Beruflich Dokumente
Kultur Dokumente
1)
a)
b)
2)
a)
b)
3)
Class Policies:
Final Exam 40%
last day of our regular class October
problem + objective
Class Participation 60%
attendance 2x
suprise quizzes
Final Exam
40%
1)
2)
3)
4)
5)
6)
7)
Cases
1) Vega v. San Carlos Milling Co. Ltd, 51 Phil 908 (1924)
2) California & Hawaiian Sugar Co. v. Pioneer Insurance & Surety
Corp. 346 SCRA 214 (2000)
3) Associated Bank v. CA, 233 SCRA 137 (1994)
4) Bloomfield Academy v. CA, 237 SCRA 43 (1994)
5) Mindanao Portland Cement Corporation v. McDonough
Construction Co. of Florida, 90 SCRA 808 (1967)
6) Gonzales v. Climax Mining Ltd., 512 SCRA 148 (2007)
7) Oil & Natural Gas Commission v. CA, 293 SCRA 26 (1998)
8) Magellan Capital Mgt. Corp. v. Zosa, 355 SCRA 157 (2001)
9) BF Corporation v. CA, 288 SCRA 267 (1998)
10) Korea Technologies Co. Ltd. v. Lerma, 542 SCRA 1 (2008)
11) Luzon Development Bank v. Luzon Development Bank
Employees, 249 SCRA 162 (1995)
12) Toyota Motor Phils. Corp. V. CA, 216 SCRA 336
13) Heirs of Agusto L. Salas, Jr. v. Laperal Realty Corp., 302 SCRA
620
14) Del Monte Corp. USA v. CA, 351 SCRA 373 - WRONG
15) Homebankers Savings and Trust Co. v. CA, 318 SCRA 558
16) Chung Fu Industries Inc. V. CA, 206 SCRA ___
17) Adamson v. CA, 232 SCRA 602 (1994)
18) National Steel Corp. v. RTC of Lanao del Norte, 304 SCRA 595
(1999)
19) Asset Privatization Trust v. CA, 300 SCRA 579
20) China Chiang Jiang Energy Corp (Phils) v. Rosal Infrastructure
Builders, G.R. 125706, 30 September 1996
21) Hi Precision Steel, 228 SCRA 397
22) ABS CBN v. World, 544 SCRA 308
to
of
of
of
Arbitration
Award
Final Award
Interim Award
Claimant v.
Respondent
Court Reporters
challenge
14 Unable
perform
18 Conduct
hearings
19 Determination
rules
29
to
32
Termination
proceedings
Preceding Ch. 4
Sec.
22
Legal
Representation
in
International Arbitration
Sec. 23 Confidentiality in
Arbitration Proceedings
Sec. 24 Referral to
Arbitration
Sec. 25 Interpretation of
the Act
Sec. 26 Meaning of
Appointing Authority
Sec. 27 What Functions
May be Performed by
Appointing Authority
Sec. 28 Grant of Interim
Measure of Protection
Sec. 29 Further Authority
for Arbitrator to Grant Interim
Measure of Protection
Sec. 30 Place of
Arbitration
Sec. 31 Language of the
Arbitration
ARBITRATION
Arbitration v. Litigation {PALPVA}
Arbitration
Private & confidential
Parties may select
arbitrator
Parties can select
governing law that will
determine their
substantive rights
Procedure depends on
agreement
Venue depends on
agremeent
Consensual
Litigation
Public
Parties cannot agree
on presiding officer;
Judge is raffled
Philippine law governs
Applicable
law,
amiable
Next meeting:
RA 876
RA 9285
Special ADR Rules
UNCITRAL Model Law
2. In all cases, the Arbitral Tribunal shall act fairly and impartially
and ensure that each party has a reasonable opportunity to
present its case.
