- PNOC vs. CA 512 SCRA 684*
- WON the issue involved is a question of law
- Notice of arbitration
- (the notice contains the proposal on the number of arbitrators) Should choose the arbitrator/s:
- Agree on the number: so appoint the arbitrators
- Appointing authority chooses
- Party may request the SecGen of the Permanent Court of Arbitration at the Hague to designate an appointing authority who would appoint the 3rd arbitrator
- The appointed arbitrator would then disclose circumstances to give rise to justifiable doubts as to his impartiality or independence.
- File statement of Claims
- File statement of defense
- Hearing
- Closing of hearings
- Render Award
- Enforce/Correct award
Review:
Construction Arbitration
so what body would have EOJ over construction dispute
GR: CIAC
X: but it would not preclude the parties from SUBMITTING DISPUTES IN ANOTHER ARBITRAL BODY [China Chiang Case]
e.g. under ICC, FIDIC rules…
Clarification in China Chiang case: in that case, it was held that the parties are only required to have an arbitration clause to vest jurisdiction to CIAC. However, the law does not preclude parties from stipulating a preferred forum or arbitral body but they may not divest the CIAC of jurisdiction as provided by law (in this case, ICC was chosen by the parties as the alternative arbitral body)
What if the arbitration clause says that any dispute arising from the construction contract would be governed by ICC rules of Arbitration? One party files w/ CIAC, the other party files in ICC (at the same time), which Arbitral body would have jurisdiction over the dispute?
-EO 1008 = law: therefore, as law confers jurisdiction, not the will of the parties, then CIAC which was given EOJ over construction disputes, should have jurisdiction and not ICC
-however, China Chiang case, it was said that CIAC is only an alternative arbitral body + ADR law provides that party autonomy would govern, therefore, what the parties provided would govern - in this case ICC!!!
What if the other party files ahead of the other:
CIAC muna: How would you, as a foreign investor, minimize the bias of a home court advantage?
-for CIAC: CIAC has EOJ, plus the foreign investor could opt to appoint another foreigner arbitrator
-ISN'T IT FORUM SHOPPING: same parties, same COA, same subject matter
-this isn't a problem on jurisdiction, but on venue! Both may acquire jurisdiction of the case, and submitting to one jurisdiction does not remove the jurisdiction of the other.
-agreement to submit dispute to ICC, if subjected to NY Convention, under NY Convention, convention states are bound not only to enforce arbitral awards but also to recognize arbitral agreements
BOTH CORRECT!
If the arbitration clause provides that the arbitration would be governed by the UNCITRAL RULES, ad hoc or institutional arbitration?
AD HOC. No institution under UNCITRAL
SO what if CIAC vs. UNCITRAL ad hoc? (this is what happened with BF and Shangrila after it was said that the arbitration clause is binding)
…dadadaa…!
On new rules on arbitration [r19.7]: precludes R43 now!
AC Enterprices iNc vs. CIAC 244 SCRA 55*
("Final and unappealable" vs. "final and executory")
F: There was an arbitral award under CIAC for AC Enterprises. However, (I'm guessing) Dee Construction Corporation was not paying the award yet as they filed MR to SC.
AC Enterprises now argues that as the award was already FINAL AND UNAPPEALABLE, it should bear the 12% interest rate imposed under the ruling in Eastern Shipping Lines case.
H: "FINAL AND UNAPPEALABLE" different from "final and executory"
A "final and inappealable (sic)" judgment is not the same as a "final and executory" one. The former becomes executory only as in the case of an award by the CIAC after the lapse of 30 days from receipt of notice thereof and no petition for review to the Supreme Court is made (Rules of Procedure Governing Construction Arbitration, Art. XVI, Sec. 1).
While the petition for review does not automatically suspend the execution of the award of the CIAC, the Supreme Court may direct a stay of the execution. In the case at bench, the Court issued a temporary restraining order to stay the execution of the award (Resolution, October 14, 1991).
The CIAC award did not become "final and executory" until after service of a copy of the Resolution dated April 8, 1992 of this Court, denying the motion for reconsideration. The award was fully paid to private respondent on May 6, 1992 (Rollo, p. 456). We consider the interest that accrued from April 8 to May 6, 1992, a period of less than a month, as de minimis as to warrant its charging against the award.
