Offi cers

Chief Justice Artemio V. Panganiban (Ret.), Chairman Atty. Custodio O. Parlade, President Emeritus

Atty. Victor P. Lazatin, President

Atty. Miguel B. Varela, Vice Chairman, Internal Aff airs Atty. Eduardo R. Ceniza, Vice Chairman, External Aff airs

Atty. Beda G. Fajardo, Vice-President Atty. Salvador S. Panga, Jr., Secretary General

Atty. Mario E. Valderrama, Deputy Secretary General Mr. Gregorio S. Navarro, Treasurer

Dr. Eduardo G. Ong, Assistant Treasurer Atty. Gwen Grecia-De Vera, Corporate Secretary

Atty. Ricardo Ma. P.G. Ongkiko, Assistant Corporate Secretary

Board of Trustees

Atty. Shirley F. AlineaAtty. Daisy P. Arce

Engr. Salvador P. Castro, Jr.Atty. Eduardo R. Ceniza

Atty. Gwen Grecia-De VeraAtty. Roberto N. DioAtty. Beda G. FajardoAtty. Jose A. GrapilonAtty. Victor P. Lazatin

Atty. Bienvenido S. MagnayeMr. Gregorio S. NavarroAtty. Rogelio C. Nicandro

Dr. Eduardo G. OngAtty. Ricardo Ma. P. G. Ongkiko

Atty. Victoriano V. OrocioAtty. Salvador S. Panga, Jr.

Rep. Rufus B. RodriguezAtty. Mario E. Valderrama

Atty. Miguel B. Varela

MAY 2010 BROADENING ITS SCOPE OF ARBITRATION ADVOCACY

THE PHILIPPINE ADR REVIEW

PDRCI lauds launching of ADR Act Implementing Rules

SecretariatUnit 937, 9th Floor,

Cityland Megaplaza CondominiumADB Avenue corner Garnet Road,

Ortigas Center, Pasig City.Telephone: +632 9865171

Telefax: +632 9149608Email: secretariat@pdrci.org

info.pdrci@gmail.comWebsite: www.pdrci.org

Th e Philippine ADR Review publishes matters of legal interest to PDRCI’s members and readers. Th e articles printed in the Review contain indi-vidual views of the authors and do not state PDRCI’s policy. Contributions may be sent to the PDRCI Secretariat. All materials submitted for publication become property of PDRCI and are subject to editorial review and revisions. Texts of original legal materials digested are available upon request.

PDRCI lauds launching of ADR Act Implementing Rules ............................................ 1

Role of File Counsel in PDRCI Arbitration .................. 2-3

Member Spotlight ................................................ 4

PDRCI welcomes new members ..................................... 4

CONTENTS

By Frances Cyrille F. Tandog

The Implementing Rules and Regulations (IRR) of the Alternative Dispute Resolution Act of 2004 was offi cially launched by the Department of Justice

(DOJ) last January 27, 2010 in Manila. Atty. Custodio Parlade, President Emeritus of PDRCI described the approval of the IRR as “an important milestone in the his-tory of dispute resolution in the Philippines.”

DOJ Secretary Agnes VST Deva-nadera and DOJ Under-Secretary Jose Vicente Salazar formally launched the IRR. Supporters of ADR in the Philip-pines attended the event, among them PDRCI President Atty. Victor Lazatin and Deputy Secretary General Atty. Ma-rio Valderrama.

Atty. Parlade was among those invited

to speak at the launching. During his re-marks, Atty. Parlade expressed the hope that with the IRR in place, together with the Special ADR Rules approved by the Supreme Court, many parties would be encouraged to use ADR in set-tling their disputes. Atty. Parlade traced the beginnings of the ADR Act, includ-ing PDRCI’s active participation in the inception and development of the law since 2002.

Atty. Parlade then highlighted two urgent concerns that came to light with the approval and release of the IRR. Th e fi rst pertains to the participation of the Integrated Bar of the Philippines (IBP) in the arbitration process, particularly the designation of the IBP National President as appointing authority in ad

hoc arbitration. Atty. Parlade stated that parties should be able to select arbitra-tors from their own locality. Th is would be possible if the IBP National President would authorize chapter presidents to act as his duly authorized representative.

In addition, according to Atty. Par-lade, the IBP can accredit arbitrators and may also provide a procedure when a challenge is unsuccessful and the IBP is requested to decide the challenge. He expressed the hope that the IBP will cre-ate a committee to draft guidelines per-taining to ADR and approve and imple-ment them soonest.

