Saturday, April 11, 2015

RULE 13-ARBITRATION: 20Se15 IRR OF RA 9520





RULE 13

VOLUNTARY ARBITRATION

Section 1.  Legal Basis.  The legal basis for this Rule Art. 137 of the Code, quoted as follows:


    "Art. 137.  Settlement of Disputes, Conciliation, and Mediation Proceedings. - Dispute among members, officers, directors, and committee members, and intra-cooperative, inter-cooperative, intra-federation or inter-federation disputes shall, as far as practicable, be settled amicably in accordance with the conciliation or mediation mechanism embodied in the By-laws of cooperatives and in such other applicable laws.


The conciliation and mediation committee or the cooperative shall facilitate the amicable settlement of intra-cooperative disputes and disputes among members, officers, directors, and committee members.


Should such conciliation and mediation proceedings fail, the matter shall be settled through voluntary arbitration:  Provided, however, That before any party can validly file a complaint with the Authority for voluntary arbitration, it must first secure a certificate from its conciliation and mediation committee and from the cooperative union or federation to which it belongs that despite all efforts to settle the issues, the same have failed.


The jurisdiction of the voluntary arbitration shall be exclusive and original and their decisions shall be appealable to the Office of the President.  The Authority shall issue and adopt the proper rules of procedures governing arbitration as the primary and exclusive mode of dispute resolution in accordance with the Alternative Dispute Resolution Act of 2004.


For this purpose, the Authority shall constitute a list of Qualified Voluntary  Arbitrators."


Section 2.  Statement of Policy and Objectives.  It is the policy and objective of these Rules to provide a fair and expeditious settlement of intra-cooperative and inter-cooperative disputes by way of an institutional mode of voluntary arbitration as an alternative to judicial proceedings with the end in view of ensuring and possibly restoring the disrupted harmonious and friendly relationships between or among the parties.


Section 3.  Applicability of Rules and Judicial Technical Rules.  These Rules are applicable to proceedings in voluntary arbitration before the Authority.


Voluntary Arbitration is an administrative proceeding.  The technical rules applicable to court or judicial proceedings need not be controlling and it is in the spirit and intention of these rules to use every and all reasonable means to ascertain the facts in each case speedily and objectively, and without regard to technicalities of low or procedure, all in the interest of substantive due process.


Section 4.  Jurisdiction.  The Arbitral Tribunal as contemplated by these Rules shall have original, exclusive and primary jurisdiction over disputes among members, officers, directors, and committee members, and intra-cooperative, inter-cooperative, intra-federation or inter-federation disputes which were not settled amicably in accordance with the Conciliation/Mediation Mechanisms.  Likewise, the Arbitral Tribunal shall continue to exercise exclusie and original jurisdiction over the afore-mentioned disputes although the arbitration is commercial pursuant to Section 21 of R.A. 9285 or the Alternative Dispute Resolution Act of 2004.

Excluded from the coverage of these rules are disputes arising from employer-employee relationships which shall be covered by the Labor Code, those involving criminal liability, and other matters which by law cannot be compromised.


Section 5.  Exercise of Jurisdiction.  The Arbitral Tribunal cannot acquire jurisdiction over the dispute, unless there exist:


    a.  An Arbitration Agreement either in their Articles of Cooperation, By-laws, contracts or other form of written communication between and among the parties;

    b.  In the absence of an existing Arbitration Agreement, the parties subsequently agree to submit the same for voluntary arbitration, which submission maybe in a form of:


    i.  An exchange of communication between the parties or some other form showing that the parties have agreed to submit whatever dispute to voluntary arbitration or adhere to the provisions of Article 137 of R.A. 9520;

    ii.   Expressly or impliedly submitting to voluntary arbitration as can be gleaned from their respective writeen communications or pleadings filed with the Authority or before the Arbitral Tribunal in accordance with these rules; or

    iii.  Signing a Submission Agreement during the preliminary conference.


    Section 6.  Jurisdictional Challenge.  A Motion to Dismiss based on lack of jurisdiction shall be resolved by the appointed Arbitral Tribunal in accordance with the principle of Kompetenz-Kompetenz.


    Section 7.  Filing and Commencement of Action.  Any party to a dispute not settled through a Conciliation/Mediation Proceeding in the primary and union/federation level can commence an action for Voluntary Arbitration by a filing a Verified Request/Complaint, with a Certificate of Non-Forum Shopping, in the prescribed form and number of copies with the Authority through its Legal Division which shall serve as the Voluntary Arbitration Secretariat or the "Secretariat".  Whenever practicable, all complaints should be directly filed with the Secretariat.