High Precision Steel Center Inc. vs. Lim Kim Steel Builder 228 SCRA 397*
(questions of fact are NOT APPEALEABLE - already final and executory)
F: Hi-Precision entered a construction contract with Steel Builders where Steel Builders would complete a P21M construction project until Oct8, 1990. However, the project's completion date was moved to Nov1990.
-Come Nov 1990, the construction was only almost 76% complete. Each party attributed delay to the other. Hi-Precision undertook the project and completed it February 1991.
-Steel builders filed a REQUEST FOR ARBITRATION w/ CIAC
-Steel builders filed a COMPLAINT FOR COLLECTION OF unpaid progress buildings
-ANSWER: claimed actual and liquidated damages
-CIAC: Hi-Precision ordered to pay Steel Builders
-MRs filed by both parties. Net amount awarded reduced
ON AWARD: based on mutual default (though they could not point out which of the two was the first infractor)
-High Precision now goes to SC for review of the CIAC Arbitrator's award, claiming that there were errors of law and that if they do raise errors of facts, these should still be considered, there being GAD on the part of the CIAC
H: For Lim Kim
1. Should have impleaded the arbitrators of the CIAC, not CIAC, as the award sought ot be reviewed is that of the arbitrators and not of CIAC
2. The matters raised by High Precision are really matters of fact which are not subject to review of the courts under Section 19 of eO 1008
Precision is asking this Court to pass upon claims which are either clearly and directly factual in nature or require previous determination of factual issues. This upon the one hand. Upon the other hand, the Court considers that petitioner Hi-Precision has failed to show any serious errors of law amounting to grave abuse of discretion resulting in lack of jurisdiction on the part of the Arbitral Tribunal, in either the methods employed or the results reached by the Arbitral Tribunal, in disposing of the detailed claims of the respective parties.
(on question of law: test)
F: PNCC entered into a MOA w/ Toll Regulatory Board, Citra Metro and MWSS for the relocation of MWSS utilities along SLEX affected by construction of the Skyway. PNCC subcontracted CMS for the relocation. Even before the signing of the contract, CMS proceeded to carry out the project upon request of PNCC
-PNCC subsequently entered contract with CMS, agreeing that the contract price of almost P8M would be inclusive of taxes and was merely an estimate - the final price still to be computed based on actual accomplishments
-also informed CMS that they would provide the necessary equipment, manpower and materials.
-However, upon reaching the 75 calendar days deadline, the relocation project was still not finished. The project was finished after more than 1 year
-PNCC deducted an estimated P1B from CMS's billings as "accomodations", then the two parties subsequently entered into an amended subcontract agreement where the final contract price agreed upon by the parties was almost P9M inclusive of taxes which was agreed to have superseded the price in the original contract.
-CMS filed a complaint for collection of the rest of the amount in the AMENDED SUBCONTRACT AGREEMENT, saying that PNCC made deductions based on the "Accommodations" which CMS said must be disallowed.
AWARD (by Lazatin, sole arbiter): for CMS
-basically, Lazatin ruled that the Accommodations should be disallowed because it was agreed under the AMENDED COMPROMISE AGREEMENT that the price already includes any other commitment or agreement on the price pertaining to works covered therein.
CA: Affirmed Lazatin's decision
-PNCC failed to prove that it did undertake the rest of the work that should have been done by CMS after delay.
MR Denied
H:
YES
Ratio.To be sure, questions of law are those that involve doubts or controversies on what the law is on certain state of facts; and questions of fact, on the other hand, are those in which there is doubt or difference as to the truth or falsehood of the alleged facts. One test, it has been held, is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case it is a question of law, otherwise it will be a question of fact
--here, the controversy is WON the "accommodations" claimed by PNCC may be properly deducted from the contract price stipulated in the AMENDED SUBCONTRACT AGREEMENT which would entail interpretation of the true agreement between the parties
b. WON there was GAD on the part of Lazatin
NO
-no showing of GAD
-It is clear from a reading of said provision of the Contract Amendment executed after the completion of said project and after PNCC had determined the alleged deductions it was to charge against CMS’s account that Annex "A" thereof reflects the scope of work undertaken by CMS. Said Bill of Quantities therefore enumerates the costs borne by CMS as subcontractor in the accomplishment of the project.
