ALTERNATIVE DISPUTE RESOLUTION

Barredbear’s Lecture Notes

Arellano University School of Law
(FEB. 13, 2022) V. CONFLICT MANAGEMENT STRATEGIES (exam)
I. BASIC PRINCIPLES OF ADR 1. Avoidance – seeks to put off conflict immediately
1. ADR will work and can be invoked only when there is an  By delaying or ignoring the conflict, the avoider hopes the
agreement problem resolves itself without a confrontation
2. GR: ADR should be conducted outside of the court processes  Someone who uses this has thee ability to side-step problems,
(with the consent of parties) lave issues unresolved, and allow others to take ownership
3. The jurisdiction of court cannot be the subject of agreement of  If an issue is unimportant, avoidance may be the correct strategy
parties because jurisdiction is based on law.  But if it is continuously done, it would crate more conflict; thus,
4. ADR is a system which comprises of methods, process, and it is not the right process
procedure; thus, there are methods and procedures to be followed.
5. Methods and procedures limited? No. They can be mixed up. 2. Competition – operates as a zero-sum game I which one wins
Tho such is not provided, the law does not prohibit it. law provides and other loses
that they can resolve the dispute based on their agreement  Using rank, position, or influence
6. Does it require exhaustion of admin remedies before going thru  Clear as to what you want (take it or leave it)
ADR? No. Because it is already a form of exhaustion of remedies.  If relationship is not important, this is a good strategy
7. If there is no consent, there can be no ADR.
3. Compromise – calls for both sides to give up elements of their
II. OVERVIEW OF INTERNATIONAL LAW position In order to establish an acceptable, if not agreeable,
1. Who - parties solution
NOTE: Capacity of the “who”  Overusing would mean a loss of the big picture perspective and
 State - who is a state, what is a state, when can a state be liable, lack of trust
the state cannot be sued without its consent, elements of a state  Underuse may result to frequent power struggles and
 Juridical person – allowed to exist because there is a law that unnecessary confrontations
allows them to operate; nationality is dictated by the law which
creates it 4. Accommodation – essentially entails giving the opposing side
 Natural person what it wants
2. What – subject; what is the issue to be resolved  Occurs when one of the parties wishes to keep the peace
3. How – how to resolve the issue; thru negotiation, mediation,  Overusing would lose the influence over the other person or the
conciliation, arbitration etc. other person would take advantage of one.
4. When – time duration when the AD will be resolved or needs to  if underused, it could result in low morale and lack of rapport
be resolved; prescription 5. Collaboration or Negotiation – works by integrations ideas set
out by multiple people. Object is to find a creative solution
III. WHAT IS CONFLICT?1 acceptable to everyone
 No definition of conflict
 Conflict is actual of perceived opposition of needs, values, and
interests
 Conflict can be internal (within oneself) or external (group or (FEB. 20, 2022)
org dynamics) What are the things we have to check when the person wants to
– Internal: Not qualify in ADR because it cannot be that the enter into a contract?
applicant and respondent is one and the same person 1. Check the entity’s existence (identity)
 Conflict can refer to wars, revolutions or other struggles, which – Is the entity a state, juridical person, or an individual person?
may involve the use of force as in the term armed conflict2 2. Look for the law that would govern the parties
– Struggle, hostilities 3. Check the source of obligation
– Determine what the representative must have to do.
IV. TYPES OF CONFLICT/DISPUTE 4. Check the capacity of the person
1. Dispute of right – Authority to represent
 Where people or groups are entitled by law, by contract, by 5. Formalities of the agreement
previous agreement or by establishment practice to certain rights – e.g. Written or verbal
 Focuses on conflict issues such as employment contracts,
legally enforceable matters or unilateral changes in accepted or [Further discussion on the abovementioned]
customary practices 1. Determine the entity’s existence (identity)
 Thus, it is usually settled by legal decision or arbitration, and a. Elements for statehood
not by negotiation a.1. Territory –
a.2. People –
2. Dispute of interest a.3. Government –
 Where the conflict may be a matter of opinion, such as where a a.4. Sovereignty –
person or group is entitled to some resources or privileges (such as a.5. Recognition –
access to property, better working conditions, etc.) a.6. Degree of Civilization –
 Because there is no established law or right, a dispute of interest b. Old school of thought: 5th and 6th elements are mandatory
will usually be solved thru collective bargaining or negotiation for a state to exist; Recent scholars: Existence of 6 th one is
embedded already in the four while the 5 th one merely
confirms the existence of state
1
Difference of disagreement and misunderstanding:
Misunderstanding – one fact exists which is not known to
one of the parties; disagreement – 2 truths. Disagreement id 2. Look for the law that would govern the parties
 Law that will govern the agreement of the parties
harder to resolve because of reconciliation
2
NOTE: ICJ is not a centralized court internationally; only  Sources of International Law
an institution (Don’t proceed with primary and secondary sources. Proceed with
the following enumeration instead)
ALTERNATIVE DISPUTE RESOLUTION
Barredbear’s Lecture Notes
Arellano University School of Law
1. Treaties and International Agreements – c. When a State filed a suit
– Requisites:
1. Terms and conditions subject to negotiation NOTE:
2. Document is signed (confirmation that it is the same 1. Is Senate concurrence necessary for when the state consents to
document that will be brought before the home country be sued?
for ratification) 2. If a State has a conflict with another State, what are the actions
3. Ratification which a State can take?
– Duty of the Head of the State a. Governmental functions – if it falls within the powers of the
– Concurrence of the Senate: if not obtained, still valid. State (see #3)
But not called as treaty, but as an international document. b. Proprietary functions – acts falling outside of the powers of
4. Signing of the document itself (giving of the consent; the State; commercial or private acts
not merely identifying if it is the same document) 3. 3 broad powers of the State
5. Deposit with the UN as the registry of all treaties (will a. Police power
not affect validity; notice to parties that a party consented b. Eminent Domain
to such agreement) c. Power of taxation
4. Can the PH gives auto-consent? Yes, by submitting a document
2. Custom (express consent)
– Long period of usage and opinio juris

