Alternative Dispute Resolution (ADR) Reviewer

ALTERNATIVE DISPUTE RESOLUTION

based on Reobeniol

• ADR ACT OF 2004 - RA 9285 An Act to Institutionalize the Use of an Alternative Dispute Resolution System in Philippines and to Establish the Office for Alternative Dispute Resolution, and for Other Purposes

• Salient Features of RA 9285 applying and incorporating the UNCITRAL Model

(Korea Techologies Co Ltd vs Lerma)

1. The RTC must refer to arbitration in proper cases

2. Foreign arbitral awards must be confirmed by the RTC

3. The RTC has jurisdiction to review foreign arbitral awards

4. Grounds for judicial review different in domestic and foreign arbitral awards

5. RTC decision of assailed foreign arbitral award appealable

• Lawyer’s Role

1. As integral part of the judicial sytem - contribute to the promotion of ADR

2. As part of their duties to the court - assist in encouraging the parties to avail ADR

3. As part of their duties to their clients - explain the benefits of ADR to them

4. Play the role of ADR provider or practioner

• What is ADR?

A system, using means and methods allowed by law and approved by the parties, for the purpose of resolving or facilitating the resolution of disputes and controversies between them, in an expeditious and speedy manner, without resorting to court adjudication.

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 which neutral third party participates to assist in the resolution of issues

• Principles of ADR

1. Promotion of party autonomy and self-determination in the resolution of disputes
2. Recognition of ADR as an efficient tool and an alternative procedure for the resolution of cases
3. Enlisting of private sector participation

• Objectives and Benefits of ADR

1. Speedy and impartial justice
2. Declogging of court dockets

• Features of ADR

1. a means used to resolve a dispute or controversy
2. utilizes means and methods allowed by law
3. contractual in nature
4. avoids court trial
5. usually involves the participation of a neutral third party

• Sources of ADR

1. Domestic laws and rules
2. Acts of the executive branch
3. Decisions of the supreme court
4. International laws
5. General Principles of law and equity

• Forms of ADR

1. Arbitration
2. Mediation
3. Conciliation
4. Neutral and Early Neutral Evaluation
5. Mini-trial
6. Combination
7. Innominate ADR Form

• Classification of Forms of ADR

Classification
Number of Parties	bilateral/bi-party	multilateral/multi-party
Number of Issues involved	simple	complex
Extent of the conclusion	complete	partial
Role of evidence in the proceedings	evidentiary/merit-based	non-evidentiary/ non-merit based
Pendency of a court case	case-related	independent
Applicable law	domestic	international	foreign
Permanence of ADR provider	ad hoc	institutional

• Components of ADR

1. contending parties
2. dispute or controversy
3. form of adr
4. adr provider or practitioner

• Subject Matters of ADR

All adversarial disputes and  controversies

exception:

1. civil status of a person

2. validity of marriage

3. jurisdiction of courts

4. future legitime

5. criminal liability

6. those which by law, cannot be compromised

• Concluding Acts or Agreements

1. Arbitral award
2. Mediated settlement agreement
3. compromise agreement
4. waiver or quitclaim

• ADR Providers and Practitioners

• act in a quasi-judicial capacity
• decisions or awards are reviewable in a special civil action for certiorari under Rule 65 of the 1997 Rules of CivPro

• What is Mediation?

A voluntaru process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assists  the parties in reaching a voluntary agreement regarding a dispute

Exlusions:

1. court-annexed mediation : conducted under the auspices of the court
2. court-referred mediation : mediation ordered by a court to be conducted in accordance with the agreement of the parties when an action is prematurely commenced in violation of such agreement
3. conciliation conducted by the Pangkat ng Tagapagsundo
4. judicial dispute resolution : conducted by the judge of a pending case after a failed CAM

• Classification of Mediation

1. Non-evidentiary / Non-merit based
2. Institutional or ad hoc

• Place of Mediation

GR: parties’ agreement

Default: any place convenient and appropriate to all parties

**shall be held in private unless consented not

• Stages in Mediation

1. Opening statement of the mediator
2. Individual narration by the parties
3. Exchange by the parties
4. Summary of issues
5. Generalization and evaluation of options
6. Closure

**not obligatory

• Conclusion of Mediation

1. by execution of MSA
2. by the withdrawal of any party from mediation
3. by the written declaration of the mediator that any effort would not be helpful

• Advantages of Mediation

1. Confidentiality
2. Prompt, economical and amicable resolution
3. decision-making authority rests with the parties

• Confidential and Privileged Nature of Mediation Communication

Privilege - A rule of law that either permits a witness to refrain from giving testimony he otherwise could be expected to give, or permits someone usually one of the parties to prevent the witness from revealing certain information