A careful perusal of Annex "A" of the Contract Amendment will show that the final Bill of Quantities for the scope of works undertaken by CMS for the project amounts to P8,872,593.74. There is no mention, either in the body of said Contract Amendment nor in the annex attached thereto, regarding the alleged "accommodations" which PNCC shall deduct from the amount payable to CMS. It would only be logical, therefore, to conclude that the Contract Amendment and Annex "A" attached thereto already reflect the actual amount to be paid to CMS for the scope of work it rendered regarding the relocation of the 450 mm pipe along the East Service Road of the South Luzon Tollway, said amendment having been executed after PNCC had already determined the necessary deductions to be made against the account of CMS.
Who was the claimant here?
CMS
Under what arbitral panel?
CIAC
ABS-CBN Broadcasting Corp vs. World Interactive*
(WON a petition to vacate award required before a party could file a petition for review before CA)
F: ABSCBN entered into a licensing agreement with WINS for the latter to have exclusive license to distribute in Japan and sublicense TFC.
DISPUTE: ABSCBN alleged that WINS inserted WINS WEEKLY into the TFC programming, an "UNAUTHORIZED INSERTION" which constituted a material breach of the agreement. ABSCBN thus wanted to terminate the agreement
-WINS filed an arbitration suit pursuant to the arbitration clause of its agreement w/ ABSCBN: WINS claimed that ABSCBN only wanted to terminate the contract because it wanted to demand a higher fee and that it was undertaking to contract with NHK
-Prof. Tadiar appointed as sole arbitrator, with the ff issues:
1. Was the broadcast of WINS WEEKLY by the claimant duly authorized by the respondent [herein petitioner]?
2. Did such broadcast constitute a material breach of the agreement that is a ground for termination of the agreement in accordance with Section 13 (a) thereof?
3. If so, was the breach seasonably cured under the same contractual provision of Section 13 (a)?
4. Which party is entitled to the payment of damages they claim and to the other reliefs prayed for?
AWARD: for WINS
-ABSCBN gave its approval for airing WINS WEEKLY as shown in the written exchanges between the parties
-agreed with WINS that ABS only wanted to preterminate the contract to demand for higher fees
-awarded damages in favor of WINS
ABS filed petition for review under R43 with CA or R65 Petition for certiorari in the alternative
WINS filed petition for confirmation of arbitral award before RTC QC; thus, ABSCBN filed a supplemental petition w/ CA to enjoin the RTC QC from further proceeding with petition for confirmation (granted). WIN's MR not resolved.
CA: Affirmed Prof. Tadiar's decision
-TOR itself provided that the decision should be final and unappealable, and as no MR filed, petition for review must fail.
-RTC, not CA, has jurisdiction over the arbitral award
-R65 petition only proper if the courts refuse or neglect to inquire into the facts of an arb award
MR DENIED
WON the aggrieved party in a voluntary arbitration dispute may avail of, directly in CA, a petition for review under R43 or R65 instead of filing for a petition to vacate the award in RTC under RA876
Pede under either pero dapat 1 lang!
WEIRD...
*At first it said that only RTC could take jurisdiction and only under the grounds enumerated therein. "..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."
*then proceeded on saying that voluntary arbitrators may be classified as QJA and thus are subject to review by CA under R43
*it also proceeded by saying that courts could also take cognizance of the petition for certiorari under R65 if there's GAD.
*Cited Insular Savings Bank case: several judicial remedies an aggrieved party to an arbitral award may undertake:
(1) a petition in the proper RTC to issue an order to vacate the award on the grounds provided for in Section 24 of RA 876;
(2) a petition for review in the CA under Rule 43 of the Rules of Court on questions of fact, of law, or mixed questions of fact and law; and
(3) a petition for certiorari under Rule 65 of the Rules of Court should the arbitrator have acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
Pero sabi ng court di pede pareho. Dapat:
Time and again, we have ruled that the remedies of appeal and certiorari are mutually exclusive and not alternative or successive.
So petition denied!
Metrobank vs. CA GR 166260 18 February*
F: Metrobank received a check which was drawn against the account of Bienvenido C. Tan with United Overseas Bank. However, AFTER METROBANK had already paid the amount, it found a material alteration (date and amount) so it wanted to refund the money it paid. UOB refused.
