Professional Documents
Culture Documents
RCBC Capital Corp. vs. BDO Unibank
RCBC Capital Corp. vs. BDO Unibank
RCBC Capital Corp. vs. BDO Unibank
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* FIRST DIVISION.
584
and law, shall not warrant the exercise of the Supreme Court’s
discretionary power. The error imputed to the Court of
Appeals must be grounded upon any of the above
prescribed grounds for review or be closely analogous
thereto. A mere general allegation that the Court of Appeals has
committed serious and substantial error or that it has acted with
grave abuse of discretion resulting in substantial prejudice to the
petitioner without indicating with specificity the nature of such
error or abuse of discretion and the serious prejudice suffered by
the petitioner on account thereof, shall constitute sufficient
ground for the Supreme Court to dismiss outright the petition.
(Emphasis supplied)
Same; Evident Partiality; Evident partiality in its common
definition thus implies “the existence of signs and indications that
must lead to an identification or inference” of partiality.―Evident
partiality is not defined in our arbitration laws. As one of the
grounds for vacating an arbitral award under the Federal
Arbitration Act (FAA) in the United States (US), the term
“encompasses both an arbitrator’s explicit bias toward one party
and an arbitrator’s inferred bias when an arbitrator fails to
disclose relevant information to the parties.” Evident partiality in
its common definition thus implies “the existence of signs and
indications that must lead to an identification or inference” of
partiality. Despite the increasing adoption of arbitration in many
jurisdictions, there seems to be no established standard for
determining the existence of evident partiality. In the US, evident
partiality “continues to be the subject of somewhat conflicting and
inconsistent judicial interpretation when an arbitrator’s failure to
disclose prior dealings is at issue.”
Same; Same; The plurality opinion written by Justice Black in
Commonwealth Coatings Corp. v. Continental Casualty Co., et al.,
393 U.S. 145 (1968), laid down the rule that the arbitrators must
disclose to the parties “any dealings that might create an
impression of possible bias,” and that underlying such standard is
“the premise that any tribunal permitted by law to try cases and
controversies not only must be unbiased but also must avoid even
the appearance of bias.”―The first case to delineate the standard
of evident partiality in arbitration proceedings was
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585
plurality opinion written by Justice Black laid down the rule that
the arbitrators must disclose to the parties “any dealings that
might create an impression of possible bias,” and that underlying
such standard is “the premise that any tribunal permitted by law
to try cases and controversies not only must be unbiased but also
must avoid even the appearance of bias.” In a separate concurring
opinion, Justice White joined by Justice Marshall, remarked that
“[t]he Court does not decide today that arbitrators are to be held
to the standards of judicial decorum of Article III judges, or
indeed of any judges.” He opined that arbitrators should not
automatically be disqualified from an arbitration proceeding
because of a business relationship where both parties are aware of
the relationship in advance, or where the parties are unaware of
the circumstances but the relationship is trivial. However, in the
event that the arbitrator has a “substantial interest” in the
transaction at hand, such information must be disclosed.
Same; Alternative dispute resolution methods or Alternative
Dispute Resolution (ADRs)―like arbitration, mediation,
negotiation and conciliation―are encouraged by this Court. By
enabling parties to resolve their disputes amicably, they provide
solutions that are less time-consuming, less tedious, less
confrontational, and more productive of goodwill and lasting
relationship.―Alternative dispute resolution methods or
ADRs―like arbitration, mediation, negotiation and
conciliation―are encouraged by this Court. By enabling parties to
resolve their disputes amicably, they provide solutions that are
less time-consuming, less tedious, less confrontational, and more
productive of goodwill and lasting relationship.
Institutionalization of ADR was envisioned as “an important
means to achieve speedy and impartial justice and declog court
dockets.” The most important feature of arbitration, and indeed,
the key to its success, is the public’s confidence and trust in the
integrity of the process. For this reason, the law authorizes
vacating an arbitral award when there is evident partiality in the
arbitrators.