   However, the CDA-Extension Office having administrative jurisdiction over the cooperatives/parties involved in the dispute can receive the complaints which involved the latter, with the obligation to transmit the same to the Secretariat.  The date of the commencement of the action shall be the date the verified request/complaint was received by the Secretariat.


    Section 8.  Condition Precedent.  In the case of a primary cooperative affiliated with a federation/union, the complaint shall be accompanied by a Certificate of Non-Settlement issued by the said Federation/Union to which the primary cooperative is affiliated with.


    In the case of a primary cooperative not affiliated with any federation or union, the complaint shall be accompanied by a Certificate of Non-Settlement issued by the Conciliation/Mediation Committee of such primary cooperative together with a Certificate of Non-Affiliation with any Federation/Union signed by the Chairperson of the Board of Directors of the same cooperative.

    If the conciliation/mediation committee fails or refuses to conduct the conciliation/mediation proceedings and/or to issue a Certificate of Non-Settlement within five (5) calendar days from the request to conciliate/mediate, the party in interest shall submit an Affidavit stating such fact, in lieu of the Certificate.


    In case of non-compliance with the pre-condition, absent any showing of justifiable reason, exemption, the Arbitral Tribunal, or the Authority (if no member of the tribunal has yet been appointed, shall suspend voluntary arbitration proceedings pending compliance therewith within reasonable period directed by the Arbitral Tribunal or the Authority.


    Section 9.  Contents of the Verified Request/Complaint.  The Verified Request/Complaint shall contain:


    1.  The Names and Addresses of the Complainant/s and Respondents;

    2.  A Brief Description of the statement of claim and the Documentary Evidences, if any; and

    3.  The Relief Prayed For.


    Section 10.  Notice to Respond and Request to Answer.  The Secretariat shall, within ten (10) working days from receipt of the Verified Request/Complaint, issue notice/summons and transmit a copy of the Verified Request/Complaint (including the documents annexed thereto) to the Respondent for his/her answer.


    Section 11.  Submission to CDA Institutional Voluntary Arbitration Jurisdiction.  An arbitration clause/arbitration agreement or a submission to arbitration of a cooperative dispute shall be deemed an agreement to submit an existing or future controversy to the jurisdiction of the CDA Institutional Voluntary Arbitration proceedings, notwithstanding the reference to a different arbitration institution or arbitral body in any document, contract or submission.


    An arbitration agreement or a submission to arbitration shall preferably in writing, or in some other forms, as long as the intent is clear that the parties agree to submit a present or future controversy arising from disputes mentioned in Article 137 of R.A. 9520.


    It may be in the form of exchange of letters sent by post, courier, electronic means or by telefax, teleghrams or any other mode of communication.


    Section 12.  Failure or Refusal to Arbitrate.  Where a complaining party properly invokes the jurisdiction of the Authority to resolve the dispute through voluntary arbitration by filing a Verified Request/Complaint for Arbitration in accordance with these Rules, the failure or refusal of the respondent to arbitrate shall not affect the proceedings.  In such case, the CDA, as the Appointing Authority shall appoint the Sole Arbitrator or the members of the  Arbitral Tribunal in accordance with these Rules from among the list of accredited arbitrators.  In the absence of any agreement as to the number of voluntary arbitrators who shall compose the tribunal, the default number shall be three (3) voluntary arbitrators.  However, in the case of disputes covered by small claims, the same shall be resolved by a Sole Arbitrator.  The arbitration proceeding shall continue notwithstanding the absence of lack of participation of the Respondent, and the award shall be made on the basis of the evidence presented by the claimant.  If at any time before the award, the Respondent shall appear and offer to present his evidence, the Arbitrator/s shall reopen the proceedings and allow the Respondent to present his evidence, but evidence already received and recorded in so far as the same is material and competent to establish the issues shall not be affected by the reopening of the proceedings.


    Section 13.  When Arbitration Cannot Proceed.  Where there is no existing arbitration agreement, or there was no submission for arbitration by the parties in the manner provided by these Rules, the arbitration cannot proceed and the claimants shall be informed of that fact.