Confidential Information - any info relative to the subject matter of med or arb, expressly intended by the source not to be disclosed, or obtained under circumstances that would create a reasonable expectation on behalf of the source that the info shall not be disclosed

1. expressly confidential

2. impliedly confidential

• Legal Effects of Confidential and Privileged Nature

1. participants may refuse to disclose and prevent another to disclose
2. CI not subject to discovery and shall be inadmissable in any adversarial proceeding
3. persons involved shall not be compelled to disclose CI
4. protection under ADR continues to apply even mediator fails to act impartially
5. mediator may not be called to testify to provide info

Exceptions (Privilege does not attach to the following communication)

1. those contained in an agreement evidence by a record authenticated by all parties to the agreement
2. those available to the public or made in an open
3. threat or statement of plan to commit violence
4. intentionally used to plan, commit, conceal a crime
5. offered to prove or disprove abuse et al.
6. offered to prove or disprove claim or complaint of misconduct

• Mediator

Selected by the parties

May withdraw or may be compelled to withdraw when:

1. requested by the party/ies
2. does not have the qualifications
3. impartiality is in question
4. continuation of process will evaluate ethical standards
5. safety of any one of the parties will be jeopardized
6. inability to provideeffective services
7. conflict of interest
8. others - provided by IRR

• Duties and Functions of Mediation

Prior

a. On Competence: maintain and continually upgrade professional competence

b. On impartiality: make an inquiry re financial or personal interest that may affect impartiality

During

1. Confidentiality
2. ensure parties understand the nature and character
3. encourage mutual respect between parties

• Role of Counsel in Mediation

1. collaborate with other lawyers
2. encourage client to actively participate
3. assist client to comprehend and appreciate process
4. confer and discuss with client the process

• What is Arbitration?

a voluntary dispute resolution proces in which one or more arbitrators, appointed in accordance with the agreement of the parties or rules promulgated pursuant to ADR Act, resolve a dispute by rendering an award

• Arbitration vs Mediation

Arbitration	Mediation
arbitrator decides the dispute by rendering an award	parties decide and executes the MSA
merit/evidence based	non-merit based

• Kinds of Arbitration

1. Compulsary - the process of settlement of labor disputes by a government agency which has the authority to investigate and to make an award which is binding on all parties, and as a mode of arbitration where the parties are compelled to accept the resolution of their dispute through arbitration by a third party

1. Voluntary - involves the reference of a dispute to an impartial body, the members of which are chosen by the parties themselves, which parties freely consent in advance to abide by the arbitral award issued after the proceedings where both had the opportunity to be heard

• Classification of Arbitration

1. Domestic - the components of parties’ places of business , place of arbitration… are all located in the Phils
2. International

a. parties’ places of business is in different states

b. place of arb (AA), is outside the Phils

c. place where substantial part of the oblig is to be performed is outside Ph

d. parties expressly agreed that the subj matter of AA relates to more than 1 country

1. Foreign - arb is conducted outside the Phils
2. Commercial - covers matters arising from all relationships of a commercial nature, whether contractual or not

• Objectives of Arbitration: provide speedy and inexpensive method of settling disputes

• Arbitration Agreement (Arbi Clause / Compromissoire)

Agreement by the parties to submit to an arbitration all or certain disputes which have arisend or which may arise between them in respect of a defined legal relationship, whether contractual or not. 

Modes of Submitting a Dispute to Arb

1. Agreement to submit - for future disputes
2. Submission agreement - existing dispute

Formal Requirement

1. in writing
2. subscribed by the parties or their reps

• Doctrine of Separability or Doctrine of Severability

 Arbitration Agreement is independent of the main contract even if it is contained in an arb clause

• Judicial Review and Court Intervention

Judicial remedies an aggrieved party to an arbitral award may take:

1. petition to issue an order to vacate the award on grounds provided for in Sec 24 RA 876
2. petition for review (CA) under Rule 43
3. petition for certiorari under Rule 65

• Interim Measures in Arbitration (int measures of protection or provisional reliefs

Ancillary remedies intended for the protection of the subject matter of the dispute

1. preliminary injunction
2. appointment of receivers
3. detention of property
4. preservation of property
5. inspection of property

GR: IM are applied with and secured from the ArbTrib

Instances when ArbTrib cannot grant IM

1. AT not yet constituted
2. AT already constituted has  no power to act or is unable to act effectively

**may apply for IM with a court

• International Commercial Arbitration

International

1. parties’ places of business - in different states
2. place of arb (AA)- outside Phils
3. place of substantial part of the oblig - outside Phils
4. parties expressly agreed - SM of the arb - relates to more than one country

Commercial

1. covers matters arising from all relationships of a commercial nature (contractual or not)