ICC Rules, Article 17: Applicable Rules of Law
1. The parties shall be free to agree upon the rules of law to be
applied by the Arbitral Tribunal to the merits of the dispute. In the
absence of any such agreement, the Arbitral Tribunal shall apply
the rules of law which it determines to be appropriate.
2. In all cases the Arbitral Tribunal shall take account of the
provisions of the contract and the relevant trade usages.
3. The Arbitral Tribunal shall assume the powers of an amiable
compositeur or decide ex aequo et bono only if the parties have
agreed to give it such powers.
1
Latin for "according to the right and good" or "from equity and
conscience"
2
Clauses in arbitration agreements allowing the arbitrators to act
as "amiables compositeurs", permit the arbitrators to decide the
dispute according to the legal principles they believe to be just,
without being limited to any particular national law.
Submission
Agreement
(c)
(d) Neglect / Fail /
Refuse to arbitrate
Follow (a) and (b)
(c)
In the case of the submission of an existing
controversy by the filing with the Clerk of the Court of First
Instance having jurisdiction, of the submission agreement,
setting forth the nature of the controversy, and the amount
involved, if any. Such submission may be filed by any
party and shall be duly executed by both parties.
(d) In the event that one party neglects, fails or refuses to
arbitrate under a submission agreement, the aggrieved
party shall follow the procedure prescribed in
subparagraphs (a) and (b) of this section.
Arbitration v. Adjudication
<insert notes here>
Sir thinks the difference is only in the terminology,
until he saw the FIDIC.
Arbitration - (d) "Arbitration" means a voluntary
dispute resolution process in which one or more
arbitrators, appointed in accordance with the
agreement of the parties, or rules promulgated
pursuant to this Act, resolve a dispute by rendering
an award (RA 9285)
In arbitration an independent, impartial third party
hears both sides in a dispute and makes a decision
to resolve it. In most cases the arbitrator's decision
is legally binding on both sides, so it is not possible
to go to court if you are unhappy with the decision.
Arbitration is in many ways an alternative form of
court with procedural rules which govern issues such
as disclosure of documents and evidence. But
arbitration is private rather than public. Hearings are
less formal than court hearings, and some forms of
arbitration do not involve hearings but are decided
on the basis of documents only.
Adjudication
Adjudication
involves
an
independent third party considering the claims of
both sides and making a decision. The adjudicator is
usually an expert in the subject matter in dispute.
Adjudicators are not bound by the rules of litigation
or arbitration. Their decisions are often interim ones,
MINI-TRIAL
What is a Mini-Trial?
"Mini-Trial" means a structured dispute resolution
method in which the merits of a case are argued
before a panel comprising senior decision makers
with or without the presence of a neutral third person
after which the parties seek a negotiated settlement
(RA 9285, Sec. 3(u))
Note:
Senior decision makers meet, negotiated settlement
MEDIATION
How are mediated-settlements enforced?
By depositing in court (RA 9285, Sec. 17)
PROCESS OF ARBITRATION
Arbitration agreement
|
Dispute
|
Selection of arbitrators
|
Conduct of arbitration proceedings
|
Arbitral Award
|
Confirmation &/or Enforcement
ARBITRATION
What is ADR?
"Alternative Dispute Resolution System" means any
process or procedure used to resolve a dispute or
controversy, other than by adjudication of a
presiding judge of a court or an officer of a
government agency, as defined in this Act, in which
a neutral third party participates to assist in the
resolution of issues, which includes arbitration,
mediation, conciliation, early neutral evaluation,
mini-trial, or any combination thereof (Sec. 3a, RA
9285)
What is Arbitration?
"Arbitration" means a voluntary dispute resolution
process in which one or more arbitrators, appointed
in accordance with the agreement of the parties, or
occurence
of
Submission
Agreement
Agreement to submit
dispute to arbitration; no
previous
arbitration
clause
May be entered into at
any time, even after pretrial
Petition
for
Enforcement
Agreement (See end)
of
Arbitration
Notice Requirements
Depends on whether or not the petition / motion filed
is covered by Summary Procedure.
