The  Arbitration & Mediation Rules of the 

Philippine Arbitration Center In The Visayas 2021

Article 1: Scope of Application

1. These rules shall be known as the Arbitration and Mediation Rules of the Philippine Arbitration Center In The Visayas  ("PACV Rules"). The PACV Adopted rules in so far as the adopted Construction Industry Arbitration Commission (CIAC) table of administrative charges and arbitrators fee if it exceeds Php two million pesos, as may be amended by CIAC from time to time,  and Rule 4 on small claim on the adopted rules shall form part of the PACV Rules.

2. By agreeing to arbitrate under the PACV Rules, the parties deemed to have accepted that the administration of the dispute and its resolution shall be generally virtual and adopt the 2020 PACV Virtual Hearing Guidelines unless parties together with the tribunal/sole arbitrator specifically agree in writing to a face to face meeting and/or hearing.

3. These Rules shall apply to any contractual, commercial, or intra-corporate related dispute, controversy, difference, or claim referred to arbitration or mediation that may arise out of an arbitration or mediation clause contained in a contract or regulations or because of a submission agreement.

Article 2: Written Communications

1. A written communication may be transmitted by any means that provides or allows for a record of its transmission. However, if a hard copy is requested, the other party shall provide the requesting party of such together with a digital or electronic copy (soft copy) thereof by courier or email.

2. If an address has been designated by a party specifically for this purpose or authorized by the arbitral tribunal, a written communication shall be delivered to the party at such address, and if so delivered shall be deemed to have been received. The address herein refers to the physical address or email address.

3. In the absence of such designation or authorization, a written communication is:

a. received, if it is physically delivered to the addressee; or

b. deemed to have been received, if it is delivered at the place of business, habitual residence, or mailing address of the addressee.

4. If after reasonable efforts, delivery cannot be made as stated above, a written communication is deemed received if it is sent to the addressee's last known place of business, habitual residence, or mailing address by registered letter or any other means that provides a record of delivery or of attempted delivery.

5. A written communication is deemed to have been received on the day it is delivered following paragraphs 2, 3, or 4 of this Article or attempted to be delivered under paragraph 4 of this Article.  A written communication transmitted by electronic means is deemed received on the day it is sent, except a Notice of Arbitration, which is deemed received on the day it reaches the party's electronic address.

6. All written communications to PACV by one party shall at the same time be communicated by that party to all other parties and, if already constituted, to the arbitral tribunal.  All written communications
between any party and the arbitral tribunal shall be
communicated to all other parties and PACV.

Article 3: Calculation of Period of Time

For purposes of calculating the period of time under the PACV Rules, such period shall begin to run on the first business day following the day when a written communication is received or deemed received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day that follows. Official holidays or non-business days occurring within the period of time are included in calculating the period.

Article 4: Request For Arbitration/Mediation

1. The party or parties initiating recourse to arbitration/mediation ("Claimant") shall file with PACV a  Request For  Arbitration/Mediation (the "Request").

2. The Request shall contain the following:

a.     the name/s, nationality/ies and contact detail/s of Claimant/s;

b.     the name/s, nationality/ies and contact detail/s of Respondent/s;

c.     copy/ies of the Arbitration/Mediation /Submission Agreement/s;

d.     the stated or proposed place of arbitration/mediation;

e.     the stated or proposed law of arbitration/mediation if applicable;

f.      the stated or proposed language of arbitration/mediation;

g.     the stated or proposed number of arbitrators/mediators if applicable;

h.     copy/ies of the relevant contract/s involved in the Dispute/s;

i.      description of the claim/s with an estimate of the amount/s involved;

j.      a statement of fact/s supporting the claim/s;

k.     the documentary evidence relied upon in support of the claim/s;

l.      a list of witness/es together with the relevant witness/es statement/s if applicable;

m.    a statement of issue/s involved in the Dispute;

n.     argument/s supporting the claim/s if applicable;

o.     enumeration of relief/s sought;

p.     a request for the production of document/s, if applicable;

q.     interim measure/s sought, if applicable;

r.      the name/s, nationality/ies and contact detail/s of any third-party funder/s if applicable;

s.     procedural agreement proposal/s, if any;

t.      application for expedited procedure, if applicable;

u.     application for emergency arbitration, if applicable; and

v.     payment of provisional advance on cost.

3. The Request shall be filed in printed form (hard copy) together with a digital or electronic copy (soft copy) thereof by courier or email to the PACV.

4. The Claimant shall also pay a. non-refundable filing fee and provisional advance on cost ("Provisional Advance"). PACV shall not act on the Request, including any proposals for the appointment of arbitrators/mediators, and the Respondent shall not be required to submit a response to the Request, unless the Provisional Advance has been paid.

5. The arbitration/mediation shall be deemed to commence on the date when PACV receives the hard copy or the electronic copy of the  Request For Arbitration whichever comes first.

