Professional Documents
Culture Documents
I.
RELEVANT LAWS.
1.
2.
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2.
3.
3.2.
In Private Litigation:
3.1.1. There is private-party autonomy in the resolution of disputes or the
freedom of the parties to make their own arrangements to resolve their
disputes;
3.1.2. Neutral third party participates to assist in the resolution of issues, which
includes arbitration, mediation, conciliation, early neutral evaluation,
mini-trial, or any combination thereof;
3.1.3. Parties have the freedom to choose either accredited or non-accredited to
act as arbitrator, mediator, conciliator, neutral party evaluator;
3.1.4. Voluntary dispute resolution;
In Public Litigation:
3.2.1. Disputes are resolved pursuant to the application or interpretation of laws
and rules of procedure;
3.2.2. Adjudication of a presiding judge of a court or an officer of a government
agency;
3.2.3. Parties do not choose the adjudicator or hearing officer;
3.2.4. Parties are subjected to the operative force (i.e. jurisdiction, compulsory
processes, etc.) of the court or government agency;
4.
MODES OF ADR.
4.1.
Arbitration
4.2.
Mediation
4.3.
Conciliation
4.4.
Negotiation
4.5.
Neutral Early Evaluation/Mini-Trial
5.
7.
EXCLUSIONS IN ADR.
7.1.
Labor disputes covered by Presidential Decree No. 442, otherwise known as the
Labor Code of the Philippines, as amended and its Implementing Rules and
Regulations;
7.2.
Civil status of persons;
7.3.
Validity of a marriage;
7.4.
Any ground for legal separation;
7.5.
Jurisdiction of courts;
7.6.
Future legitime;
7.7.
Criminal liability;
7.8.
And those which by law cannot be compromised. (Sec. 6, R.A. No. 9285)
8.
III. POLICIES (Rule 2.2. Special ADR Rules; Note: KOPPEL CASE).
1.
Arbitration agreement is the law between the parties and that they are expected to abide
by it in good faith
2.
Courts shall not refuse to refer parties to arbitration for reasons including, but not
limited to, the following:
2.1.
The referral tends to oust a court of its jurisdiction;
2.2.
The court is in a better position to resolve the dispute subject of arbitration;
2.3.
The referral would result in multiplicity of suits;
2.4.
The arbitration proceeding has not commenced;
2.5.
The place of arbitration is in a foreign country;
2.6.
One or more of the issues are legal and one or more of the arbitrators are not
lawyers;
2.7.
One or more of the arbitrators are not Philippine nationals; or
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2.8.
One or more of the arbitrators are alleged not to possess the required qualification
under the arbitration agreement or law.
3.
Where court intervention is allowed under ADR Laws or the Special ADR Rules, courts
shall not refuse to grant relief for any of the following reasons:
3.1.
Prior to the constitution of the arbitral tribunal, the court finds that the principal
action is the subject of an arbitration agreement; or
3.2.
The principal action is already pending before an arbitral tribunal.
4.
5.
The Special ADR Rules recognize the principle of separability of the arbitration
clause - which means that said clause shall be treated as an agreement independent of
the other terms of the contract of which it forms part. A decision that the contract is null
and void shall not entail ipso jure the invalidity of the arbitration clause.
6.
Judicial restraint. In resolving the petition, the court must exercise judicial restraint in
accordance with the policy set forth in Rule 2.4 deferring to the competence or
jurisdiction of the arbitral tribunal to rule on its competence of jurisdiction.
FORMS:
1.1.
Arbitral Agreement or Clause;
1.2.
Submission Agreement;
2.
1.3.
2.
In case of default by the other party in answering the demand, aggrieved party
may file, through a verified petition, with the RTC having jurisdiction of the
parties:
1.3.1. A copy of the demand/request for arbitration;
1.3.2. A statement that an original demand was sent and which set forth:
a. The nature of the action;
b. Amount involved, if applicable;
c. Relief sought;
d. Attached true copy of the contract providing for arbitration;
3.
4.
ARBITRATOR(S).
4.1.
QUALIFICATIONS:
4.1.1. Must be of legal age;
4.1.2. In full-enjoyment of his civil rights;
4.1.3. Knows how to read and write;
4.1.4. Not related by blood or marriage within the sixth degree to either party to
the controversy;
4.1.5. No financial, fiduciary or other interest in the controversy or cause to be
decided or in the result of the proceeding, or
4.1.6. Has any personal bias, which might prejudice the right of any party to a
fair and impartial award;
4.2.
