Alternative Dispute Resolution - Reconstituted Professional

Report
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PRBoA
www.architectureboard.ph
The Alternative Dispute
Resolution (ADR) Modes
for the Construction and
Consulting Industries
(Arbitration, Conciliation
and Mediation)
UAP College of Fellows (CoF) Meeting
Sat, Aug 06, 2011 8am. at the UAP HQ, Qiuezon City
The Professional Regulatory Board of Architecture (PRBoA)
Ar Armando N. ALLÍ , apec ar
Acting Chairman, PRBoA
DTI CIAP CIAC Accredited Construction Arbitrator & Mediator
(Resource Person)
PRBoA
s2
www.architectureboard.ph
1. Alternative Dispute Resolution (ADR)
R.A. No. 876 has been in effect from 1953 through 2004; and
UNCITRAL Model for International Commercial Arbitration was
adopted with the passage of R.A. No. 9285, otherwise known as
the ADR Act of 2004, which defines ADR as any process or
procedure used to resolve a dispute or controversy, other than
by adjudication of a presiding judge of a court or an officer
of a government agency, as defined in this Act, in which a
neutral third party participates to assist in the resolution of
issues, which includes arbitration, mediation, conciliation,
early neutral evaluation, mini-trial, or any combination thereof;
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
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2. Some ADR Modes Under RA No. 9285
International Commercial Arbitration;
Domestic Commercial Arbitration;
Construction Arbitration;
Construction Mediation; and
Conciliation
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
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3. What is Arbitration?
Arbitration is a private process of dispute resolution
whereby parties submit their dispute to a private individual/
natural person or persons i.e. the arbitrator or arbitral
tribunal, chosen by the parties directly or indirectly for the
conduct of a hearing or hearings and for the promulgation
of a binding decision. Please note however that the Arbitrators
perform a public function on behalf of the DTI CIAP CIAC and
may therefore be considered agents of the Government. All
official issuances (Orders, Awards, etc.) by Arbitrators are only
made through the CIAC, which is a Government entity. All of
the arbitration proceedings and records are confidential.
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
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4. Why Arbitrate?
If a party to a construction and/or consulting service contract
fails to deliver on a contractual commitment despite the very
best of intentions, damages to the other party inevitably arises.
However, litigation on a contractual dispute (usually a civil
action) via the Courts will take about 4-6 years at the trial court
level alone (plus say 3-4 years at the Court of Appeals/ CA and
another 3-4 years more at the Supreme Court/ SC). This is
because judges usually have a caseload of 500 at a time.
Arbitration guarantees a trial court level resolution within
a 6.0 calendar month period (as opposed to 4-6 years).
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
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www.architectureboard.ph
5. What are the Advantages of Arbitration?
It is faster because the Arbitrator only handles a few
cases at a time, no postponements allowed, marathon
hearings conducted (6-8 hours for each of 1 to 2 hearing
days, or as needed). Simple cases may be decided in
under a week. It is cost-efficient for the State as the
Parties (Claimants and Respondents) are the ones who
pay the arbitrators i.e. who need not be lawyers. All
domestic commercial and construction arbitration can
also be held anywhere in the PH i.e. but only at CIAC
Makati City for construction arbitration.
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
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www.architectureboard.ph
6. How is Arbitration Similar to Litigation?
Due process of law is observed i.e. testimonial
and documentary evidence required, rules of
evidence are applied (although liberally
construed), rights to counsel and to crossexamine witnesses, transcripts of stenographic
notes (TSN), etc. The Arbitrator, who hears and
decides on the claims of the Parties (and pens the
Arbitral Award or Decision), actually performs the
role of the “judge” in an arbitration proceeding.
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
s8
www.architectureboard.ph
7. How is Arbitration Different from Litigation?
Procedure is more civil than adversarial. Parties face each
other directly across a table and do not face the arbitrator/s.
Clients can talk freely. Witness conferencing is allowed i.e.
statements can be immediately rebutted.
Arbitrators are deliberately chosen by the parties based on
expertise i.e. Arbitrator may be a lawyer, doctor, engineer,
architect, accountant, etc.
Arbitration venues are usually chosen by the parties based on
consensus. For construction, only at the CIAC.
Arbitral Awards may be immediately carried out provided the
winning party posts a bond to address future CA/ SC reversal.
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
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www.architectureboard.ph
8. What is Arbitration’s Batting Average?
More than 90% of arbitral awards are
affirmed by the CA and the SC (some
with only minor modifications).
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
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9. Arbitration is Part of the Scope of an
Architect’s Practice
R.A No. 9266 SECTION 3. Definition of Terms. As used in this Act, the following terms shall be
defined as follows: xxx
(3) "General Practice of Architecture" means xxx
(h) building programming, building administration,
construction arbitration and architectural
conservation and restoration;
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
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www.architectureboard.ph
10. Construction Arbitration Process
Parties Agree to Arbitrate (and Follow the Rules)
Preliminary Conference (to Confine the Issues)
Hearings (Marathon)
Ocular Inspections (Optional)
Arbitral Award
Execution of Arbitral Award
Petition for Review at the CA and then at the SC
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
s12
www.architectureboard.ph
11. How can an Architect become a
Construction Arbitrator or Mediator?
To become a Construction Arbitrator, an
Architect must first undergo an intensive 1 to 2
week training in construction arbitration. Upon
completion, the Architect is sworn into office
usually by a Justice of the Supreme Court (SC).
Should the Architect-Arbitrator still desire to
become a Construction Mediator, a shorter 3-5
day course is taken.
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
s13
www.architectureboard.ph
12. Does Construction Arbitration Pay?
Yes, for the Parties concerned, a Decision is promulgated
within 6.0 calendar months reckoned from the signing of the
Terms of Reference (which limits the scope of the arbitration
procedure). The losing party is immediately able to elevate
the case to the Court of Appeals (CA).
For the Court, arbitration reduces the number of pending cases
docketed (backlog).
For the Arbitrators, they get compensated equitably at a
percentage of the costs of the consolidated claims of the Parties.
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
s14
www.architectureboard.ph
13. Caveats
The completion of the arbitration process does not preclude the
filing of administrative, criminal, civil or special legal action
(including other types of arbitration) in other fora by any of the
parties.
The execution of an arbitral award must be attended by a
bond in case of reversal at the superior courts.
Unlike judges, arbitrators get sued by the dissatisfied losing
parties. Depending on the nature and venue of the suit, the
arbitrators may (or may not) be defended by the Office of the
Solicitor General (OSG). Otherwise, the arbitrators must fend for
themselves out of their own pockets.
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
PRBoA
s15
www.architectureboard.ph
14. How Does a Party Ensure Arbitration in
the Event of Contract Disputes?
An arbitration clause in a construction or
consulting service contract shall fully ensure that
the CIAC shall automatically acquire exclusive
jurisdiction over any dispute arising from the
construction and/or consulting service contract i.e.
the dispute cannot be brought to a Court, only to
CIAC, for dispute resolution.
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli
s00
PRBoA
www.architectureboard.ph
Thank You
and a
Pleasant Morning to All
The 2008 Alternative Dispute Resolution (ADR) Modes for the Construction and Consulting Industries
(Arbitration, Conciliation and Mediation) for the UAP CoF
Sat 06 Aug 2011 by Ar Armando N. Alli

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