Article 5: Response to the Request For Arbitration/Mediation

1. Within thirty (30) days from receipt of PACV's notice to submit the response to the Request, the Respondent shall communicate to PACV a Response to the Request For Arbitration/Mediation (the "Response"), which shall include:

a.     agreement to arbitrate/mediate [or a plea that an arbitral tribunal/mediator to be constituted under the Rules lacks jurisdiction or that the Disputes are not arbitrable/mediatable , if applicable];

b.     the name/s, nationality/ies and contact detail/s of Respondent/s;

c.     the name/s, nationality/ies and contact detail/s of additional party/ies;

d.     copy/ies of the Arbitration/Mediation/Submission Agreement/s;

e.     the stated or proposed place of arbitration/mediation;

f.      the stated or proposed law of arbitration/mediation if applicable;

g.     the stated or proposed language of arbitration/mediation;

h.     the stated or proposed number of arbitrators/mediators if applicable;

i.      copy/ies of the relevant contract/s involved in the Dispute/s;

j.      response to the claim/s;

k.     description of any counterclaim with an estimate of the amount/s involved;

l.      a statement of fact/s supporting the response and any counterclaim/s;

m.    the documentary evidence relied upon in support of the response and any counterclaim/s;

n.     a list of witness/es together with the relevant witness/es statement/s if applicable;

o.     a statement of issue/s involved in the Dispute;

p.     argument/s supporting the response and any counterclaim/s;

q.     enumeration of relief/s sought;

r.      a request for the production of document/s, if applicable;

s.     interim measure/s sought, if applicable;

t.      the name/s, nationality/ies and contact detail/s of any third-party funder/s if applicable;

u.     procedural agreement proposal/s, if any;

v.     application for expedited procedure, if applicable;

w.    application for emergency arbitration, if applicable; and

x.    payment of provisional advance on cost.

2. The Response shall be filed in printed form (hard copy) together with a digital or electronic copy (soft copy) thereof by courier or email to the PACV, copy furnished to the Claimant and other additional party/ies.

3. The Respondent shall also pay a nonrefundable filing fee and Provisional Advance. Unless the Provisional Advance on cost is paid by the Respondent, the arbitral tribunal shall not act on any counterclaim, or any other claim or affirmative relief sought by Respondent.

4. The constitution of the arbitral tribunal shall not be hindered by a Respondent's failure to communicate a Response or an incomplete or late Response.

Article 6: Joinder of Additional Parties/Multiple Contracts and Consolidation

1. A party wishing to join an additional party to the arbitration or mediation shall submit its request for arbitration/mediation against the additional party (Request for Joinder) to PACV. Unless all parties, including the additional party, otherwise agree, no additional party may be joined after the confirmation or appointment of any arbitrator or mediator. PACV may fix a time limit for the submission of a Request For Joinder.

2. The Request For Joinder shall contain the case reference of the arbitration/mediation and the information specified under Art. 4 of the PACV Rules. The Party filing the Request For Joinder may submit such other documents or information as it considers appropriate.

3. The Additional Party shall  submit its Answer in accordance with the provisions of Article 5 including whether it consents to be joined in the dispute.

4. The Request for Joinder made after the confirmation or appointment of any arbitrator/mediator shall be decided by the arbitral tribunal/mediator and shall be subject to the additional party accepting the constitution of the arbitral tribunal /mediator and agreeing to the Terms of Reference if applicable

5. Additional parties or claims against any other party arising out of or in connection with more than one contract or multiple parties may be joined in the arbitration/mediation, whether or not such claims are made under one or more than one arbitration/mediation agreement under the Rules,

6. PACV may at the request of a party may consolidate two or more arbitrations/mediation under the Rules, where:

a.     the parties agree to consolidate; or

b.    all the claims in the arbitrations/mediation are made under the same arbitration/mediation agreement; or

c.    where the claims are made under more than one arbitration/mediation agreement, and the rights to relief claimed are in respect of, or arise out of, the same transaction or series of transactions, and PACV finds the arbitration/mediation agreements to be compatible.

7. Where PACV decides to consolidate two or more arbitrations/mediations, the arbitrations/mediation shall be consolidated into the arbitration/mediation that commenced first, unless all parties agree or PACV decides otherwise, taking into account the circumstances of the case.

Article 7: Third-Party Funding (not applicable to mediation)

1. Whenever a party has an agreement with an external or third-party funder ("Third-Party Funder"), whereby the Third-Party Funder agrees to provide funding for or indemnity against any award to be rendered in the proceedings, such funded party or any other party shall communicate to PACV, the other parties, and the arbitral tribunal a written notice of (a) the fact that there is a funding agreement, and (b) the name, address, and other contact details of the Third-Party Funder.

2. Any funded party shall immediately disclose any change to the information in the notice referred to in paragraph 1 of this Article that arises after the initial disclosure by communicating a written notice to PACV, the other parties, and the arbitral tribunal.

3. The arbitral tribunal may require a funded party to disclose further or additional information on the funding agreement if it deems it necessary at any stage of the proceedings.

4. The arbitral tribunal shall resolve any matter raised in connection with the disclosure.

Article 8: Selection of The Mediator

1. The parties may jointly nominate a Mediator for confirmation by the PACV.

2. In the absence of a joint nomination of a Mediator by the parties, PACV shall after consulting parties either appoint a Mediator or propose a list of names to the parties.

3. A Mediator before the commencement of the mediation shall sign a statement of acceptance, availability, impartiality, and independence and disclose in writing any facts or circumstances that might call into question the Mediator’s independence.

4. By agreement of parties, more than one Mediator may be appointed in accordance with the provisions of the PACV Rules.

Article 9: Other Provisions on Mediation

1. The party/parties filing a Request for Mediation shall include the non-refundable filing fee and provisional cost as provided under Article 4(4). With respect to proceedings that have commenced, all deposits requested, and cost fixed shall be borne in equal shares by the parties, unless they agree otherwise in writing. However, any party shall be free to pay the unpaid balance of such deposit and costs should another party fail to pay its share.

2. Proceedings which have been commenced pursuant to the Rules shall terminate upon written confirmation of termination by PACV to the parties after the occurrence of either the settlement by parties by agreement, the notification in writing made to the Mediator that parties have decided no longer to pursue the mediation or matters of similar import.