Atty. Parlade’s second concern is with regard to the organization of the Offi ce for Alternative Dispute Reso-lution (OADR) and the PAGE 3

The Role of File Counsel in PDRCI Arbitration

May 20102

While there is nothing wrong with opting for ad hoc arbitration, problems some-times arise in en-suring that the ar-bitration proceeds promptly and efficiently. This happens when the parties and their counsel are unfa-miliar with arbi-tration and thus are unable to un-dertake measures to move the arbi-tration forward. This is the advan-tage of institu-tional arbitration. The private arbi-tral institution will take care of ad-ministering the arbitration for the parties and ensure that the same proceeds promptly and efficiently.

In the Philippines, the Philip-pine Dispute Resolution Center, Inc. (PDRCI) is the leading private arbitral institution offering ser-vices to disputants who may want to resolve their dispute through arbitration. To ensure efficient

proceedings, PDRCI assigns a counsel-in-charge of the file (File Counsel) upon the institution of the arbitration. The File Counsel supervises the newly commenced arbitration until the arbitral tribu-nal is constituted.

PDRCI’s Administrative Guide-lines approved on October 17, 2005 broadly stated in Part A, par. 8 that “(t)he Secretary-General

By Shirley F. Alinea

or his authorized representative shall act as the Adminis-trator in charge of the file.” However, subsequent expe-rience in a few ar-bitrations admin-istered by PDRCI underscored the need for more de-finitive guidelines to define the role of the File Counsel.

In one case, a party questioned the propriety of fil-ing the arbitration with the PDRCI because the arbi-tration clause con-tained in the main

agreement contained an error in the name of PDRCI as the admin-istering body. The File Counsel played a critical role in moving the arbitration forward so the arbitral tribunal could be constituted.

In another case, the arbitrators appointed by the parties were not experienced arbitrators. The File Counsel became involved in advis-ing the arbitral tribunal and the

When parties decide to refer a dispute – future or existing – to arbitration, one of the things that they have to decide on is whether they will opt for ad hoc or institutional arbitration. If the

parties decide on ad hoc arbitration, they will then administer the arbitration themselves.

May 20103

parties on the procedure to en-sure that the arbitration proceeded with dispatch.

Recognizing the important role played by the File Counsel, PDRCI’s Board of Trustees ap-proved on September 15, 2008 Part II of the Administrative Guidelines. Th e Introduction of the new Guidelines explains the role of File Counsel.

As a general rule, the File Coun-sel does not intervenes directly in the conduct of an arbitration ex-cept in case of “manifest violation” of the PDRCI Arbitration Rules. He is available to the parties and arbitrators for information and advice with respect to PDRCI ar-bitration practice, e.g., the proce-dures to be followed, presenting arguments and evidence, and mak-ing awards. Th ere are, of course, necessary limits to the assistance

that can be extended by the File Counsel.

In addition, the File Counsel moni-tors the arbitration through his access to the case record, including pleadings, papers and com-munications from a party to another party, or from a rar-ty to the tribunal, or from the tribunal to the parties or from PDRCI to the tribu-nal and the parties. He may also attend hearings and meet-

ings of the tribunal and the par-ties, unless the tribunal expressly directs otherwise.

Th e File Counsel is required under the Guidelines to regularly inform the PDRCI Secretary-General of the progress of or lack of progress in the case.

With the proactive role of the

File Counsel, PDRCI arbitrations will proceed with even more dis-patch and effi ciency, helping the parties achieve a speedy resolu-tion of their disputes.

PDRCI lauds launching of ADR Act

Implementing Rules

About the Author

Shirley F. Alinea spe-cializes in arbitra-tion, litigation, labor and employment, and intellectual property law. She received her Bachelor of Laws degree from the Uni-

versity of the Philippines in 1996 and until 2008 was a partner of Quisumbing & Torres. versity of the Philippines in 1996 and until

FROM PAGE 1 of its executive direc-tor. He said he hopes that DOJ Secre-tary Devanadera will appoint a young lawyer from the DOJ to this position and assign support staff from the per-sonnel of the DOJ. He added that the OADR must be provided with ad-equate offi ce space so that the offi ce can begin performing its functions.

He further suggested that the OADR prioritize certain functions, such as the preparation of guidelines for it to act as appointing authority; the promotion, development and expansion of the use of ADR; the establishment of an ADR library; and the certifi cation of those who have completed OADR training programs for ADR service providers.

Atty. Parlade closed his remarks by

expressing his gratitude to those from the DOJ who supported ADR and con-tributed to the drafting and approval of the IRR, namely, Secretary Devanadera, Undersecretary Jose Vicente B. Salazar, Senior State Counsel Marlyn L. Ange-les, State Counsel Lielani R. Fajardo and State Counsel Bernadette C. Ongoco, retired Assistant Chief State Prosecutor Nilo C. Mariano, and State Counsel Bernadette C. Ongoco.

