25 November 2021
When considering the urgency of relief needed by a client, should one get that relief from the Court or from an arbitral tribunal? DivinaLaw Senior Partner Atty. Estrella C. Elamparo shared her perspective during a panel discussion in the Philippine Institute of Construction Arbitrators and Mediators (PICAM) International Conference held online on November 25, 2021.
Speaking from experience representing clients before an arbitral tribunal, Atty. Elamparo said: “Unless the parties have previously agreed to resort to emergency arbitration, there is actually nothing in the EO No. 1008 or even in the special ADR rules or any other law that provides to resort to emergency arbitration. My impression is, unless the parties agreed in the contract that resort may be had to emergency arbitration, then there is really no option. In case of urgent resort to interim measures of protection with the courts. So, that will be my advice, the first thing we need to look at versus the construction agreement.”
“Assuming that there is a dilemma, that there is that option in the agreement…There are pros and cons for both options. I see the following rules in favor of emergency arbitration: The first that I can see is, it appears it can be more expeditious than a resort to the courts. In circumstances of extreme urgency, as mentioned earlier, relief may be secured in a matter of days, based on the timeline that I saw on both sets of rules. Unlike courts where judges are saddled with many cases – sometimes hundreds or even thousands of cases, an emergency arbitrator might be an attractive alternative because they can provide more immediate relief.”
Atty. Elamparo took part in the panel discussion titled “Emergency Arbitration/Interim Measure of Protection in Construction Arbitration.” DivinaLaw Of Counsel, Ret. Justice Teresita V. Diaz-Baldos was also one of the panelists in the discussion on Construction Industry Arbitration Commission (CIAC).
Asked to respond to the online poll taken during the event, Justice Baldos, the incumbent chairperson of CIAC, said: “If there really is a need for the CIAC to amend its rules to conform to what is mandated by the Supreme Court decision, then so be it. Why not? Otherwise, the SC decision will be stagnant, it will bear no fruitful effect after all. We have to adjust. I am very glad that the participants have said that we are very compliant with party autonomy as well as with the jurisdiction.”