Article 10: Arbitral Tribunal

1. The term “arbitral tribunal” means a sole arbitrator or a panel of arbitrators and includes an Emergency Arbitrator.

2. If the parties have not previously agreed on the number of arbitrators, PACV shall determine if one or three arbitrators shall be appointed, taking into account the circumstances of the case.

3. In arbitrations under the Rules, the appointment of arbitrators, whether as a sole arbitrator or an arbitral tribunal, shall be subject to confirmation by PACV. Before confirmation, an arbitrator shall (a) sign a statement confirming his or her availability to decide the Disputes and his or her impartiality and independence; and (b) disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. By accepting their appointment, the arbitrators are deemed to have accepted the Rules and the Guidelines on Fees.

4. If a sole arbitrator is to be appointed, the parties shall propose the name of one nominee for sole arbitrator in the Request, Response or in a subsequent communication within the time allowed by the Rules. If within five (5) days from receipt by a party of another party's proposal, the parties have not reached agreement on the choice of a sole arbitrator or either party fails to make any proposal, the sole arbitrator shall be appointed and confirmed by PACV within five (5) days therefrom.

5. Unless both parties agree on a procedure for the appointment of the sole arbitrator, PACV shall determine the appropriate procedure.

6. If three arbitrators are to be appointed, each party may propose one arbitrator in the Request and one arbitrator in the Response or in a subsequent communication within the time allowed by the rules. Unless the parties agree otherwise, the two arbitrators so appointed, upon confirmation of their appointments, shall choose the third arbitrator, who upon confirmation of his appointment, will act as the presiding arbitrator. If within five (5) days after the confirmation of the second arbitrator, the two arbitrators have not agreed on the choice of the third arbitrator, PACV shall appoint the third arbitrator in the same manner as a sole arbitrator within five (5) days therefrom.

7. In the case of multiple parties as claimants or respondents and unless the parties have agreed to another method of appointment of arbitrators, the multiple claimants or the multiple respondents shall jointly nominate an arbitrator.

8. The arbitral tribunal is deemed constituted when the appointment of the sole arbitrator or of the third arbitrator, or the last arbitrator in case of multiple arbitrators, has been confirmed by PACV.  PACV shall send a notice of the confirmation to the parties and the arbitral tribunal, expressly providing for the date of the arbitral tribunal's constitution.

9. In case of failure to constitute the arbitral tribunal for any cause under the Rules, PACV shall constitute the arbitral tribunal and in doing so may revoke any appointment or confirmation already made and appoint or reappoint each of the arbitrators and designate one of them as the presiding arbitrator.

Article 11: Challenge of Arbitrators

1. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence, or if the arbitrator does not possess the qualifications agreed upon by the parties.

2. A party may challenge the arbitrator appointed by him or her only for reasons of which he or she becomes aware after the appointment.

3. In the event that an arbitrator fails to act or it becomes impossible for an arbitrator to perform his or her functions, the procedure in respect of the challenge of an arbitrator as provided in these Rules shall apply.

4. A party who intends to challenge an arbitrator shall send a notice of challenge within five (5) days after it was notified of the appointment of the challenged arbitrator or within five (5) days after the circumstances became known to that party.

5. The notice of challenge shall be communicated to PACV to the other parties, to the arbitrator who is challenged, and to the other arbitrators.  The notice of challenge shall be in writing and shall state the reasons for the challenge.  The challenging party shall pay a fee to PACV upon submission of the notice of challenge.

6. The notice of challenge shall contain facts and circumstances, in addition to those already disclosed, upon which the challenge is based.  It shall be communicated to PACV, to the other parties, to the arbitrator who is challenged, and to the other arbitrators.  The notice of challenge shall be in writing and shall state the reasons for the challenge.

7. A notice of challenge shall not be considered made unless the party making the challenge has paid the challenge fee under these Rules in accordance with the Schedule of Fees.

8. Except for justifiable reasons as may be determined by PACV, the notice of challenge shall not suspend the proceedings.

9. All parties may agree to the challenge, in which case the appointment shall be deemed withdrawn. The challenged arbitrator may also withdraw the acceptance of his or her appointment. Acceptance of the challenge by the appointing party or by the challenged arbitrator shall not imply the validity of the challenge.

10. If the other party does not agree to the challenge or the challenged arbitrator does not withdraw within five (5) days from notice of the challenge, PACV shall decide the challenge within five (5) days from referral. PACVI may adopt any appropriate procedure and adjust the time limit to decide the challenge, including hearing the parties and the challenged arbitrator.

11. If PACV sustains the challenge, a substitute arbitrator shall be appointed pursuant to the procedure applicable to the appointment of an arbitrator as provided in these Rules.

12. PACVs decision on the challenge shall be final. The arbitral tribunal shall allocate the costs of the challenge, if any, including the challenge fee and the costs incurred by the challenged arbitrator and the opposing party.

13. Subject to the succeeding paragraph, in any event where an arbitrator has to be replaced in the course of the arbitral proceedings, a substitute arbitrator shall be appointed pursuant to the procedure provided above that was applicable to the appointment of the arbitrator being replaced.  This procedure shall apply even if in the process of appointing the arbitrator to be replaced, a party had failed to exercise its right to appoint or to participate in the appointment.

14. At the request of a party, PACV may (a) appoint the substitute arbitrator; or (b) after the closure of the hearings, authorize the other arbitrators to proceed with the arbitration without delay and make any decision or render an award.  In making such determination, PACV shall take into account the
views of the remaining arbitrators and of the parties
and such other matters that it considers appropriate
in the circumstances.