3. General Principles of International Law – Principles that have Juridical person – exists because the law allows them to exist
the same concept all over the world How does a juridical person act?
– Cannot sign but can enter into contracts
4. Judicial Decisions

5. Writings of Most Highly Qualified Publicists

(Feb. 27, 2022)
6. Ex aequo et bono – Fairness and equality Substance of the agreement
 those provisions in the agreement that can be violated and
complied with by the parties
3. Sources of obligations3 1. Law applicable to the substance of the dispute
– Difference between Doctrine of Incorporation and Doctrine of 2. Law applicable to the ADR
Transformation: 3. Law applicable to the proceeding itself
1. Doctrine of Incorporation – Philippines adopts the generally
accepted principles of international law and international Note:
jurisprudence as part of the law of the land (Art. II, Sec. 2) Sitting – fora forum (place where the proceedings occur)
– Only customary law and treaties which have become
part of customary law become part of Philippine law by ------------------------------------------------------------------------------
incorporation Determining the capacity of the corporation to enter into contracts
2. Doctrine of Transformation – An international law be How does a corporation act?
transformed into a domestic law through a constitutional  Cannot act on its own
mechanism such as local legislation.  Through its authorized representatives, such as board of
– By enacting laws directors who will authorize a person to sign a contract

NOTE:
1. International law – no centralized authority of who would issue; Note:
Domestic law – there is a centralized authority Source of conflict – agreement of the parties itself
2. IL – governs relationship of States; Domestic law – governs
relationship of government and citizens
3. IL – Citizen invoking rights under IL, that citizen cannot directly What are you going to ask a person acting for a corporation?
claim that violation as it requires as intermediary which is the state  Does the person acting for a corporation have the authority to
because the state is the subject of IL and, as such, it will receive actually represent the corporation?
the corresponding liability and perform the necessary obligations  What is your authority to be here?
that may be imposed upon such state.
 E: When IL states that it grants relief to a natural person for What should I ask to determine the authority of the representative
violation of such right of a corporation?
Domestic Law – citizen can directly claim 1. Ask for the Secretary’s certificate
- Indicated as to what capacity and to what extent the capacity of
the person representing the corporation to enter into a contract
4. Determine the capacity of the person - Attached board resolution
How do we know where to find the consent of the state on being
sued? How do we determine the nationality of the corporation?
 Look at the documents for which the obligations has ben  Registration of the corporation
violated (???)
What is the status of the corporation which have regional offices
How implied consent can be given: from other countries where it is not registered?
a. When a State participates in the proceeding  Foreign which have offices in the, say, PH
b. When a State makes a claim  Commercial presence – stablished in a pa