Rules on Receipt of Written Communications

GR: based on agreement

Default: delivered to the addressee personally / last know address

Waiver of Right to Object in ICA**

Place/Venue

GR: agreement

Default: Metro Manila

Commencement of ICA Proceedings

GR: agreement

Default: when a request to be referred to arbi is RECEIVED by respondent

RA 7080 ANTI PLUNDER

RA 7080
ANTI PLUNDER ACT


PLUNDER
a. Public officer
b. amasses
c. ill-gotten wealth
d. at least P50 Million
e. by an act or series of overt acts that may constitute offenses
**Not necessary to prove offenses; sufficient, pattern of overt criminal acts

Ill-gotten Wealth - assets, properties, possessions acquired directly or indirectly thru dummies, nominees, agents, etc by any combination or series of the following means:
a. Misappropriation, malversation, misuse of public funds\
b. Receiving commission, gifts, shares from persons in connection with any government contracts by reason of his office
c. illegal or fraudulent conveyances of assets belonging to Nat'l Govt.
d. Receiving shares of stock etc or promise of future employment in any business enterprise
e. establishing monopolies or implementation of decrees/orders intended to benefit particular persons
f. taking undue advantage of position, authority, connection to unjustly enrich Filipino people and the Rep of the Phil

Competent Court - Sandiganbayan

Suspension and Loss of Benefits - suspended upon pending criminal prosecution/Loss upon conviction by final judgment

Prescription - 20YEARS

RA 4200 Anti Wire tapping

RA 4200
AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES.


Unlawful Act:
a. tap any wire etc to secretly overhear communication
b. knowingly possess any record or copies thereof
c. communicate contents of record - verbally or in writing
d. furnish transcripts - complete or partial
e. use device to secretly overhear communication
f. replay record to another person
g. aid, permit, cause another to commit unlawful acts
h. violation of order issued re wiretapping


EXCEPTION:
a. peace officer
b. authorized by a written order of the court
c. in cases involving crimes against national security and kidnapping

Provided --
a. reasonable grounds to believe crime is committed/to be committed\
b. that essentia; evidence will be obtained
c. no other means available fot obtaining evidence

Order Granted/Issued shall specify:
a. identity -participants
b.identity - peace officer aithorized
c. offenses

Period of authorization - not exceed 60DAYS

Turn-over/Deposit of recordings - within 48HOURS after the expiration of period authorized
SEALED PACKAGE
a.  # of recordings made
b. dates and times
c. # of tapes in the deposit
d. certif: no other copies

**Any info obtained thru violation shall NOT BE ADMISSIBLE in evidence

RA 9048 AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER

RA 9048

AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES

Authority

No entry shall be changed without judicial order, EXCEPT in this case

a. Typo/Clerial errors

b. change of first name or nickname

** Correction must not involve the change of Nationality, age, status or sex of petitioner

Who May File and Where

a. any person at the local civil registrar keeping his documents

b. at the local registrar where he is presently residing (when migrated to another place in the country)

c. at the Phil Consulate for those domiciled in foreign countries

**May be availed only ONCE

Grounds for change of First Name or Nickname

a. name is found to be ridiculous, tainted with dishonor or hard to write or pronounce

b. new name has been habitually used where he is publicly known for such

c. change will avoid confusion

Forms and Contents of the Petition

a. Cert true machine copy of entry to be changed or corrected

b. at least 2 public docs showing correct entries

c. other relevant docs

Duties and Powers

City/Municipal CR/Consul General - post petition for 10 consec days - render decision within 5 days - -transmit copy of decision within 5 days

Civil Registrar General - within 10 days from receipt of decision, exercise power to impugn

Grounds for objection: 

a)error not clerical/typo 

b)correction not substantial 

c)ground name change not acceptable

G.R. No. 211465, December 03, 2014 PEOPLE OF THE PHILIPPINES v. SHIRLEY A. CASIO

G.R. No. 211465, December 03, 2014

PEOPLE OF THE PHILIPPINES v. SHIRLEY A. CASIO

Facts:

On May 2, 2008, International Justice Mission (IJM) coordinated with coordinated with the police in order to entrap persons engaged in human trafficking in Cebu City. Several police officers were designated then as decoys, pretending to be tour guides looking for girls to entertain their guests. PO1 Luardo and PO1 Veloso proceeded to D. Jakosalem St red light district. Accused, Casio, noticed them and called their attention and offered if they’d like some girls. After the conversation, Casio presented to the police officers two minors, AAA and BBB. After having settled the negotiation, they went to Queensland Motel. The marked money was handed to Casio and the two minors were brought to another room in the custody of the representatives of IJM and DSWD.

The accused however, contends that there was no valid entrapment instead she was instigated into committing the crime, since the police did not conduct prior surveillance and did not even know who their subject was. She also denied being a pimp and asserted that she was a laundrywoman. Also, AAA admitted that she worked as a prostitute thus, it was her decision to display herself to solicit customers.