Covered by Summary Procedure:
1) Judicial Relief Involving the Issue of Existence,
Validity or Enforceability of the Arbitration
Agreement;
10
2)
3)
4)
5)
6)
7)
8)
9)
Referral to ADR;
Interim Measures of Protection;
Appointment of Arbitrator;
Challenge to Appointment of Arbitrator;
Termination of Mandate of Arbitrator;
Assistance in Taking Evidence;
Confidentiality/Protective Orders; and
Deposit and Enforcement of Mediated
Settlement Agreements.
(1) Any party may request that provision relief be granted against
the adverse party:
(2) Such relief may be granted:
(i) to prevent irreparable loss or injury:
THIRD PART:
COMMENCEMENT OF ARBITRATION &
CONSTITUTION OF ARBITRAL TRIBUNAL
11
Upon receipt:
1) WON a dispute is arbitable the first thing that an
institution should determine
2) Assess an non-refundable fee of $2500.
CONFIDENTIALITY
Why is there no publication of awards of arbitral
tribunals?
Because of the principle of confidentiality of
arbitration proceedings (Sec. 23, RA 9285).
12
of
breach
of
13
UNCITRAL:
1) Petition to Set Aside
2) Petition to Refuse Recognition
What is the Principle of Separability?
Arbitration clause is treated as an agreement
independent of the other terms of the contract of
which it forms part. A decision that the contract is
null and void shall not entail ipso jure the invalidity of
the arbitration clause. (Uncitral Model Law, Sec.
16(1); Special ADR Rules 2.2)
What is the effect of multiple actions and
parties?
Rule 4.7.
Would Rule 4.7 result in multiplicity of suits?
Yes. But this does not prevent arbitration from being
commenced.
14
whom shall be chosen by the Mill and two by the Planters, who in
case of inability to agree shall select a fifth arbitrator, and to
respect and abide by the decision of said arbitrators, or any
three of them, as the case may be."
"14 (Planters covenant).
That they (the PlantersParties of
the second part) will submit any and all differences that may
arise between the parties of the first part and the parties of the
second part to the decision of arbitrators, two of whom shall be
chosen by the said parties of the first part and two by the said
party of the second part, who in case of inability to agree, shall
select a fifth arbitrator, and will respect and abide by the
decision of said arbitrators, or any three of them, as the case
may be."
4
2)
15
b)
ii)
iii)
c)
d)
STUDY NOTES
Rule 2.2. Policy on arbitration. (A) Where the parties have
agreed to submit their dispute to arbitration, courts shall refer
the parties to arbitration pursuant to Republic Act No. 9285
bearing in mind that such arbitration agreement is the law
between the parties and that they are expected to abide by it in
good faith. Further, the courts shall not refuse to refer parties
to arbitration for reasons including, but not limited to, the
following:
a. The referral tends to oust a court of its jurisdiction
d. The arbitration proceeding has not commenced
CLASS NOTES
1) Court was already talking about arbitration
agreement, etc. as early as 1924.
2) Malcolm dissent:
3 jurisdictions:
*Pensylvannia irrevocably bound by stipulation,
precluded from seeking redress to the courts; but
makes a distinction between (a) did not name
arbitrator; (b)
*England even a general reference to arbitration is
a condition precedent (liberal)
16
17
b. Not all of the parties to the civil action are bound by the
arbitration agreement and referral to arbitration would result in
multiplicity of suits;
c. The issues raised in the civil action could be speedily and
efficiently resolved in its entirety by the court rather than in
arbitration;
d. Referral to arbitration does not appear to be the most prudent
action; or
e. The stay of the action would prejudice the rights of the
parties to the civil action who are not bound by the
arbitration agreement.
The court may, however, issue an order directing the inclusion
in arbitration of those parties who are not bound by the
arbitration agreement but who agree to such inclusion
provided those originally bound by it do not object to their
inclusion.
