P.D. 242: Procedure for Administrative Settlement or Adjudication of
CIR
Disputes, Claims and Controversies Between or Among
Government Offices, Agencies and Instrumentalities, Including
Government-Owned or –Controlled Corporations, and for Other
Purposes
• Question of Law only: Secretary of Justice; As Attorney General and ex
officio legal adviser of all GOCCs and entities
• Mixed questions of law and of fact or only factual:
1.! Solicitor General: departments, bureaus, offices and other
agencies of the National Government;
2.! Government Corporate Counsel: government-owned or
controlled corporations or entities being served by the Office
of the Government Corporate Counsel;
3.! Secretary of Justice: all others not falling in the categories
above.
Under the constitutional power of control, the President
decides the dispute between the two executive offices. The judiciary
cannot substitute its decision over that of the President. Only after the
President has decided or settled the dispute can the courts’ jurisdiction
be invoked.
It is mandated that where a remedy before an administrative
body is provided by statute, relief must be sought by exhausting this
remedy prior to bringing an action in court in order to give the
administrative body every opportunity to decide a matter that comes
within its jurisdiction. A litigant cannot go to court without first pursuing his
administrative remedies; otherwise, his action is premature and his case
is not ripe for judicial determination.
• Decisions are final and binding when approved by the Secretary of
Justice.
• Appeals – Office of the President: only wherein the amount of claim or
value of the property exceeds P1 million.
!! If denied: appeal to Court of Appeals under Section 1, Rule
43 of Rules of Court.
PHIVIDEC v. Hon. Velez
PVAC filed a complaint for foreclosure of mortgage against PHIVIDEC
and PIA. PHIVIDEC and PIA moved for dismissal on the ground of lack of
jurisdiction of RTC since the case is covered by the arbitration powers of
the Government Corporate Counsel under P.D. 242:
“all disputes, claims and controversies solely between or
among the departments, bureaus, offices, agencies and
instrumentalities of the National Government, including
government-owned or controlled corporations but excluding
constitutional offices or agencies, arising from the
interpretation and application of statutes, contracts or
agreements, shall henceforth be administratively settled or
adjudicated as provided hereinafter: xxx.
(b) The Government Corporate Counsel, with respect to
disputes or claims or controversies between or among the
government-owned or controlled corporations or entities
being served by the Office of the Government Corporate
Counsel;
Sec. 6. The final decisions rendered in the settlement or
adjudication of all such disputes, claims or controversies shall
have the same force and effect as final decisions of the court
of justice.”
Judge Velez denied the motion to dismiss on the ground that
P.D. 242 is unconstitutional for emasculating and impairing judicial
power.
• The Supreme Court held that P.D. 242 is not unconstitutional.
Since the foreclosure proceeding filed by PVAC against PHIVIDEC and
PIA arose from the interpretation and application of the mortgage
contract between them, P.D. No. 242 applies to the case.
P.D. 242 does not diminish the jurisdiction of courts but only
prescribes an administrative procedure for the settlement of certain
types of disputes between or among departments, bureaus, offices,
agencies, and instrumentalities of the National Government, including
GOCCs, so that they need not always repair to the courts for the
settlement of controversies arising from the interpretation and
application of statutes, contracts or agreements. The procedure is not
much different, and no less desirable, than the arbitration procedures in
Arbitration Law and the Labor Code. It is an alternative to, or a substitute
for, traditional litigation in court with the added advantage of avoiding
the delays, vexations and expense of court proceedings.
The notion that P.D. 242 would emasculate court jurisdiction is
erroneous. In fact, the Rules of Court makes pre-trial mandatory so that
the parties may consider, among others, the possibility of a submission to
arbitration. P.D. No. 242 is a valid law prescribing an administrative
arbitration procedure for certain disputes among offices, agencies and
instrumentalities under the executive control and supervision of the
President of the Philippines. Since PVAC filed Civil Case No. 11157 against
PHIVIDEC and PIA without first passing through the administrative
channel, the judicial action was premature for non-exhaustion of
administrative remedies, hence, dismissible on that account.
PSALM v.
Power Sector Assets and Liabilities Mgt. Corporation (PSALM),
a GOCC conducted public biddings for the privatization of National
Power Corporation assets: Pantabangan-Masiway Hydroelectric Power
Plant and Magat Power Plant. First Gen Hydropower and SN Aboitiz were
winning bidders. Later, NPC received a letter from BIR demanding
immediate payment of deficiency VAT for the sale of the plants. The NPC
indorsed BIR’s demand letter to PSALM.
PSALM remitted the amount due under protest. Thereafter, it
filed with the DOJ a petition for adjudication of the dispute with the BIR
to resolve the issue of whether the sale of the power plants should be
subject to VAT.
DOJ ruled in favor PSALM. BIR moved for reconsideration
alleging that DOJ had no jurisdiction since the dispute involved tax laws
administered by the BIR hence the proper jurisdiction was CTA.
• The Supreme Court held that the Secretary of Justice indeed
has jurisdiction over the case. This case involves a dispute between
PSALM and NPC, which are both wholly government-owned
corporations, and the BIR, a government office, over the imposition of
VAT on the sale of the two power plants. There is no question that original
jurisdiction is with the CIR, who issues preliminary and the final tax
assessments. However, if the government entity disputes the tax
assessment, the dispute is already between the BIR and another
government entity, in this case, the petitioner PSALM.
Under P.D. 242, all disputes, claims and controversies solely
between government agencies and offices, including government-
owned or -controlled corporations, shall be administratively settled or
adjudicated by the Secretary of Justice, the Solicitor General, or the
Government Corporate Counsel, depending on the issues and
government agencies involved. As regards cases involving only
questions of law, it is the Secretary of Justice who has jurisdiction.
It is mandatory. The law is clear and covers “all disputes, claims
and controversies SOLELY between or among the departments, bureaus,
offices, agencies and instrumentalities of the National Government,
including constitutional offices or agencies arising from the interpretation
and application of statutes, contracts or agreements.” The law means
all, without exception. Only those pending in court at the time of
effectivity of P.D. 242 are not covered by the law. Here, it is a dispute
between PSALM and NPC, both government-owned and – controlled
corporations, and the BIR, a National Government office, PD 242 clearly
applies and the Secretary of Justice has jurisdiction over this case.
Orion Water District vs. GSIS
GSIS filed a Complaint for Collection of Sum of Money and
Damages before the RTC against OWD, a government-owned and
controlled corporation (GOCC), and its officers. GSIS alleged that
despite repeated demands, OWD and its officers failed and refused to
pay, remit, or deliver the employees’ personal share in the premiums of
their life and retirement policies. OWD filed a motion to dismiss alleging
that RTC has no jurisdiction over the subject matter and that since GSIS
and OWD are both GOCCs, jurisdiction over controversies between
them lies with the Secretary of Justice.
• Not all controversies between or among government
offices, departments or instrumentalities fall under such provisions. To fully
understand the scope of the law, reference must be made to P.D. No.
242, the precursor of Chapter 14, Book IV of E.O. No. 292. Under P.D. No.
242, it was clear that it only applies to disputes among government
offices arising from the interpretation and application of statues,
contracts, or agreements. Although there was a noticeable change in
the language of E.O. No. 292, there was no indication of an intention to
broaden its scope far larger than the original law. The usage of the
phrase "such as those arising from the interpretation and application of
statutes, contracts or agreements" in Section 66 means that the situation
must be held similar or analogous to those expressly enumerated in the
law in question. The complaint filed by GSIS does not concern the
interpretation of a law, contract or agreement between government
agencies. It is a complaint for collection of sum of money. There is no
obscure question of law or ambiguous provision of a contract involved
that resulted to a discord between GSIS and OWD, which could have
warranted the application of Section 66. Even assuming that the instant
case falls under any of the instances of disputes stated in Section 66, it
cannot still qualify for administrative settlement since the case also
involved officials of OWD and not solely between GSIS and OWD.
Explicitly provided in Section 66 is that only disputes, claims and
controversies solely between and among departments, bureaus, offices,
agencies, and instrumentalities of the National Government, including
GOCCs shall be administratively settled or adjudicated.
CIR v. SOJ and Metropolitan Cebu Water District
MCWD received a Preliminary Assessment Notice from Bureau
of Internal Reveue for alleged tax deficiencies. The respondent filed a
formal protest but the CIR failed to act on the protest within 180 days
from submission of supporting documents. Thus, the respondent filed a
Petition for Review before the Court of Tax Appeals. The CIR opposed the
said petition on the ground that the Secretary of Justice has jurisdiction
over the dispute concerning that respondent is a government-owned or
controlled corporation.
 • The SOJ’s jurisdiction over tax disputes between the
government and government-owned and controlled corporations has
been settled by the Supreme Court in PSALM v. CIR. In said case, which
involved a dispute between PSALM and NPC (both GOCCs) and BIR over
imposition of VAT on sale of power plant, the Court ruled that the DOJ is
vested by jurisdiction over the case. P.D. No. 242 provides that all disputes
and claims solely between government agencies and offices, including
GOCCs, shall be administratively settled by the Secretary of Justice, the
Solicitor General or the Government Corporate Counsel, depending on
the issues and government agencies involved. The use of the word “shall”
connotes a mandatory order. When the law says “all disputes, claims and
controversies solely” among government agencies, the law means all,
without exception. Since this case is a dispute between the CIR and
respondent, a local water district, which is a GOCC pursuant to law,
clearly, the SOJ has jurisdiction to decide over the case.
CONSTRUCTION INDUSTRY ARBITRATION LAW
CIAC – under the administrative supervision of the Philippine Domestic
Construction Board.
Original and exclusive jurisdiction:
▪ disputes arising from, or connected with, contracts entered into by
parties involved in construction in the Philippines, whether the dispute
arises before or after the completion of the contract, or after the
abandonment or breach thereof.
ER:
Disputes arising from employer-employee relationships.
Composition:
1 Chairman, 2 members – to be appointed by CIAP Board upon
recommendation by the members of the PDCB.
A sole arbitrator or three arbitrators may settle a dispute.
!! Parties’ agreement: parties nominate from list of arbitrators
accredited by CIAC for appointment and confirmation
!! No agreement: CIAC will appoint.
!! IF CIAC will appoint: each party may nominate one (1)
arbitrator from the list of arbitrators accredited by CIAC. Third
arbitrator:
a)! acceptable to both parties confirmed in writing;
b)! appointed by CIAC; and
c)! shall preside the Tribunal.
• Appointment of experts may be had upon the request of the parties or
by the Arbitral Tribunal.
Deposit to Cover Arbitration Expenses: Shared equally by the parties.
!! 1 party failed to pay: the other party must pay in full.
!! Both parties failed to pay: case dismissed, each still liable to
pay ½ of the agreed administrative charge.
GR: The awards are final and unappealable.
ER: Questions of law appealable to the Supreme Court.
• Upon motion of any interest party OR the Arbitral Tribunal OR the single
arbitrator with the occurrence of the CIAC motu proprio – writ of
execution.
Camp John Hay Development v. Charter Chemical
Camp John Hay Development Corporation entered into a
Contractor’s Agreement with Charter Chemical and Coating
Corporation, the company awarded to complete the interior and
exterior painting works of a unit of Camp John Hay Manor for a certain
price which was was inclusive of the price of two studio type units at
Camp John Hay Suites. The Agreement allowed Charter Chemical to
choose the units the value of which will be offset from the contract price.
Charter Chemical later demanded the execution of deed of sale and
delivery of the titles of the two units. Petitioner executed contracts to sell
and a certification that the two units were fully paid under their offsetting
scheme. However, the units were not delivered because the
construction was not yet complete. Due to the subsisting construction
delay, Charter Chemical demanded the transfer of the units or the
payment of the value of the units. When it felt that further demands
would be futile, Charter Chemical filed before the CIAC a Request for
Arbitration under the arbitration clause in the Contractor’s Agreement.
The arbitral tribunal ruled that Charter Chemical was entitled to the value
of the two units because the petitioner failed to deliver the units within
the targeted completion date.
Petitioner filed a Petition for Review before the CA. It argued
that the arbitral tribunal did not have jurisdiction over the dispute
because the arbitration clause had been superseded by a subsequent
dispute resolution clause contained in the contracts to sell. The said
clause provided that disputes must be adjudicated by the proper court
of Pasig City, to the exclusion of other courts.
• The arbitral tribunal has jurisdiction over the case. Section 4
of E.O. No 1008 lays down the jurisdiction of the CIAC. For CIAC to
acquire jurisdiction, the law merely requires the parties to agree to submit
to voluntary arbitration any dispute arising from construction contracts.
The CIAC shall have original and exclusive jurisdiction over disputes
arising from, or connected with, contracts entered into by parties
involved in construction in the Philippines, whether the dispute arises
before or after the completion of the contract, or after the
abandonment or breach thereof. Moreover, the contracts to sell,
containing a contrary dispute resolution clause, did not supersede the
arbitration clause. The case records show that the contracts to sell are
not inconsistent with the Contractor's Agreement. While the contracts to
sell and the Contractor's Agreement both refer to the transfer of the two
units to respondent, the contracts to sell are pro-forma contracts
provided by petitioner in selling the Camp John Hay Suites units. There is
no intent to supersede the Contractor's Agreement, which remains the
principal contract between petitioner and respondent. Petitioner also
erred in claiming that the contracts to sell are not construction contracts.
The subject of the contracts to sell still falls within the jurisdiction of CIAC.
Section 4 of the Construction Industry Arbitration Law states that its
jurisdiction includes "payment [and] default of employer or contractor[.]"
Here, the main dispute concerning the contracts to sell all boils down to
the issue of payment of the two units for the services rendered by
respondent. Hence, the units' transfer as payment to respondent still falls
under the jurisdiction of the arbitral tribunal.
Tourism Infrastructure and Enterprise Zone Authority (TIEZA) v. Global-V
Builders Co.
In 2007 and 2008, the Philippine Tourism Authority (PTA)
entered into five Memoranda of Agreement (MOA) with respondent
Global-V Builders Co. for various constructions in Boracay, Aklan and
Banaue, Ifugao. On July 31, 2012, Global-V filed a Request for
Arbitration and a Complaint before the CIAC, seeking payment from
TIEZA, which took over the functions of PTA, of unpaid bills in connection
with the five projects amounting to P16,663,736.34. TIEZA filed a Refusal
of Arbitration (Motion to Dismiss for Lack of Jurisdiction), arguing that
CIAC has no jurisdiction over the case filed because the contracts do
not contain an arbitration agreement.