4.3.
5.
CHALLENGE OF ARBITRATOR(S).
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5.1.
The arbitrators may be challenged only for the reasons mentioned in Sec 10, R.A.
No. 876 which may have arisen after the arbitration agreement or were unknown
at the time of arbitration.
The challenge shall be made before them.
If they do not yield to the challenge, the challenging party may renew the
challenge before the RTC of the province or city in which the challenged
arbitrator, or, any of them, if there be more than one, resides. While the
challenging incident is discussed before the court, the hearing on arbitration
shall be suspended, and it shall be continued immediately after the court has
delivered an order on the challenging incident. (Sec.11, R.A. No. 876)
5.2.
5.3.
6.
VI.
All proceedings under the Special Rules on ADR are special proceedings.
2.
3.
4.
In cases covered by the Special ADR Rules no summons is issued, 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 verified petition and the notice of hearing. (Rule
1.9.)
3.1. Prior service is jurisdictional and material to satisfy the requirement of due process.
SERVICE AND FILING OF PETITIONS IN SUMMARY PROCEEDINGS.
4.1. Before filing in court, service of the verified petition coupled by a notice of hearing
unto the respondent through:
4.1.1. Personal service, proven by an affidavit of the server;
4.1.2. Registered mail, shown by the signed courier proof of delivery (postal
registry return cards);
4.1.3. Private courier, proven by an affidavit executed by the responsible officer
of the private courier service showing the transmittal; or by the signed
courier proof of delivery.
4.1.4. In case of refusal or failure, by an affidavit of the server stating the facts
and circumstances of refusal or failure to receive. (Rule 1.9.)
4.2. VERIFICATION AND SUBMISSIONS.
4.2.1. Need to be Verified:
a. Any pleading, motion, opposition, comment, defense or claim.
b. Attached legal brief of counsel which state the pertinent facts, legal
arguments in support of a partys position in the case, applicable laws
and jurisprudence.
c. All initiatory pleadings must contain a certification against forum
shopping.
4.3. PROHIBITED SUBMISSIONS:
4.3.1. Motion to dismiss
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4.3.2.
4.3.3.
4.3.4.
4.3.5.
6.
6.3.4. A ruling by the court denying the jurisdiction of the arbitral tribunal may
be the subject of petition for certiorari (under Rule 65).
6.4. ABITRAL TRIBUNAL DEFERING TO RESOLVE THE ISSUE OF ITS
JURISDICTION.
6.4.1. A ruling by the arbitral tribunal deferring resolution on the issue of its
jurisdiction until final award is not subject to a motion for reconsideration,
appeal or a petition for certiorari.
6.5. WHEN TO MAKE REQUEST FOR ARBITRATION BEFORE THE RTC.
6.5.1. FORM
a. Motion
b. With notice of hearing
6.5.2. Should there be an existing arbitration agreement:
a. Before pre-trial, by either party;
b. After pre-trial, by way of agreement by the parties;
6.5.3. In case of submission agreement:
a. At any stage of the proceedings.
6.6. An order referring the dispute to arbitration shall be immediately executory and shall
not be subject to a motion for reconsideration, appeal or petition for certiorari.
6.7. An order denying the request to refer the dispute to arbitration shall not be subject to
an appeal (because it is interlocutory), but may be the subject of a motion for
reconsideration and/or a petition for certiorari.
7.
8.
APPOINTMENT OF ARBITRATOR.
9.1. Relief against court action:
9.1.1. If the court appoints an arbitrator, the order appointing an arbitrator shall
be immediately executory and shall not be the subject of a motion for
reconsideration, appeal or certiorari.
9.1.2. An order of the court denying the petition for appointment of an arbitrator
may be the subject of a motion for reconsideration, appeal or certiorari.
(Rule 6.9.)
10.
ASSISTANCE IN TAKING EVIDENCE;
10.1. Any party to an arbitration, whether domestic or foreign, may request the court to
provide assistance in taking evidence. (Rule 9.1.)
10.2.
TYPE OF ASSISTANCE:
10.2.1. To comply with a subpoena ad testificandum and/or subpoena duces
tecum;
10.2.2. To appear as a witness before an officer for the taking of his deposition
upon oral examination or by written interrogatories;
10.2.3. To allow the physical examination of the condition of persons, or the
inspection of things or premises and, when appropriate, to allow the
recording and/or documentation of condition of persons, things or
premises (i.e., photographs, video and other means of
recording/documentation);
10.2.4. To allow the examination and copying of documents; and
10.2.5. To perform any similar acts. (Rule 9.5)
10.3.