CLASS NOTES
Can you be bound by an arbitration clause in
subrogation?
No express ruling in California & Hawaiian Sugar
Co. v. Pioneer Insurance & Surety Corp (2000),
citing Pan Malayan, saying that a subrogee is
bound. Theres only the accrual of the right of
subgrogation and the legal basis therefor.
Was there consent on the part of the insurance
company?
Yes, on the basis of the principle of subrogation and
its effects.
Will Article 1311 of the Civil Code apply here?
Art. 1311. Contracts take effect only between the parties, their
assigns and heirs, except in case where the rights and obligations
arising from the contract are not transmissible by their nature, or
by stipulation or by provision of law. The heir is not liable beyond
the value of the property he received from the decedent.
If a contract should contain some stipulation in favor of a third
person, he may demand its fulfillment provided he communicated
his acceptance to the obligor before its revocation. A mere
incidental benefit or interest of a person is not sufficient. The
contracting parties must have clearly and deliberately conferred a
favor upon a third person.
18
19
CLASS NOTES
Take Note of Sec. 10:
In case of disagreement, the alumni association of
the school or any other impartial body of their
choosing shall act as arbitrator
Is Sec. 10 an effective arbitration clause? Is the
designation of the alumni association in Sec. 10
an appointment of arbitrator? Statutory
arbitration clause?
A republic act meddled with the legal relationship.
Sir, too broad, too vague. Consent is absent.
If yes, party may move to stay civil action.
If not, theres no arbitrable dispute and theres no
basis to stay civil action.
Take Note of the the ff. provisions:
R.A. 9285, Sec. 24. Referral to Arbitration. - A
court before which an action is brought in a matter
which is the subject matter of an arbitration
agreement shall, if at least one party so requests not
later that the pre-trial conference, or upon the
request of both parties thereafter, refer the parties to
arbitration unless it finds that the arbitration
agreement is null and void, inoperative or incapable
of being performed.
Sec. 7 Stay of civil action
Relate to Referral to ADR (Special Rules)
Depends on the request of a party, because party
may decide not to undergo ADR
- Related to Section 24 of RA 9285
If any suit or proceeding be brought upon an issue
arising out of an agreement providing for the
arbitration thereof, the court in which such suit or
proceeding is pending, upon being satisfied that the
issue involved in such suit or proceeding is referable
to arbitration, shall stay the action or proceeding
20
contractors'
payment.
and
fiscal
requests
for
Facts:
Petitioner and respondent McDonough executed a
contract for the construction by the respondent
for the petitioner of a dry portland, cement plant at
Iligan City. In a separate contract, Turnbull, Inc.
the "engineer" was engaged to design and
manage the construction of the plant, supervise the
construction,
schedule
deliveries
and
the
construction work as well as check and certify ill
progress
21
22
Further, the courts shall not refuse to refer parties to arbitration for
reasons including, but not limited to, the following:
b. The court is in a better position to resolve the dispute subject
of arbitration;
CLASS NOTES:
What is a pathological arbitration clause?
An arbitration clause thats vague or unclear, such
that instead of facilitating the arbitration of the case,
it delays it.
Mindanao Portland case contains a pathological
arbtiration clause, thus: Some are referrable to
arbitration, others are referrable to the engineer.
Note:
Respondent McDonough contended in the case that:
1) There is no showing of disagreement (merely
a problem in computation); and
2) If there is, the same falls under the exception,
to be resolved by the engineer.
Whereas Petition Mindanao Portland insisted that
there was a dispute and that it is referrable to
arbitration.
Problem is that McDonough started to argue the
case on its merits.
Court: Its wrong.
What is the duty of the Court when confronted
with the issue of the arbitrability of the dispute?
(Most common mistake of courts)
The duty of the court in this case is not to resolve
the merits of the parties' claims but only to determine
if they should proceed to arbitration or not
23
Yes
24
CLASS NOTES:
Xam: See also, Associated Bank case Sec. 3
(Agreement to the PCHC Rules) in relation to Sec.