15. If an arbitrator is replaced, the proceedings shall resume at the stage where the arbitrator who was replaced ceased to perform his or her functions without repeating the previous hearings, unless the arbitral tribunal decides otherwise.

Article 12: File Counsel

1. A File Counsel with the consent of the Parties may be appointed by PACV upon commencement of the arbitration.  The File Counsel, who is independent of the arbitral tribunal, shall monitor the arbitration on behalf of PACVI.

2. The File Counsel shall be subject to the same articles on Disclosures and Challenges by any party. The resolution of the challenge by PACV shall be final.

3. The File Counsel may attend the case management conference and the hearings.

Article 13: Tribunal Secretary

1. The arbitral tribunal or its presiding arbitrator may appoint a secretary (“Tribunal Secretary”) to assist in performing its functions.

2. The Tribunal Secretary shall serve for the duration of the arbitration, unless he or she is earlier retired or replaced by the arbitral tribunal or its presiding arbitrator. 

3. The Tribunal Secretary shall be subject to the same articles on Disclosures and Challenges by any party. The resolution of the challenge by the arbitral tribunal or its presiding arbitrator shall be final.

Article 14: Seat of Arbitration

1. If the parties have not previously agreed on the seat of arbitration, the seat of arbitration shall be determined by the arbitral tribunal, having regard to the circumstances of the case. The award shall be deemed to have been made at the seat of arbitration.

2. The arbitral tribunal may meet at any location it considers appropriate for deliberations. Unless otherwise agreed by the parties, the arbitral tribunal may also meet at any location it considers appropriate for any other purpose, including hearings.

Article 15: Language

1. Subject to an agreement by the parties, the arbitral tribunal shall, promptly after its appointment, determine the language(s) to be used in the proceedings, including the submissions of the parties, oral hearings, and Final Award. In the absence of such agreement, the language of the arbitration shall be English.

2. The arbitral tribunal may order that any documents annexed to the submissions of the parties and any supplementary documents or exhibits submitted in the course of the proceedings, delivered in their original language, shall be accompanied by a translation into the language(s) agreed upon by the parties or determined by the arbitral tribunal, or in the absence of such determination, in English.

Article 16: Terms of Reference, Case Management Conference and Procedural Timetable

1. Within fifteen (15) days from receipt of the file from PACV, the arbitral tribunal shall prepare, on the basis of the parties' submissions, a document defining its Terms of Reference  and convene the parties to a Case Management Conference to discuss, among others, the procedural measures that may be adopted. The arbitral tribunal may invite the parties to submit proposals in advance of the Case Management Conference.

2. The Terms of Reference shall define the scope of the arbitration and include the following particulars:

a.     the name/s, nationality/ies and contact detail/s of the parties, representatives, and counsel;

b.     the Arbitration/Submission Agreement/s, including the place of arbitration, law of arbitration, and language of arbitration;

c.     the name/s, nationality/ies and contact detail/s of the arbitrators;

d.     the name/s, nationality/ies and contact detail/s of the File Counsel if applicable;

e.     the name/s, nationality/ies and contact detail/s of the Tribunal Secretary, if applicable;

f.      the relevant contract/s involved in the Dispute/s;

g.     summary of all the claim/s with an estimate of the amount/s involved, including the arguments relied upon and the reliefs sought;

h.     a statement of the admitted fact/s;

i.      a statement of issue/s involved in the Dispute;

j.    the particulars of the applicable laws and procedural rules other than the Rules and, if necessary, reference to the power conferred upon the arbitral tribunal to act as amiable compositeur or to decide ex aequo et bono;

k.      the documentary evidence relied upon in support of all the claim/s;

l.      a list of witness/es together with the relevant witness/es statement/s;

m.    the procedural timetable;

n.     the ruling on the request for the production of document/s, if applicable;

o.     interim measure/s sought/granted, if applicable;

p.     the name/s, nationality/ies and contact detail/s of any third-party funder/s, if applicable;

q.     application for expedited procedure, if applicable; and

r.      emergency arbitration ruling, if applicable.

3. The Terms of Reference shall be reviewed and signed by the parties and the arbitral tribunal. Once signed by the parties and the tribunal, it may not be modified without their consent. If a party refuses or is unable to sign the Terms of Reference, the arbitration shall proceed on the basis of the Terms of Reference signed by at least one party and the arbitral tribunal.

4. Prior to the signing of the Terms of Reference, a party may amend or supplement its claim or defense, including a counterclaim or any other claim for the purpose of a set-off, unless the arbitral tribunal considers it inappropriate to allow such amendment or supplement having regard to the delay in making it or prejudice to other parties or any other circumstances. However, a claim or defense, including a counterclaim or any other claim for the purpose of a set-off, may not be amended or supplemented in such a manner that the amended or supplemented claim or defense falls outside the jurisdiction of the arbitral tribunal.

5. The periods of time fixed by the arbitral tribunal for the foregoing amendment shall not exceed fifteen (15) days.

6. Upon the signing of the Terms of Reference, PACV shall determine the parties’ Final Advance and shall require the parties to pay the same, less any amounts paid by way of Provisional Advance, in accordance with the Guidelines on Fees.

7. During the Case Management Conference, the arbitral tribunal shall also establish the procedural timetable that it intends to follow for the arbitration ("Procedural Timetable"). The Procedural Timetable and any modifications thereto shall be communicated to PACV and the parties.