• CIAC has jurisdiction over the dispute. E.O. No. 1008 created
the CIAC as an arbitral machinery to settle disputes in the construction
industry expeditiously in order to maintain and promote a healthy
partnership between the government and the private sector in the
furtherance of national development goals. It is evident that for CIAC to
acquire jurisdiction over a construction controversy, the parties to a
dispute must be bound by an arbitration agreement in their contract or
subsequently agree to submit the same to voluntary arbitration, and that
an arbitration clause in a construction contract or a submission to
arbitration of a construction dispute shall be deemed an agreement to
submit an existing or future controversy to CIAC's jurisdiction. In this case,
the CA correctly found that there was an agreement to arbitrate in the
General Conditions of Contract, particularly in Clause 20.2 thereof,
which formed part of the MOAs. It provides that “Any and all disputes
arising from the implementation of this Contract covered by x x x R.A.
9184 and its IRR-A shall be submitted to arbitration in the Philippines
according to the provisions of Republic Act 9285, otherwise known as the
"Alternative Dispute Resolution Act 2004”. Further, since CIAC's jurisdiction
is conferred by law, it cannot be subjected to any condition; nor can it
be waived or diminished by the stipulation, act or omission of the parties,
as long as the parties agreed to submit their construction contract
dispute to arbitration, or if there is an arbitration clause in the
construction contract. Hence, the fact that the process of arbitration
was not incorporated in the contract by the parties is of no moment. The
process of arbitration questioned to not have been incorporated in the
contracts could then only refer to the process of arbitration by CIAC, as
provided in the CIAC Rules. Therefore, there is no vagueness in the
process of arbitration to follow even if it was not incorporated as a
provision in the contracts.
Metro Bottled Water v. Andrada Construction
Metro Bottled Water and Andrada Construction entered into
a Construction Agreement for the construction of a reinforced concrete
manufacturing plant in Gateway Business Park, General Trias, Cavite. The
project was to be completed within 150 calendar days to be reckoned
from Andrada Construction's posting of a Performance Bond. The
Performance Bond was issued by Intra Strata Assurance Corporation
(Intra Strata). Metro Bottled Water extended the period of completion
upon Andrada Construction's request. 16 days before expiration of the
period for completion, E.S. De Castro and Associates, Metro Bottled
Water's consultant for the project, recommended the forfeiture of the
Performance Bond to answer for the completion and correction of the
project, as well as liquidated damages for delay.
• Arbitral awards issued by the CIAC may be vacated. Due to
the highly technical nature of proceedings before the Construction
Industry Arbitration Commission, as well as its emphasis on the parties'
willingness to submit to the proceedings, the Construction Industry
Arbitration Law provides for a narrow ground by which the arbitral award
can be questioned in a higher tribunal.
SECTION 19. Finality of Awards. — The
arbitral award shall be binding upon the
parties. It shall be final and inappealable
except on questions of law which shall be
appealable to the Supreme Court.
 Thus, the general rule is that appeals of arbitral awards by the
Construction Industry Arbitration Commission may only be allowed on
pure questions of law. Even the Construction Industry Arbitration Law
does not provide for any instance when an arbitral award may be
vacated. Spouses David v. Construction Industry and Arbitration
Commission recognized this gap, and thus, applied the provisions of
Republic Act No. 876, or the Arbitration Law:
“Factual findings of construction arbitrators are final and
conclusive and not reviewable by this Court on appeal, except when
the petitioner proves affirmatively that: (1) the award was procured by
corruption, fraud or other undue means; (2) there was evident partiality
or corruption of the arbitrators or of any of them; (3) the arbitrators were
guilty of misconduct in refusing to postpone the hearing upon sufficient
cause shown, or in refusing to hear evidence pertinent and material to
the controversy; (4) one or more of the arbitrators were disqualified to
act as such under section nine of Republic Act No. 876 and willfully
refrained from disclosing such disqualifications or of any other
misbehavior by which the rights of any party have been materially
prejudiced; or (5) the arbitrators exceeded their powers, or so
imperfectly executed them, that a mutual, final and definite award upon
the subject matter submitted to them was not made.”
Notably, these exceptions refer to the conduct of the arbitral
tribunal and the qualifications of the arbitrator. They do not refer to the
arbitral tribunal's errors of fact and law, misappreciation of evidence, or
conflicting findings of fact. Thus, parties seeking to appeal an arbitral
award of a construction tribunal must raise an egregious error of law to
warrant the exercise of this Court's appellate jurisdiction. Absent any
allegation and proof of these exceptions, the factual findings of the
Construction Industry Arbitration Commission will be treated by the courts
with great respect and even finality.
• Petitioner raised issues that are questions of fact in the guise
of questions of law. As such, they are not proper for this Court's review.
The difference between a question of law and a question of
fact is settled. There is a question of law when the doubt or difference in
a given case arises as to what the law is on a certain set of facts, and
there is a question of fact when the doubt arises as to the truth or falsity
of the alleged facts. Thus, for a question to be one of law, it must not
involve an examination of the probative value of the evidence
presented by the parties and there must be no doubt as to the veracity
or falsehood of the facts alleged.
Petitioner alleges that it is not liable to respondent for the costs
incurred in Change Orders since the Construction Agreement clearly
required a written agreement by both parties of the change orders,
which petitioner alleges it did not provide. At first glance, petitioner
appears to be raising a question of law, i.e., whether respondent
complied with the provisions of the Construction Agreement as to be
entitled to compensation, which, in turn, would require the proper
interpretation of the contract between the parties. This would be a
question of law since it requires the courts to determine the parties' rights
under the contract.
To resolve this issue, however, this Court would have to accept
the factual premise alleged by petitioner: that Change Order Nos. 39 to
109 were not authorized by petitioner. This runs counter to the factual
finding established by the Construction Industry Arbitration Commission
that petitioner did indeed agree to the change orders.
The arbitral tribunal arrived at these findings after an ocular
inspection of the construction site conducted by proven experts in the
field. Any review by this Court of their findings would require conducting
its own ocular inspection, hiring its own experts in the construction
industry to provide amicus briefs, and attempting to provide its own
interpretations of the findings of a highly technical agency. Review of
these factual findings, therefore, requires no less than proof that the
integrity of the arbitral tribunal has been compromised.
Stronghold Insurance v. Sps. Stroem
Spouses Stroem entered into an Owners-Contractor
Agreement (OCA) with Asis-Leif & Company, Inc. (Asis-Leif) for the
construction of a two-storey house on the lot owned by Spouses Stroem.
Pursuant to the agreement, Asis-Leif secured Performance Bond from
Stronghold Insurance Company, Inc. (Stronghold). Asis-Leif failed to finish
the projecton time despite repeated demands of the Spouses Stroem.
Spouses Stroem subsequently rescinded the agreement. They then hired
an independent appraiser to evaluate the progress of the construction
project. Stronghold sent a letter to Asis-Leif requesting that the company
settle its obligations with the Spouses Stroem. No response was received
from Asis-Leif.
Spouses Stroem filed a Complaint for breach of contract and
for sum of money with a claim for damages against Asis-Leif, Ms. Cynthia
Asis-Leif, and Stronghold. Only Stronghold was served summons. Ms.
Cynthia Asis-Leif allegedly absconded and moved out of the country.
The Regional Trial Court rendered a judgment in favor of the Spouses
Stroem. Both Stronghold and the Spouses Stroem appealed to the Court
of Appeals. The Court of Appeals affirmed with modification the trial
court’s Decision. It increased the amount of attorney’s fees to ₱50,000.00.
Stronghold argues that the trial court did not acquire jurisdiction over the
case. The lower courts should have dismissed the case in view of the
arbitration clause in the agreement.
On the other hand, the Spouses Stroem argue that the OCA is
separate and distinct from the Bond. The parties to the Agreement are
Asis-Leif and Spouses Stroem, while the parties to the Bond are Spouses
Stroem and Stronghold. The considerations for the two contracts are
likewise distinct. Thus, the arbitration clause in the Agreement is binding
only on the parties thereto, specifically ALB/Ms. Asis-Leif and Spouses
Stroem.
• The surety may be bound by an arbitration agreement. In
the case of Prudential Guarantee and Assurance Inc. v. Anscor Land,
Inc. This court ruled that although not the construction contract itself, the
performance bond is deemed as an associate of the main construction
contract that it cannot be separated or severed from its principal. The
Performance Bond is significantly and substantially connected to the
construction contract that there can be no doubt it is the CIAC, under
Section 4 of EO No. 1008, which has jurisdiction over any dispute arising
from or connected with it. It is settled that the surety’s solidary obligation
for the performance of the principal debtor’s obligation is indirect and
merely secondary. Nevertheless, the surety’s liability to the "creditor or
promisee of the principal is said to be direct, primary and absolute; in
other words, he is directly and equally bound with the principal." Verily,
in enforcing a surety contract, the ‘complementary contracts-
construed-together’ doctrine finds application. According to this
principle, an accessory contract must be read in its entirety and together
with the principal agreement."
• No, petitioner cannot invoke the jurisdiction of CIAC. This
court, however, cannot apply the ruling in Prudential to the present case.
Several factors militate against petitioner’s claim.
The contractual stipulations in this case and in Prudential are
different. This court in Prudential held that the construction contract
expressly incorporated the performance bond into the contract.
In the present case, Article 7 of the Owners-Contractor
Agreement merely stated that a performance bond shall be issued in
favor of respondents, in which case petitioner and Asis-Leif Builders
and/or Ms. Ma. Cynthia Asis-Leif shall pay in the event that Asis-Leif fails
to perform its duty under the Owners-Contractor Agreement.
Consequently, the performance bond merely referenced the contract
entered into by respondents and Asis-Leif, which pertained to Asis-Leif’s
duty to construct a two-storey residence building.
To be clear, it is in the Owners-Contractor Agreement that the
arbitration clause is found. The construction agreement was signed only
by respondents and the contractor, Asis-Leif, as represented by Ms. Ma.
Cynthia Asis-Leif. It is basic that contracts take effect only between the
parties, their assigns and heirs. Not being a party to the construction
agreement, petitioner cannot invoke the arbitration clause. Petitioner,
thus, cannot invoke the jurisdiction of the CIAC.
However, where a surety in a construction contract actively
participates in a collection suit, it is estopped from raising jurisdiction later.
Assuming that petitioner is privy to the construction agreement, we
cannot allow petitioner to invoke arbitration at this late stage of the
proceedings since to do so would go against the law's goal of prompt
resolution of cases in the construction industry. The case is DISMISSED.
KATARUNGANG PAMBARANGAY
*Refer to your CivPro Notes*
Chavez v. CA
The Revised Katarungang Pambarangay Law provides for a
two-tiered mode of enforcement of an amicable settlement, to wit:
(a)! by execution by the Punong Barangay which is quasi-judicial
and summary in nature on mere motion of the party entitled
thereto; and
(b)! an action in regular form, which remedy is judicial.
However, the mode of enforcement does not rule out the right
of rescission under Art. 2041 of the Civil Code. The availability of the right
of rescission is apparent from the wording of Sec. 417 itself which provides
that the amicable settlement "may" be enforced by execution by
the lupon within six (6) months from its date or by action in the
appropriate city or municipal court, if beyond that period. The use of the
word "may" clearly makes the procedure provided in the Revised
Katarungang Pambarangay Law directory or merely optional in nature.
Miguel v. Montañez
• A complaint for sum on money is the proper remedy,
notwithstanding the Kasunduang Pag-aayos of the parties. Under
Section 417 of the Local Government Code, an amicable settlement or
arbitration award may be enforced by execution by the Barangay
Lupon within six (6) months from the date of settlement, or by filing an
action to enforce such settlement in the appropriate city or municipal
court, if beyond the six-month period. It must be emphasized, however,
that enforcement by execution of the amicable settlement, either under
the first or the second remedy, is only applicable if the contracting
parties have not repudiated such settlement within ten (10) days from
the date thereof in accordance with Section 416 of the LGC. If the
amicable settlement is repudiated by one party, either expressly or
impliedly, the other party has two options, namely, to enforce the
compromise in accordance with the LGC or the Rules of Court as the
case may be, or to consider it rescinded and insist upon his original
demand as provided under Article 2041 of the Civil Code. In the instant
case, the respondent did not comply with the terms and conditions of
the Kasunduang Pag-aayos. Such non-compliance may be construed
as repudiation because it denotes that the respondent did not intend to
be bound by the terms thereof, thereby negating the very purpose for
which it was executed. Perforce, the petitioner has the option either to
enforce the Kasunduang Pag-aayos, or to regard it as rescinded and
insist upon his original demand, in accordance with Article 2041 of the
Civil Code. Having instituted an action for collection of sum of money,
the petitioner obviously chose to rescind the Kasunduang Pag-aayos. As
such, it is error on the part of the CA to rule that enforcement by
execution of said agreement is the appropriate remedy under the
circumstances.
Sebastian v. Lagmay Ng
• Kasunduan can be enforced. It is undisputed that what
Angelita filed before the MCTC was captioned "motion for execution,"
rather than a petition/complaint for execution. However, a perusal of the
motion for execution, however, shows that it contains the material
requirements of an initiatory action. It is sufficient in form and substance;
complete with allegations of the ultimate facts constituting the cause of
action; the names and residences of the plaintiff and the defendant; it
contains the prayer to order the execution of the kasunduan; and there
was also a verification and certification against forum shopping.
Furthermore, attached to the motion are: 1) the authenticated special
power of attorney of Annabel, authorizing Angelita to file the present
action on her behalf; and 2) the copy of the kasunduan whose contents
were quoted in the body of the motion for execution. It is well-settled that
what are controlling in determining the nature of the pleading are the
allegations in the body and not the caption.
