arbitration process and procedures - 32 pages

8/15/2019 Arbitration Process and Procedures - 32 Pages

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The

Arbitration

Process


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PROCEDURES

1. Define Claim or Cause of Action2. File Claim (Request for Adjudication)with CIAC

3. Notice to Respondent

4. Answer and Counter-claim

6. Appointment of Arbitrator/Tribunal

7. Terms of Reference

8. Hearings

9. Award

5. Reply

10. Execution


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Define Claims / Causes of Action

Check if Arbitration Clause Provided for inContract

Effect of the Arbitration Clause:- Submission to CIAC Jurisdiction; or

- Failure or Refusal to Arbitrate If none, Agreement to Arbitrate Form should

be executed by the parties


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A G R E E M E N T T O A R B I T R A T E

W e , _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ( N a m e o f C l a i m a n t )

a n d

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

( N a m e o r R e s p o n d e n t )

n o t w i t h s t a n d i n g o u r c o n t r a c t f o r t h e c o n s t r u c t i o n o f

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

( N a m e o f P r o j e c t )

s t i p u l a t i n g f o r t h e s e t t l e m e n t o f d i s p u t e d i s t i n c t f r o m

w h a t i s p r o v i d e d f o r i n E x e c u t i v e O r d e r N o . 1 0 0 8 ,

h e r e b y s u b m i t o u r s e l v e s t o t h e j u r i s d i c t i o n o f t h eC o n s t r u c t i o n I n d u s t r y A r b i t r a t i o n C o m m i s s i o n

( C I A C ) a n d r e q u e s t t h e C I A C t o a r b i t r a t e o u r d i s p u t e

i n s a i d p r o j e c t .

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

( N a m e o f C la i m a n t ) ( N a m e o f R e s p o n d e n t )

B y : B y :

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

S i g n a t u r e o v e r P r in t e d S ig n a t u r e o v e r P r i n t e dN a m e o f A u t h o r i z e d N a m e o f A u t h o r i z e d

R e p r e s e n t a t i v e R e p r e s e n t a t i v e


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MODEL ARBITRATION CLAUSE

“Any dispute arising out of or in connection withthis contract, including any question regardingits existence, validity or termination shall be

referred to and finally resolved by arbitrationunder the Rules of Procedure GoverningConstruction Arbitration promulgated pursuant

to Executive Order 1008 (the ConstructionIndustry Arbitration Law) by (indicate number:one or three arbitrator/s) to be appointed in

accordance with such Rules.”


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Define Claims / Causes of Action

When arbitration cannot proceed

No arbitration clause or agreement to arbitrate

(for private contracts only)


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Filing of Claims with CIAC

Request for Adjudication

Mode of Settlement

Choice of Arbitrators

Sum in Dispute

Documents Required

Arbitration Fees

Schedule of Payment of Fees


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- Submission to Arbitration

- Contents of Request /Complaint


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- Submission to Arbitration

- In Case of Government Contracts

exhausted all administrative

remedies

unreasonable delay on the part of

the government agency

exhaustion of administrative

remedies not practicable


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Contents of Request

Name in Full, Description and Addressesof the Parties

Statement of the Claimant’s Case Relevant Agreements or Contract

Documentations and Information toestablish circumstances of the Case


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Mode of Settlement

Arbitration

Mediation


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Choice / Selection of Arbitratiors

Number of Arbitrators

Sole Arbitrator

Arbitral Tribunal

Disqualification or Non-Acceptance by Nominees

CIAC to Choose


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Qualification of CIAC Arbitrators

Men of Distinction Technically Qualified

Trained and Accredited by CIAC

PICA Member

Professionals with Experience in

Construction Disputes and nuances

thereof


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Selection of Arbitrators

Choice/Selection of Arbitrators

- availability, case load, nature of case

Challenge:

Partiality, bias, incompetence, or

professional misconductCIAC to rule within 15 days

When arbitrator previously acted asconciliator/mediator of the same dispute


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Claims/ Causes of Action

Sum in Dispute

- Claim of Claimant

- Counter-claim of Respondent

- Other Costs


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Claims / Causes of Action

Claim for Sum of Money0 Non-payment of Claims/Billings

0

Unreasonable imposition of LD0 Change-orders and Extra Work

0

Liquidated damages Non-monetary claims

0

Illegal take-over of Works0 Interpretation of Contract Documents


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CIAC TABLE of ADMINISTRATIVE

CHARGES and ARBITRATOR’S FEES

FOR MONETARY CLAIMS

I. SCHEDULE OF FILING AND ADMINISTRATIVE FEES

SUM IN DISPUTE FILING FEE ADMINISTRATIVE FEE

Less than P 100,000.00 P 3,600.00 P6,000.00

P 100,000.00 to P 1M P 3,600.00 + 0.36% of P 6,000.00 + 0.24% of excess over 100,000 excess over 100,000

P 1.0M to P 10.0M P 6,840.00 + 0.12% of P 8,160.00 + 0.12% of

excess over P 1.0M excess over P 1.0M

P 10.0M to P 50.0M P 17,640.00 + 0.06% of P 18,960.00 + 0.06% of

excess over P 10.0M excess over P 10.0MMore than P 50.0M P 41,640.00 + 0.03% of P 42,960.00 + 0.03% of

excess over P 50.0M excess over P50.0M* Pursuant to C IAC Resolution No. 2-96, a special assessment fee, for the establishment of

Arbitration Development Fund, Equivalent to 1/10 of 1% of the Sum in Dispute (SID) shall be

imposed on SID over P 1 Million.