8. The arbitral tribunal may allow the production of evidence, provided it is relevant to the case, material to its outcome, and not dilatory to the proceedings. Any objection to the production of evidence requested shall be promptly communicated to the arbitral tribunal, who shall rule on the objection at the Case Management Conference. The arbitral tribunal may include in the Procedural Timetable the details of the production of evidence requested, the due dates, the nature of the testimony or document sought, the party responsible for the response, and the place of production or deposition, among others. In allowing the production of evidence, the arbitral tribunal shall act fairly and expeditiously, but without any unnecessary formality. It may impose costs or other sanctions against any party’s (a) unjustified failure or refusal to comply with the order or agreement to produce evidence, or (b) attempt to delay or defeat the production of evidence or to overwhelm the requesting party with irrelevant or immaterial evidence.

Article 17: Pleas as to the Jurisdiction of the Arbitral Tribunal

1. The arbitral tribunal shall have the power to rule on objections that it has no jurisdiction, including any objections with respect to the scope, existence or validity of the arbitration clause or arbitration agreement, or concerning whether all of the claims made in the arbitration may be determined in a single arbitration.

2. An arbitration clause forming part of a contract and that provides for arbitration under the Rules shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is void shall not automatically entail the invalidity of the arbitration clause.

3. A plea that the arbitral tribunal does not have jurisdiction, or that the claims made in the arbitration may not be determined in a single arbitration, shall be raised not later than in the Response or, with respect to a counterclaim or any other claim for the purpose of set-off, in the Reply thereto. A party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the proceedings. However, the arbitral tribunal may admit a later plea if it considers the delay justified.

4. The arbitral tribunal shall rule on a plea concerning its jurisdiction in an award on the merits. The arbitral tribunal may continue the arbitral proceedings and make an award, notwithstanding any pending challenge to its jurisdiction before a court if allowed under the applicable law.

5. In cases when the propriety of a single or consolidated arbitration is in issue, PACV shall decide whether and to what extent the arbitration shall proceed. The arbitration shall proceed in accordance with the Rules.

Article 18: Hearings

1. If so requested by a party, the arbitral tribunal shall hold hearings at an appropriate stage of the proceedings for the presentation of evidence, including expert testimony, or for oral argument. In the absence of such a request and after consulting the parties, the arbitral tribunal may, if it deems itself to be sufficiently well informed, decide not to hold a hearing.

2. The hearing shall be held within thirty (30) days from the signing of the Terms of Reference. As a general rule, there shall be only one (1) hearing during which the arbitral tribunal hears the parties, any witnesses and any experts, as well as the parties’ final oral arguments, for which the Respondent is heard last, unless the arbitral tribunal requires further hearings.

3. The taking of evidence shall be subject to conditions as the arbitral tribunal shall prescribe. Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require the exclusion of any witness or witnesses, including expert witnesses, during the testimony of other witnesses, except that a witness who is a party or a party representative to the arbitration shall be entitled to attend the hearings without being excluded.

4. Except to receive the testimony of witnesses who may not be available for examination during the hearing, depositions and interrogatories are not allowed. However, the parties may agree to depose any witnesses or to serve interrogatories on each other. The arbitral tribunal may also allow the deposition of any witnesses or the service of interrogatories, upon such terms as it shall determine.

5. The arbitral tribunal may decide to conduct a hearing by video-conference or to hear some parties, witnesses and experts via tele-conference or video-conference. With the agreement of the parties, she/he may also exempt a witness or expert from appearing at the hearing if the witness or expert has previously filed a statement.

6. The arbitral tribunal may limit or disallow the appearance of any witness or expert, or any part of their testimony, on the grounds of irrelevance.

Article 19: Applicable Law, Evidence and Burden of Proof

1. The arbitral tribunal shall apply the law designated by the parties as applicable to the substance of the Dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law that it determines to be appropriate. The arbitral tribunal shall act as amiable compositeur or ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so. However, if the law applicable to the arbitral procedure permits such arbitration, the parties may agree to waive or restrict such authority. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract, if any, and shall take into account any usage of trade applicable to the transaction.

2. Each party shall have the burden of proving the facts relied on to support its claim or defense. The arbitral tribunal shall have the power to determine the admissibility, relevance, materiality, and weight of a party’s evidence.

3. Witnesses, including expert witnesses, who are presented by the parties to testify on any issue of fact or expertise may be any individual, notwithstanding that the individual is a party to the arbitration or in any way related to a party. Statements by witnesses, including expert witnesses, shall be in writing and signed by them.

4. At any time before the close of hearings, the arbitral tribunal may require the parties to produce oral or written testimony, documents, or other evidence and to allow the inspection and reproduction of such evidence, upon such terms as it shall determine.

5. After the hearing, the arbitral tribunal shall declare the hearings closed.

Article 20: Experts Appointed by the Arbitral Tribunal

1. After consultation with the parties during the Case Management Conference, the arbitral tribunal may, on its own or upon request of one or both parties, appoint one or more experts to report to it, in writing, on specific issues to be determined by the arbitral tribunal.  A copy of the expert's terms of reference, established by the arbitral tribunal, shall be communicated to the parties.

2. Before accepting the appointment, the expert shall submit to the arbitral tribunal and to the parties a description of his or her qualifications and a statement of his or her impartiality and independence. Within five (5) days from notice, the parties shall inform the arbitral tribunal whether they have any objections as to the expert's qualifications, impartiality, or independence. The arbitral tribunal may consider such objections. shall decide such objections promptly.  After an expert's appointment, a party may object to the expert's qualifications, impartiality, or independence only for reasons of which the party became aware after the appointment was made. The arbitral tribunal  shall promptly decide such objection and what action to take, if any.