If the evidence sought is not privileged, and is material and relevant, the court
shall grant the assistance in taking evidence requested and shall order petitioner to
pay costs attendant to such assistance. (Rule 9.8)
10.4.
10.5.
If the court declines to grant assistance in taking evidence, the petitioner may file
a motion for reconsideration or appeal. (Ibid.)
13.4.
14. A party, counsel or witness who disclosed or who was compelled to disclose
information relative to the subject of ADR under circumstances that would create a
reasonable expectation, on behalf of the source, that the information shall be kept
confidential has the right to prevent such information from being further disclosed
without the express written consent of the source or the party who made the disclosure.
(Rule 10.1.)
15. In resolving the petition or motion, the courts shall be guided by the following
principles applicable to all ADR proceedings:
15.1. Confidential information shall not be subject to discovery and shall be
inadmissible in any adversarial proceeding, whether judicial or quasi-judicial.
15.2. However, evidence or information that is otherwise admissible or subject to
discovery does not become inadmissible or protected from discovery solely by
reason of its use therein.
15.2.1. For mediation proceedings, the court shall be further guided by the
following principles:
a. Information obtained through mediation shall be privileged and
confidential.
b. A party, a mediator, or a nonparty participant may refuse to disclose and
may prevent any other person from disclosing a mediation
communication.
c. In such an adversarial proceeding, the following persons involved or
previously involved in a mediation may not be compelled to disclose
confidential information obtained during the mediation:
(1) parties to the dispute;
(2) mediator or mediators;
(3) counsel for the parties;
(4) nonparty participants;
(5) any persons hired or engaged in connection with the mediation as
secretary, stenographer; clerk or assistant; and
(6) any other person who obtains or possesses confidential information by
reason of his/ her profession.
d. The protection of the ADR Laws shall continue to apply even if a
mediator is found to have failed to act impartially.
e. A mediator may not be called to testify to provide information gathered
in mediation. A mediator who is wrongfully subpoenaed shall be
reimbursed the full cost of his attorney fees and related expenses. (Rule
10.8.)
16. CONFIRMATION, CORRECTION OR VACATION OF AWARD IN DOMESTIC
ARBITRATION.
16.1. PERIODS:
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16.1.1. Confirmation. - At any time after the lapse of thirty (30) days from receipt
by the petitioner of the arbitral award, he may petition the court to confirm
that award.
16.1.2. Correction/Modification. - Not later than thirty (30) days from receipt of
the arbitral award, a party may petition the court to correct/modify that
award.
16.1.3. Vacation. - Not later than thirty (30) days from receipt of the arbitral
award, a party may petition the court to vacate that award.
16.1.4. A petition to vacate the arbitral award may be filed, in opposition to a
petition to confirm the arbitral award, not later than thirty (30) days from
receipt of the award by the petitioner. A petition to vacate the arbitral
award filed beyond the reglementary period shall be dismissed.
16.1.5. A petition to confirm the arbitral award may be filed, in opposition to a
petition to vacate the arbitral award, at any time after the petition to vacate
such arbitral award is filed. The dismissal of the petition to vacate the
arbitral award for having been filed beyond the reglementary period shall
not result in the dismissal of the petition for the confirmation of such
arbitral award.
16.1.6. The filing of a petition to confirm an arbitral award shall not authorize the
filing of a belated petition to vacate or set aside such award in opposition
thereto.
16.1.7. A petition to correct an arbitral award may be included as part of a petition
to confirm the arbitral award or as a petition to confirm that award. (Rule
11.2.)
16.2.
16.3.
17.1.
17.2.
17.3.
18.1.
18.2.
PERIOD.
18.2.1. Any time after receipt of a foreign arbitral award before the Regional Trial
Court. (Rule 13.2.)
18.3.
21.2.
21.3.
VENUE.
21.3.1. Written settlement agreement may be jointly deposited by the parties or by
one party with prior notice to the other party/ies with the Clerk of Court of
the RTC:
a. Where the principal place of business in the Philippines of any of the
parties is located;
b. If any of the parties is an individual, where any of those individuals
resides; or
c. In the National Capital Judicial Region. (Rule 15.3.)
21.4.