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586
The Case
Factual Antecedents
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1 Rollo (G.R. No. 196171), Vol. I, pp. 48-65. Penned by Associate Justice
Florito S. Macalino with Associate Justices Juan Q. Enriquez, Jr. and
Ramon M. Bato, Jr. concurring.
2 Id., at pp. 974-988. Penned by Judge Oscar B. Pimentel.
3 Rollo (G.R. No. 199238), Vol. I, pp. 66-68. Penned by Associate Justice
Estela M. Perlas-Bernabe (now a Member of this Court) with Associate
Justices Sesinando E. Villon and Elihu A. Ybañez, concurring.
4 Rollo (G.R. No. 199238), Vol. II, pp. 1203-1206.
5 Rollo (G.R. No. 196171), Vol. I, pp. 71-106.
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588
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6 Id., at pp. 174-175. The Listed Individual Shareholders at the time of the
claim were: PCI Bank, Rogelio S. Chua, Ferdinand Martin G. Romualdez, Federico
C. Pascual, Leopoldo S. Veroy, Wilfrido V. Vergara, Edilberto V. Javier, Anthony
F. Conway, Rene J. Buenaventura, Patrick D. Go, Genevieve W.J. Go, Oscar P.
Lopez-Dee, Romulad U. Dy Tang, Gloria L. Tan Climaco, Walter C. Wessmer,
Antonio N. Cotoco, and various numbered EPCIB Trust Accounts.
7 Id., at pp. 115-116.
589
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8 Id., at p. 89.
9 Id., at pp. 118-134.
10 Id., at pp. 248-267.
11 Id., at pp. 284-305.
590
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12 Id., at pp. 163-167.
13 Id., at pp. 170-171.
14 CA Rollo (CA-G.R. SP No. 113525), Vol. I, pp. 258-259.
591
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15 Id., at pp. 260-261.
16 Rollo (G.R. No. 196171), Vol. I, pp. 404-405.
17 Id., at pp. 411-412.
592
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18 Id., at pp. 414-417.
19 Id., at pp. 423-424, 433-434.
20 Id., at pp. 429-434.
593
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xxxx
2. The Tribunal has no power under the ICC Rules to
order the Respondents to pay the advance on costs sought
by the ICC or to give the Claimant any relief against the
Respondents’ refusal to pay. The ICC Rules differ from, for
example, the Rules of the LCIA (Article 24.3) which enables a
party paying the share of costs which the other party has refused
to pay, to recover “that amount as a debt immediately due from
the defaulting party.”
3. The only sanction under the ICC Rules is contained within
Article 30 (4). Where a request for an advance on costs has not
been complied with, after consultation with the Tribunal, the
Secretary-General may direct the Tribunal to suspend its work.
After expiry of a time limit, all claims and counterclaims are then
considered as withdrawn. This provision cannot assist a Claimant
who is anxious to litigate its claim. Such a Claimant has to pay
the sums requested (including the Respondents’ share) if it wishes
the arbitration to proceed.
4. It may be possible for a Claimant in the course of the
arbitral hearing (or whenever costs are being considered
by the Tribunal) to make submissions based on the failure
of the Respondents to pay their share of the costs advance.
What relief, if any, would have to be then determined by
the Tribunal after having heard submissions from the
Respondents.
5. I should be pleased if the Claimant will advise the Tribunal of
its intention in relation to the costs advance. If the costs are not
paid, the arbitration cannot proceed.22 (Italics in the original;
emphasis supplied)
_______________
21 Id., at pp. 436-439.
22 CA Rollo (CA-G.R. SP No. 113525), Vol. I, p. 276.
594
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23 Id., at pp. 282-411.
595
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24 Id., at pp. 409-410.
25 Rollo (G.R. No. 196171), Vol. I, pp. 563-566.
26 Id., at pp. 572-573.
27 Id., at pp. 577-578.
28 Id., at p. 590.
596
xxxx
8. Contrary to the Complainant’s view, the Tribunal has no jurisdiction
to declare that the Respondents have no right to participate in the
proceedings concerning the claim. Article 30(4) of the ICC Rules
applies only to any counterclaim of the Respondents.