• MCTC may take cognizance regardless of the amount
involved. The law, as written, unequivocally speaks of the "appropriate
city or municipal court" as the forum for the execution of the settlement
or arbitration award issued by the Lupon. Notably, in expressly conferring
authority over these courts, Section 417 made no distinction with respect
to the amount involved or the nature of the issue involved. Thus, there
can be no question that the law's intendment was to grant jurisdiction
over the enforcement of settlement/arbitration awards to the city or
municipal courts regardless of the amount. A basic principle of
interpretation is that words must be given their literal meaning and
applied without attempted interpretation where the words of a statute
are clear, plain and free from ambiguity.
LABOR CODE
Labor Dispute – includes any controversy or matter concerning the terms
and conditions of employment or the association or representation of
persons in negotiating, fixing, maintaining, changing or arranging the
terms and conditions of employment, regardless of whether the
disputants stand in the proximate relation of employer and employee.
Labor Arbitration – is the reference of a labor dispute to a third party for
determination on the basis of such evidence and arguments presented
by such parties who are bound to accept the decision.
• Voluntary – referral of a dispute by the parties is made, pursuant to a
voluntary arbitration clause in their collective agreement, to an impartial
third person for a final and binding resolution.
Rules of Procedure:
(a)! Agreement of the parties;
(b)! In absence of such, NCMB Revised Procedure Guidelines and
Revised Rules of Court shall apply by analogy or in a directory
or suppletory character.
Qualifications of a Voluntary Arbitrator
1.! Filipino citizen residing in the PH;
2.! Holder of a Bachelor’s Degree in any field of behavioral or
applied sciences or equivalent educational trainings short of
a Bachelor’s Degree;
3.! At least 5-year experience in the labor-management
relations;
4.! Completion of a training course on voluntary arbitration
conducted by the board;
5.! A person of good moral character, noted for impartiality,
probity, and has not been civilly, criminally and
administratively adjudged guilty of any offense involving
moral turpitude.
!! To be chosen by the parties themselves.
Powers in General of Voluntary Arbitrator
a)! Adjudicatory Power
b)! Compulsory Power
c)! Duty to Conciliate and Mediate
But he shall have no power to add to or subtract from or
modify any of the terms of the agreement.
Jurisdiction:
1.! All unresolved grievances arising from the interpretation or
implementation of the CBA and those arising from the
interpretation or enforcement of company personnel policies;
2.! All other labor disputes including unfair labor practices and
bargaining deadlocks.
• The decision or award of VA has the same legal effects as a judgment
of a court. Such decision on matters of fact and law is conclusive and all
matters in the award are res judicata. (Volkschel Labor Union vs. NLRC)
Appeal
Sec. 1. This Rule shall apply to appeals from judgments or final orders of
the Court of Tax Appeals and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial agency in the exercise
of its quasi-judicial functions. Among these agencies are the Civil Service
Commission, and voluntary arbitrators authorized by law.
• Compulsory Arbitration – process of settlement of labor disputes by a
government agency which has the power to investigate and make an
award binding upon the parties.
Jurisdiction of Labor Arbiter
(1)! Unfair labor practice cases;
(2)! Termination disputes;
(3)! If accompanied with a claim for reinstatement, those cases
that workers may file involving wages, rates of pay, hours of
work and other terms and conditions of employment;
(4)! Claims for actual, moral, exemplary and other forms of
damages arising from the employer-employee relations;
(5)! Cases arising from any violation of Article 264 of this Code,
including questions involving the legality of strikes and
lockouts; and
(6)! Except claims for Employees Compensation, Social Security,
Medicare168 and maternity benefits, all other claims arising
from employer-employee relations, including those of persons
in domestic or household service, involving an amount
exceeding five thousand pesos (P5,000.00) regardless of
whether accompanied with a claim for reinstatement.
(b)! The Commission shall have exclusive appellate jurisdiction
over all cases decided by Labor Arbiters.
(c)! Cases arising from the interpretation or implementation of
collective bargaining agreements and those arising from the
interpretation or enforcement of company personnel policies.
Guagua National Colleges v. Court of Appeals
The Board of Trustees of petitioner Guagua National Colleges
approved the funding of its retirement program out of the 70% net
incremental proceeds arising from tuition fee increases. GNC-Faculty
Labor Union and GNC Non-Teaching Maintenance Labor Union
challenged the petitioner's unilateral decision by claiming that it violated
Section 5(2) of R.A. No. 6728 (Government Assistance To Students and
Teachers In Private Education Act) which mandates that said 70%
increase in tuition fees shall go to the payment of salaries, wages,
allowances and other benefits of the teaching and non-teaching
personnel.
• The petition for review was not filed out of time. Article 276 is
an amendment introduced by R.A. No. 6715. Prior to the effectivity of
thereof, the predecessor provision stated that voluntary arbitration
decisions or awards would be final, unappealable and executory.
Despite such immediately executory nature of the decisions and awards
of the Voluntary Arbitrators, however, the Court ruled in 1984 in Oceanic
Bic Division (FFW) v. Romero that the decisions or awards of the Voluntary
Arbitrators involving interpretations of law were within the scope of the
Court's power of review through petitions for certiorari.
In the 1995 Luzon Development Bank v. Association of Luzon
Development Bank Employees case, however, the Court pronounced
that decisions or awards of the Voluntary Arbitrators are appealable to
the CA.
In said case, the Court cited Volkschel Labor Union, et al. v.
NLRC, et al., wherein it ruled that the awards of voluntary arbitrators
determine the rights of parties; hence, their decisions have the same
legal effect as judgments of a court. It also cited Oceanic Bic Division
(FFW), et al. v. Romero, et al., wherein it ruled that a voluntary arbitrator
by the nature of his/her functions acts in a quasi-judicial capacity. Under
these rulings, it follows that the voluntary arbitrator, whether acting solely
or in a panel, enjoys in law the status of a quasi-judicial agency
independent of, and apart from, the NLRC since his/her decisions are not
appealable to the latter.
Under Section 9 of B.P. Blg. 129, the CA is granted exclusive
appellate jurisdiction over all final judgments, decisions, resolutions,
orders or awards of quasi-judicial agencies, instrumentalities, boards or
commissions. Thus, the remedy of appeal by petition for review under
Rule 43 of the Rules of Court became available to the parties aggrieved
by the decisions or awards of the Voluntary Arbitrators or Panels of
Arbitrators.
 In succeeding cases, the Court variantly applied either the 15-
day or the 10-day period under Rule 43 and Article 276, respectively, as
the time within which to appeal the decisions or awards of the Voluntary
Arbitrators or Panels of Arbitrators.
However, in the 2010 ruling in Teng v. Pagahac, the Court
clarified that the 10-day period set in Article 276 of the Labor Code gave
the aggrieved parties the opportunity to file their motion for
reconsideration, which was more in keeping with the principle of
exhaustion of administrative remedies. Only after the resolution of the
motion for reconsideration may the aggrieved party appeal to the CA
by filing the petition for review under Rule 43 of the Rules of Court within
15 days from notice pursuant to Section 4 of Rule 43.
University of Santo Tomas Faculty Union v. University of Santo Tomas
University of Santo Tomas Faculty Union (USTFU) claims that,
pursuant to the provisions of its 1996-2001 Collective Bargaining
Agreement, University of Santo Tomas’s (UST) contributions to the
medical and hospitalization fund of UST’s faculty members should have
been cumulative, with the amount appropriated for each year carried
over to the succeeding years. Thus, it demanded from the latter the
remittance of ₱65,000,000.00 plus legal interest thereon, representing the
deficiency in its contributions. UST, however, contends that the
demanded benefits were not meant to be given annually but rather as
a one-time allocation or contribution to the fund.
• The Labor Arbiter has no jurisdiction over the case. Article
217(c) of the Labor Code provides that the Labor Arbiter shall refer to the
grievance machinery and voluntary arbitration as provided in the CBA
those cases that involve the interpretation of said agreements. Article
261 of the Labor Code further provides that all unresolved grievances
arising from the interpretation or implementation of the CBA, including
violations of said agreement, are under the original and exclusive
jurisdiction of the voluntary arbitrator or panel of voluntary arbitrators.
Excluded from this original and exclusive jurisdiction is gross violation of
the CBA, which is defined in Article 261 as flagrant and/or malicious
refusal to comply with the economic provisions of the CBA.
In the instant case, however, a reading the pertinent portions
of the 1996-2001 CBA along with those of the Labor Code reveals that
UST and USTFU’s misunderstanding arose solely from their differing
interpretations of the CBA’s provisions on economic benefits, specifically
those concerning the fund. Despite the allegation that UST refused to
comply with the economic provisions of the 1996-2001 CBA, UST’s refusal
cannot be characterized as flagrant and/or malicious inasmuch as UST’s
literal interpretation of the CBA was, in fact, what led USTFU to file its
complaint. Therefore, it was clearly error for the LA to assume jurisdiction
over the present case.
Ace Navigation Co., Inc. v. Teodorico Fernandez
Respondent Teodorico Fernandez, a seaman, filed with the
National Labor Relations Commission (NLRC) a complaint for disability
benefits against petitioner Ace Navigation Co., Inc.
The petitioners moved to dismiss the complaint contending
that the labor arbiter had no jurisdiction over the dispute. It noted that
Section 29 of the POEA Standard Employment Contract (POEA-SEC)
provides that in cases of claims and disputes arising from a Filipino
seafarer’s employment, the parties covered by a CBA shall submit the
claim or dispute to the original and exclusive jurisdiction of the voluntary
arbitrator or panel of voluntary arbitrators.
• The case shall be referred to voluntary arbitration. In Vivero
v. Court of Appeals, the Court noted that the law allows parties to submit
to voluntary arbitration other labor disputes, including matters falling
within the original and exclusive jurisdiction of the labor arbiters under
Article 217 of the Labor Code. However, the parties’
submission agreement must be expressed in unequivocal language.
Herein, Article 14 of the parties’ CBA uses an unequivocal or
unmistakable language which mandatorily requires the parties to submit
to the grievance procedure any dispute or cause of action they may
have against each other. Thus, Fernandez’s contention that his
complaint for disability benefits is a money claim that falls within the
original and exclusive jurisdiction of the labor arbiter is untenable.
Furthermore, the Court emphasized that its upholding the
jurisdiction of the voluntary arbitrator or panel of voluntary arbitrators
over the present dispute is in recognition of the State’s express
preference for voluntary modes of dispute settlement, such as
conciliation and voluntary arbitration as expressed in the Constitution,
the law and the rules.
7K Corporation v. Eddie Albarico
Eddie Albarico (Albarico) was a regular employee of
petitioner 7K Corporation. 7K Corporation terminated Albarico’s
employment allegedly for his poor sales performance. Respondent had
to stop reporting for work, and he subsequently submitted his money
claims against petitioner for arbitration before the National Conciliation
and Mediation Board (NCMB).
While the NCMB arbitration case was pending, respondent
Albarico filed a Complaint against petitioner corporation with the
Arbitration Branch of the National Labor Relations Commission (NLRC) for
illegal dismissal with money claims. The Complaint was decided by the
labor arbiter in favor of respondent Albarico.
• The voluntary arbitrator properly assumed jurisdiction.
Art. 262. Jurisdiction over other labor disputes. The Voluntary Arbitrator or
panel of Voluntary Arbitrators, upon agreement of the parties, shall also
hear and decide all other labor disputes including unfair labor practices
and bargaining deadlocks.
We also said in the same case that “the labor disputes referred to in the
same Article 262 of the Labor Code can include all those disputes
mentioned in Article 217 over which the Labor Arbiter has original and
exclusive jurisdiction.”
It is clear that voluntary arbitrators may, by agreement of the parties,
assume jurisdiction over a termination dispute such as the present case,
contrary to the assertion of petitioner that they may not.
Estate of Dulay v. Aboitiz Jebsen Maritime
The heirs of Dulay initiated grievance proceedings against the
company with the AMOSUP (seafarer’s union) as they were claiming
death benefits under a collective bargaining agreement (CBA).
No settlement was reached during the grievance
proceedings and for which reason; a complaint was filed by the heirs
with the NLRC for death and medical benefits and damages. In the
interim, and pursuant to a provision in the CBA, the company paid the
amount of PHP20,000 to the heirs which they argue is only their liability
under the CBA.
• Petition for certiorari under Rule 65 of the Rules of Court
against Voluntary Arbitrator’s decision is not a proper remedy.
ARTICLE 261. Jurisdiction of Voluntary Arbitrators or panel of
Voluntary Arbitrators. – The Voluntary Arbitrator or panel of Voluntary
Arbitrators shall have original and exclusive jurisdiction to hear and
decide all unresolved grievances arising from the interpretation or
implementation of the Collective Bargaining Agreement and those
arising from the interpretation or enforcement of company personnel
policies referred to in the immediately preceding article. Accordingly,
violations of a Collective Bargaining Agreement, except those which are
gross in character, shall no longer be treated as unfair labor practice and
shall be resolved as grievances under the Collective Bargaining
Agreement. For purposes of this article, gross violations of Collective
Bargaining Agreement shall mean flagrant and/or malicious refusal to
comply with the economic provisions of such agreement.
The Commission, its Regional Offices and the Regional
Directors of the Department of Labor and Employment shall not entertain
disputes, grievances or matters under the exclusive and original
jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators
and shall immediately dispose and refer the same to the Grievance
Machinery or Voluntary Arbitration provided in the Collective Bargaining
Agreement.
It is true that R.A. 8042 is a special law governing overseas
Filipino workers. However, a careful reading of this special law would
readily show that there is no specific provision thereunder which provides
for jurisdiction over disputes or unresolved grievances regarding the
interpretation or implementation of a CBA.
Philippine Electric Corporation v. CA
PHILEC served Lipio a memorandum, instructing him to
undergo training for the position of Foreman I beginning on August 25,
1997. PHILEC undertook to pay Lipio training allowance as provided in
the memorandum. Ignacio, Sr., then DT-Assembler with Pay Grade VII,
was likewise selected for training for the position of Foreman I. On August
21, 1997, PHILEC served Ignacio, Sr. a memorandum, instructing him to
undergo training with the schedule of allowance.
Claiming that the schedule of training allowance stated in the
memoranda served on Lipio and Ignacio, Sr. did not conform to Article
X, Section 4 of the June 1, 1997 collective bargaining agreement, PWU
submitted the grievance to the grievance machinery. PWU and PHILEC
failed to amicably settle their grievance. Thus, the parties filed a
submission agreement with the National Conciliation and Mediation
Board.