PERIOD 15 days from notice of the final order, decision, or motion for
reconsideration.
24.3.
GROUNDS:
24.3.1. Granting or denying an interim measure of protection;
24.3.2. Denying a petition for appointment of an arbitrator;
24.3.3. Denying a petition for assistance in taking evidence;
24.3.4. Enjoining or refusing to enjoin a person from divulging confidential
information;
24.3.5. Confirming, vacating or correcting/modifying a domestic arbitral award;
24.3.6. Setting aside an international commercial arbitration award;
24.3.7. Dismissing the petition to set aside an international commercial arbitration
award even if the court does not decide to recognize or enforce such
award;
24.3.8. Recognizing and/or enforcing an international commercial arbitration
award;
24.3.9. Dismissing a petition to enforce an international commercial arbitration
award;
24.3.10.
Recognizing and/or enforcing a foreign arbitral award;
24.3.11.
Refusing recognition and/or enforcement of a foreign arbitral
award;
24.3.12.
Granting or dismissing a petition to enforce a deposited mediated
settlement agreement; and
24.3.13.
Reversing the ruling of the arbitral tribunal upholding its
jurisdiction. (Rule 19.12.)
GROUNDS:
25.4.1. When the Regional Trial Court, in making a ruling under the Special ADR
Rules, has acted:
a. without jurisdiction;
b. in excess of its jurisdiction, or
c. with grave abuse of discretion amounting to lack or excess of
jurisdiction,
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and there is no appeal or any plain, speedy, and adequate remedy in the
ordinary course of law, a party may file a special civil action for certiorari
to annul or set aside a ruling of the Regional Trial Court.
25.5. A special civil action for certiorari may be filed against the following orders of
the court.
25.5.1. Holding that the arbitration agreement is inexistent, invalid or
unenforceable;
25.5.2. Reversing the arbitral tribunals preliminary determination upholding its
jurisdiction;
25.5.3. Denying the request to refer the dispute to arbitration;
25.5.4. Granting or refusing an interim relief;
25.5.5. Denying a petition for the appointment of an arbitrator;
25.5.6. Confirming, vacating or correcting a domestic arbitral award;
25.5.7. Suspending the proceedings to set aside an international commercial
arbitral award and referring the case back to the arbitral tribunal;
25.5.8. Allowing a party to enforce an international commercial arbitral award
pending appeal;
25.5.9. Adjourning or deferring a ruling on whether to set aside, recognize and or
enforce an international commercial arbitral award;
25.5.10.
Allowing a party to enforce a foreign arbitral award pending
appeal; and
25.5.11.
Denying a petition for assistance in taking evidence. (Rule 19.26.)
26. APPEAL BY CERTIORARI TO THE SUPREME COURT.
26.1. WHERE Supreme Court
26.2.
26.3.
26.4.
GROUNDS:
The following, while neither controlling nor fully measuring the court's
discretion, indicate the serious and compelling, and necessarily, restrictive
nature of the grounds that will warrant the exercise of the Supreme Courts
discretionary powers, when the Court of Appeals:
26.4.1. Failed to apply the applicable standard or test for judicial review
prescribed in these Special ADR Rules in arriving at its decision resulting
in substantial prejudice to the aggrieved party;
26.4.2. Erred in upholding a final order or decision despite the lack of jurisdiction
of the court that rendered such final order or decision;
26.4.3. Failed to apply any provision, principle, policy or rule contained in these
Special ADR Rules resulting in substantial prejudice to the aggrieved
party; and
26.4.4. Committed an error so egregious and harmful to a party as to amount to an
undeniable excess of jurisdiction.
The mere fact that the petitioner disagrees with the Court of Appeals
determination of questions of fact, of law or both questions of fact and law,
shall not warrant the exercise of the Supreme Courts discretionary power.
The error imputed to the Court of Appeals must be grounded upon any of the
above prescribed grounds for review or be closely analogous thereto.
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A mere general allegation that the Court of Appeals has committed serious
and substantial error or that it has acted with grave abuse of discretion
resulting in substantial prejudice to the petitioner without indicating with
specificity the nature of such error or abuse of discretion and the serious
prejudice suffered by the petitioner on account thereof, shall constitute
sufficient ground for the Supreme Court to dismiss outright the petition. (Rule
19.36)
VII. REMEDIES RE: DOMESTIC ARBITRAL AWARDS:
1. CONSTRUCTION INDUSTRY ARBITRATION COMMISSION (CIAC [E.O. No.
1008])
1.1.