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CHARGES and ARBITRATOR’S FEESII. ARBITRATOR’S FEES

The honoraria of the Arbitrators shall consist of a Base Amount plus Adjustments to reflectcomplexity of the case, number of disputants and number of arbitrators.

1. BASE AMOUNT

≤ P1M - 2% of the Sum in Dispute

over 1M - 5.0 M - P20,000.00 + 1.00% in excess of 1.0 Mover 5M - 10.0 M - 60,000.00 + 0.75% in excess of 5.0 M

over 10M - 20.0 M - 97,500.00 + 0.50% in excess of 10.0 M



over 100M - 500.0M - 257,500.00 + 0.05% in excess of 100.0 Mover 500M - 1Billion - 457,500.00 + 0.035% in excess of 500.0 M

Above 1 Billion - 632,500.00 + 0.025% in excess of 1 Billion

As amended by CIAC Resolution No. 05-2009 (Approving Additional Ranges and Base

Amounts for Arbitrator’s Fees); Effective 04 July 2009

______________________________________________________________________________


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III. SCHEDULE OF PAYMENTS

A. Upon filing of the Request for Adjudication (RFA)

⇒ 100% Filing Fee⇒ 50% Adminstrative Fee

⇒ Initial Deposit for Arbitrator’s Fees

• 50% of arbitrator’s fees based on amount of claim

• Respondent to deposit similar amount based on

his counterclaim, if any

⇒ special assessment fee under CIAC Res. No. 2-96, if applicable


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B. Upon signing of the Terms of Reference (TOR):

⇒ Balance of the Filing Fee

⇒ 50% of the Administrative Fee

⇒ 50% of the Arbitrator’s Fee

C. At the Penultimate Hearing / Meeting:

⇒ 50% of the Administrative Fee

⇒ 50% of the Arbitrator’s Fee

* If no hearing is held, the last two tranches (B & C) shall be due upon

TOR signing


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PRELIMINARY CONFERENCE

- Matters to be discussed

Possibility of Amicable Settlement

Necessity of Amendments to Pleading

Stipulations and admissions of facts

Limitations on the number of Witnesses

Simplification of Issues

Other Matters


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Terms of Reference

Contents

Signing of the Terms of Reference

Arbitration to Proceed even without the

Terms of Reference


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Contents of the Terms of Reference

Full names of Parties and their Personal

Circumstances

Addresses for Notification / Communication

Summary of Respective Claims

Definition of Issues

Position of Disputants per Issue

Arbitrators

Schedule of Payment of Fees


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TERMS OF REFERENCE (TOR)

a) full name of the parties and their personal circumstancesb) address of the parties to which notifications or

communications arising in the course of the arbitration may

validly be made

c) summary of the parties’ respective claimsd) definition of the issues to be determined

e) arbitrator(s)’ full names and addresses

f) place of arbitrationg) breakdown, schedule of payment and sharing of arbitration

fees

h) such other particulars as may be required to make thearbitral award enforceable in law, or may be regarded as

helpful by the CIAC or the arbitrator(s)


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TERMS OF REFERENCE (TOR) Arbitration to Proceed without Terms of Reference

- If one of the parties refused to sign

- The Parties agreed that the issues and mattersraised in their pleadings are deemed submittedfor resolution without further evidence.


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TERMS OF REFERENCE (TOR)Signing of the Terms of Reference

- 15 days after preliminary conference

- 3 days after signing transmitted to CIACSecretariat


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What to be ready with

Well Prepared

Complete and Proper Documentations

Technically Correct

Logically Presented

Credible Witnesses


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What to Expect

Integrity

Speed

Fairness

Writ of Execution


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ARBITRABLE ISSUES

1. Violation of specifications for materials andworkmanship

2. Violation of the terms of agreement

3. Interpretation and/or application of contractual provisions

4. Amount of damages and penalties

5. Commencement time and delays6. Maintenance and defects7. Payment default of employer or contractor8. Changes in contract cost


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ACCREDITATION OF

CONSTRUCTION ARBITRATOR

1. MINIMUM REQUIREMENTS:

1.2 Holder of a Bachelor’s degree in Engineering,

Architecture, Law or Accountancy ;

1.3 Licensed to practice his/her profession ;

1.1 At least 40 years of age at the time of application ;


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ACCREDITATION OF


1.4 At least ten (10) years in the practice of his/her profession and ten (10) years of work experience in

construction management-related activities or in

handling of contractual disputes and/or contract

negotiations ;

1.5 In full enjoyment of his/her civil rights, must not have

been convicted of a crime involving moral turpitude or

of any other crime for which the penalty imposed upon

him/her is over six (6) months of imprisonment.


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ACCREDITATION OF


1.6 Willing to undergo all screening requirements1.7 Willing to undergo training to be conducted by the CIAC.

2. EXCEPTIONS :

2.1 Exceptional professionals who have substantially

complied with the minimum requirements 1.1 to 1.6,

and who by reason of trainings or experiences in

construction, conducted lectures on accreditation

courses upon invitation by the CIAC.