36 on Arbitration.
Participation in the PCHC clearing process is
equivalent to a WRITTEN and SUBSCRIBED
consent to be bound by the PCHC Rules and
Regulations, including the provision on arbitration.
25
No
26
27
CLASS NOTES:
Notes:
- Cannot ask for a commitment not to get an
injunction in the Philippines. Jurisdiction over the
issue is defined by the arbitration clause. (Mindanao
Portland)
28
29
CONSENSUAL NATURE
Arbitration, as an alternative mode of settling
disputes, has long been recognized and
accepted in our jurisdiction. Disputes do not go to
arbitration unless and until the parties have agreed
to abide by the arbitrators decision. Necessarily, a
contract is required for arbitration to take place
and to be binding. R.A. No. 876 recognizes the
contractual nature of the arbitration agreement
(Section 2).
CONTRACTUAL NATURE
Thus, we held in Manila Electric Co. v. Pasay
Transportation Co. that a submission to arbitration
is a contract. A clause in a contract providing
that all matters in dispute between the parties
shall be referred to arbitration is a contract. In
Del Monte Corporation-USA v. CA we held that that
"the provision to submit to arbitration any
dispute arising therefrom and the relationship of
the parties is part of that contract and is itself a
contract. As a rule, contracts are respected as the
law between the contracting parties and produce
effect as between them, their assigns and heirs."
SPECIAL PROCEEDING
The special proceeding under Sec. 6 of R.A. No.
876 recognizes the contractual nature of
arbitration clauses or agreements.
JURISDICTION & COURT ACTION
30
CLASS NOTES:
1) Take note of the facts of the case illustrates
realities in arbitration.
2) Special proceeding of arbitration in the case
(read original) citing Sec. 6, thus NO pre-trial
31
NO
32
Yes
33
Class Notes:
1) International Arbitration
34
35
that application had received the award or, if a request had been
made under article 33, from the date on which that request had
been disposed of by the arbitral tribunal.
4) The court, when asked to set aside an award, may where
appropriate and so requested by a party, suspend the setting
aside proceedings for a period of time determined by it in order to
give the arbitral tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the arbitral
tribunal's opinion will eliminate the grounds for setting aside.
Rule 13.4. Governing law and grounds to refuse recognition and
enforcement. The recognition and enforcement of a foreign
arbitral award shall be governed by the 1958 New York
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the New York Convention) and this Rule. The
court may, upon grounds of comity and reciprocity, recognize and
enforce a foreign arbitral award made in a country that is not a
signatory to the New York Convention as if it were a Convention
Award.
A Philippine court shall not set aside a foreign arbitral award but
may refuse it recognition and enforcement on any or all of the
following grounds:
a. The party making the application to refuse recognition and
enforcement of the award furnishes proof that:
(i). A party to the arbitration agreement was under some
incapacity; or the said agreement is not valid under the law to
which the parties have subjected it or, failing any indication
thereof, under the law of the country where the award was made;
or
(ii). The party making the application was not given proper
notice of the appointment of an arbitrator or of the arbitral
proceedings or was otherwise unable to present his case; or
(iii). The award deals with a dispute not contemplated by or not
falling within the terms of the submission to arbitration, or contains
decisions on matters beyond the scope of the submission to
arbitration; provided that, if the decisions on matters submitted to
arbitration can be separated from those not so submitted, only
that part of the award which contains decisions on matters not
submitted to arbitration may be set aside; or
(iv). The composition of the arbitral tribunal or the arbitral
procedure was not in accordance with the agreement of the
parties or, failing such agreement, was not in accordance with the
law of the country where arbitration took place; or
a.
(v). The award has not yet become binding on the parties or has
been set aside or suspended by a court of the country in which
that award was made; or
b.
