Opinion


Encouraging alternative dispute resolution:
The use of interim measures of protection in arbitration




Amicus Curiae
Jose Angelo A. David

Posted on October 14, 2015


The 2013 National Conference for the Revision of the Rules of Civil Procedure (Conference) reports that many of our courts handle 1,000 or more cases, hearing only about 30 to 60 cases a day. According to the Conference, however, litigation delays can be attributed not only to the sheer number of cases clogging our court dockets, but also primarily due to “our slow and cumbersome system for hearing and deciding cases.” Thus, it was suggested that cases, subject to a few exceptions, must undergo mandatory alternative dispute resolution (ADR) under its proposed revisions to the rules of civil procedure.

The use of the different modes of ADR, such as arbitration, is not at all novel in this jurisdiction. Arbitration is a process whereby the parties appoint one or more arbitrators to resolve their dispute by rendering an award.

Even under the Civil Code, arbitration is recognized as a way for parties to amicably and expeditiously settle their disputes, with the end in view of avoiding protracted and needless litigation. The policy in favor of arbitration was further institutionalized through Republic Act (RA) No. 876, or the Arbitration Law approved in 1953, and RA 9285, or the Alternative Dispute Resolution Act of 2004.

One interesting aspect of RA 9285 which incentivizes resort to arbitration as an ADR system is the provision on interim measures of protection. Interim measures of protection are provisional reliefs that any party to an arbitration agreement may ask for from the arbitral tribunal or, in appropriate cases, the courts. While RA 876 allows a party to petition the court to take measures to safeguard and/or conserve any matter which is the subject of the dispute in arbitration, RA 9285 expresses in more categorical terms the availability of interim measures of protection in arbitration.

Under RA 9285, interim measures of protection may be availed of to prevent irreparable loss or injury, to provide security for the performance of any obligation, to produce or preserve any evidence, or to compel any other appropriate act or omission. Notably, the Supreme Court, in the exercise of its constitutional power to promulgate rules of procedure, approved in 2009 Administrative Matter No. 07-11-08-SC or the Special ADR Rules. Under these rules, the court may grant, among others, preliminary injunction directed against a party to arbitration, preliminary attachment, and the appointment of a receiver.

RA 9285, as well as the Special ADR Rules, provides that after the constitution of the arbitral tribunal and during arbitral proceedings, a request for an interim measure of protection must be made with the arbitral tribunal. Nonetheless, before arbitration is commenced or to the extent that the arbitral tribunal has no power to act or is unable to act effectively, a party to an arbitration agreement may file a petition for interim measures of protection with the regional trial courts.

Aside from laying down the procedure for availing interim measures of protection, the Special ADR Rules likewise provides for the remedy from the grant or denial of a petition for interim measures, and the procedure for the modification, amendment, revision or revocation by the arbitral tribunal of a court’s previously issued interim measure of protection.

Interim measures of protection are valuable tools that parties to an arbitration agreement can avail of to properly safeguard their rights and protect their interests. Without these interim measures of protection, a party might be less inclined to amicably resolve a dispute through arbitration and enforce his rights instead through court litigation. Indeed, interim measures of protection are a useful addition to one’s arsenal of remedies, and are a welcome development in the field of ADR.

Jose Angelo A. David is an Associate of the Litigation and Dispute Resolution Department at the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).

830-8000

jadavid@accralaw.com