    Section 14.  Time to Answer.  The Respondent shall, within fifteen (15) days from receipt of the summons and verified request/complaint, file his/her Answer containing statements of defense and including counterclaims as he/she may assert.  The Complainant shall be furnished a copy of the Answer.  In exceptional circumstances, the Respondent may apply to the Secretariat for an extension of time to file his defense and documents but which extension shall in no case exceed ten (10) days.  If Respondent fails to file his Answer, arbitration shall proceed in accordance with these Rules.


    Section 15.  Reply to Counterclaim.  The Complainant shall file a reply to the counterclaim and shall furnish respondent a copy thereof within ten (10) days from date of receipt of the Answer with Counterclaim.


    Section 16.  Number of Copies. All pleadings and written statements submitted by the parties, as well as the documents attached thereto, shall be filed in four (4) original/duplicate original copies, with proof of prior service to the adverse party.


    Section 17.  Mode of Service and Filing.  All pleadings and written statements submitted by parties, may be filed and served upon the other party preferably through personal service.  Service and submission through registered mail or courier may be allowed provided that there is sufficient explanation why resort to such mode of service and submission was made.  If a party is represented by Counsel, service of notice and other pleadings and communications to Counsel is proper notice and service to the party concerned.


    Section 18.  Notices.  Notifications or communications from the Secretariat and/or the Arbitrator(s) shall be validly made if they are delivered against receipt or forwarded by registered mail to the address or last known address on record of the party/ies for which the same are intended.


    Section 19.  Confidentiality of Proceedings.  The Artibration Proceedings shall be confidential and shall not be published, except:  (i) with the consent of parties, or (ii) when necessary in case resort to the court is made under the Rules of Court.


    The term "arbitration proceedings" shall include communications to or from the institution and/or Voluntary Arbitrator, the pleadings, applications and other papers filed with the institution, and/or voluntary arbitrator, sworn statements, documentary and testimonial evidence, reports and minutes taken of the proceeding, and other orders, award or resolution issued by the Arbitrator(s).


    Section 20.  Qualifications of Arbitrators.  All Arbitrators must possess all of the following qualifications:


    a.  Filipino, of legal age;
    b.  In full enjoyment of his/her civil rights;
    c.  Know how to read and write;
    d.  Not related by blood or marriage within the sixth degree to either party in the controversy;
    e.  Must not have financial, fiduciary or other interest in the controversy;
    f.  Has no personal bias which might prejudice the right of any party to a fair and impartial award;
    g.  Possess the competence to resolve the cooperative issues involved, and
    h.  Must be accredited by the Authrity.


    The Authority shall constitute a list of Accredited Voluntary Arbitrators.  The Voluntary Arbitrators shall render service only when called upon to arbitrate a cooperative dispute.


    Any employee or officer of the Authority may likewise be appointed as Voluntary Arbitrator if he/she possess the necessary qualification.

    Section 21.  Exemptions from Liability for Official Acts.  Voluntary Arbitrators shall not be liable for acts done in the performance of their official duties except in a clear case of bad faith, malice or gross negligence, as provided in Section 38 (1), Chapter 9, Book 1, of the Revised Administrative Code of 1987.

    Section 22.  Exclusive and Original Jurisdiction of the Voluntary Arbitrator/Arbitrators.  The Voluntary Arbitrator/Arbitrators mutually chosen by the parties, or appointed by the Appointing Authority in accordance with these Rules, shall have exclusive and original jurisdiction over the dispute, and their decision shall be appealable to the Office of the President of the Republic of the Philippines.  The Appeal is taken by filing a Notice of Appeal within fifteen (15) days after receipt of the copy of the Award appealed from.  If no appeal is filed within the time as provided herein, such Award becomes final and executory.


    Section 23.  Powers/Authority of the Voluntary Arbitrator/s.  The Voluntary Arbitrator/s shall have the following powers/authority:

    a.  To hold hearings and to receive evidence necessary to resolve the issue/s subject of the dispute;
    b.  To require any person to attend hearing/s as witness or to cause the production of documents when the relevancy and the materiality thereof are vital to the resolution of the case;
    c.  To administer oath;
    d.  To cite in contempt any person disturbing the proceeding and/or who willfully defy lawful orders of the Voluntary Arbitrator/Arbitrators;
    e.  To render an Award;
    f.  To order any party to take or observe interim measures of protection, subject to the provision of R.A. 9285 and its implementing Rules and Regulations;
    g.  To issue a Writ of Execution, if necessary, and if allowed under the circumstances; and
    h.  To exercise such other powers and functions as may be necessary to resolve the dispute.