3. The parties shall give the expert all relevant information or produce for his or her inspection all relevant documents, information, goods, or other evidence that he or she may require of them. Any dispute between a party and such expert as to the relevance of the required information or production shall be referred to the arbitral tribunal for decision.

4. Upon receipt of the expert's report, the arbitral tribunal shall communicate a copy of the report to the parties, who shall be given the opportunity to express, in writing, their opinion on the report. A party shall be entitled to examine any document on which the expert has relied in his or her report.

5. At the request of any party, the expert, after delivery of the report, may be heard at a hearing where the parties shall have the opportunity to be present and to examine the expert. At this hearing, either party may present expert witnesses in order to testify on the points at issue.

Article 21: Default

1. If, within the period of time fixed by the Rules or by the arbitral tribunal:

a.     if the claimant fails to complete the Request, the request for arbitration shall not be accepted by PACV.

b.     If the Respondent fails to submit its Response, the arbitral tribunal may nevertheless proceed with the arbitration, without treating such failure in itself as an admission of the claims, and deliver an award. This shall also apply to a failure to submit a reply to a counterclaim, or any other claim.

c.     If any of the parties, or its witnesses, duly notified under the Rules, fails to appear at the hearing, the arbitral tribunal may nevertheless proceed with the hearing and deliver an award.

2. If a party requested by the arbitral tribunal or by its appointed expert to produce documents, information, goods or other evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it.

Article 22: Interim Measures of Protection

1. It is not incompatible with an arbitration agreement for a party, before the constitution of the arbitral tribunal, to request a court to grant an interim measure of protection or to apply for Emergency Relief pursuant to the Rules. 

2. After the constitution of the arbitral tribunal, any party may request that an interim measure of protection be granted against any other party provided that: (a) the harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (b) there is a reasonable possibility that the requesting party will succeed on the merits of the claim.

3. The request for an interim measure of protection shall be accompanied by payment of the non-refundable fee and requisite deposits under these Rules.

4. The arbitral tribunal may modify, suspend or terminate the interim measure of protection it has granted, upon application of any party or, in exceptional circumstances and after prior notice to the parties, on the arbitral tribunal’s own initiative.

5. A party who does not comply with the interim measure of protection shall be liable for all damages and other sanctions as the tribunal may deem appropriate, for non-compliance, including all cost and reasonable legal fees paid in obtaining judicial enforcement. 

6. Either party may apply with the court for assistance in implementing or enforcing the interim measure of protection ordered by the arbitral tribunal.

7. The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the interim measure of protection was requested or granted. 

8. The order granting an interim measure of protection may be conditioned upon the provision of security for any act or omission specified in the order.

9. The party requesting an interim measure of protection may be liable for any cost and damages caused by the interim measure of protection to any party if the arbitral tribunal later determines that, in the circumstances then prevailing, the interim measure of protection should not have been granted. The arbitral tribunal may award such cost and damages at any point during the arbitral proceedings.

Article 23: Waiver of Right to Object

A failure by any party to object promptly to any non-compliance with the Rules or with any requirement of the arbitration agreement shall be deemed to be a waiver of the right of such party to make such an objection, unless such party can show that, under the circumstances, its failure to object was justified.

Article 24: Confidentiality of Proceedings

The arbitration process is by nature confidential. PACV, the arbitral tribunal and the parties shall keep confidential all matters relating to the mediation, unless required by law to do so.

Article 25: Awards / Decisions

1. Any award or decision of the arbitral tribunal shall be made within thirty (30) days from its declaration that the hearings are closed.

2. All awards shall be made in writing and shall be final and binding on the parties. The parties shall carry out all awards without delay.

3. The arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given.

4. An award shall be signed by the sole arbitrator or by majority of the arbitrators and shall state the date on which the award was made and the place of arbitration. When there is more than one arbitrator, any award or decision on any issue by the arbitral tribunal shall be made by a majority of the arbitrators on each issue subject of the arbitration. Where any of them fails to sign, the award shall state the reason for the absence of the signature.

5. The presiding arbitrator may decide questions of procedure when there is no majority or when the parties or the arbitral tribunal so authorizes.

6. The arbitral tribunal may make a single or separate awards in respect of all parties or issues involved in the arbitration.

7. An award may be made public (a) with the consent of all parties; or (b) where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right, or in relation to legal proceedings before a court or other competent authority.

8. Original and certified copies of the award shall be provided to the parties.

9. Upon the issuance of the award, the arbitral tribunal shall have no further jurisdiction, except to the extent allowed by the Rules or the applicable law.

Article 26: Settlement or Other Grounds for Termination

1. If, before the award is made, the parties agree to settle the Dispute, the arbitral tribunal shall issue an order terminating the arbitration or, if requested by both parties and accepted by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal is not obliged to give reasons for such an award. The order terminating the arbitration or the award on agreed terms, signed by the arbitral tribunal, shall be communicated by PACV to the parties.

2. At any time before the issuance of the Award, the parties may agree, in writing, on minimum and maximum amounts of damages that may be awarded on each claim or on all claims in the aggregate.  The parties shall promptly notify and provide to PDRCI a copy of their written agreement setting forth the agreed-upon minimum and maximum amounts . PACV shall not inform the arbitral tribunal of the agreement to proceed with this option or of the agreed-upon minimum and maximum levels without the consent of the parties. The Arbitrator shall render the award in accordance with the Rules. In the event that the Award is between the agreed-upon minimum and maximum amounts, the Award shall become final as is. In the event that the Award is below the agreed-upon minimum amount, the final Award issued shall be corrected to reflect the agreed-upon minimum amount.  In the event that the Award is above the agreed-upon maximum amount, the final Award issued shall be corrected to reflect the agreed-upon maximum amount.