Original and exclusive jurisdiction over:
1.1.1. disputes arising from, or connected with, contracts entered into by parties
involved in construction in the Philippines, whether the dispute arises:
a. before or after the completion of the contract, or
b. after the abandonment or breach thereof.
1.1.2. Violation of specifications for materials and workmanship;
1.1.3. Violation of the terms of agreement;
1.1.4. Interpretation and/or application of contractual time and delays;
1.1.5. Maintenance and defects;
1.1.6. Payment, default of employer or contractor and changes in contract cost.
1.2.
These disputes may involve government or private contracts.
1.3.
For the Board to acquire jurisdiction, the parties to a dispute must agree to submit
the same to voluntary arbitration.
1.4.
Jurisdiction of a court is determined by the law in force at the time of the
commencement of the action.
1.5.
Jurisdiction of CIAC is over the dispute, not the contract.
1.6.
As long as the parties agree to submit to voluntary arbitration, regardless of what
forum they may choose (ad hoc or institutional), their agreement will fall within
the jurisdiction of the CIAC, such that, even if they specifically choose another
forum, the parties will not be precluded from electing to submit their dispute
before the CIAC because the right has been vested upon each party by law, i.e.,
E.O. No 1008. (NIA vs. Court of Appeals, 318 SCRA 255).
1.7.
When a contract contains a clause for the submission of a future controversy to
arbitration, it is not necessary for the parties to enter into a submission agreement
before the claimant may invoke the jurisdiction of the CIAC.
1.8.
1.9.
ARBITRATOR(S).
1.8.1. A sole arbitrator:
a. Parties, by agreement, nominate him from the list of arbitrators
accredited by the CIAC for appointment and confirmation.
b. If the parties fail to agree as to the arbitrator, the CIAC taking into
consideration the complexities and intricacies of the dispute/s, has the
option to appoint a single arbitrator or an Arbitral Tribunal.
1.8.2.
Three arbitrators:
a. If the CIAC decides to appoint an Arbitral Tribunal, each party may
nominate one (1) arbitrator from the list of arbitrators accredited by
the CIAC for appointment and for confirmation.
b. The third arbitrator who is acceptable to both parties confirmed in
writing shall be appointed by the CIAC and shall preside over the
Tribunal. (Sec. 14)
As soon as a decision, order or award has become final and executory, the
Arbitral Tribunal or the single arbitrator with the occurrence of the CIAC shall
motu propio, or on motion of any interested party, issue a writ of execution
requiring any sheriff or other proper officer to execute said decision, order or
award. (Sec. 20)
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2.
COURT OF APPEALS.
1.1.
15 days from receipt of notice of the assailed final arbitral award, petition for
review under Rule 43, either on questions of fact, of law, or of fact and law.
Ground: errors of arbitral award (judgment). (Sec. 18.2, CIAC Revised Rules of
Procedure Governing Construction Arbitration)
1.2.
60 days from receipt of notice of the assailed final arbitral award, special civil
action for certiorari or petition for certiorari under Rule 65 (N.B.: Hierarchy of
Courts must be observed, as the remedy is an original and concurrent jurisdiction
with the Supreme Court). Ground: errors of jurisdiction.
2.
SUPREME COURT.
2.1.
15 days from receipt of notice of the assailed judgment or denial of motion for
reconsideration by the Court of Appeals, ordinary appeal of petition for review on
certiorari under Rule 45. Ground: errors of judgment.
2.2.
Concurrent jurisdiction with the Court of Appeals on Petition for Certiorari under
Rule 65. Hierarchy of courts must be observed. (Note: the petition for certiorari
[writ of certiorari] under Rule 65 is an original action).
3.
4.
The recognition and enforcement of foreign arbitral awards not covered by the New
York Convention shall be done in accordance with procedural rules to be promulgated
by the Supreme Court. The Court may, grounds of comity and reciprocity, recognize
and enforce a nonconvention award as a convention award. (Sec. 43)
5.
6.
A foreign arbitral award, when confirmed by the RTC, shall be enforced as a foreign
arbitral award and not as a judgment of a foreign court.
7.
A foreign arbitral award, when confirmed by the RTC, shall be enforced in the same
manner as final and executory decisions of courts of law of the Philippines.
VIII. CASES.
A. Tuna Processing, Inc., vs. Philippine Kingford, Inc., G.R. No. 185582, February
29, 2012.)