    Section 24.  Number of Arbitrators.  A Sole Arbitrator or an an Arbitral Tribunal of three (3) arbitrators shall resolve a dispute.  The CDA, as the Appointing Authority, shall confirm the appointment of the Arbitrator/s as agreed upon by the parties as specified in the arbitration agreement, in the agreement to arbitrate, or submission to arbitration.


    In the absence of any stipulation or agreement by the parties, the CDA as the Appointing Authority, taking into consideration the complexities and intricacies of the dispute/s, has the option to appoint a Sole Arbitrator or an Arbitral Tribunal.  If the parties are unable to agree to the method of constituting the Arbitral Tribunal within fifteen (15) days from receipt by the parties of the notice sent by the Secretariat, the CDA shall appoint the Voluntary Arbitrators in accordance with these Rules.


    Section 25.  Sole Arbitrator.  Where the parties have agreed that the dispute(s) shall be resolved by a Sole Arbitrator, each party shall have the right to nominate three (3) qualified Voluntary Arbitrators from the list of CDA-Accredited Arbitrators in the order of their preference for appointment as Voluntary Arbitrators.  The nomination may likewise be stated in the submission agreement.  If any or both of the parties fail to submit the names of their nominees within the period prescribed by these Rules, a Sole Arbitrator shall be appointed by CDA.


    If there is a common nominee, the CDA as the Appointing Authority shall appoint him/her as the Sole Arbitrator, provided he/she is not disqualified and has declared his/her availability, in the absence of a common nominee or in cases where the common nominee is disqualified or is not available, the CDA, as the Appointing Authority, may appoint a Sole Arbitrator.  If the CDA decides to appoint a Sole Arbitrator, it shall select the appointee who is not a nominee of one of the parties and who is not disqualified and is available for appointment.


    Section 26.  Arbitral Tribunal.  Where the parties agree that the dispute shall be resolved by an Arbitral Tribunal, each party shall have the right to nominate four (4) Arbitrators from the list of CDA-Accredited Arbitrators in the order of their preference for appointment as Voluntary Arbitrators.  The nomination may be stated in the submission agreement.  If there is no common nominee, the CDA as the Appointing Authority shall choose and appoint, as members of the Tribunal, one (1) Arbitrator from the Complainant's nominees and another Arbitrator from Respondent's nominees.  The third Arbitrator shall be selected by the two (2) Arbitrators first chosen within fifteen (15) days from acceptance of their appointment.  The three (3) Arbitrators shall decide among themselves who will be the Chairperson.  In case of failure to agree on the third members within such period, the CDA as the Appointing Authority shall, within fifteen (15) days thereafter, appoint the third member from its list of accredited arbitrators.


    If there is a common nominee, the CDA as the Appointing Authority shall appoint the common nominee and one (1) from each list submitted by the parties.  The three (3) arbitrators appointed shall designate the Chairperson.  If there are two (2) common nominees, the CDA as the Appointing Authority shall appoint them and the third member who shall be selected by the first two (2) appointees within the period prescribed above.  If there are three (3) common nominees, all of them shall be appointed.  The appointees so constituted as Arbitral Tribunal shall designate the Chairperson from among themselves.


    Section 27.  Disqualification of or Non-acceptance by Nominees.  If the the nominee/s of a Party shall be disqualified or fail or refuse to accept appointment, the CDA as the Appointing Authority shall choose and appoint any accredited and qualified Arbitrator who is willing to be appointed.


    Section 28.  Challenge.  An Arbitrator may be challenged by a party at any time after his appointment but before the lapse of the period of time to file memoranda under Section 65 of these Rules, on the ground of his/her partiality, bias, incompetence, professional misconduct or other grounds for the disqualification of an Arbitrator.  A party may also request the inhibition of an Arbitrator upon the same grounds.


    A motion for inhibition or a request for the disqualification and replacement of an Arbitrator shall be treated as a challenge.


    The challenge, motion, or request shall be in the form of a separate complaint under oath , stating distinctly and concisely the facts complained of, supported by affidavits, if any, or persons having personal knowledge of the facts therein alleged and shall be accompanied with copies of such documents as may substantiate said facts.