Petitioners:
Magellan
Capital
Management
Corporation and Magellan Capital Holdings
Corporation
Respondents: Rolando Zosa and Hon. Jose
Soberano Jr
Facts:
Under a management agreement, Magellan Capital
Holdings Corporation [MCHC] appointed Magellan
Capital Management Corporation [MCMC] as
manager for the operation of its business and
affairs. MCMC, and M. Zosa entered into an
"Employment Agreement" designating Zosa as
36
No
37
38
BF Corp vs CA
Date: March 27, 1998
Petitioner: BF Corporation
Respondents: CA, Shangri-la Properties Inc, Rufo
Colayco, Alfredo Ramos, Maximo Licauco, et al
Facts:
Petitioner and respondent Shangri-la Properties, Inc.
entered into an agreement whereby the latter
engaged the former to construct the main structure
of the "EDSA Plaza Project," a shopping mall
complex in Mandaluyong. Petitioner incurred delay
in the construction work that SPI considered as
"serious and substantial." On the other hand,
according to petitioner, the construction works
"progressed in faithful compliance with the First
Agreement until a fire broke out damaging Phase I"
of the Project. Hence, SPI proposed the renegotiation of the agreement between them.
Petitioner and SPI entered into a written agreement
denominated as "Agreement for the Execution of
Builder's Work for the EDSA Plaza Project." Said
agreement would cover the construction work on
said project as of May 1, 1991 until its eventual
completion. According to SPI, petitioner "failed to
complete the construction works and abandoned the
project." This resulted in disagreements between the
parties as regards their respective liabilities under
the contract.
Petitioner filed with the RTC of Pasig a complaint for
collection of the balance due under the construction
agreement. SPI and its co-defendants filed a motion
to suspend proceedings instead of filing an answer.
The motion was anchored on defendants' allegation
that the formal trade contract for the construction of
the project provided for a clause requiring prior
resort to arbitration before judicial intervention could
be invoked in any dispute arising from the contract.
Petitioner opposed said motion claiming that there
was no formal contract between the parties although
Yes
39
40
Class Notes:
Next 5 meetings
CIAC
UNCINTRAL / ICC
NY Convention
Slideshow
41
42
Article 15.
Arbitration.All disputes, controversies, or
differences which may arise between the parties, out of or in
relation to or in connection with this Contract or for the breach
thereof, shall finally be settled by arbitration in Seoul, Korea in
Yes
43
44
No
45
Yes
46
Voidable:
Fraud
Violence
Mistake
Undue Influence
Intimidation
47
48
49
CLASS NOTES:
What was the effect of a 3rd Party on the
arbitration clause?
The contention that the arbitration clause has
become disfunctional because of the presence of
third parties is untenable. Contracts are respected
as the law between the contracting parties. As such,
the parties are thereby expected to abide with good
faith in their contractual commitments. Toyota is
therefore bound to respect the provisions of the
contract it entered into with APT.
No
50
51
an
order
Held:
Ratio: Petitioners contend that the subject matter of
private respondents' causes of action arises out of or
relates to the Agreement between petitioners and
private respondents. Thus, considering that the
arbitration clause of the Agreement provides that all
disputes arising out of or relating to the Agreement
or the parties' relationship, including the termination
thereof, shall be resolved by arbitration, they insist
on the suspension of the proceedings in Civil Case
No. 2637-MN as mandated by Sec. 7 of RA 876.
Private respondents claim, on the other
hand, that their causes of action are rooted in Arts.
20, 21 and 23 of the CC the determination of which
demands a full blown trial, as correctly held by the
CA. Moreover, they claim that the issues before the
52
CLASS NOTES:
Court found that the arbitration clause is valid and
that the dispute is arbitrable, but nevertheless did
not order the arbitration.
Sir:
Problem with this decision is that it will kill arbitration.
A party may simply implead other parties and claim
that they are not parties to the arbitration clause.