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29 Id., at p. 586.
30 CA Rollo (CA-G.R. SP No. 113525), Vol. I, p. 452.
31 Id., Vol. III, p. 1610.
597
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32 G.R. No. 182248, December 18, 2008, 574 SCRA 858.
33 Rollo (G.R. No. 196171), Vol. I, pp. 606-612.
34 Id., at pp. 614-624.
598
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for alleged violation of Section 5(g) and (h) of the SPA; and
the second part of the proceedings would determine the
amounts owed by one party to another as a consequence of
a finding of liability or lack thereof. An award for
“reimbursement of advances for costs” clearly falls outside
the scope of either proceedings. Neither can the Tribunal
justify such proceedings under Article 23 of the ICC Rules
(Conservatory and Interim Measures) because that
provision does not contemplate an award for the
reimbursement of advance on costs in arbitration cases.
Respondents further asserted that since the advances on
costs have been paid by the Claimant (RCBC), the main
claim and counterclaim may both be heard by the
Arbitration Tribunal.
In his letter dated March 13, 2008, Chairman Barker
advised the parties, as follows:
1. The Tribunal acknowledges the Respondents’ response to the
Claimant’s application for a Partial Award, based on the
Respondents’ failure to pay their share of the costs, as requested by
the ICC.
2. The Tribunal notes that neither party has referred to an
article by Mat[t]hew Secomb on this very subject which
appears in the ICC Bulletin Vol. 14
599
No. 1 (Spring 2003). To assist both sides and to ensure that the
Tribunal does not consider material on which the parties have not
been given an opportunity to address, I attach a copy of this
article, which also contains reference to other scholarly works on
the subject.
3. The Tribunal will give each party seven days within which to
submit further written comments as a consequence of being alerted
to the above authorities.35 (Additional emphasis supplied)
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35 Id., at p. 626.
36 Id., at pp. 641-651.
37 Id., at pp. 661-664.
600
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38 Id., at p. 665.
39 Id., at pp. 672-687.
40 Id., at p. 686. Justice Santiago M. Kapunan signed the Second
Partial Award with notation “subject to my previous opinion.”
41 Id., at pp. 700-723.
42 Id., at pp. 692-698.
601
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43 Id., at pp. 725-742.
602
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44 Id., at pp. 744-760.
45 Id., at pp. 974-988.
603
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46 Id., at pp. 1097-1102.
47 Id., at pp. 1104-1171.
48 A.M. No. 07-11-08-SC which took effect on October 30, 2009
following its publication in three (3) newspapers of general circulation.
49 Rollo (G.R. No. 199238), Vol. I, pp. 70-161.
604
15 AWARD
15.1 The Tribunal by a majority (Sir Ian Barker & Mr. Kaplan) awards,
declares and adjudges as follows:
(a) the Respondents are to pay damages to the Claimant for breach
of the sale and purchase agreement for Bankard shares in the sum
of P348,736,920.29.
(b) The Respondents are to pay to the Claimant the sum of
US$880,000 in respect of the costs of the arbitration as fixed by
the ICC Court.
(c) The Respondents are to pay to the Claimant the sum of
US$582,936.56 for the fees and expenses of Mr. Best.
(d) The Respondents are to pay to the Claimant their expenses of the
arbitration as follows:
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50 Id., at p. 160.
51 Id., at pp. 217-390.
605
On July 28, 2010, RCBC filed with the Makati City RTC,
Branch 148 (SP Proc. Case No. M-6046) a Motion to
Confirm Final Award.52 BDO filed its Opposition With
Motion to Dismiss53 on grounds that a Petition to Vacate
Final Award Ad Cautelam had already been filed in SP
Proc. Case No. M-6995. BDO also pointed out that RCBC
did not file the required petition but instead filed a mere
motion which did not go through the process of raffling to a
proper branch of the RTC of Makati City and the payment
of the required docket/filing fees. Even assuming that
Branch 148 has jurisdiction over RCBC’s motion to confirm
final award, BDO asserted that RCBC had filed before the
Arbitration Tribunal an Application for Correction and
Interpretation of Award under Article 29 of the ICC Rules,
which is irreconcilable with its Motion to Confirm Final
Award before said court. Hence, the Motion to Confirm
Award was filed precipitately.