• Petition for Certiorari under Rule 65 was not the proper
remedy. Instead, the proper remedy to reverse or modify a Voluntary
Arbitrator’s or a panel of Voluntary Arbitrators’ decision or award is to
appeal the award or decision before the Court of Appeals. Rule 43,
Sections 1 and 3 of the Rules of Court provide:
Section 1. Scope. This Rule shall apply to appeals from
judgments or final orders of the Court of Tax Appeals and from awards,
judgments, final orders or resolutions of or authorized by any quasi-
judicial agency in the exercise of its quasi-judicial functions.
ART. 262. JURISDICTION OVER OTHER LABOR DISPUTES.
The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon
agreement of the parties, shall also hear and decide all other labor
disputes including unfair labor practices and bargaining deadlocks.
In Luzon Development Bank v. Association of Luzon
Development Bank Employees this court ruled that the proper remedy
against the award or decision of the Voluntary Arbitrators an appeal
before the Court of Appeals. This court first characterized the office of a
Voluntary Arbitrator or a panel of Voluntary Arbitrators as a quasi-judicial
agency.
SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE RESOLUTION
These rules apply and govern the following cases:
a)! Relief on the issue of Existence, Validity, or Enforceability
of the Arbitration Agreement;
b)! Referral to Alternative Dispute Resolution;
c)! Interim Measures of Protection;
d)! Appointment of Arbitrator;
e)! Challenge to Appointment of Arbitrator;
f)! Termination of Mandate of Arbitrator;
g)! Assistance in Taking Evidence;
h)! Confirmation, Correction or Vacation of Award in
Domestic Arbitration;
i)! Recognition and Enforcement or Setting Aside of an
Award in International Commercial Arbitration;
j)! Recognition and Enforcement of a Foreign Arbitral
Award;
k)! Confidentiality/Protective Orders; and
l)! Deposit and Enforcement of Mediated Settlement
Agreements
Nature: The covered proceedings are special proceedings since they
are remedies by which a party seeks to establish a condition, status or a
particular fact.
GR: All cases governed by the Special ADR Rules are summary in nature.
ER:
1.! Confirmation, Correction or Vacation of Award in Domestic
Arbitration;
2.! Recognition and Enforcement or Setting Aside of an Award in
International Commercial Arbitration; and
3.! Recognition and Enforcement of a Foreign Arbitral Award
Procedure: I-mema Civpro procedure nalang of service and filing; notice
of hearing.
• Verification is NECESSARY for all pleadings, motions, oppositions,
comment, defense, or claim filed under these Rules.
• Certificate of Non-Forum Shopping shall be appended to all initiatory
pleadings except a Motion to Refer the Dispute to ADR.
PROHIBITED SUBMISSIONS1
a.! Motion to dismiss;
b.! Motion for bill of particulars;
c.! Motion for new trial or for reopening of trial;
d.! Petition for relief from judgment;
e.! Motion for extension, except in cases where an ex-parte
temporary order of protection has been issued;
f.! Rejoinder to reply;
g.! Motion to declare a party in default; and
h.! Any other pleading specifically disallowed under any
provision of the Special ADR Rules.
• No Summons. The technical rules of summons do not apply.
What is essential is that the service of the copy of the petition
and notice of initial hearing was made in such a manner as to
“reasonably ensure receipt thereof by the respondent to satisfy the
requirement of due process.”
In cases covered by the Special ADR Rules, a court acquires
authority to act on the petition or motion upon proof of jurisdictional
facts, i.e., that the respondent was furnished a copy of the petition and
the notice of hearing.
The hearing referred to in Rule 1.9 is the initial hearing to prove
the jurisdictional facts. In the absence of proof of jurisdictional facts, the
proceedings may be held null and void.
Proof of service. - made in writing by the server and shall set
forth the manner, place and date of service.
Burden of proof - The burden of showing that a copy of the
petition and the notice of hearing were served on the respondent rests
on the petitioner.
Policy on Arbitration
Principle of Kompetenz-Kompetenz
The Special ADR Rules recognize the principle of competence
- competence, which means that the arbitral tribunal may initially rule on
its own jurisdiction, including any objections with respect to the existence
or validity of the arbitration agreement or any condition precedent to
the filing of a request for arbitration. (Mabuhay Holdings Corporation v.
Sembcorp)
• The arbitral tribunal shall be accorded the first opportunity to rule on
the issue of whether or not it has the jurisdiction to decide a dispute,
including any objection with respect to the existence or validity of the
arbitration agreement.
• Either before or after the arbitral tribunal is constituted, the court must
exercise judicial restraint and defer to the competence of the arbitral
tribunal by allowing the arbitral tribunal the first opportunity to rule upon
issues affecting the jurisdiction of the arbitral tribunal.
• Under this policy of judicial restraint, the court must make no more than
a prima facie determination of the issue of whether or not the arbitration
is null and void, inoperative or incapable of being performed.
• Unless the court, pursuant to such prima facie determination,
concludes that the arbitration agreement is null and void, inoperative or
incapable of being performed, the court must suspend the action before
it and refer the parties to arbitration.
Principle of Separability
The doctrine of separability, or severability as other writers call
it, enunciates that an arbitration agreement is independent of the main
contract. The arbitration agreement is to be treated as a separate
agreement and the arbitration agreement does not automatically
terminate when the contract of which it is a part comes to an end.
The separability of the arbitration agreement is especially
significant to the determination of whether the invalidity of the main
contract also nullifies the arbitration clause. Indeed, the doctrine
denotes that the invalidity of the main contract, also referred to as the
"container" contract, does not affect the validity of the arbitration
agreement. Irrespective of the fact that the main contract is invalid, the
arbitration clause/agreement still remains valid and enforceable. (Cargill
v. San Fernando Regala Trading)
Policy on Mediation
The Special ADR Rules do not apply to Court-Annexed
Mediation (CAM), which shall be governed by issuances of the Supreme
Court.
Where the parties have agreed to submit their dispute to
mediation, a court before which that dispute was brought shall suspend
the proceedings and direct the parties to submit their dispute to private
mediation. If the parties subsequently agree, however, they may opt to
have their dispute settled through CAM.
Conversion of Settlement into an Arbitral Award
Where the parties to mediation have agreed in the written
settlement agreement that the mediator shall become the sole arbitrator
for that dispute or that the settlement agreement shall become an
arbitral award, the sole arbitrator shall issue the settlement agreement as
an arbitral award, which shall be subject to enforcement under the law.
A mediator is generally precluded from making a report,
assessment, evaluation, recommendation, finding or other
communication regarding a mediation. Unlike an arbitrator, he cannot
rule upon the merits of a claim and render an award thereon except in
a mediation-arbitration where the mediator, upon an agreement of the
parties in writing, is appointed as the arbitrator for the arbitration phase
of the proceedings.
SPECIAL COURT RELIEFS
The judicial relief provided in Rule 3, whether resorted to before or after
commencement of arbitration, shall apply only when the place of
arbitration is in the Philippines.
Grounds: Arbitration is, under the applicable law, invalid void,
unenforceable or inexistent.
• A prima facie determination by the court upholding the existence,
validity or enforceability of an arbitration agreement shall not be subject
to a motion for reconsideration, appeal or certiorari.
A. Contents of Petition
a.! The facts showing that the persons named as petitioner or
respondent have legal capacity to sue or be sued;
b.! The nature and substance of the dispute between the parties;
c.! The grounds and the circumstances relied upon by the
petitioner to establish his position; and
d.! The relief/s sought.
Note: The petitioner must attach to the petition an authentic
copy of the arbitration agreement.
B. Comment/Opposition
In both instances, Comment or Opposition must be filed within
fifteen (15) days from the service of the petition.
Interim Measures of Protection
Under Rule 5.1., any party may petition the court for interim measures of
protection. This petition may be filed before the arbitration is
commenced, or even after the commencement of the arbitration but
before the constitution of the arbitration tribunal.
a.! The need to prevent irreparable loss or injury;
b.! The need to provide security for the performance of any
obligation;
c.! The need to produce or preserve evidence; or
d.! The need to compel any other appropriate act or omission.
The grounds enumerated is not exclusive.

Home Bankers Savings and Trust Company v. CA – the Supreme Court
ruled that Far East Bank and Trust Company (FEBTC) validly filed an action
with the RTC for sum of money with preliminary attachment. The Supreme
Court ruled that Section 14 of RA 876 or the Arbitration Law, allows the
party to an arbitration proceeding to petition the court to take measures
to safeguard and/or conserve any matter which is the subject of the
dispute in arbitration. In this case, the prayer for preliminary attachment
is sanctioned by the Arbitration Law.
DFA v. BCA – the dispute between DFA and BCA as regards their Build-
Operate-Transfer Agreement at the time of the referral to arbitration, the
ad hoc tribunal approved BCA’s request to apply in court for issuance of
subpoena where BCA filed a petition for assistance in taking evidence
pursuant to the IRR of ADR Act of 2004. The Supreme Court also had the
opportunity to rule that the deliberative process privilege may be
applied.
FEDEX v. Airfreight – the concept of the Confidentiality Protective Order
was applied where the Supreme Court ratiocinated that Arbitration
Proceedings are not to be used to elicit admissions or disclosures to be
used against the same party in another proceeding.
Types of Interim Measures of Protection:
a.! Preliminary injunction directed against a party to arbitration;
b.! Preliminary attachment against property or garnishment of
funds in the custody of a bank or a third person;
c.! Appointment of a receiver;
d.! Detention, preservation, delivery or inspection of property; or,
e.! Assistance in the enforcement of an interim measure of
protection granted by the arbitral tribunal, which the latter
cannot enforce effectively.
GR: The comment or opposition must be filed within 15 days from the
service of the petition, otherwise, the court shall motu proprio render
judgment only on the basis of the allegations in the petition that are
substantiated by supporting documents and limited to what is prayed for
therein.
ER:
1.! Where there are circumstances that justify the urgent need to
preserve the property;
2.! Prevent the respondent from concealing or disposing of the
property; or
3.! Render the relief prayed for as illusory, the court may issue a
temporary order of protection.
Prior notice may also be dispensed with under the
aforementioned grounds. The respondent has the option of having the
temporary order of protection lifted by posting an appropriate counter-
bond as determined by the court.
If the respondent requests the court for an extension of the
period to file his opposition or comment or to reset the hearing to a later
date, and such request is granted, the court shall extend the period of
validity of the ex-parte temporary order of protection for no more than
twenty days from expiration of the original period.
Appointment of Arbitrators
In RA 877, the parties may stipulate the naming or appointing
of arbitrator or arbitrators. If no method is provided, the Regional Trial
Court shall designate an arbitrator or arbitrators:
(a)! If the parties to the contract or submission are unable to agree
upon a single arbitrator; or
(b)! If an arbitrator appointed by the parties is unwilling or unable to
serve, and his successor has not been appointed in the manner in
which he was appointed; or
(c)! If either party to the contract fails or refuses to name his arbitrator
within fifteen days after receipt of the demand for arbitration; or
(d)! If the arbitrators appointed by each party to the contract, or
appointed by one party to the contract and by the proper Court,
shall fail to agree upon or to select the third arbitrator.
(e)! The court shall, in its discretion appoint one or three arbitrators,
according to the importance of the controversy involved in any of
the preceding cases in which the agreement is silent as to the
number of arbitrators.
(f)! Arbitrators appointed under this section shall either accept or
decline their appointments within seven days of the receipt of their
appointments. If declines or fails to accept = substitute.
There may be appointment of additional arbitrators: Where a
submission or contract provides that two or more arbitrators therein
designated or to be thereafter appointed by the parties, may select or
appoint a person as an additional arbitrator, the selection or
appointment must be in writing. Such additional arbitrator must sit with
the original arbitrators upon the hearing.
When the Court may act as appointing authority:
a.! Where any of the parties in an institutional arbitration failed or
refused to appoint an arbitrator or when the parties have
failed to reach an agreement on the sole arbitrator (in an
arbitration before a sole arbitrator) or when the two
designated arbitrators have failed to reach an agreement on
the third or presiding arbitrator (in an arbitration before a
panel of three arbitrators), and the institution under whose
rules arbitration is to be conducted fails or is unable to perform
its duty as appointing authority within a reasonable time from
receipt of the request for appointment;
b.! In all instances where arbitration is ad hoc and the parties
failed to provide a method for appointing or replacing an
arbitrator, or substitute arbitrator, or the method agreed upon
is ineffective, and the National President of the Integrated Bar
of the Philippines (IBP) or his duly authorized representative
fails or refuses to act within such period as may be allowed
under the pertinent rules of the IBP or within such period as
may be agreed upon by the parties, or in the absence
thereof, within thirty (30) days from receipt of such request for
appointment;
c.! Where the parties agreed that their dispute shall be resolved
by three arbitrators but no method of appointing those
arbitrators has been agreed upon, each party shall appoint
one arbitrator and the two arbitrators thus appointed shall
appoint a third arbitrator. If a party fails to appoint his
arbitrator within thirty (30) days of receipt of a request to do
so from the other party, or if the two arbitrators fail to agree on
the third arbitrator within a reasonable time from their
appointment, the appointment shall be made by the
Appointing Authority. If the latter fails or refuses to act or
appoint an arbitrator within a reasonable time from receipt of
the request to do so, any party or the appointed arbitrator/s
may request the court to appoint an arbitrator or the third
arbitrator as the case may be.
• Where the appointment of an arbitrator is granted, such appointment
an arbitrator shall be immediately executory and shall not be the subject
of a motion for reconsideration, appeal or certiorari.
• Where the appointment however is denied, such denial may be the
subject of a motion for reconsideration, appeal, or certiorari.
Challenge to Appointment of Arbitrators
An arbitrator may be challenged as to his or her qualifications
(i.e.: that the person must be of legal age, in full enjoyment of his civil
rights, must know how to read and write, must not be within the sixth
degree to either party to the controversy, or one who has financial,
fiduciary or any kind of interest in the controversy or personal bias.)
GR: The nationality or professional qualification of an arbitrator is not a
ground to challenge an arbitrator.
ER: When the parties have specified in their arbitration agreement a
nationality and/or professional qualification for appointment as
arbitrator.