READ UNITRAL ARBITRATION RULES and ICC
ARBITRATION RULES
53
54
APT v. CA
Is this in act of judicial legislation?
55
Note : "...and there is no appeal") SEE: 19.12 -Appeal to the Court of Appeals.An appeal to the Court of
Appeals through a petition for review under this Special Rule shall
only be allowed from the following final orders of the Regional
Trial Court:
XXXConfirming, vacating or correcting a domestic arbitral
award;
56
Problem:
Claimant appoints an arbitrator. Respondent refuses
to name his arbitrator. Claimant asks IBP to appoint
in behalf of Respondent, which IBP did. Can
Respondent ask for an injunction enjoining the
commencement of the injunction on the ground that
it did not appoint an arbitrator? Can a court enjoin
arbitration proceedings?
Rule 3.18. Court action. (B) No injunction of arbitration
proceedings. The court shall not enjoin the arbitration
proceedings during the pendency of the petition.
57
Held:
Ponente: Romero
Facts: Petitioner Chung Fu Industries and Roblecor
Philippines, Inc. forged a construction agreement
whereby respondent committed to construct and
finish on December 31, 1989, petitioner 's
industrial/factory complex in Cavite for P42,000,000.
In the event of disputes arising from the
No
58
14
59
Adamson vs CA (1994)
Petitioners: Dr. Lucas Adamson and Adamson
Management Corporation
Respondents: CA and Apac Holding Limited
Facts: Adamson Management Corporation and
Lucas Adamson on the one hand, and APAC
Holdings Limited on the other, entered into a
contract whereby the former sold 99.97% of
outstanding common shares of stocks of Adamson
and Adamson, Inc. to the latter for P24,384,600 plus
the Net Asset Value of Adamson and Adamson, Inc.
as of June 19, 1990. But the parties failed to agree
on a reasonable Net Asset Value. This prompted
them to submit the case for arbitration in accordance
with RA 876.
The Arbitration Committee rendered a
decision finding the Net Asset Value of the Company
to be P167,118. The Arbitration Committee
disregarded petitioners' argument. According to the
Committee, however, the amount of P5,146,000
which was claimed as initial NAV by petitioners, was
merely an estimate of the Company's NAV as of
February 28, 1990 which was still subject to financial
developments until June 19, 1990, the cut-off date.
Aside from deciding the amount of NAV, the
Committee also held that any ambiguity in the
contract should not necessarily be interpreted
against private respondents because the parties had
stipulated that the draft of the agreement was
submitted to petitioners for approval and that the
60
CA
erred
in
affirming
the
No
61
62
63
64
65
66
CLASS NOTES:
National Steel Corporation is problematic. Supreme
Court is wrong in substituting its own judgment.
Next Friday:
1) CIAC
EO 1008 series of 1985, as amended
China Chiang Jiang Energy Corp (Phils) v. Rosal
Infrastructure Builders, G.R. 125706, 30 September
1996
2) Appeals
Study ADR Rules very intensively. They
substantially modified the appellate process.
Take note of the wording of the Special ADR Rules
enjoining or refusing to enjoining
Section 1, Rule 43, Rules of Court gives the
impression that you can appeal from an arbitral
award
Whereas Special ADR Rules review of the trial
courts action
Hi Precision Steel 228 SCRA 397
ABS CBN v. World 544 SCRA 308
3) Rule A
67
Held:
Ratio: RA 876 itself mandates that it is the RTC,
which has jurisdiction over questions relating to
arbitration such as a petition to vacate an arbitral
award. The law itself clearly provides that the RTC
must issue an order vacating an arbitral award only
in any one of the . . . cases enumerated therein.