Atty. Parlade also acknowledged other

contributors who shared their expertise during the formulation of the ADR Act and its IRR, namely Atty. Anabelle Abaya, Prof. Alfredo Tadiar, Prof. Ro-wena Daroy Morales, Atty. Victor Laza-tin, Atty. Eduardo de los Angeles, Atty. Patricia Tysmans Clemente, Director Victorio Mario Dimagiba, Prof. Mario Valderrama, as well as the Philippine Chamber of Commerce and Industry (PCCI), particularly Atty. Mike Varela and other PCCI offi cers.

May 20104

Th e Philippine ADR Review is a publica-tion of the Philippine Dispute Resolution Center, Inc. All rights reserved. No part of the newsletter may be reproduced in any form without the written permission of the authors.

Roberto N. Dio, Editor

Shirley Alinea, Donemark Calimon, Ra-mon Samson, Contributors

Juan Paolo P. Colet, Frances Cyrille F. Tandog, Erdelyne C. Go, Staff Writers

MEMBER SPOTLIGHT

Atty. Beda G. Fajardo

currently serves as Vice-President of PDRCI. He has been a member of its Board of Trust-ees since 1996.

He is a Past Pres-ident of the Philippine Institute of Construc-tion Arbitration and Mediation (PICAM). He is also a Past President of the Maritime Law Association of the Philippines and lone Filipino member of the Maritime Law Asso-ciation of the United States since 1984.

Atty. Fajardo is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and a mem-ber of International Chamber of Commerce (ICC) Philippines, Inc., the ICC National Committee. He is an accredited arbitrator of PDRCI and the Philippine Construction In-dustry Arbitration Commission (CIAC). He is also an accredited mediator of CIAC and the Philippine Court of Appeals.

He has served as arbitrator in international and domestic commercial arbitration and in CIAC construction arbitration. He has been a speaker and panelist in various confer-ences, seminars and symposia in commercial arbitration. He has lectured in arbitration seminars sponsored by CIAC and the Philip-pine Supreme Court Mandatory Continuing Legal Education program. He has written articles on construction and maritime arbi-tration.

Atty. Fajardo manages his own law fi rm. He received his law degree from the Univer-sity of the Philippines and fi nished a special course in negotiation at Harvard Law School in 1990. His areas of competence are com-mercial and maritime litigation and com-mercial, maritime and construction arbitra-tion.

Beda G. FajardoThe Board of Trustees of PDRCI, upon the recommendation of the

Committee on Membership headed by Atty. Victoriano Orocio, re-cently accepted three applicants for membership, two of whom were foreign arbitrators.

Th e fi rst new member, Atty. Constantino Oraa, was recommended by PDRCI member Atty. Tomas Guno. Atty. Oraa is the managing partner of Oraa Ruaro and Tolentino Law Offi ces and is a professor of law at Adamson University.

Atty. Oraa obtained his Bachelor of Laws degree from Ateneo de Manila University and his Master of Laws from San Beda College. Early in his career, Atty. Oraa served as legal counsel for the Offi ce of Sen. Ernesto Maceda. He was also connected with the Department of Justice, where he was appointed as Assistant Prosecutor for the city of Pasay. After his stint in government, he went on to establish Oraa and Associates in Manila, now known as Oraa Ruaro and TolentinoLaw Offi ces.

Th e PDRCI Board also approved the inclusion of two applicants in the Panel of Foreign Arbitrators: Mr. Randall A. Whitecotton of the United States and Mr. Hugh D. McArdle of Australia.

Mr. Whitecotton obtained his Juris Doctor degree from the Whittier College School of Law. After obtaining his license to practice in all California and federal courts in 1991, he joined Hagenbaugh and Murphy as an insur-ance defense associate. He became a partner of CBH Law Corp. in 2000, where he honed his expertise in litigation. In 2004, joined MBW Swim, LLC, a manufacturing company as general corporate counsel, a position he held until 2009. Mr. Whitecotton is based in Huntington Beach, California.

Mr. McArdle is an Australian arbitrator, lawyer and mediator based in Kew, Victoria, Australia. He holds Bachelor of Jurisprudence and Bachelor of Laws degrees as well as a Master’s degree in Law and a Professional Certifi cate in Arbitration. He is a Barrister and Solicitor of the Supreme Court of Victo-

PDRCI welcomes new members

ria and the High Court of Austra-lia. Mr. McArdle is a member of several professional associations, including the Institute of Arbitra-tors and Mediators Australia, the Chartered Institute of Arbitrators (UK), the Australian Centre for International Commercial Arbi-tration, the Law Institute of Vic-toria and the Industrial Relations Society of Victoria.

Committee on Membership headed by Atty. Victoriano Orocio, re-Committee on Membership headed by Atty. Victoriano Orocio, re-Committee on Membership headed by Atty. Victoriano Orocio, re-

ATTY. CONSTANTINO ORAA