On August 18, 2010, RCBC filed an Omnibus Motion in
SP Proc. Case No. M-6995 (Branch 65) praying for the
dismissal of BDO’s Petition to Vacate Final Award or the
transfer of the same to Branch 148 for consolidation with
SP Proc. Case No. M-6046. RCBC contended that BDO’s
filing of its petition with another court is a blatant
violation of the Special ADR Rules and is merely a
subterfuge to commit forum-shopping. BDO filed its
Opposition to the Omnibus Motion.54
On October 28, 2010, Branch 65 issued a Resolution55
denying RCBC’s omnibus motion and directing the service
of the petition to RCBC for the latter’s filing of a comment
thereon. RCBC’s motion for reconsideration was likewise
denied in the said court’s Order dated December 15, 2010.
RCBC then filed its Opposition to the Petition to Vacate
Final Award Ad Cautelam.
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52 Rollo (G.R. No. 199238), Vol. II, pp. 932-948.
53 Id., at pp. 949-974.
54 CA Rollo (CA-G.R. SP No. 117451), Vol. IV, pp. 1985, 1988.
55 Id., at pp. 1985-1996.
606
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56 Rollo (G.R. No. 199238), Vol. II, pp. 1075-1083.
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607
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59 Rollo (G.R. No. 196171), Vol. I, pp. 64-65.
60 Id., at pp. 68-69.
61 Rollo (G.R. No. 199238), Vol. II, pp. 908-931.
62 Id., at p. 931.
63 Id., at pp. 1174-1191.
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608
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64 Id., at p. 1191.
65 Id., at pp. 1194-1201.
609
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66 Id., at pp. 1203-1206.
67 Id., at pp. 1507-1540.
610
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68 Id., at p. 1586.
69 Id., at pp. 1602-1618.
611
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70 Id., at pp. 1641-1649.
612
The Petitions
In G.R. No. 196171, RCBC set forth the following
grounds for the reversal of the CA Decision dated
December 23, 2010:
I.
THE COURT OF APPEALS ACTED CONTRARY TO LAW AND
PRIOR RULINGS OF THIS HONORABLE COURT AND
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71 Rollo (G.R. No. 196171), Vol. I, p. 25.
613
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Laws to be Applied
13 The Tribunal shall determine the issues to be resolved in accordance
with the laws of the Republic of the Philippines.
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72 Rollo (G.R. No. 199238), Vol. I, pp. 29-30.
614
Procedure to be Applied
14 The proceedings before the Tribunal shall be governed by the ICC
Rules of Arbitration (1 January 1998) and the law currently
applicable to arbitration in the Republic of the Philippines.73
Trial Court.
The confirmation of a domestic award shall be made by the
regional trial court in accordance with the Rules of Procedure to
be promulgated by the Supreme Court.
xxxx
SEC. 41. Vacation Award.―A party to a domestic
arbitration may question the arbitral award with the appropriate
regional trial court in accordance with the rules of procedure to be
promul-
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73 CA Rollo (CA-G.R. SP No. 113525), Vol. I, pp. 246-247.
74 AN ACT TO AUTHORIZE THE MAKING OF ARBITRATION AND
SUBMISSION AGREEMENTS, TO PROVIDE FOR THE APPOINTMENT OF
ARBITRATORS AND THE PROCEDURE FOR ARBITRATION IN CIVIL
CONTROVERSIES, AND FOR OTHER PURPOSES, otherwise known as “The
Arbitration Law.”
75 “Alternative Dispute Resolution Act of 2004,” approved on April 2, 2004.
76 Sec. 32 of RA 9285 provides that “[d]omestic arbitration shall continue to be
governed by Republic Act No. 876, x x x.”
615
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616
Judicial Review
At the outset, it must be stated that a review brought to
this Court under the Special ADR Rules is not a matter of
right. Rule 19.36 of said Rules specified the conditions for
the exercise of this Court’s discretionary review of the CA’s
decision.