Under the legal maxim in statutory construction
expressio unius est exclusio alterius, the explicit
mention of one thing in a statute means the
elimination of others not specifically mentioned. As
RA 876 did not expressly provide for errors of fact
and/or law and grave abuse of discretion (proper
grounds for a petition for review under Rule 43 and a
petition for certiorari under Rule 65, respectively) as
grounds for maintaining a petition to vacate an
arbitral award in the RTC, it necessarily follows that
a party may not avail of the latter remedy on the
grounds of errors of fact and/or law or grave abuse
of discretion to overturn an arbitral award.
In cases not falling under any of the grounds
to vacate an award, the Court has already made
several pronouncements that a petition for review
under Rule 43 or a petition for certiorari under Rule
65 may be availed of in the CA. Which one would
depend on the grounds relied upon by petitioner.
68
No
69
No
70
71
72
MANUFACTURING CORPORATION
Petitioner,
Sp .Proc. No. _____________
For:
Enforcement of Arbitration
Agreement
PARTIES
1.
Petitioner MANUFACTURING CORPORATION is a domestic corporation with business address at 123 High Rise, Gil
Puyat Street, Makati City, where it may be served with pleadings, motions and other processes.
2.
Respondent SUPPLIER CORPORATION is a domestic corporation with business address at 456 Low Rise, Makati
Avenue, Makati City, where it may be served with pleadings, motions and other processes.
II.
FACTS
3.
On November 20, 2010, P & R entered into a contract for the construction of a building.
4.
Contained in the construction contract (Attached as Annex A) is an arbitration clause in the following tenor:
32. ARBITRATION
32.1 If at any time a dispute or claim arises out of or in connection with the Agreement the parties shall endeavor to settle
such amicably, failing which it shall be referred to arbitration by a single arbitrator in London, such arbitrator to be appo inted by
agreement between the Lines within 14 days after service by one Line upon the other of a notice specifying the nature of the
dispute or claim and requiring reference of such dispute or claim to arbitration pursuant to this Article.
5.
6.
P sent R a Demand for Arbitration (Attached Annex B) but R failed to respond within fifteen (15) days after receipt
7.
On May 15, 2010, P filed with the Clerk of the Court of the RTC, a copy of the demand for arbitration under the xxx
thereof.
PRAYER
WHEREFORE, in view of the foregoing, petitioner respectfully prays that this Honorable Court issue an order directing that the
arbitration agreement be enforced in the manner provided for in the arbitration of clause of the container contract.
Petitioner also prays for such other reliefs as may be deemed just or equitable under the premises.
Respectfully submitted.
Quezon City; 29 July 2010.
ATTY. ANNA MARIE F. ROXAS
IBP Lifetime Member No. 12345; Pasig City
PTR No. 67890; 08/01/10; Pasig City
SC Roll No. 55555
MCLE No. III 22222
73
VERIFICATION16
AND CERTIFICATION OF NON-FORUM SHOPPING
I, JUAN DE LA CRUZ, of legal age, single, Filipino, with residence and postal address at 31 Lacson St., Quezon City, after being
duly sworn on oath in accordance with law, hereby voluntarily depose and say:
1.
2.
3.
That I have read the contents thereof and the same are true and correct to the best of my knowledge and based on
authentic records in my possession;
4.
5.
That I hereby certify that I have not commenced any action or proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any tribunal or agency;
6.
That if I should hereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court,
the Court of Appeals, or any tribunal or agency, I undertake to immediately report the same within five (5) days therefrom to the court or
agency wherein the original pleading and sworn certification contemplated in Administrative Circular No. 04-94 of the Supreme Court has been
filed.
JUAN DE LA CRUZ
Affiant
ATTESTED:
xxxxxx
President
PLUS: Jurat
- EXPLANATION -
Copy Furnished:
xxxxx
16
When made by a lawyer, verification shall mean a statement under oath by a lawyer signing a pleading/motion for delivery to t he Court or to
the parties that he personally prepared the pleading/motion, that there is sufficient factual basis for the statements of fact stated therein, that
there is sufficient basis in the facts and the law to support the prayer for relief therein, and that the pleading/motion is filed in good faith and is
not interposed for delay.