   Within fifteen (15) days from receipt of the challenge, the challenged arbitrator shall decide whether he/she shall accept the challenge or reject it.  If he/she accepts the challenge, he/she shall voluntarily withdraw as Arbitrator.  If he/she rejects it, he/she shall communicate, within the same period of time, his/her rejection of the challenge and state the facts and arguments relied upon for such rejection.  In case of Arbitral Tribunal, the challenge shall be decided by the Tribunal itself.  If the Sole Arbitrator or Arbitrator concerned rejects the challenge, the challenging party may request the CDA as the Appointing Authority, in writing to decide on the challenge within thirty (30) days after having received notice of the decision rejecting the challenge.  The CDA shall decide on the challenge within fifteen (15) days from receipt of the request.  The decision of the Arbitral Tribunal or the CDA as the Appointing Authority, to accept or reject a challenge is not subject to appeal or motion for reconsideration.


    In case the challenged arbitrator voluntarily inhibits himself/herself or is removed, the CDA as the Appointing Authority shall promptly appoint his/her replacement.  If the Arbitrator concerned is the third member of the Arbitral Tribunal, the first two (2) members thereof shall select his/her replacement.  The decision of the CDA as the Appointing Authority retain, remove, or replace a Voluntary Arbitrator shall be final.


    Section 29.  When Arbitrator Previously Acted as Conciliator/Mediator.  A Voluntary Arbitrator who previously acted as conciliator/mediator in the same controversy cannot act as Arbitrator for the same case when brought to arbitration, unless all the parties consent to his appointment in writing.


    Section 30.  Communication of Appointments.  The Secretariat shall communicate to the Arbitrator/s their appointment.


    Section 31.  Disclosure by Arbitrator of Disqualification.  Upon acceptance of appointment, the Arbitrator/s shall disclose in writing to the institution the circumstance likely to create in either party a presumption of bias or which he/she believes might disqualify him/her as an impartial arbitrator.  Such written disclosure shall be communicated to the parties immediately by the Secretariat.  The purpose of such disclosure shall enable either party to investigate and ascertain whether there is a substantial legal basis to file a motion for inhibition/challenge of the arbitrator concerned or seek his/her replacement.


    Section 32.  Acceptance or Refusal.  The Sole Arbitrator must communicate to the Secretariat his/her acceptance or refusal of the appointment within five (5) working days from receipt thereof.  If no communication is received within the prescribed period, the CDA as the Appointing Authority shall appoint another from the list of the party who nominated him/her or, if none is available or qualified, from the list of CDA-Accredited Arbitrators.  The parties shall be notified in writing by the Secretariat of such acceptance.


    Section 33.  Vacancies.  If any Arbitrator should resign, be incapacitated, refuse or be unable, or be disqualified for any reason to perform the duties of his/her office, the institution shall, within five (5) working days from the occurrence of a vacancy or refusal/inability to accept appointment, appoint a substitute/s to be chosen from a list, the CDA as the Appointing Authority shall fill the vacancy from the list of CDA-Accredited Voluntary Arbitrators.


    Section 34.  Preliminary Conference.  In any cooperative dispute, after the Respondent has filed his/her Answer, the Arbitrator/Arbitral Tribunal shall set the case for preliminary conference and a notice to the parties thereof shall be sent at least five (5) days before the date set but not later than fifteen (15) days after the acceptance of the appointment of Arbitrator to consider the following:

    a.  Possibility of amicable settlement;
    b.  Necessity or desirability of amendments to pleading;
    c.  Possibility of obtaining stipulations or admission of facts and/or documents to avoid unnecessary proof;
    d.  Limitation of the number of witnesses;
    e.  Simplification of the issues; and
    f.  Such as other matters as may aid in the just and speedy disposition of the case.


    Section 35.  Effect of Non-Appearance/Non-Compliance.  The notice shall be served on Counsel, or on the party who has no Counsel.  It shall be the duty of the parties or their Counsel to appear at the Preliminary Conference.  The non-appearance of a party may be excused only if a valid cause is shown therefor or if a Representative shall appear in his/her behalf fully authorized in writing.  The unjustified failure of the Complainant to appear in the Preliminary Conference shall be a cause for dismissal of the complaint.  Nothwithstanding the non-appearance of the Respondent, the proceedings shall continue in accordance with Section 13 of these Rules, by filing a motion to that effect to be made during the preliminary conference.  The proceedings shall continue at the expense of the Complainant.


