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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Philippines.
2. Date of entry into force of the New York Convention
4 Oct. 1967.
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
The Philippines made a reciprocity reservation under the New York Convention. Nevertheless, foreign awards not covered by the New York Convention may still be recognized and enforced if the country where the award was made would likewise enforce arbitral awards made in the Philippines. Otherwise, the regional trial court may treat such an award as a foreign judgment enforceable under Rule 39, Section 48 of the Rules of Court.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rule 13.12.)
(b) commercial relationships?
Yes.
(Source: Senate Resolution No. 71 adopted on 10 May 1965.)
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
No.
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
(i) the Alternative Dispute Resolution Act of 2004 (Republic Act No. 9285);
(ii) the 1985 UNCITRAL Model Law on International Commercial Arbitration;
(iii) the Rules and Regulations Implementing the Alternative Dispute Resolution Act of 2004;
(iv) the Special Rules of Court on Alternative Dispute Resolution;
(v) the Rules of Court; and
(vi) case law
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
There is no specific time limit applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards under Philippine law. Custodio Parlade, author of the chapter on the Philippines in Arbitration in Asia (M. Moser (ed.), 2nd ed., 2010), however is of the view that the Civil Code is a general law that applies to all transactions, whether commercial or non-commercial (ibid., §2.2) and it could be argued that the general limitation periods for initiating suits under the Civil Code might apply to recognition and enforcement proceedings. The question, however, has not come up for consideration by the Philippine Supreme Court.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
If the limitation periods set in the Civil Code are applicable (see Q.6(b) above), then an action for recognition and enforcement may be brought within the time limit for bringing an action based on a written contract, which is ten years from the date on which the cause of action accrued.
(Source: Civil Code, Art. 1144.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The following regional trial courts in the Philippines have jurisdiction:
(Source: Special Rules of Court on Alternative Dispute Resolution, Rule 13.3.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
See Q.7 above. In addition, the party seeking recognition and enforcement must provide evidence that the award debtor has been furnished a copy of (i) the petition to recognize and enforce the foreign award; and (ii) the notice of hearing.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rule 1.9.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision is obtained through inter partes proceedings.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rules 1.9, 13.6, 13.8, 13.9.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
Three.
First, the aggrieved party may file a motion for reconsideration with the regional trial court.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rule 19.1(o).)
Second, the aggrieved party can challenge the regional trial court’s decision in the Court of Appeals by filing an appeal. The aggrieved party may also file a special civil action for certiorari with the Court of Appeals if (i) the regional trial court allows the party seeking recognition and enforcement of the foreign award to enforce the award pending appeal; and (ii) the aggrieved party can demonstrate that the regional trial court gravely abused its discretion and there is no plain, speedy and adequate remedy.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rules 19.12 (j) and (k), 19.26(k).)
Third, a decision of the Court of Appeals can be appealed by certiorari to the Supreme Court. The aggrieved party can only raise questions of law. However, a review by the Supreme Court is not a matter of right but of judicial discretion. In practice however, the Supreme Court hears a large percentage of the petitions for certiorari brought before it.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rule 19.36.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
Execution against assets may be obtained as soon as the regional trial court issues its decision allowing the enforcement of the foreign arbitral award since decisions recognizing and enforcing foreign arbitral awards are immediately executory.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rule 13.11.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The following evidence must be supplied: (i) an authentic copy of the arbitration agreement and (ii) an authentic copy of the arbitral award.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rule 13.5.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
It is necessary to provide the entire arbitral award and the entire arbitration agreement.
(c) Are originals or duly certified copies required?
An authentic copy is required.
(d) How many originals or duly certified copies are required?
One authentic copy is required.
(e) Does the authority or court keep the originals that are filed?
Yes
(Source: Rules of Court, Rule 136, §§ 7, 11; Internal Rules of the Supreme Court, Rule 9, §§ 1, 2.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes, if the foreign arbitral award or the arbitration agreement is not in English.
(b) If yes, into what language?
English.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
The translation must be certified by an official or sworn translator or by a diplomatic or consular agent.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
It is necessary to provide a full translation of the arbitral award and the arbitration agreement.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Yes. Where an application for the setting aside or suspension of the award has been made to such a competent authority in the country in which the award was made, the court may adjourn the decision on the recognition or enforcement of the award.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rule 13.10.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
The law is silent on this specific question although it is possible that the court retains its inherent jurisdiction to do so. The question, however, has not come up for consideration by the Philippine Supreme Court.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The court may, on the application of the party seeking recognition or enforcement of the award, order the party seeking a stay of the proceedings to provide suitable security.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Documents filed in legal proceedings for recognition and enforcement form part of the court records. An access to the documents may be permitted at the discretion and subject to the supervisory and protective powers of the court after considering the actual use or purpose for which the request for access is based and the prejudice to any of the parties.
(Source: Hilado v Reyes, G.R. No. 163155, 21 July 2006.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
In the Philippines, hearings are generally held in public. However, it may be possible to ask the regional trial court to conduct the hearing on the recognition and enforcement in private by (i) seeking a protective order to maintain confidentiality under Rule 10 of the Special Rules of Court on Alternative Dispute, or (ii) invoking the court's inherent power to control its proceedings. The question, however, has not come up for consideration by the Philippine Supreme Court.
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Court judgments issued by the Supreme Court and the Court of Appeals are generally published. The court where the proceedings are pending may issue protective orders to enforce the confidentiality of the information upon the application by a party that the publication of such information would be materially prejudicial to that party.
(Source: Internal Rules of the Supreme Court, Rule 14, § 7; Rules of Court, Rule 55, § 1; Special Rules of Court on Alternative Dispute Resolution, Rules 10.3, 10.4)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
It is possible to obtain recognition and enforcement of a partial foreign award that resolves an issue in controversy. In Transfield Philippines Inc. v. Luzon Hydro, GR. No. 146717, 19 May 2006, the Philippine Supreme Court recognized the possibility of enforcing partial awards provided they are not premature.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
No distinction is made between monetary and non-monetary relief.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
In principle, partial enforcement is possible if the award is severable.
(Source: Special Rules of Court on Alternative Dispute Resolution, Rule 13.4 (a)(iii).)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
It would appear that under Rule 13.4 of the Special Rules of Court on Alternative Dispute Resolution Philippine courts have discretion to order enforcement in such cases. The question, however, has not come up for consideration by the Philippine Supreme Court. If it does, it is likely that other foreign judgments which have considered this issue, especially those from Model Law jurisdictions and the United States will be persuasive.
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Country Rapporteur: Jun Bautista
Other contributor: Cesar P. Manalaysay