1. A foreign corporation not licensed to do business in the Philippines, but which
collects royalties from entities in the Philippines, have legal capacity to sue for the
Page 20 of 25
Page 21 of 25
9.
2.
3.
Domestic arbitral award, not falling under CIAC, shall be confirmed by way
of a petition for such an order within 30 days before the RTC. (Sec. 23 in
relation to Sec. 28, Arbitration Law [R.A. No. 876])
4.
5.
E. Koppel, Inc. vs. Makati Rotary Club Foundation, Inc., G.R. No. 198075,
September 4, 2013.
1.
2.
Even the very party who repudiates or assails the validity of such contract
may invoke the arbitration clause.
3.
The operation of the arbitration clause is not at all defeated by the failure of
the party to file a formal "request" or application therefor. The filing of a
"request" pursuant to Section 24 of R.A. No. 9285 is not the sole means by
which an arbitration clause may be validly invoked in a pending suit.
Section 24 of R.A. No. 9285 reads:
Sec. 24. Referral to Arbitration. A court before which an
action is brought in a matter which is the subject matter of an
arbitration agreement shall, if at least one party so requests not
later that the pre-trial conference, or upon the request of both
parties thereafter, refer the parties to arbitration unless it finds that
the arbitration agreement is null and void, inoperative or incapable
of being performed.
The "request" referred to in the above provision is, in turn, implemented
by Rules 4.1 to 4.3 of A.M. No. 07-11-08-SC or the Special Rules of Court on
Alternative Dispute Resolution (Special ADR Rules):
RULE 4: REFERRAL TO ADR
Rule 4.1.Who makes the request. A party to a pending
action filed in violation of the arbitration agreement, whether
contained in an arbitration clause or in a submission agreement,
may request the court to refer the parties to arbitration in
accordance with such agreement.
Rule 4.2. When to make request. (A) Where the
arbitration agreement exists before the action is filed. The
request for referral shall be made not later than the pre-trial
conference. After the pre-trial conference, the court will only act
upon the request for referral if it is made with the agreement of all
parties to the case.
(B) Submission agreement. If there is no existing
arbitration agreement at the time the case is filed but the parties
subsequently enter into an arbitration agreement, they may request
the court to refer their dispute to arbitration at any time during the
proceedings.
Rule 4.3. Contents of request. The request for referral
shall be in the form of a motion, which shall state that the dispute
is covered by an arbitration agreement.
Apart from other submissions, the movant shall attach to
his motion an authentic copy of the arbitration agreement.
The request shall contain a notice of hearing addressed to
all parties specifying the date and time when it would be heard.
The party making the request shall serve it upon the respondent to
give him the opportunity to file a comment or opposition as
Page 23 of 25
In this case, it is conceded that petitioner was not able to file a separate
"request" of arbitration before the MeTC. However, it is equally conceded
that the petitioner, as early as in its Answer with Counterclaim, had already
apprised the MeTC of the existence of the arbitration clause in the 2005
Lease Contract and, more significantly, of its desire to have the same
enforced in this case. This act of petitioner is enough valid invocation of his
right to arbitrate.
5.
The fact that the parties already underwent through JDR proceedings before
the RTC, will not make the subsequent conduct of arbitration between the
parties unnecessary or circuitous. The JDR system is substantially different
from arbitration proceedings.
6.
8.
the filing by petitioner of its Answer with Counterclaim the point when the
petitioner and the respondent should have been referred to arbitration.
9.
Doctrine of COMPETENCE-COMPETENCE.
Rule 2.4. Policy implementing competence-competence
principle. - The arbitral tribunal shall be accorded the first
opportunity or competence to rule on the issue of whether or not it
has the competence or jurisdiction to decide a dispute submitted to
it for decision, including any objection with respect to the
existence or validity of the arbitration agreement. When a court is
asked to rule upon issue/s affecting the competence or jurisdiction
of an arbitral tribunal in a dispute brought before it, either before
or after the arbitral tribunal is constituted, the court must exercise
judicial restraint and defer to the competence or jurisdiction of the
arbitral tribunal by allowing the arbitral tribunal the first
opportunity to rule upon such issues.
Where the court is asked to make a determination of
whether the arbitration agreement is null and void, inoperative or
incapable of being performed, under this policy of judicial
restraint, the court must make no more than a prima facie
determination of that issue.
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
pursuant to the arbitration agreement.
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