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617
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77 G.R. No. 121171, December 29, 1998, 300 SCRA 579.
618
Evident Partiality
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78 Id., at pp. 601-602.
79 Windsor, Kathryn A. (2012) “Defining Arbitrator Evident Partiality: The
Catch-22 of Commercial Litigation Disputes,” Seton Hall Circuit Review: Vol. 6:
Iss. 1, Article 7. Available at
http://erepository.law.shu.edu/circuit_review/vol6/iss1/7.
80 Prime Properties, Inc. v. Leonard James Leahy, 234 Ore. App. 439, 445.
Argued and submitted on August 25, 2009.
619
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81 Id.
82 New Developments on the Standard for Finding “Evident Partiality”
by Howard S. Suskin and Suzanne J. Prysak, Jenner & Block LLP,
Bloomberg Law Reports, Vol. 2, No. 7, August 2006. Accessed at
http://www.jenner.com/library/publications/7677.
83 393 U.S. 145. Decided on November 18, 1968.
620
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84 Id., at p. 149.
85 Id., at p. 150.
86 Id.
87 748 F.2d 79. Decided on November 5, 1984.
621
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88 Id., at p. 84.
89 879 F.2d 1344, 1358. Decided on July 13, 1989.
90 Windsor, Kathryn A., supra note 79 at p. 216.
622
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623
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91 Rollo (G.R. No. 196171), Vol. I, pp. 61-62.
92 Tamari v. Bache Halsey Stuart, Inc., 619 F.2d 1196, 1200 (7th Cir.
1980).
93 Catz American Co., Inc. v. Pearl Grange Fruit Exchange, Inc., 292
F.Supp. 549, 551-552 (S.D.N.Y. 1968).
624
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94 Rollo (G.R. No. 196171), Vol. I, p. 442. Italics supplied.
95 Id., at pp. 628-639. Published in the International Court of
Arbitration Bulletin, Vol. 14/No. 1- Spring 2003.
625
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96 Id., at p. 629.
97 (3) The advance on costs fixed by the Court shall be payable in
equal shares by the Claimant and the Respondent. Any provisional
advance paid on the basis of Article 30(1) will be considered as a partial
payment thereof. However, any party shall be free to pay the whole of the
advance on costs in respect of the principal claim or the counterclaim
should the other party fail to pay its share. When the Court has set
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626
627
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99 Id., at pp. 136-137, 145-146.
100 Id., at pp. 683-684.
101 National Power Corporation v. Alonzo-Legasto, G.R. No. 148318,
November 22, 2004, 443 SCRA 342, 359.
102 Insular Savings Bank v. Far East Bank and Trust Company, G.R.
No. 141818, June 22, 2006, 492 SCRA 145, 158, citing LM
628
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Power Engineering Corp. v. Capitol Industrial Construction Groups,
Inc., 447 Phil. 705, 707; 399 SCRA 562, 563 (2003).
103 Sec. 2, R.A. 9285.
104 Windsor, supra note 79 at p. 192.
105 European Resources and Technologies, Inc. v. Ingenieuburo
Birkhahn + Nolte, Ingeniurgesellschaft mbh, G.R. No. 159586, July 26,
2004, 435 SCRA 246, 259, citing Philippine Sinter Corporation v. Cagayan
Electric Power and Light Co., Inc., G.R. No. 127371, April 25, 2002, 381
SCRA 582, 591 and Gustilo v. Real, Sr., A.M. No. MTJ-00-1250, February
28, 2001, 353 SCRA 1, 9.
629
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106 Bernardez v. Commission on Elections, G.R No. 190382, March 9,
2010, 614 SCRA 810, 820, citing Caneland Sugar Corporation v. Alon,
G.R. No. 142896, September 12, 2007, 533 SCRA 28, 37.
107 G.R. Nos. 147923, 147962, 154035, October 26, 2007, 537 SCRA
445, 479, as cited in Bernardez v. Commission on Elections, id.
630
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1/23/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 687
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