RCBC Capital Corporation v. BDO Unibank Inc. – The evident partiality of
Mr. Ian Barker, one of the arbitrators, was a ground to vacate an arbitral
award.
Notwithstanding that the arbitrator is challenged, the challenged
arbitrator is entitled to reimbursement of all reasonable expenses he may
have incurred in attending to the arbitration and to reasonable
compensation for his work on the arbitration unless of course, such party
is in bad faith and is established with reasonable certainty that he
concealed or failed to disclose a ground for his disqualification.
Termination of the Mandate of Arbitrator
1.! Where an arbitrator becomes de jure or de facto unable to
perform his function; or
2.! For other reasons fails to act without undue delay; or
3.! That the arbitrator, upon request of any party, fails or refuses
to withdraw from his office.
Filed with RTC, either (a) where the principal place of business of any of
the parties is located; (b) where any of the parties who are individuals
resides; or (c) in the NCR.
a.! If the court finds merit in the petition, it shall terminate the
mandate of the arbitrator who refuses to withdraw from his
office;
b.! Otherwise, it shall dismiss the petition.
Assistance in Taking Evidence
Whether by a domestic or foreign party, assistance may be sought at
any time during the course of the arbitral proceedings when the need
arises.
Types Venue 1.! Place which 1.! Where 1.! Where assets
a.! To comply with a subpoena ad testificandum and/or on of the arbitration are to be
parties is proceeding attached or
subpoena duces tecum;
doing was levied
b.! To appear as a witness before an officer for the taking of his business; conducted; 2.! Where act to
deposition upon oral examination or by written interrogatories; 2.! Where the 2.! Where any be enjoined or
c.! To allow the physical examination of the condition of persons, parties of the is being
or the inspection of things or premises and, when appropriate, reside; or assets to be performed
to allow the recording and/or documentation of condition of 3.! Where attached or 3.! Residence /
arbitration levied; Place of
persons, things or premises (i.e., photographs, video and other
proceeding 3.! Where the business of
means of recording/documentation); was act to be parties
d.! To allow the examination and copying of documents; and conducted. enjoined or 4.! NCR
e.! To perform any similar acts. is being
performed;
• If the evidence sought is not privileged, and is material and relevant, 4.! Residence /
Place of
the court shall grant the assistance in taking evidence requested and
Business of
shall order petitioner to pay costs attendant to such assistance. parties
5.! National
Prior to Arbitration: “perpetuation of testimony before the arbitral tribunal Capital
is constituted” may be availed of. Judicial
Region
Disobedience = appropriate sanction. Period to After 30 days Anytime from receipt of the award.
Confirm from receipt of
Confidential or Protective Orders the award.

Period to Within 30 days. Within 3 months Within 30 days

It recognizes the right to prevent confidential information from being
Vacate from receipt. from receipt of
further disclosed without the express written consent of the source or the
A petition filed Notice and
party who made the disclosure.
beyond the Prescribes after petition.
reglementary 3 months;
Confidential Information – means any information, relative to the subject
period shall be results in
of mediation or arbitration, expressly intended by the source not to be
dismissed. automatic
disclosed, or obtained under circumstances that would create a
approval for
reasonable expectation on behalf of the source that the information
recognition
shall not be disclosed. It shall include:
and
(1)! communication, oral or written, made in a dispute resolution
enforcement.
proceeding, including any memoranda, notes or work
Modify Within 30 days.
product of the neutral party or non-party participant;
(2)! an oral or written statement made or which occurs during Suspend Available upon Available upon Not available.
mediation or for purposes of considering, conducting, request. request.
participating, initiating, continuing of reconvening mediation Unless there is
or retaining a mediator; and Vacation Vacation ground to
(3)! pleadings, motions manifestations, witness statements, reports proceeding will proceeding will vacate, the court
filed or submitted in an arbitration or for expert evaluation. be suspended, be suspended, must recognize
arbitral tribunal the court will and confirm the
Who May Avail? to re-open and refer back to award. It is
A party, counsel or witness who disclosed or who was conduct new the arbitral immediately
compelled to disclose information relative to the subject of ADR under hearing. tribunal for executory.
circumstances that would create a reasonable expectation, on behalf proceedings to
of the source, that the information shall be kept confidential. be resumed.
Verify Not required Must be verified.
• A protective order may be granted only if it is shown that the applicant
would be materially prejudiced by an unauthorized disclosure of the
information obtained, or to be obtained, during an ADR proceeding. Grounds to Vacate:

In addition, deliberative process privilege may also be invoked. Domestic

(a)! communication must be predecisional, i.e., "antecedent
to the adoption of an agency policy." 1.! Corruption, fraud or undue means;
(b)! communication must be deliberative, i.e., "a direct part 2.! Evident partiality;
of the deliberative process in that it makes 3.! Arbitral tribunal was guilty of Misconduct or misbehavior that
recommendations or expresses opinions on legal or has materially prejudiced the rights of any party i.e. Refusing
policy matters." It must reflect the "give-and-take of the to postpone a hearing; to hear pertinent and material
consultative process.” evidence;
4.! Arbitrator/s was Disqualified;
The privilege protects candid discussions within an agency; it 5.! Arbitral tribunal Exceeded its powers;
prevents public confusion from premature disclosure of agency opinions 6.! The arbitration agreement did not Exist, invalid or
before the agency establishes final policy; and it protects the integrity of unenforceable;
an agency's decision; the public should not judge officials based on 7.! Party to arbitration is a Minor or judicially declared
information they considered prior to issuing their final decisions." incompetent.

International Commercial and Foreign

1.! Defect in the arbitration agreement;

2.! Violation of Due Process;
Domestic International Foreign Arbitration
3.! Lack or Excess of jurisdiction on the part of arbitral tribunal;
Arbitration Commercial
4.! Violation of arbitration agreement;
Arbitration
5.! Incapable of settlement under Philippine laws;
As to Republic Act UNCITRAL 1958 New York
what
6.! Award is against Public policy of the Philippines;
No. 876 Model Law Convention
Law 7.! Party was a Minor or Incompetent.
governs In addition to the grounds of vacating foreign awards is when
RA 9285 (ADR of RA 9285 (ADR RA 9285 (ADR of
the award has not yet become binding on the parties or has been set
2004) of 2004) 2004)
aside or suspended by a court of the country in which the award was
made.
Special ADR Special ADR Special ADR Rules
Rules Rules
Rule Rule 11 Rule 12 Rule 13
Parties Parties to a Parties to a Parties to Foreign
domestic ICA. Arbitration.
arbitration.
Court RTC
DENR v. United Planners Consultants Inc. (UPCI)
SC Ruled that: While Special ADR Rules is silent on the procedure for
execution, its procedural mechanisms covers not only confirmation but
extend to the confirmed award’s execution, applying the doctrine of
necessary implication. Execution is but a necessary incident to the
confirmation. SC also applied ratio legis est anima.
As to the applicability of Rule 65: Rule 22.1 of Special ADR Rules
provides:
"The provisions of the Rules of Court that are applicable to the
proceedings enumerated in Rule 1.1 of these Special ADR
Rules have either been included and incorporated in these
Special ADR Rules or specifically referred to herein."
Thus, resort to the Rules of Court even in a suppletory capacity is not
allowed. Besides, Rule 1.13 provides: "In situations where no specific rule
is provided under the Special ADR Rules, the court shall resolve such
matter summarily and be guided by the spirit and intent of the Special
ADR Rules and the ADR Laws."
Thus, the petition for certiorari of DENR, being filed beyond the
15-day period under Special ADR Rules, is dismissible.
Department of Foreign Affairs (DFA) v. Hon. Falcon
RTC had jurisdiction to issue preliminary injunction- Under RA
8975, no court, except the Supreme Court, may enjoin a “national
government project” unless the matter is one of extreme urgency
involving a constitutional issue such that unless the act complained of is
enjoined, grave injustice or irreparable injury would arise. “National
government projects” refers to “xxx all projects covered by RA 6975 as
amended by RA 7718 (BOT Law) xxx.”
Here, the e-Passport Project was not proven to be a BOT
project, but a procurement contract under RA 9184. Thus, said project is
not an infrastructure project that is protected from lower court injunctions
under RA 8975.
1.1) Under RA 9285, Section 28, ADR Act of 2004, the grant of
an interim measure of protection by the proper court before the
constitution of an arbitral tribunal is allowed. RA 9285 is a general law
applicable to all matters and controversies to be resolved through
alternative dispute resolution methods. This law allows a RTC to grant
interim or provisional relief, including preliminary injunction, to parties in
an arbitration case prior to the constitution of the arbitral tribunal. This
general statute, however, must give way to a special law governing
national government projects, Republic Act No. 8975 which prohibits
courts, except the Supreme Court, from issuing TROs and writs of
preliminary injunction in cases involving national government projects.
However, as discussed above, the prohibition in Republic Act
No. 8975 is inoperative in this case, since petitioners failed to prove that
the e-Passport Project is national government project as defined therein.
Thus, the trial court had jurisdiction to issue a writ of preliminary injunction
against the e-Passport Project
1.2) Principal action dismissed, application for injunction
denied- BCA’s petition for interim relief before the trial court is essentially
a petition for a provisional remedy (preliminary injunction) ancillary to its
request for arbitration. However, during pendency of this case, PDRCI
dismissed the request for arbitration for lack of jurisdiction due to the lack
of agreement between the parties to arbitrate before PDRCI. The
dismissal of the principal action results in the denial of the prayer for
issuance of the writ of preliminary injunction since the writ is only an
ancillary or preventive remedy.
China National Machinery & Equipment Corp. (CNMEG) v. Hon.
Santamaria
CNMEG entered into a Memorandum of Understanding
(MOU) with North Luzon Railways Corporation (Northrail) for the conduct
of a feasibility study on a possible railway line from Manila to San
Fernando, La Union (Northrail Project). Department of Finance of the
Philippines and Export Import Bank of China (EXIM Bank) entered into a
MOU (Aug 30 MOU) wherein the Chinese government agreed to extend
preferential buyer’s credit to PH government to finance the Northrail
Project. China designated EXIM Bank as lender, while the PH government
named DOF as borrower. EXIM, under the Aug 30 MOU, agreed to extend
up to US$400M to DOF payable in 20 years at 3% per annum.
Later, Northrail and CNMEG executed a Contract Agreement
for Phase 1 of the project. The PH government and EXIM Bank entered
into a Loan Agreement where EXIM Bank agreed to extend preferential
buyer’s credit of $US400M to the PH government to finance Phase 1 of
the Northrail Project.
Respondents filed a complaint for annulment of the Contract
Agreement and Loan Agreement for being contrary to the constitution,
the Government Procurement Reform Act (RA 9184), Government
Auditing Code (PD 1445), and the Administrative Code. CNMEG moved
to dismiss, alleging lack of jurisdiction since it was immune from suit, being
an agent of the Chinese government. RTC denied the motion to dismiss.
CA affirmed. Hence this petition.
• SC held that CNMEG is not immune from suit because it was
engaged in a proprietary activity based on the provisions of the Loan
Agreement expressly stating that the project is a “Commercial Activity”
and being performed for “commercial purposes.” The Loan Agreement
also had a “Waiver of Immunity.” CNMEG also did not have any
certification or endorsement from the DFA that it was immune from suit.
Also, SC held that an agreement to submit any dispute to
arbitration may be construed as an implicit waiver of immunity from suit.
In the United States, the Foreign Sovereign Immunities Act of 1976
provides for a waiver by implication of state immunity. In the said law, the
agreement to submit disputes to arbitration in a foreign country is
construed as an implicit waiver of immunity from suit. Although there is
no similar law in the Philippines, there is reason to apply the legal
reasoning behind the waiver in this case.
The Contract Agreement provides: “All disputes xxx arising
from this Contract xxx shall be submitted to arbitration in accordance
with the UNCITRAL Arbitration Rules xxx. The appointing authority/place
of arbitration shall be Hong Kong International Arbitration Center
(HKIAC).”
Thus, Northrail and CNMEG are bound to submit any dispute
to HKIAC for arbitration. If HKIAC makes an arbitral award for Northrail, its
enforcement in the PH would be subject to the Special Rules on
Alternative Dispute Resolution. Rule 13 thereof provides for the
Recognition and Enforcement of a Foreign Arbitral Award. Under Rules
13.2 and 13.3 of the Special Rules, the party to arbitration wishing to have
an arbitral award recognized and enforced in the Philippines must
petition the proper regional trial court (a) where the assets to be
attached or levied upon is located; (b) where the acts to be enjoined
are being performed; (c) in the principal place of business in the
Philippines of any of the parties; (d) if any of the parties is an individual,
where any of those individuals resides; or (e) in the National Capital
Judicial Region.
From all the foregoing, it is clear that CNMEG has agreed that
it will not be afforded immunity from suit. Thus, the courts have the
competence and jurisdiction to ascertain the validity of the Contract
Agreement.
COURT-ANNEXED MEDIATION
It is in line with the Supreme Court’s adoption of the rules of
the new judicial dispute resolution system of the PH, described as
“enhanced pre-trial proceeding”, under its on-going JURIS Project.
As an explanatory note, the Court noted that despite priority
given by the Rules of Court, specifically under Rule 18 on Pre-Trial, for
amicable settlement of cases, most trial judges go through the function
of exploring settlement perfunctorily for various reasons. Hence, the
adoption of the Rules.
Three Stages of Diversion
1.! The first stage is the Court-Annexed Mediation (CAM) where
the judge refers the parties to the Philippine Mediation Center
(PMC) for the mediation of their dispute by trained and
accredited mediators.
2.! Upon failing to secure a settlement of the dispute during the
first stage, a second attempt is made at the JDR stage. Still
failing that second attempt, the mediator- judge must turn
over the case to another judge (a new one by raffle or
nearest/pair judge) who will try the unsettled case. The trial
judge shall continue with the pre-trial proper and, thereafter,
proceed to try and decide the case.
3.! The third stage is during the appeal where covered cases are
referred to the PMC-Appeals Court Mediation (ACM) unit for
mediation.
