subject matter of the dispute can - not be settled by arbitration under Philippine laws; and • the recognition or enforcement of the award being contrary to Philippine public policy.
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