Issue/s:

1. Whether or not the entrapment operation conducted was valid
2. Whether or not the accused shall be liable for the crime human trafficking

Ruling:

1. Yes there was a valid entrapment and it was recognized by courts. It was the accused-appellant who commenced the transaction with the officers by calling their attention on whether they wanted girls and when the officers responded, it was the accused-appellant who told them to wait while she would fetch the girls for their perusal. This shows that accused was predisposed to commit the offense because she initiated the transaction.

There is entrapment when law officers employ ruses and schemes to ensure the apprehension of the criminal while in the actual commission of the crime. There is instigation when the accused is induced to commit the crime. The difference in the nature of the two lies in the origin of the criminal intent. In entrapment, the mens rea originates from the mind of the criminal. The idea and the resolve to commit the crime comes from him. In instigation, the law officer conceives the commission of the crime and suggests to the accused who adopts the idea and carries it into execution

2. Yes.  The Court of Appeals found that AAA and BBB were recruited by accused when their services were peddled to the police who acted as decoys. AAA was a child at the time that accused peddled her services. AAA also stated that she agreed to work as a prostitute because she needed money. Accused took advantage of AAA’s vulnerability as a child and as one who need money, as proven by the testimonies of the witnesses. Therefore, the accused is found guilty beyond reasonable doubt for violating Section 4(a), qualified by Section 6(a) of Republic Act No. 9208 Anti Trafficking Act.

RA 9208, SEC. 3. Definition of Terms. – As used in this Act:

(a) Trafficking in Persons – refers to the recruitment, obtaining, hiring, providing, offering, transportation, transfer, maintaining, harboring, or receipt of persons with or without the victim’s consent or knowledge, within or across national borders by means of threat, or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.

The recruitment, transportation, transfer, harboring, adoption or receipt of a child for the purpose of exploitation or when the adoption is induced by any form of consideration for exploitative purposes shall also be considered as ‘trafficking in persons’ even if it does not involve any of the means set forth in the preceding paragraph

GR No. 195419 Oct 12, 2011 People of the Philippines vs Hadja Lalli

GR No. 195419 Oct 12, 2011

People of the Philippines vs Hadja Lalli

Facts:

On June 3, 2005 in the City of Zamboanga, Lolita Plando who was on her to the house of her grandfather, met Ronnie Aringoy and Rachel Canete. On the day they met, Ronnie proposed to Lolita a work in Malaysia. She was interested and so she gave her mobile number. On the next day, Lolita and Ronnie met again to discuss further the job he was offering in Malaysia. She was told that she will work as a restaurant entertainer and will be paid 500 Malaysian ringgits. She only need to have a passport and she’s good to go on June 6, 2005. On the following day, Ronnie introduced Lolita to Hadja Lalli, the person who will be helping her and three other girls to go to Malaysia to work. On June 6, 2005, Lolita together with Hadja Lalli, Nestor who the financier, and the 3 other girls went on board and travelled to Malaysia. Upon arriving the girls were introduced to a Chinese Malay who will be their Boss. When they arrived at the Pipen club, they were informed that they will be work as entertainers. Lolita was forced. She had customers night after night who used her and forced her to have sexual intercourse. Some even physically abused her. One night, Lolita was able to contact her sister who is in Malaysia and asked for help. Lolita was able to escape – she was rescued and was able to go back to Zamboanga City. Lolita was advised to file a complaint against Hadja Lalli and Ronnie Arngoy with the police regarding her ordeal in Malaysia.

Issue/s:

Whether or not the accused are guilty beyond reasonable doubt of the crimes of illegal recruitment and trafficking in persons for their acts

Ruling:

The Court of Appeals and RTC found accused guilty beyond reasonable doubt of the crimes of Illegal recruitment and Trafficking in Persons.

Section 6 of RA 8042 defines illegal recruitment, as follows:

[I]llegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contact services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines.

In this case, the trial court, as affirmed by the appellate court, found Lalli, Aringoy and Relampagos to have conspired and confederated with one another to recruit and place Lolita for work in Malaysia, without a POEA license. The three elements of syndicated illegal recruitment are present in this case, in particular: (1) the accused have no valid license or authority required by law to enable them to lawfully engage in the recruitment and placement of workers; (2) the accused engaged in this activity of recruitment and placement by actually recruiting, deploying and transporting Lolita to Malaysia; and (3) illegal recruitment was committed by three persons (Aringoy, Lalli and Relampagos), conspiring and confederating with one another.

Section 3(a) of Republic Act No. 9208 (RA 9208), otherwise known as the Anti-Trafficking in Persons Act of 2003, defines Trafficking in Persons, as follows: Trafficking in Persons refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victims consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.