Mandatory Coverage
1.! All civil cases and the civil liability of criminal cases covered
by the Rule on Summary Procedure, including the civil liability
for violation of B.P. 22, except those which by law may not be
compromised;
2.! Special proceedings for the settlement of estates;
3.! All civil and criminal cases filed with a certificate to file action
issued by the Punong Barangay or Pangkat Tagapagkasundo
under the Revised Katarungang Pambarangay Law;
4.! The civil aspect of Quasi-Offenses under Title 14 of the Revised
Penal Code;
5.! The civil aspect of less grave felonies punishable by
correctional penalties not exceeding 6 years imprisonment,
where the offended party is a private person;
6.! The civil aspect of estafa, theft and libel;
7.! All civil cases and probate proceedings, testate and intestate,
brought on appeal from the exclusive and original jurisdiction
granted to the first level courts under Section 33, par. (1) of the
Judiciary Reorganization Act of 1980;
8.! All cases of forcible entry and unlawful detainer brought on
appeal from the exclusive and original jurisdiction granted to
the first level courts under Section 33, par. (2) of the Judiciary
Reorganization Act of 1980
9.! All civil cases involving title to or possession of real property or
an interest therein brought on appeal from the exclusive and
original jurisdiction granted to the first level courts under
Section 33, par. (3) of the Judiciary Reorganization Act of
1980;
10.! All habeas corpus cases decided by the first level courts in the
absence of the Regional Trial Court judge, that are brought
up on appeal from the special jurisdiction.
The following cases shall not be referred to CAM and JDR:
1.! Civil cases which by law cannot be compromised;
2.! Other criminal cases not covered under paragraphs 3 to 6
above;
3.! Habeas Corpus petitions;
4.! All cases under Republic Act No. 9262 (Violence against
Women and Children);
5.! Cases with pending application for Restraining
Orders/Preliminary Injunctions
Duration
The Mediator shall have a period of not exceeding 30 days to
complete the mediation process.
Such period shall be computed from the date when the
parties first appeared for the initial conference as stated in the Order to
appear.
At the end of the thirty-day period allowed by the trial court,
if no settlement has been reached, the case must be returned to the trial
court for further proceedings, unless the parties agree to further continue
the mediation, in which case a last extension of thirty 30 days may be
granted by the trial court.
Suspension of Periods
The period during which the case is undergoing mediation
shall be excluded from the regular and mandatory periods for trial and
rendition of judgment in ordinary cases and in cases under summary
proceedings.
a.! The Mediator shall be considered as an officer of the court.
b.! The Mediator shall not record in any manner the proceedings
of the joint conferences or of the separate caucuses.
• No transcript or minutes of mediation proceedings shall be taken.
• If personal notes are taken for guidance, the notes shall be shredded
and destroyed.
• Should such record exist, they shall not be admissible as evidence in
any other proceedings.
Confidentiality
To encourage the spontaneity that is conducive to effective
communication, thereby enhancing the possibility of successful
mediation efforts, the mediation proceedings and all incidents thereto
shall be kept strictly confidential, unless otherwise specifically provided
by law, and all admissions or statements made therein shall be
inadmissible for any purpose in any proceeding.
Ex-parte communications by one party to the Mediator which
are not intended to be known by the other party shall not be
communicated to such other party.
• Documents, reports, position papers and affidavits submitted by one
party shall not be shown to the other without the consent of the former.
Sanctions
Since mediation is part of Pre-Trial, the trial court shall impose
the appropriate sanction including but not limited to censure, reprimand,
contempt and such sanctions as are provided under the Rules of Court
for failure to appear for pre-trial, in case any or both of the parties absent
himself/themselves, or for abusive conduct during mediation
proceedings.
• Section 5 of Rule 18: Effect of failure to appear. — The failure of the
plaintiff to appear when so required pursuant to the next preceding
section shall be cause for dismissal of the action. The dismissal shall be
with prejudice, unless otherwise ordered by the court. A similar failure on
the part of the defendant shall be cause to allow the plaintiff to present
his evidence ex parte and the court to render judgment on the basis
thereof.
Kent v. Micarez – Although the RTC has legal basis to order the dismissal
of Civil Case No. 13-2007, the Court finds this sanction too severe to be
imposed on the petitioner where the records of the case is devoid of
evidence of willful or flagrant disregard of the rules on mediation
proceedings.
There is no clear demonstration that the absence of
petitioner’s representative during mediation proceedings on March 1,
2008 was intended to perpetuate delay in the litigation of the case.
Neither is it indicative of lack of interest on the part of petitioner to enter
into a possible amicable settlement of the case.
Unless the conduct of the party is so negligent, irresponsible,
contumacious, or dilatory as for non- appearance to provide substantial
grounds for dismissal, the courts should consider lesser sanctions which
would still achieve the desired end. The Court has written "inconsiderate
dismissals, even if without prejudice, do not constitute a panacea nor a
solution to the congestion of court dockets, while they lend a deceptive
aura of efficiency to records of the individual judges, they merely
postpone the ultimate reckoning between the parties. In the absence of
clear lack of merit or intention to delay, justice is better served by a brief
continuance, trial on the merits, and final disposition of the cases before
the court.”
Chingkoe v. Republic – The rule is clear enough that an order of dismissal
based on failure to appear at pre-trial is with prejudice, unless the order
itself states otherwise. The questioned Order of the trial court did not
specify that the dismissal is without prejudice. There should be no cause
for confusion, and the trial court is not required to explicitly state that the
dismissal is with prejudice.
The respondent is not then left without a remedy, since the
Rules itself construes the dismissal to be with prejudice. It should be
considered as an adjudication on the merits of the case, where the
proper remedy is an appeal under Rule 41.
JUDICIAL DISPUTE RESOLUTION
Judicial proceedings shall be divided into two stages:
(1)! from the filing of a complaint to the conduct of CAM and JDR
during the pre-trial stage, and
(2)! pre-trial proper to trial and judgment.
Steps:
1.! At the initial stage of the pre-trial conference, the JDR judge
briefs the parties and counsels of the CAM and JDR processes.
2.! Thereafter, he issues an Order of Referral of the case to CAM
and directs the parties and their counsels to proceed to the
PMCU bringing with them a copy of the Order of Referral.
3.! The JDR judge shall include in said Order, or in another Order,
the pre-setting of the case for JDR not earlier than forty-five
(45) days from the time the parties first personally appear at
the PMCU so that JDR will be conducted immediately if the
parties do not settle at CAM.
If the parties do not settle their dispute at CAM, the parties and their
counsels shall appear at the preset date before the JDR judge, who will
then conduct the JDR process as mediator, neutral evaluator and/or
conciliator in order to actively assist and facilitate negotiations among
the parties for them to settle their dispute.
(a)! As mediator and conciliator, the judge facilitates the
settlement discussions between the parties and tries to
reconcile their differences.
(b)! As a neutral evaluator, the judge assesses the relative
strengths and weaknesses of each party's case and
makes a non-binding and impartial evaluation of the
chances of each party's success in the case. On the
basis of such neutral evaluation, the judge persuades
the parties to a fair and mutually acceptable settlement
of their dispute.
Courts
If the case is still not settled in JDR, the case is transferred to the pairing
court to proceed with trial. These courts are as follows:
a)! In multiple sala courts, if the case is not resolved during JDR, it
shall be raffled to another branch, where the rest of the
judicial proceedings up to judgment shall be held.
b)! In single sala courts, the case shall be transferred for mediation
to the nearest court (or pair court, if any), since only mediation
is involved. Whatever the result of the mediation may be, the
case is always returned to the originating court for
appropriate action - either for approval of the compromise
agreement or for trial.
c)! In family courts, due to the special nature of a family dispute
for which specialized family courts have been designated,
parties may file a joint motion requesting that the case be
tried by said special court despite the judge thereon having
been the JDR Judge. However, if there is another family court
in the same jurisdiction, it shall be that family court which did
not conduct the JDR Proceeding.
d)! In commercial, intellectual, and environmental courts, the JDR
shall be conducted by the pair judge of the commercial
court. If the JDR does not succeed, the judge of the
commercial court shall be trial judge.
• A case may be referred to JDR even after conclusion of the pre-trial
and during the trial itself.
Upon written motion of one or both parties indicating
willingness to discuss a possible compromise. If the motion is granted, the
trial shall be suspended and the case referred to JDR, which shall be
conducted by another judge through raffle in multiple sala courts.
If settlement is reached during JDR, the JDR court shall take
appropriate action thereon, i.e. approval/disapproval of the
compromise agreement. If settlement is not reached at JDR, the case
shall be returned to the referring court for continuation of trial.
Party Participation
1)! Individual Party Litigants – Personally attend all mediation
conferences or attend through duly authorized
representatives - The authority of the representatives shall be:
• In writing
• Stating that they are fully empowered to offer, negotiate, accept,
decide, and enter into a compromise agreement without need of further
approval by or notification to the authorizing parties.
 2)! Corporate Party Litigants – The representatives must be:
• Senior management officials
• With written authority from the Board of Directors to offer, negotiate,
accept, decide, and enter into compromise agreement without need of
further approval by or notification to the authorizing parties.
Decisions and Orders approving the compromise agreements of the
parties shall contain a statement to the effect that the judgments or
decisions were achieved through JDR.
Sanctions
Same with CAM; mema Civpro.
Duration
Periods shall be computed from the date when the parties first
appeared for JDR proceedings as directed in the respective Orders
issued by the judge.
As far as practicable, JDR conferences shall be set not more
than 2 weeks apart to afford the parties ample time to negotiate
meaningfully for settlement.
First Level Courts – Judges have a period of not exceeding 30 days.
Second Level Courts – Judges have a period of not exceeding 60 days.
Extension:
• If there is a high probability of settlement
• Upon joint written motion of the parties.
Settlement
The judge does not sign the agreement because he/she is not
a party to it.
• He/she simply acts as a judge/conciliator.
Repudiation of agreements:
(a)! If the agreement has not been approved by the judge yet,
the party who intends to repudiate may file a motion and to
prove fraud, accident, mistake or excusable neglect in
securing the agreement;
(b)! If the agreement has already been approved by the judge,
such agreement is thus final and executory. One remedy is to
file a petition for relief under Rule 38.
Pre-Trial
The parties shall proceed to the pre-trial proper in either of two situations:
• Where no settlement is reached; or
• Where only a partial settlement was reached.
As to which court will conduct the trial on the merits will depend on
whether or not the parties filed a joint written motion.
If there is a joint written motion submitted by the parties for the
court to proceed to conduct trial on the merits of the case — the JDR
judge shall do so, despite confidential information that may have been
divulged during the JDR proceedings;
Thus, the JDR judge may also be the trial judge.
• If there is no such joint written motion — the JDR shall turn over the case
to the new trial judge. - The new trial judge shall be determined by re-
raffle in multiple sala courts or to the originating court in single sala courts.
Trial and Judgment
The trial judge to whom the case was turned over shall
expeditiously proceed to trial and thereafter render judgment in
accordance with the established facts, evidence and applicable laws.
Carpio v. Dimaguila – Judge Dimaguila’s failure to refer the civil aspect
of the case to the mandatory CAM and JDR proceedings does not
amount to Gross Ignorance of the Law. Records reveal that she is aware
of the Court’s guidelines under A.M. No. 11-1-6-SC-PHILJA but opted not
to refer the criminal case to the mandatory CAM and JDR to avoid
further delay, in fact, she readily implements the same by ordering the
parties in other cases to report to the CAM mediator after arraignment.
To her mind, referring the case to the CAM and JDR would be a mere
exercise of futility, and would then cause further delay in the disposition
of the case.
While the Judge had good motives, the Court still finds her
administratively liable for not complying with the provisions of A.M. No.
11-1-6-SC-PHILJA. It bears stressing that under the said rules, cases
involving less grave felonies, where the offended party is a private
person, are required to be referred to the CAM and JDR proceedings, as
in this case. Such requirement did not carve out any explicit exception
and hence, evinces its mandatory nature, notwithstanding the parties'
desire to forego with the settlement of the civil aspect of the case.
Re: Anonymous Complaints against Hon. Dinah Bandong, Former
Presiding Judge, RTC Branch 59, Lucena City, Quezon Province
Judge Bandong is guilty of grave misconduct when she
delegated mediation of cases to court personnel instead of referring the
parties to the PMC. Both the affidavits of De Ocampo and Abella
confirmed that it was Stenographer Parfan who mediated between
them in Criminal Case No. 2005-1127. This was supported by the
handwritten receipt signed by Parfan purportedly showing partial
payment of the settlement amount in the said criminal case. Abella also
categorically stated that it was Judge Bandong who referred them to
Parfan. To the Court, these are substantial evidence to support the
subject charge against Judge Bandong. Notably, Judge Bandong was
silent about the matter. She totally failed to deny or proffer any
explanation for the same.
To decongest court dockets and enhance access to justice,
the Court through A.M. No. 01-10-05-SC-PHILJA approved the
institutionalization of mediation in the Philippines through court-annexed
mediation. Along with this, structures and guidelines for the
implementation of court-annexed mediation were put in place. Trial
courts, therefore, cannot just indiscriminately refer for mediation any
case to just anybody. For one, there are cases, which shall and shall not
be referred to court-annexed mediation. For another, mediatable cases
where amicable settlement is possible must be referred by the trial courts
to the PMC, who in turn, shall assist the parties in selecting a mutually
acceptable mediator from its list of duly accredited mediators.
Here, Criminal Case No. 2005-1127 involving frustrated
homicide is apparently not a mediatable case. Clearly on this score
alone, Judge Bandong had already violated A.M. No. 01-10-05-
SCPHILJA. Worse, Judge Bandong entrusted the settlement of the case
to Parfan, a Court Stenographer, who obviously was not a qualified,
trained, or an accredited mediator. It must be emphasized that while
courts and their personnel are enjoined to assist in the successful
implementation of mediation, A.M. No. 01-10- 05-SC-PHILJA does not
authorize them to conduct the mediation themselves. Mediation of
cases can only be done by individuals who possess the basic
qualifications for the position, have undergone relevant trainings,
seminars-workshops, and internship programs and were duly accredited
by the court as mediators. These are to ensure that the mediators have
the ability to discharge their responsibility of seeing to it that the parties
to a case consider and understand the terms of a settlement agreement.
Unlike therefore when the mediation is facilitated by an accredited
mediator, there is great danger that legal rights or obligations of parties
may be adversely affected by an improper settlement if mediation is
handled by an ordinary court employee.