    Whenever the Respondent's whereabouts are unknown or cannot be ascertained by diligent inquiry, the notice may be effected by publication in a newspaper of general circulation at the expense of the Complainant, otherwise the complaint shall be dismissed.  However in such case, a Certificate of Non-Resolution may be issued to the Complainant.  In the same vein, if the Complainant opts to continue with the proceedings in accordance with Section 13 of these Rules, a motion to that effect shall be made during the preliminary conference and the Artbitrator/Arbitral Tribunal ay continue with the proceedings at the initial expense of the Complainant.


    Should the parties appear in the Preliminary Conference, the parties shall be required to sign a Submission Agreement, unless such intent to submit to arbitration has been manifested and conveyed in some other form of communication as expressed in Section 5 (b) (i) and (ii) of these Rules.


    Section 36.  Terms of Reference and its Contents.  Before proceeding with the hearing of the case, the Arbitrator(s) shall formulate the Terms of Reference (TOR) on the basis of the documents submitted and agreements reached in the preliminary and subsequent conferences with the parties.  The TOR shall include the following particulars:

      1.  The full name of the parties and their personal circumstances;
      2.  The addresses of the parties to which notifications or communications arising in the in the course of the arbitration may validly be made;
     3.  A summary of the parties' respective claims;
     4.  Definition of the issues to be determined;
     5.  The Arbitrators' full names, and addresses;
     6.  The place of arbitration;
     7.  Application for interim relief;
     8.  Language to be used;
     9.  The breakdown, schedule of payment, and sharing of arbitration fees; and
     10.  Such other particulars as may be required to make the arbitral award enforceable in law, or may be regarded as helpful by the institution or the Arbitrator/s.


    Section 37.  Signing of the Terms of Reference.  The Terms of Reference mentioned in Section 36 hereof shall be signed by the parties and the Arbitrator/s within fifteen (15) days from the date of the preliminary conference or from the date of the last meeting held for the purpose or finalizing the TOR as the case may be.  The same shall then be transmitted to the Secretariat within three (3) days after the signing.  Upon the Arbitrator's request, the institution, through the Secretariat, may, in exceptional circumstances, extend this time limit.


    Section 38.  Arbitration to Proceed Even Without the Terms of Reference.  Except in cases where arbitration cannot proceed under Section 13 of these Rules, arbitration shall proceed despite the absence of the TOR due to the refusal of any of the parties to sign, participate despite a valid arbitration complaint or for reasons other than the exceptions stated above.  In the absence of a TOR, all of the issues and related matters in the pleadings filed by the parties and admitted by the Sole Arbitrator or the Arbitral Tribunal, as the case may be, shall be deemed submitted for resolution by the appointed arbitrator/s.  In this instance, the Sole Arbitrator/Arbitral Tribunal shall have full control of the proceedings.


    Section 39.  Venue, Date and Time of Hearing.  The venue, date and time of the arbitral proceedings shall be mutually agreed upon by the parties and the Arbitrator/s or an Arbitral Tribunal.  In case of disagreement, the choice of the Arbitrator/s shall prevail.


    Section 40.  Recording of Proceedings.  Proceedings before an Arbitrator or an Arbitral Tribunal may be recorded by a personnel designated by the institution or the Arbitrator/s by means of any audio and/or audio visual recording equipment, such as, but not limited to, tape recorders, compact discs and video cameras, or if a stenographer is available, either through stenographic notes or minutes taken of the proceedings.  All recordings on tape, films, cassettes, discs, or diskettes shall be done by a personnel designated by the institution.  However, custody, safekeeping and eventual disposal of such recordings after the resolution of the case shall be with the Secretariat.  Copies of such recordings including transcripts and minutes of proceedings shall be made available to the parties upon request for a nominal fee.  The Sole Arbitrator or the Chairperson of the Arbitral Tribunal, as the case may be, may opt to dispense with the use of recording devices or stenographic services and take down notes of the proceedings himself/helself/themselves.  Such notes taken shall be filed with the institution and shall be part of the records of the case.  Copies of the notes filed shall be made available to the parties, upon request, at reproduction cost.


    Section 41.  Control over Proceedings.  The Arbitrator or Arbitral Tribunal shall exercise complete control over all proceedings to ensure speedy, adequate and justifiable disposition of all dispute/s and case/s submitted to them for resolution.


    Section 42.  Extent of Power of Arbitrator.  The Arbitrator or Arbitral Tribunal shall decide only such issues and related matters as are submitted to them for adjudication.


    They have no power to add, subtract from, modify, or amend any of the terms of the contract or any supplementary agreement thereto, or any rule, regulation or policy promulgated by the institution.