3. If the claimant withdraws its claim and the respondent who has a counterclaim or any other claim objects to the termination of the arbitration, the order terminating the arbitration shall apply only to the claim but not to the counterclaim or any other claim. A party is not excused from liability for arbitration fees and cost when its claim is withdrawn.

4. If, before the award is made, the arbitration proceeding becomes unnecessary or impossible for any reason not mentioned in paragraph 1 of this Article, the arbitral tribunal shall notify the parties of its intention to issue an order to terminate the proceeding. The arbitral tribunal may hear any objection before issuing an order of termination.

5. Where there are multiple claims or parties, the arbitral tribunal may issue an order directing the dismissal or withdrawal of the claims or the exclusion of the parties and continue the arbitration proceeding as to the remaining claims or parties.

6. Except for justifiable circumstances, grounds for avoiding arbitration such as lack of jurisdiction of the arbitral tribunal, statute of limitations, bar by prior judgment, or any other ground then available shall be raised as defenses in the Response to the Request for Arbitration or in the Statement of Defense. A request to dismiss or other similar request may be treated as a Response to Request for Arbitration or as a Statement of Defense.

Article 27: Interpretation of Award

1. Within thirty (30) days after the receipt of the award, a party, with notice to the other party, may request that the arbitral tribunal give an interpretation of a specific point or part of the award.

2. If the arbitral tribunal considers the request to be justified, it shall make the interpretation in writing within thirty (30) days from receipt of the request. The interpretation shall form part of the award and the provisions of the Rules shall apply.

Article 28: Correction of Award

1. Within thirty (30) days after the parties’ receipt of the award, the arbitral tribunal, on its own initiative, or any of the parties, with notice to the other party, may request the arbitral tribunal to correct in the award any error in computation, any clerical or typographical error, or any error or omission of a similar nature.

2. If the arbitral tribunal considers the party’s request to be justified, it shall make the correction within forty-five (45) days from receipt of the request. Such corrections shall be in writing and shall form part of the award. The provisions of the Rules shall apply

Article 29: Additional Award

1. Within thirty (30) days after the receipt of the termination order under Article 45 (2) or the award, a party, with notice to the other party, may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but not decided by the arbitral tribunal.

2. If the arbitral tribunal considers the request to be justified, it shall render an additional award or complete its award within sixty (60) days after the receipt of the request. The arbitral tribunal may extend, if necessary, the period of time to make the award. When such an award or additional award is made, the provisions of the Rules shall apply.

Article 30: Cost

1. The arbitral tribunal shall fix the cost of arbitration in its Award.  The term "cost" shall include:

a.     the arbitrators' fees and any Filing Fees, administrative fees and expenses set by PACV in accordance with the Rules and the Guidelines on Fees;

b.     the travel and other expenses incurred by the arbitrators;

c.     the cost of expert advice and of other assistance required by the arbitral tribunal;

d.     the travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal;

e.    the cost of legal representation and assistance reasonably incurred by the successful party in connection with the arbitration, provided such cost were claimed and proved during the arbitral proceedings.

2. The cost of arbitration shall in principle be borne by the unsuccessful party. However, the arbitral tribunal may apportion each of such cost between the parties if it determines that apportionment is appropriate, taking into account the circumstances of the case. [Unless the parties otherwise agree or unless the Tribunal otherwise directs or unless any applicable regulations otherwise provide each party shall be liable for an equal share of the costs of the arbitration.]

3. The arbitral tribunal may take into account any external or third-party funding agreement in apportioning the cost of arbitration.

4. The arbitral tribunal shall in the final award or, if it deems appropriate, in any other award, determine any amount that a party may have to pay to another party as a result of the decision on allocation of cost.

5. When the arbitral tribunal issues an order for the termination of the arbitration or makes an award on agreed terms, it shall allocate the cost of arbitration in the order or award.

6. PACV shall set the advances on cost and require payment in accordance with the Rules, Guidelines on Fees, and other PACV issuances.

Article 31: Expedited Procedure

1. At any time prior to the issuance of the award, the parties party may apply to PACV in writing for the arbitration to be conducted in accordance with this Article where:

a.     the amount in Dispute representing the aggregate of any claim, counterclaim,  or any other claim does not exceed Twenty-Five Million (Php25,000,000) Pesos; or

b.     the parties so agree; or

c.     in cases of exceptional urgency.

2. When PACV, after consultation with the parties, grants an application for expedited procedure, the arbitration shall be conducted in accordance with the Rules subject to the following paragraph.

3. Within fifteen (15) days from notice of the grant of its application, the parties shall submit to PACV their respective written proposals for the amount of money damages they would offer or demand, as applicable, and that they believe to be appropriate.  PACV shall promptly provide copies of the parties’ proposals to the arbitral tribunal. At any time prior to the close of the proceedings, the parties may exchange revised written proposals or demands, which shall supersede all prior proposals. The revised written proposals shall be provided to PACV, which shall promptly provide them to the arbitral tribunal, unless the Parties agree otherwise.

4. In rendering the Award, the arbitral tribunal shall choose between the parties’ proposals, selecting the proposal that the arbitral tribunal finds most reasonable and appropriate in light of the circumstances of the Dispute.  No written statement of reasons shall accompany the Award.

Article 32: Emergency Arbitrator

1. Prior to the constitution of the arbitral tribunal, a party may apply for the appointment of an emergency arbitrator ("Emergency Arbitrator") with PACV for the issuance of interim measures of protection, specifying the emergency relief sought and the reasons for the issuance of emergency relief on an urgent basis, including such document, witness statement or information as the party considers appropriate.