Judge Bandong could not feign ignorance of A.M. No. 01-10-
05-SC-PHILJA since the Philippine Judicial Academy frequently conducts
"conventions and seminars for judges and clerks of court nationwide
regarding the implementation of court-annexed mediations and judicial
dispute resolutions." To the mind of the Court, Judge Bandong knowingly
made the wrongful referral because her indolence got the better of her.
Indeed, this wanton disregard and mockery of the proper procedure in
mediation of cases, as correctly held by the OCA, was tantamount to
grave misconduct. Such misconduct was grave since the circumstances
established her flagrant disregard of the rules on referral of cases for
mediation.
MEDIATORS
(a)! Bachelor’s degree;
(b)! At least 30 years of age;
(c)! Good moral character;
(d)! Willingness to learn new skills and render public service;
(e)! Proficiency in oral and written communication in English and
Filipino.
To be accredited, the applicant must accomplish:
1.! Short written comprehension examination; Interview
2.! Basic Mediation Seminar-Workshop;
3.! Four-week Internship Program
If approved by the Court, the accreditation shall be effective
for a period a two (2) years. Failure to maintain good standing shall be a
cause for the revocation and/or non- renewal of the accreditation • To
maintain good standing, the Mediator must: a) continue to be of good
moral character, b) render mediation services at least once a week to
any PMC Unit, c) participate during Settlement Weeks; and d) complete
refresher courses.
NOTE: Kayo na bahala mag aral ng Mediation Trust Fund and PMCO
Functions, Org Structure.
CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES
The provisions of this Code shall be applicable only to Muslims and
nothing herein shall be construed to operate to the prejudice of a non-
Muslim.
The Shari'a District Court shall have exclusive original jurisdiction over:
a)! All cases involving custody, guardianship, legitimacy,
paternity and filiation arising under this Code;
b)! Petitions for the declaration of absence and death and for the
cancellation or correction of entries in the Muslim Registries
mentioned in Title VI of Book Two of this Code;
c)! All actions arising from customary contracts in which the
parties are Muslims, if they have not specified which law shall
govern their relations; and
d)! All petitions for mandamus, prohibition, injunction, certiorari,
habeas corpus, and all other auxiliary writs and processes in
aid of its appellate jurisdiction.
 (2)! Concurrently with existing civil courts, the Shari'a District Court
shall have original jurisdiction over:
a)! Petitions by Muslims for the constitution of a family home,
change of name and commitment of an insane person to an
asylum;
b)! All other personal and real actions not mentioned in
paragraph 1 (d) wherein the parties involved are Muslims
except those for forcible entry and unlawful detainer, which
shall fall under the exclusive original jurisdiction of the
Municipal Circuit Court; and
c)! All special civil actions for interpleader or declaratory relief
wherein the parties are Muslims or the property involved
belongs exclusively to Muslims.
The Shari'a Circuit Courts shall have exclusive original jurisdiction over:
(1)! All cases involving offenses defined and punished under this
Code.
(2)! All civil actions and proceedings between parties who are
Muslims or have been married in accordance with Article 13
involving disputes relating to:
a.! Marriage;
b.! Divorce recognized under this Code;
c.! Betrothal or breach of contract to marry;
d.! Customary dower (mahr);
e.! Disposition and distribution of property upon divorce;
f.! Maintenance and support, and consolatory gifts, (mut'a); and
g.! Restitution of marital rights.
(3)! All cases involving disputes relative to communal properties.
• Agama Arbitration Council – Muslim religious court.
1.! The Clerk of Court who is the ipso facto Chairman of the
Council;
2.! A representative nominated by the complainant; and
3.! A representative nominated by the respondent.
What are the cases brought to the Agama Arbitration Council?
1.! Divorce by talaq or tafwid;
2.! Subsequent marriages;
3.! Offenses against customary law;
4.! Wife’s exercise of profession or occupation
Article 161. Divorce by talaq and tafwid.
(1)! Any Muslim male who has pronounced a talaq shall, without
delay, file with the Clerk of Court of the Shari'a Circuit Court of
the place where his family resides a written notice of such fact
and the circumstances attended thereto, after having served
a copy thereof to the wife concerned. The talaq pronounced
shall not become irrevocable until after the expiration of the
prescribed 'idda. The notice filed shall be conclusive evidence
that talaq has been pronounced.
(2)! Within seven days from receipt of notice, the Clerk of Court
shall require each of the parties to nominate a representative.
The representatives shall be appointed by the Court to
constitute, together with the Clerk of Court as Chairman, an
Agama Arbitration Council. The Agama Arbitration Council
shall submit to the Court a report on the result of the
arbitration, on the basis of which and such other evidence as
may be allowed, the Court shall issue the corresponding
order.
(3)! The provisions of this article shall be observed should the wife
exercise tafwid.
Article 162. Subsequent marriages.
Any Muslim husband desiring to contract a subsequent
marriage shall, before so doing, file a written notice thereof with the Clerk
of Court of the Shari'a Circuit Court of the place where his family resides.
Upon receipt of said notice, the Clerk shall serve a copy thereof to the
wife or wives. Should any of them object, an Agama Arbitration Council
shall be constituted in accordance with the provisions of paragraph (2)
of the preceding article. If the Agama Arbitration Council fails to obtain
the wife's consent to the proposed marriage, the Court shall, subject to
Article 27, decided whether or not to sustain her objection.
Article 163. Offenses against customary law.
The Shari'a Circuit Court, in cases involving offenses against
customary law which can be settled without formal trial, may, at its
discretion, direct the Shari'a Clerk of Court to constitute a council of not
less than two nor more than four members, with him as chairman, to settle
the case amicably.
Article 36. Rights and obligations of the wife.
(3) The wife may, with her husband's consent, exercise any
profession or occupation or engage in lawful business which is in keeping
with Islamic modesty and virtue. However, if the husband refuses to give
his consenton the ground that his income is sufficient for the family
according to its social standing or his opposition is based on serious and
valid grounds, the matter shall be referred to the Agama Arbitration
Council.
xxx
What are the Special Rules of Procedure Governing the Shari’a Courts?
The Agama Arbitration Council, after its constitution pursuant
to the provisions of the Code of Muslim Personal Laws, shall conduct the
arbitration proceedings in accordance with the method it deems
appropriate, taking into consideration the circumstances of the dispute,
the conciliation of the parties, the interests of the children, if any, and
other third parties involved, and the need for a speedy settlement of the
dispute. However, no arbitration proceedings shall take place ex parte.
Sumagka v. Sumagka
Rohaina Sumagka and Abdulgani Sumagka, both Muslims,
were married in accordance with Muslim law at Tinagacan, General
Santos on July 18, 2998. On Februay 4, 2004, they renewed their marriage
vows under civil rites before Hon. Grafilo Jr., the Municipal Mayor of
Sarangani Province. Their blissful marriage turned sour when Abdulgani
became a policeman in 2006 and was frequently assigned to different
posts. Eventually, Rohaina, together with their three children, left the
conjugal home and went to live with her parents. Rohaina filed a case
against Abdulgani for Grave Misconduct on the ground of infidelity and
abandonment. This led Abdulgani to file the Petition for Divorce by Talaq,
praying that his marriage with Rohaina be dissolved and that he be
granted sole parental authority.
The Shari’a Circuit Court (SCC), pursuant to Articles 160 and
161 of the Muslim Code, constituted the Agama Arbitration Council
which submitted a report stating that the spouses, with the consent of
their representatives, agreed for divorce. The SCC granted the petition
and declared that the divorce by Talaq is in accordance with the Muslim
Code.
Rohaina Appealed to the 5th Shari’s District Court (SDC) of
Cotabato City asserting that civil law governs her marriage, and that the
report of the Agama Council is invalid because it was not signed
personally by one of its members, Limbong Mamalompong (the
appointed representative of Rohaina), but by another person. The SDC
dismissed her appeal and affirmed the Decree of Divorce.
• Muslim Code continues to govern the marital relations of
Muslim spouses who first wed under Muslim law rites and decided to wed
again under civil law rites. Article 13 of the Muslim Code clearly provides
that the Code applies to the marriage and divorce of spouses who are
both Muslims.
Article 13. Application.
(1) The provisions of this Title shall apply to marriage
and divorce wherein both parties are Muslims, or
wherein only the male party is a Muslim and the
marriage is solemnized in accordance with Muslim
law or this Code in any part of the Philippines.
(2) In case of marriage between a Muslim and a
non-Muslim, solemnized not in accordance with
Muslim law or this Code, the Civil Code of the
Philippines shall apply.
The subsequent civil law marriage did not supersede their previous
marriage such that civil law would now govern. It cited the
commentaries of Justice Jainal Rasul and Dr. Ibrahim Ghazali, experts on
the subject matter of muslim personal laws, to wit:
“If both parties are Muslims, there is a presumption
that the Muslim law is complied with. If together with
it or in addition to it, the marriage is likewise
solemnized in accordance with the Civil Code of
the Philippines, in a so-called combined Muslim-civil
marriage rites, whichever comes first is the
validating rite and the second rite is merely a
ceremonial one. But, in this case, as long as both
parties are Muslims, the Muslim code will apply. In
effect, 2 situations will arise in the application of the
Muslim Law, that is, when both parties are Muslim
and when the male party is a Muslim and the
Marriage is solemnized in accordance with the
Muslim Code. A third situation occurs when the Civil
Code of the Philippines will govern if the male party
is a Muslim and the Marriage is solemnized in
accordance with the Civil Code. “
Thus, in combined Muslim and Civil law wedding rites where both parties
are Muslim, the law governing the first marriage prevails. It is the first
wedding which creates the marriage bonds between the parties.
• The report to Agama Council was valid. The SCC constituted
the Agama Council with Rohaina and Abdulgani each appointing their
representatives. The Agama Council is given leeway on how it would
conduct the arbitration proceedings as provided under Section 19 of the
Special Rules of Procedure Governing Philippine Shari’a Courts:
Agama Arbitration, how conducted. -- The Agama
Arbitration Council, after its constitution pursuant to the
provisions of the Code of Muslim Personal Laws, shall conduct
the arbitration proceedings in accordance with the method it
deems appropriate, taking into consideration the
circumstances of the dispute, the conciliation of the parties,
the interests of the children, if any, and other third parties
involved, and the need for a speedy settlement of the
dispute. However, no arbitration proceedings shall take place
ex parte.
 The Supreme court agree with the explanation of the SCC, as
affirmed by the SDC, that Limbong actively participated in the arbitration
hearings but failed to return in the afternoon session for the mechanical
signing of the report. The SDC noted that Limbong did not question the
contents of the report or the fact that someone else signed for him, and
that, in any case, majority of the Agama Council's members signed the
report
Factual findings of the trial court are accorded high respect
and are generally not disturbed by the appellate courts, unless found to
be clearly arbitrary or baseless.
INDIGENOUS PEOPLES RIGHTS ACT
• Indigenous Cultural Communities/Indigenous Peoples — refer to a
group of people or homogenous societies identified by self- ascription
and ascription by others, who have continuously lived as organized
community on communally bounded and defined territory, and who
have, under claims of ownership since time immemorial, occupied,
possessed and utilized such territories, sharing common bonds of
language, customs, traditions and other distinctive cultural traits, or who
have, through resistance to political, social and cultural inroads of
colonization, non-indigenous religions and cultures, became historically
differentiated from the majority of Filipinos.
ICCs/IPs shall likewise include peoples who are regarded as
indigenous on account of their descent from the populations which
inhabited the country, at the time of conquest or colonization, or at the
time of inroads of nonindigenous religions and cultures, or the
establishment of present state boundaries, who retain some or all of their
own social, economic, cultural and political institutions, but who may
have been displaced from their traditional domains or who may have
resettled outside their ancestral domains.
How are disputes resolved among ICCs/IPs?
The ICCs/IPs shall have the right to use their own commonly
accepted justice systems, conflict resolution institutions, peace building
processes or mechanisms and other customary laws and practices within
their respective communities and as may be compatible with the
national legal system and with internationally recognized human rights.
What is the Jurisdiction of the National Commission on Indigenous
Peoples?
Over all claims and disputes involving rights of ICCs/IPs:
Provided, however, That no such dispute shall be brought to the NCIP
unless the parties have exhausted all remedies provided under their
customary laws.
For this purpose, a certification shall be issued by the Council
of Elders/Leaders who participated in the attempt to settle the dispute
that the same has not been resolved, which certification shall be a
condition precedent to the filing of a petition with the NCIP.
What is the process of settling claims and disputes involving rights of
ICCs/IPs?
Complaints or petitions which are cognizable by the NCIP shall be filed
with the Commission En Banc (CEB) or the Regional Hearing Office (RHO)
as the case may be.
What is the jurisdiction of CEB?
The CEB shall exercise original jurisdiction over cases involving
cancellation of Certificate of Ancestral Domain Titles or Certificate of
Ancestral Land Titles (CADTs/CALTs) alleged to have been fraudulently
acquired and issued, provided that such case for cancellation is filed
within one (1) year from the date of registration with the Register of
Deeds.
What is the jurisdiction of RHO?
a.! All claims and disputes involving rights of ICCs/IPs …;
b.! Violation of any provisions of RA 8371, such as, but not limited
to, unauthorized and/or unlawful intrusion upon any ancestral
lands or domains as stated in Sec. 10, Chapter III, or shall
commit any of the prohibited acts mentioned in Sections 21
and 24, Chapter V, Section 33, Chapter VI thereof, which are
punishable under customary laws of the ICCs/IPs concerned:
Provided, that the imposable penalty shall not be cruel,
degrading or inhuman; nor the same amounts to excessive
fines or imposition of the death penalty. However, in the event
that the aggrieved party choose to avail the remedies
provided under other existing laws, the regular process in the
filing of cases as provided therein shall be observed. (2018
NCIP Rules of Procedure)
Can you directly file a complaint or petition before the CEB or RHO?
Generally, no, unless the parties have exhausted all remedies
provided for under the customary laws or indigenous dispute resolution
processes of the ICCs/IPs. As proof thereof, the complainant/petitioner
shall submit a Certificate of Non-Resolution (CNR) issued by the
concerned council of elders/leaders.