3
Note: Law, contracts, quasi-contracts, delicts, quasi-
delicts (Oblicon) Note:
ALTERNATIVE DISPUTE RESOLUTION
Barredbear’s Lecture Notes
Arellano University School of Law
Juridical person exists because of the contemplation of law (which 1. Law suits
means a law that recognizes its authority) 2. Mediation, conciliation, arbitration, negotiation, mini-trial (only
for ADR)
 Mediation – it is the mutual 3rd party that governs the processes
For an individual person to enter into a contract, what is  Conciliation – not included in 1907 because the party of a
necessary? dispute will submit themselves to the influence of anoter state;
 Capacity of the individual person only in 198_
 Determine if there are restrictions to the capacity of the person:
1. insanity – must be confirmed by the court ADR – may be used in court but different rules will apply
2. imbecility
3. the state of being a deaf-mute 2 types of dispute resolution (not ADR) processes
4. penalty 1. Adjudicative –arbitration which requires jurisdiction, neutral
5. prodigality person with authority which can determine the outcome of the
6. family relations dispute
7. alienage  Arbitration is adjudicative because neutrality is required
8. absence
9. insolvency 2. Consensual – does not required jurisdiction, does not required a
10. trusteeship neutral person; helping, whether passive or active, the parties of a
11. age dispute

Mutuality – party autonomy

Elements of a Contract
1. Consent – manifestation of the offer and the acceptance of the Win-win solution – party to a dispute will have the dispute based
thing on the agreement; based on the outcome
 Offer – must be certain  can also apply even in arbitration
 Acceptance – must be qualified; if qualified, means subject
to condition, considered as counter-offer
2. Object – subject matter of the contract; that which is necessary 1907 Hague Convention for the Pacific Settlement of
to be performed International Disputes
3. Cause - essential reason which moves the parties to enter into a  Was PH a signatory? No.
contract.  Purpose: With a view to obviating as far as possible recourse to
force in the relations between States, the Contracting Powers agree
to use their best efforts to ensure the pacific settlement of
What are the types of contract under PH law? international differences. (Art. 1)
1. Defective Contracts
2. Rescissible Contracts Why can the PH use it if it is not a signatory? Hindi siya directly
3. Voidable Contracts signatory kasi under US pa siya nun kaya conferred pa jurisdiction
4. Unenforceable Contracts niya
5. Void Contracts
6. Inexistent Contracts Is there a definition of these terms under the Hague Convention?
None, because they are already considered general principles
which are known. Only its function
Important in ADR:
Party autonomy (Art. 1306) (Memorize) Parties to the dispute – “parties at variance”; states who are
 The contracting parties may establish such stipulations, clauses, signatory of the hague convention
terms and conditions as they may deem convenient, provided they
are not contrary to law, morals, good customs, public order, or Functions:
public policy 1. Mediation -
2. Good office
3. Arbitration
NOTE 4. Commission on inquiry
What is the law?
 The law of the country where you are going to perform or encourage the parties to use their best efforts to resolve their
subject the agreement of the contract differences based on the recommendation of method as provided
 Law that would govern the contract under the hague 1907
 If parties are on different countries which have different laws
with regard to capacity to enter into contract, nationality rule good offices and mediation
applies. same idea in the rules
– Art. 15, NCC: Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons are binding Good offices
upon citizens of the Philippines, even though living abroad. no longer in speaking term – no official communication
– Renvoi doctrine  in embassy; ambassador is sent home by the host state

As to form
 Law where the agreement is signed (lex loci celebrationis) PCA (after my recit)
Compromis - how to resolve the dispute; conduct of resolution of
dispute

Dispute resolution – process of resolving dispute between and PCA

among parties
ALTERNATIVE DISPUTE RESOLUTION
Barredbear’s Lecture Notes
Arellano University School of Law

[Note: Conciliation is used but was not part of 1907. It was only
used in 19]
Tribunal
Why is PCA not a court  No tribunal per se
 It administers dispute resolution  Because parties are free to constitute based on the rules they
 Acts as registry for the purpose of international arbitration have agreed upon
 It does not resolve dispute  Established for each dispute submitted, and its method of
 Only facilitates in the resolution of dispute constitution will depend on the applicable rules
 Because it needs a neutral person to resolve the dispute

PCA
Not limited to arbitration. Why? Because the Convention
provides for it

One of the requirements:

1. Submit the party themselves in the PCA through the general
treaty

May be extended to disputes between con-Contracting Powers or

between Contracting and non-Contracting Powers (Art. 47)
– Provided, such is within the conditions laid down in the
regulations
– Provided, that the parties agreed to have the Tribunal as a
recourse
NOTE: One must be a signatory

law of the substance

law where the dispute resolution is to be undertaken
law governing the form(?)

ARBITRATION – Consent is necessary !!

ALTERNATIVE DISPUTE RESOLUTION
Barredbear’s Lecture Notes
Arellano University School of Law