    Section 43.  Appointment of Experts.  The service of technical or legal experts may be engaged in the settlement of disputes if requested by any of the parties or by the Sole Arbitrator/Arbitral Tribunal.  If the request for an expert is done by either or by both of the parties, it is necessary that the engagement of the expert be confirmed by the Sole Arbitrator/Arbitral Tribunal.


    Whenever the parties request for the services of an expert, they shall equally shoulder the expert's fees, half of which shall be deposited with the Secretariat before the expert renders service.  When only one party makes the request, he/she shall deposit the whole amount required.


    If the engagement of an expert is required by the Arbitrator/s, the cost of such service/s shall be considered part of the arbitration expenses which may be ordered to be paid by the losing party or by both parties as the arbitrator/s in his/her/their award may adjudge, in the absence of a provision in the Terms of Reference signed by the parties relative to the sharing of these expenses; provided, however, both parties consented to the engagement of an expert.


    Section 44.  Interpretation and Application of Rules.  The Sole Arbitrator or the Arbitral Tribunal shall interpret and apply these Rules in so far as they relate to his/her powers and duties.  Where there is an Arbitral Tribunal, and a disagreement arises among the Arbitrators concerning the meaning or application of these Rules, the same shall be decided by a majority vote.


    Section 45.  Attendance during Hearings.  Persons having direct interest in the arbitration are entitled to attend the hearings.  It shall be discretionary upon the Sole Arbitrator/Arbitral Tribunal to determine the propriety of the attendance of any other person.  The Sole Arbitrator/Arbitral Tribunal shall have the power to require the exclusion of any witness.


    Section 46.  Adjournments.  The Sole Arbitrator/Arbitral Tribunal for good cause shown may adjourn the hearing upon his/its own initiative or upon the request of one of the parties.  Adjournment, as far as practicable, shall not be more than fifteen (15) working days.  Hearings may be adjourned for more than fifteen (15) days when such have been suspended due to payment defaults or any or both of the parties.  The Arbitrator/s shall order the suspension of hearings upon advice by the institution of non-payment of arbitration fees by one or both parties.  Hearings shall resume upon notice by the institution of compliance by the non-complying party/ies.


    Section 47.  Arbitration in the Absence of the Party.  After the preliminary conference, the Arbitration may proceed despite the absence of any party who after due notice fails to be present or fails to obtain an adjournment.  An award, however, shall not be made solely on the default of a party but on the basis of the evidence submitted and proven.


    Section 48.  Waiver of the Rules.  Any party who proceeds with the arbitration after knowledge that any provision or requirement of these Rules has not been complied with and fails to state his objection thereto in writing prior to the rendition of the award, shall be deemed to have waived his right to object.


    Section 49.  Expenses and Deposit.  Arbitration expenses shall include the filing fee, administrative charges, arbitrator's fees, fee and expenses of the expert, and others which may be imposed by the institution.


    The administrative charges and arbitrator's fees shall be in accordance with the Schedule of Administrative Charges and Arbitrator's Fees as promulgated by the CDA.


    There shall be a filing fee of Three Hundred Pesos (P300.00) plus a deposit equivalent to 10% of expected arbitrator/s' fees (based on the claim) or P5,000.00 whichever is higher upon filing of the claim.  The Respondents shall likewise pay the deposit as specified.


    The institution may fix the Arbitrator/s' fees at a figure higher or lower than that which would result from the application of the Table of Fees if in the exceptional circumstances of the case, the same appears to be necessary.


    Section 50.  Freedom to Settle.  The parties shall be free to settle the dispute/s anytime even if the same is under arbitration.  In such case, the actual expenses incurred for arbitration shall be charged against the deposit.  If the deposit is insufficient, the parties shall equally shoulder the balance.  The parties may either jointly withdraw or submit their compromise agreement to the arbitrator/s for the rendition of an award, if the arbitrator/s have already been appointed.  Where the arbitrators have been appointed and proceedings have commenced, the arbitration fees to be charged the parties shall be in accordance with the stage of proceedings.


    Section 51.  Quorum.  Two members of a tribunal shall comprise a quorum for the purpose of conducting a hearing.


    Section 52.  Briefing on Rules and Procedures.  At the initial hearing, the Arbitrator/Arbitral Tribunal shall inform the parties of the general rules and procedures that will be adopted to ensure a speedy and adequate disposition of the issues.


    Section 53.  Opening Statements. The initial proceedings may start


   

    

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