-METROBANK filed COMPLAINT before PCHC Arbitration Committee: UOB had duty to examine the deposited check for any material alteration but since UOB failed to do so, UOB should bear the loss (thus, isoli nyo pera namin!)
-UOB filed answer with counterclaim: Metrobank failed to comply w/ 24-h clearing house rule + cleared the check with gross neglighence
-1 year after, Metrobank moved for postponements on the ground that PNP Crime Lab document results were not yet available. Metrobank did the same for two more times.
-on the last reset date, Metrobank's counsel failed to appear, thus UOB moved for the dismissal of the case. ARB granted: DISMISSED COMPLAINT
-MR w/ Med cert of Metrobank's counsel (Counsel was afflicted w/ influenza) and the PNP Crime Lab Doc Exam Report: check was indeed altered
-UOB opposed motion; ARB DENIED MR
-2nd MR filed: DENIED AGAIN. MR again for 3rd time.
-PCHC sent Metrobank a communication saying that the proper remedy should be to file for a NOTICE OF APPEAL w/ PCHC and PETITION FOR REVIEW w/ RTC w/n 15d from receipt of PCHC resolution
-so METROBANK filed Petition for Review w/ RTC
RTC: Dismissed petition
-no jurisdiction: filed out of time
-Arb Committee correctly dismissed case: (a)Failure to prosecute; (b) under prevailing jurispurdence, it is the drawee-bank which should bear the loss for a forged or altered check
CA: affirmed RTC on the point of failure to prosecute + violation of 24h clearing house rule
BUT ruled that petition for review before RTC was filed on time in accordance w/ PCHC rules
H: DISMISSED
METROBANK should not have followed the PCHC Rules as it was already held in Insular Savings bank case that the PCHC cannot confer jurisdiction on the RTC to review arbitral awards
-mentioned remedies under Insular Savings vs. FEBTC
(1) a petition in the proper RTC to issue an order to vacate the award on the grounds provided for in Section 24 of RA 876;
(2) a petition for review in the CA under Rule 43 of the Rules of Court on questions of fact, of law, or mixed questions of fact and law; and
(3) a petition for certiorari under Rule 65 of the Rules of Court should the arbitrator have acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
Federal Builders Inc vs. Daiichi Properties and*
(arbitrators should access all means to ascertain the facts of the case)
F: Federal Builders and Daiichi Properties entered into a construction contract wherein Federal would construct the Orient Plaza for Daiichi. They had an original construction contract containing the contract price of the materials. However, when Daiichi reduced the concrete strength from 8k to 6k, it resulted into the decrease in the required quantities of cement, steel bars, and other construction materials.
DISPUTE: Dispute arose on how the computation of the deductive cost would be derived.
| Daiichi | Federal |
| difference between the quantities/peso value of steel bars, cement, labor and materials required under the original plan w/ the quantities/peso value of the same items required under the revised plan | comparing the quantities/peso value of steel bars, cement, labor and materials required under the construction agreement (or guaranteed maximum) with the quantity of materials required under the revised plan |
-Daiichi procured the services of a surveyor (Davis Langdo and Seah Philippines, Inc. (DLS)) who arrived at a cost near the amount estimated by Daiichi. Feeling aggrieved, Federal filed a petition to arbitrate under CIAC.
-During arbitration, Daiichi filed a motion to commission an independent quantity surveyor
-CIAC arbitrator: (1) not necessary; (2) it should be agreed upon by both parties
-MR denied, Daiichi appealed to CA
CA: reversed Arbitrator, ordered that the motion of CIAC be granted
H: FOR DAIICHI (affirm CA)
1. Should have filed Petition for Review based on R43, not Petition for Certiorari based on R65. And even if valid R65 petition, it should still be dismissed because there is no GAD
2. CA decision valid: Arbitrators should have allowed the commissioning of an independent expert to employ all reasonable means to ascertain the facts in each case
-Daiichi was deprived of the opportunity to present evidence for its case when it's motion was denied.
3. It is not required that both parties should agree to the engagement of an independent surveyor, under SECTION 5, Chapter XV of Rules of Procedure Governing Construction Arbitration
*Article 1, Section 3 of rules of procedure governing construction arbitration: “use every and all reasonable means to ascertain facts in each case speedily and objectively and without regard to technicalities of law or procedure.”
