6 November 2019
YSIAC Manila Workshop
By Marco Carlo S. Sana, Professor, Far Eastern University – Institute of Law

The YSIAC Manila Workshop was titled “Demystifying the Commencement of an Arbitration”, and was primarily targeted at younger lawyers who are interested to develop their practice in international commercial arbitration.

Mr Kevin Nash (Deputy Registrar & Centre Director, SIAC) kicked off the workshop by sharing relatable stories about some of the panelists who had previously worked at SIAC.

Ms Adriana Uson (Member, YSIAC Committee; Associate, Norton Rose Fulbright (Asia) LLP) moderated the workshop and started the session by asking the panelists comprising Mr Dinesh Dhillon (Partner and Co-Head, International Arbitration, Allen & Gledhill LLP), Mr Nash, Mr Louie Ogsimer (Partner, Romulo Mabanta Buenaventura Sayoc & de los Angeles), Mr Siraj Omar, SC (Director, Drew & Napier LLC), Ms Maricef Valderrama (Associate, Allen & Overy LLP), and Ms Jane Yu (Senior State Solicitor, Office of the Solicitor General of the Philippines) about their first experience with arbitration.

In line with the lively and collaborative mood of the workshop, each of the panelists shared their first personal experience with arbitration. The stories shared ranged from nightmares about stacks of endless binders to living the dream as counsel for a hockey team. Surprisingly, one of the panelists could have been a qualified arbitrator by age 14 because her father, a distinguished arbitration lawyer, took her to a seminar where she ended up passing a sample arbitrator exam.

The panel first discussed the key features of an arbitration agreement. The panelists unanimously agreed that the provision for arbitration must be clear because the powers of the tribunal relies on it. Mr Nash emphasized that a short and clearly worded agreement is preferred, with the provision clearly distinguishing between ad hoc or institutional, and identifying the venue and seat of arbitration.

Ms Uson then asked the Filipino panelists for their advice on commercial arbitration under Philippine law. Mr Ogsimer pointed out that practitioners must be conscious of the different laws that govern domestic arbitration and international arbitration under the Philippines Republic Act 9285. Whilst domestic arbitration is governed by the Philippines Republic Act 876, international arbitration is governed by the 1985 UNCITRAL Model Law. Ms Yu emphasized that the notice for arbitration must be the addressed to the proper government agency, which requires some knowledge of Philippine administrative law.

Left to right: Adriana Uson, Dinesh Dhillon, Louie T. Ogsimer, Kevin Nash, Siraj Omar, SC, Jane E. Yu and Maricef Valderrama

The panel then discussed the requisite preparations for filing a notice of arbitration. Mr Omar highlighted the need to comply with preconditions stated in the arbitration provision before filing the notice. Mr Dhillon added that the provisions under Rule 3 of the SIAC Rules 2016 must be complied with for a notice of arbitration filed with SIAC. He also explained that strategy plays a part in crafting the notice, such as deciding between filing a substantive notice of arbitration to present a strong case as opposed to providing a bare-bones version for immediate relief.

As a last topic for discussion, Ms Uson asked the panelists for key pointers to take note of in the constitution of the tribunal. Ms Yu emphasized that the impartiality and the independence of the tribunal is of utmost importance. That is why doing one’s homework and asking for feedback on potential candidates is crucial. Mr Omar added that institutional arbitration offered some benefits in this regard. For instance, you can rely on SIAC’s repository of knowledge about potential arbitrators, including the Secretariat’s experience in working with the arbitrators. The payment of the requisite filing fees was given particular importance by all the panelists.

Finally, the participants of the workshop engaged in a class exercise, which involved identifying defects in a sample Notice of Arbitration, and determining the appropriate arbitrators to avoid a jurisdictional challenge.

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