2. Upon receipt of the application, PACV shall:

a.     assign a provisional docket number to the Application upon payment of the amount referred to in the preceding paragraph;

b.    assess the applicant the further Emergency Arbitration Fees, in accordance with the Guidelines on Fees, taking into account the nature of the case and the estimated amount of work to be performed by PDRCI and the Emergency Arbitrator;

c.     transmit a copy of the application to the other parties, who shall have a period of fifteen 15) days within which to file its comment to the application;

d.     appoint an Emergency Arbitrator within two days after receipt of the application and the Emergency Arbitration Fee, whichever is later; and

e.     transmit the file to the Emergency Arbitrator once appointed, with notice to the other parties.

3. Upon notice of the appointment of the Emergency Arbitrator, all written communications from the parties shall be submitted directly to the Emergency Arbitrator with copies to the other parties and PDRCI.  All written communications from the Emergency Arbitrator to the parties shall also be given to PACV.

4. A party who intends to challenge an Emergency Arbitrator shall send notice of its challenge within three (3) days after it was notified of the appointment of the challenged arbitrator or after the circumstances became known to that party.  If the other party does not agree to the challenge or the challenged arbitrator does not withdraw within three (3) days from notice of the challenge, PACV shall decide the challenge.  PACV may adopt any appropriate procedure and time limit to decide the challenge, including hearing the parties and the challenged arbitrator.  If PDRCI sustains the challenge, or the Emergency Arbitrator otherwise becomes incapable of performing his or her functions, a substitute arbitrator shall be appointed.  PACV’s decision on the challenge shall be final.

5. If an Emergency Arbitrator is replaced, the Emergency Relief proceedings shall resume at the stage where the Emergency Arbitrator was replaced or ceased to perform his or her functions, unless the substitute Emergency Arbitrator decides otherwise. 

6. The Emergency Arbitrator shall issue his decision on the application within fifteen (15) days from receipt of the comment of all the parties in the arbitration ("Emergency Decision"). The Emergency Decision shall:

a.     be in writing;

b.     state in summary form the reasons upon which the decision is based, unless the parties have agreed that no reasons are to be given;

c.     state the date when it was made and be signed by the Emergency Arbitrator; and

d.     set the cost of the Emergency Relief proceedings and allocate such costs in accordance with the Rules.

7. The Emergency Arbitrator shall have no further power to act once the arbitral tribunal is constituted. However, the arbitral tribunal, notwithstanding receipt of the file, may allow the Emergency Arbitrator to make the Emergency Decision, in which case the Emergency Decision shall be deemed made by the arbitral tribunal.

8. Any Emergency Decision ceases to be binding:

a.     upon the arbitral tribunal rendering a final award, unless the arbitral tribunal expressly decides otherwise;

b.    upon the withdrawal of all claims or the termination of the arbitration before the rendering of a final award; or

c.    if the arbitral tribunal is not constituted within thirty (30) days from the date of the filing of the Response.

9. Any Emergency Decision may, upon request of a party, be modified, suspended or terminated by the arbitral tribunal, once constituted.

10. The Emergency Arbitrator may not act as arbitrator in any arbitration relating to the Dispute that gave rise to the application and in respect of which the Emergency Arbitrator has acted, unless otherwise agreed by the parties to the arbitration.

11. This Article on Emergency Relief shall not prevent any party from seeking urgent Interim Measures from a competent judicial authority at any time.

12. The Emergency Arbitrator shall make every reasonable effort to ensure that an Emergency Decision is valid.

Article 33: Application of the Rules

In all matters not expressly provided for in these Rules, by the PACV Arbitration Rules the previous PACV Adopted Rules shall have suppletory application whenever practical and convenient.

Model Arbitration Clause:

"Any dispute, controversy, or claim arising out of or relating to this contract, or the existence, validity, interpretation, breach, or termination thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of the Philippine Arbitration Center In the Visayas. (PACV) in force at the time of the commencement of the arbitration.

The number of arbitrators shall be (one or three).  The seat of arbitration shall be (city or country). The law of the arbitration agreement shall be (applicable law).  The language(s) to be used in the arbitral proceedings shall be (language)."

Model Mediation/Arbitration Clause:

"The parties shall settle any dispute, controversy, difference, or claim under this contract by mediation pursuant to the Mediation Rules of the Philippine Arbitration Center In the Visayas (PACV).  In the event of  refusal or failure of mediation, or no settlement within 30 calendar days from commencement of the mediation occurs, or such other period agreed upon in writing by the parties, then the dispute shall be finally settled by arbitration under the Arbitration Rules of the Philippine Arbitration Center In The Visayas then in force at the time of the commencement of the arbitration.

“The number of arbitrators shall be (one or three).  The seat of arbitration shall be (city or country). The law of the arbitration agreement shall be (applicable law). The language(s) to be used in the arbitral proceedings shall be (language)."

Submission Agreement:

In view of the existence of "a [dispute/controversy/claim] having arisen between the parties concerning [ … ], the parties hereby agree that the [dispute/controversyclaim] shall be referred to and finally settled by arbitration in accordance with the Arbitration Rules of the Philippine Arbitration Center In The Visayas. (PACV) in force at the time of the commencement of the arbitration.

The number of arbitrators shall be (one or three). The seat of arbitration shall be (city or country). The law of this agreement shall be (applicable law). The language(s) to be used in the arbitral proceedings shall be (language)."