4. The initial survey initiated by Daiichi was not independent because it was done through the behest of Daiichi.
Insular Savings vs. FEBTC
(remedies available for aggrieved party in an award made by PCHC; PCHC rules cannot confer jurisdiction on RTC as it is not created by Congress)
F: HBTC (insular?) sent 3 checks totalling P25B to FEBTC for clearing by operation of the PCHC clearing system. However (late nga lang) FEBTC dishonored checks for insufficiency of funds and returned checks to HBTC. HBTC REFUSED TO ACCEPT DISHONORED CHECKS because it was returned after the reglementary regional clearing period
-FEBTC commenced arbitration proceedings against HBTC under PCHC. HOWEVER, pending arbitration, FEBTC filed another case before RTC for COLLECTION FOR A SUM OF MONEY AND DAMAGES.
As there was a pending arbitration proceeding, RTC suspended the proceedings in the case (later on suspending the proceedings against HBTC only, not as to the individual defendants).
-PCHC AWARD: for FEBTC. MR DENIED
-HBTC appealed to the RTC which suspended the collection suit - filed PETITION FOR REVIEW W/ RTC, which the latter took cognizance of, even ordering that the parties submit their respective memoranda
RTC: DISMISSED petition for review on the theory that it should have been filed as a separate and distinct case and not with same proceedings
Petition for Review on Certiorari
INSULAR/HBTC: Civil case merely suspended, thus any petition questioning the decision of the Arbitration Committee must be filed w/ the same court and should not be docketed as a separate action
FEBTC: correctly dismissed. No statutory basis for the appeal.
H: DISMISS PETITION
Remedies available:
1. PCHC rules still governed by RA 876 - so can file a PETITION for vacating an award under Section 24, using the 4 grounds enumerated therein
2. Petition for review under R43 to CA on questions of fact, of law, or mixed questions of fact and law
3. Petition for certiorari under R6: GADALEJ to ca
*as HBTC failed to avail of the said remedies (it filed a petition for review with RTC), wrong remedy
*on PCHC Rules: cannot confer jurisdiction as it was not created by Congress but by banks!
ASIAKONSTRUCT vs. CIAC, ROMARC
F: ASIAKONSTRUCT and ROMARC entered into a Subcontracting agreement wherein Romarc was subcontracted to undertake the paint and garnishing work at the Clarion Electronics Factory in Cavite.
However, even if ROMARC allegedly finished the job on time, ASIAKONSTRUKT did not pay them so ROMARC instituted an arbitration case with CIAC.
-ANSWER: ROMARC was in delay, so numerous expenses were even chargeable to ROMARC
AWARD: FOR ROMARC: it completed work on time and in accordance with the subcontract agreement
Aggrieved, ASIAKONSTRUKT filed petition for review on certiorari
H: This involves a question of fact (WON ROMARC finished the obligation in accordance with the subcontract agreement) thus is not subject to review: the decision of the arbitrator was supported by evidence on record
-as questions of fact are not subject to Petitions for certiorari under R65, DISMISS petition!!!
Procedure:
(note contents)
UNCITRAL (default): 3
ICC (default): 1
What's the difference? ICC: institutional:: UNCITRAL: Ad hoc
If 3 arbitrator: parties each would appoint 1 arbitrator. The 2 appointed arbitrators should choose the 3rd. If no one chosen:
e.g. Arbitration Institutions
SIAC (singapore international arbitration commission)
PDRCI (Philippine Dispute Resolution Commission Inc)
HK
KCAB (Korea Commercial Arbitration Board)
List procedure: appointing authority would appoint the 3rd arbitrator from a list submitted by the parties (with ranking)
-the filing is not simultaneous
-both are filed with arbitral tribunal and with the parties
-can include a statement of counter-claim (which would use the rules applicable to the statement of claims)
Where: venue agreed upon by the parties, language agreed upon by the parties (default: arbitral tribunal would choose)
Witnesses
-GR: in camera
Interim Measures should not be deemed to be incompatible with arbitration agreement
*note: no provision in UNCITRAL Arbitration Rules for appeal, only for correction
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