When a complaint/petition is filed without the required CNR,
the Regional Hearing Officer (RHOr) shall refer the case to the concerned
Council of Elders/Leaders, through the NCIP Provincial Officer or the
head of the Service Center, provided that the RHO shall actively monitor
the development of the proceedings under the indigenous justice system
and concerned Council of Elders/Leaders.
Any prayer for the issuance of a Temporary Restraining Order
(TRO) or Writ of Preliminary Injunction (WPI) shall not exempt the parties
from the required mediation as provided herein.
• When a complainant/petitioner alleges that there is no known Council
of Elders/Leaders who can mediate or if the Elders/Leaders refuse or are
disqualified to mediate, the case shall be referred to a mediator/s
chosen by them from an identified pool of accredited mediators or one
mutually agreed upon by the parties. In case the parties fail to agree on
who will mediate or when one or both of the parties refuse to submit to
mediation, the RHOr shall direct the NCIP Provincial Officer, the head of
the Service Center, or any qualified officer of the NCIP to mediate the
case.
If no settlement or compromise is reached after mediation,
the assigned mediator shall issue a certificate to that effect.
What is the exception to the general rule?
The certification shall not be required in the following cases:
a.! Where one of the parties is a public or private corporation,
partnership, association or juridical person or a public officer
or employee and the dispute is in connection with the
performance of his official functions;
b.! Where one of the parties is non-IP/ICC or does not belong to
the same IP/IC Community, except when he voluntarily
submits to the jurisdiction of the Council of Elders/Leaders;
c.! Where the relief sought for in the complaint or petition seeks
to prevent any grave, imminent and irreparable damage or
injury that may result if not acted upon immediately; and
d.! Where the Council of Elders/Leaders refuse to issue the
necessary certification without justifiable reasons.
What is the system of settlement involving ICCs/IPs?
(a)! Where the parties belong to the same tribe or ethnolinguistic
group, the same shall be referred for settlement in accordance
with the dispute settlement institution in the ICC/IP community;
(b)! Where the parties belong to different tribes or ethnolinguistic
groups, the dispute shall be referred for settlement in accordance
with established procedures covering inter-tribal disputes, if any, or
in its absence, the parties may agree on the applicable
procedure. Failure of agreement on this matter shall be considered
as failure of settlement; and
(c)! As a general rule, lawyers are prohibited to appear for any party
as counsel, except when such lawyer is appearing in his/her
capacity as a member of the council of elders or due to his/her
obligation as member of the IP community or for the purpose of
defending or prosecuting his/her case.
What is the effect of settlement?
Settlement of disputes shall have the same force and effect
as settlement arrived at or decision promulgated in accordance with
these rules.
What is the effect failure of settlement?
Where the parties fail to settle their disputes as provided
herein, the members of the indigenous dispute settlement group or
council of elders shall issue a certification to the effect that all diligent
efforts for settlement under customary practices failed.
Loloy Unduran v. Ramon Aberasturi
Petitioners are members of the Miarayon, Lapok, Lirongan,
Talaandig Tribal Association (MILALITTRA), or Talaandig tribe, who
claimed to have been living since birth on the land located at Barangay
Miarayon, Talakag, Bukidnon, Mindanao, which they inherited from their
forefathers.
Respondents, represented by attorney-in-fact Ramon
Aberasturi, claimed to be the lawful owners and possessor of an
unregistered parcel of agricultural land, which appears to be located
within the ancestral domain of the Talaandig tribe. They now filed a
petition for Accion Reivindicatoria with prayer for the issuance of a
temporary restraining order with damages before the Regional Trial
Court (RTC) of Manolo Fortich, Bukidnon.
Meanwhile, the rest of the petitioners filed their motion to
dismiss alleging that the RTC had no jurisdiction over the case. They
maintain their contention that it is the National Commission of Indigenous
People (NCIP) not the regular courts, which has jurisdiction over disputes
and controversies involving the ancestral domain of the Indigenous
Cultural Communities (ICC’s) and Indigenous People (IP) regardless of
the parties involved. Petitioners contend that the RTC has no jurisdiction
because the land claimed by respondents is undisputedly within the
ancestral domain of the Talaandig Tribe offer which a Certlificate of
Ancestral Domain Titles (CADT)/ Certificate of Ancestral Land Titles
(CALT).
 The NCIP filed a Motion to Refer the Case to the Regional
Hearing Office – NCIP alleging that the RTC had no jurisdiction over the
subject matter. Respondents filed a Motion to Amend and Supplement
Complaint from Accion Reivindicatoria to one for “Injunction, Damages,
and other Relief.”
The RTC issued an order which denied petitioner’s motion to
refer the case to the RHO-NCIP and granted the injunctive writ prayed
for by the respondent for being meritorious. The CA rendered a Decision
affirming the RTC Order, which in turn denied the referral of the case to
the NCIP.
• The RTC has the jurisdiction over the disputes and
controversies involving the ancestral domain of the ICC and IP regardless
of the parties involved not the NCIP.
Under Section 19 of B.P. 129, as amended (Judiciary
Reorganization Act of 1980), the RTC shall exercise exclusive original
jurisdiction in all civil actions in which the subject of the litigation is
incapable of pecuniary estimation, and in all civil actions which involve
title to, possession of, real property or any interest therein where the
assessed value of the property or interest therein exceeds Twenty
Thousand Pesos (P20,000.00) or, in civil actions in Metro Manila, where
such assessed value exceeds Fifty Thousand Pesos (P50,000.00).
On the other hand, the NCIP's jurisdiction defined under
Section 66 of the IPRA shows that the NCIP shall have jurisdiction over
claims and disputes involving rights of ICCs/IPs only when they arise
between or among parties belonging to the same ICC/IP. This can be
gathered from the qualifying provision that "no such dispute shall be
brought to the NCIP unless the parties have exhausted all remedies
provided under their customary laws. For this purpose, a certification shall
be issued by the Council of Elders/Leaders who participated in the
attempt to settle the dispute that the same has not been resolved, which
certification shall be a condition precedent to the filing of a petition with
the NCIP."
Pursuant to Section 66 of the IPRA, the NCIP shall have
jurisdiction over claims and disputes involving rights of ICCs/IPs only when
they arise between or among parties belonging to the same ICC/IP.
When such claims and disputes arise between or among parties who do
not belong to the same ICC/IP, i.e., parties belonging to different ICC/IPs
or where one of the parties is a non-ICC/IP, the case shall fall under the
jurisdiction of the proper Courts of Justice, instead of the NCIP. In this
case, while most of the petitioners belong to Talaandig Tribe,
respondents do not belong to the same ICC/IP. Thus, even if the real issue
involves a dispute over land which appear to be located within the
ancestral domain of the Talaandig Tribe, it is not the NCIP but the RTC
which shall have the power to hear, try and decide this case.
Galang v. Wallis
Petitioners Susan Galang and Bernadeth Albino, in
representation for Brenda Fagyan, Edmund Fagyan, Marjorie
Cadaweng, and their successors-in-interest filed a Complaint for Accion
Reivindicatoria, Declaration of Nullity of PSU No. 203172, Annulment of
Tax Declaration, Injunction with Prayer for Temporary Restraining Order
(TRO) and Damages, claiming to be the lawful owners of parcels of land
located at Ampucao, Itogon, Benguet.
Petitioners traced the provenance of their title to a certain
Wasiwas Bermor, the Teñiente Del Bario of Ampucao Itogon, Benguet,
who occupied the land as early as 1908 and registered the same in his
name in 1961. Then, petitioner Brenda Fagyan acquired the land from
Wasiwas Bermor and, subsequently, divided and transferred portions
thereof to the rest of the petitioners. Petitioners alleged that respondents
have been intruding into their land in bad faith and without any color of
title. They assert that the documents being used by respondents to justify
their intrusion, particularly Tax Declaration No. 2010-01- 09-02350 and PSU
No. 203172, were fraudulently acquired and are patent nullities.
Respondents alleged that the RTC had no jurisdiction over the
subject matter of the case because of the fact that the land subject of
the controversy is an ancestral land and that said controversy is among
members of indigenous peoples' groups. As such, the case falls within the
exclusive jurisdiction of the Hearing Officer of the National Commission
on Indigenous Peoples (RHO-NCIP). Respondents submitted a Resolution
dated August 30, 1998, issued by the Community Special Task Force on
Ancestral Lands, granting the application for recognition of ancestral
land in favor of the Heirs of Toato Bugnay, represented by respondent
Veronica Wallis. In addition, respondents further alleged that petitioners
have no cause of action against them as the latter have no right over
the subject land and that even assuming that they had such right, they
already waived the same to third persons.
RTC dismissed the complaint on the finding that it is bereft of
jurisdiction to hear and decide the case, reiterating the exclusive
jurisdiction of the NCIP over claims and disputes involving ancestral
lands. Thus, since the case involves a dispute or controversy of property
rights over an ancestral land between members of the IP, jurisdiction
properly pertains with the NCIP.
• NCIP has no jurisdiction over the complaint such that it does
not preclude the RTC from taking cognizance. The Court unequivocally
declared that pursuant to Section 66 of the IPRA, the NCIP shall have
jurisdiction over claims and disputes involving rights of ICC/IP only when
they arise between or among parties belonging to the same ICC/IP
group. When such claims and disputes arise between or among parties
who do not belong to the same ICC/IP group, the case shall fall under
the jurisdiction of the regular courts, instead of the NCIP. Thus, even if the
real issue involves a dispute over a land which appears to be located
within the ancestral domain of the ICC/IP, it is not the NCIP, but the RTC,
which has the power to hear, try and decide the case.
As the RTC pointed out and likewise alleged by respondents,
the parties herein are members of indigenous groups and that the case
involves a dispute among groups of indigenous people. They do not,
however, belong to the same ICC/IP group. Thus, applying the doctrine
in Unduran, it is the RTC, and not the NCIP, which has jurisdiction over the
instant case. This is so even if it was also found that the subject land
appears to be classified as ancestral land. The Supreme Court find that
the RTC should not have dismissed the complaint as it actually had
jurisdiction over the same.
As such, the NCIP's jurisdiction vested under Section 66 of the
IPRA is merely limited and cannot be deemed concurrent with the
regular courts. Instead, its primary jurisdiction is bestowed not under
Section 66, but under Sections 52 (h) and 53, in relation to Section 62,
and Section 54 of the IPRA. Thus, only when the claims involve the
following matters shall the NCIP have primary jurisdiction regardless of
whether the parties are non-ICC/IP, or members of different ICC/IP
groups: (1) adverse claims and border disputes arising from the
delineation of ancestral domains/lands; (2) cancellation of fraudulently
issued Certificates of Ancestral Domain Title; and (3) disputes and
violations of ICC/IP's rights between members of the same ICC/IP group.
Begnaen v. Spouses Caligtan
Petitioner Thomas Begnaen filed a Complaint with Prayer for
Preliminary Injunction against respondents Spouses Leo and Elma
Caligtan for "Land Dispute and Enforcement of Rights" before the
Regional Hearing Office (RHO) of the NCIP at La Trinidad, Benguet.
The RHO issued an Order dismissing the complaint based on
respondents' argument that the case should have gone to the council
of elders and not through the Barangay Lupon, as mandated by the
Indigenous Peoples' Rights Act (IPRA). However, instead of abiding by
the Order of the RHO, Begnaen filed against the Sps. Caligtan a
Complaint for Forcible Entry with a Prayer for a Writ of Preliminary
Mandatory Injunction before the Municipal Circuit Trial Court (MCTC) of
Bauko- Sabangan, Mt. Province.
Begnaen alleged that he was the owner of a 125 square
meter parcel of land situated in Supang, Sabangan, Mt. Province. He
claimed that on two occasions, respondents — by using force,
intimidation, stealth, and threat — entered a portion of the subject
property, hurriedly put up a chicken-wire fence, and started building a
shack thereon without Begnaen's knowledge and consent.
Respondents averred that they owned the area in question as
part of the land they had purchased from a certain Leona Vicente in
1959 pursuant to age-old customs and traditions. They introduced
improvements evidencing their prior physical possession. Respondents
further contended that when petitioner's father Alfonso Begnaen
(Alfonso) was still alive, he had always respected their boundary wherein
a "GIKAD" or old pine tree lumber was buried and recovered. The "GIKAD"
established their boundary pursuant to age-old Igorot customs and
traditions. To further mark their boundary, respondents also planted
bushes and a mango tree, all of which Alfonso had likewise respected.
MCTC dismissed the ejectment complain in favor of the
respondents and reasoned out that the fact that petitioner initially files a
complaint with the RHO-NCIP shows that he recognized the primary
jurisdiction of the NCIP.
RTC reversed and set aside the Resolution and Order of the
MCTC, saying that it was the latter court that had jurisdiction over the
case for forcible entry.
CA reversed and set aside the RTC rulings, and reinstated the
Resolution of the MCTC.
• The NCIP is vested with jurisdiction over (1) the parties, who
are all members of the same ICC, and (2) the subject property, which is
ancestral land. Undeniably, both parties admitted that they are
members of the Indigenous Cultural Communities, particularly the
Kankanaey Tribe of Mt. Province. Ancestral lands are lands occupied,
possessed and utilized by individuals, families and clans who are
members of the ICCs/IPs since time immemorial, by themselves or
through their predecessors-in-interest, under claims of individual or
traditional group ownership, continuously, to the present. Thus, the claim
of petitioner that when land is purchased, it is no longer within the ambit
of ancestral land/domain, is devoid of merit.
While admittedly forcible entry cases are cognizable by the
regular courts pursuant to Section 1, rule 70 of the 1997 Rules of Court
and B.P. Blg. 129; nonetheless, with the passage of the IPRA Law (R.A.
8371), the Supreme Court considered view that the regular courts are
divested of their jurisdiction when the parties involved therein are the
ICCs/IPs and the property in question is an ancestral land.
Petitioner first invoked the NCIP's jurisdiction by filing with the
RHO his complaint against respondents for "Land Dispute and
Enforcement of Rights." The initial filing of the instant case by petitioner-
appellant before the NCIP-RHO only showed that he fully recognized the
NCIP's jurisdiction over this case. Thus, the jurisdiction remains vested in
the NCIP-RHO as the first agency to take cognizance over the case, to
the exclusion of the MCTC.