ADR 7th and 8th CASE

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. WORLD INTERACTIVE NETWORK SYSTEMS (WINS) JAPAN CO., LTD., respondent FACTS: ABS-CBN entered into a licensing agreement with World Interactive Network Systems (WINS) Japan Co., Ltd., a foreign corporation licensed under the laws of Japan. Under the agreement, WINS was granted the exclusive license to distribute and sublicense the distribution of the television service known as "The Filipino Channel" in Japan. A dispute arose between the parties when ABS accused WINS of inserting nine episodes of WINS WEEKLY, a television program into the TFC programming without the authorization of ABS-CBN. Hence, the latter issued a notice of termination of the said agreement because of breach of contract. Thereafter, WINS filed an arbitration suit pursuant to the arbitration clause of their agreement. It contended that the airing of WINS WEEKLY was made with ABS-CBNs prior approval. The parties appointed Professor Alfredo F. Tadiar to act as sole arbitrator. Prof. Tadiar found in favor of the WINS. He held that ABS-CBN gave its approval to WINS for the airing of WINS WEEKLY as shown by a series of written exchanges between the parties. ABS-CBN then filed in the CA a petition for review under Rule 43 of the Rules of Court or, in the alternative, a petition for certiorari under Rule 65 of the same Rules, with application for temporary restraining order and writ of preliminary injunction. It alleged serious errors of fact and law and/or grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the arbitrator. The CA rendered the assailed decision dismissing ABS-CBNs petition for lack of jurisdiction. It ruled that it is the RTC which has jurisdiction over questions relating to arbitration. It held that the only instance it can exercise jurisdiction over an arbitral award is an appeal from the trial court's decision confirming, vacating or modifying the arbitral award. It further stated that a petition for certiorari under Rule 65 of the Rules of Court is proper in arbitration cases only if the courts refuse or neglect to inquire into the facts of an arbitrator's award. The ABS-CBN moved for reconsideration but was denied. Hence, this petition. ISSUE: Whether or not an aggrieved party in a voluntary arbitration dispute may avail of, directly in the CA, a petition for review under Rule 43 or a petition for certiorari under Rule 65 of the Rules of Court, instead of filing a petition to vacate the award in the RTC when the grounds invoked to overturn the arbitrators decision are other than those for a petition to vacate an arbitral award enumerated under RA 876. HELD: NO. RA 876 itself mandates that it is the Court of First Instance, now the RTC, which has jurisdiction over questions relating to arbitration, such as a petition to vacate an arbitral award. Section 24 of RA 876 provides for the specific grounds for a petition to vacate an award made by an arbitrator. Sec. 24. Grounds for vacating award. - In any one of the following cases, the court must make an order vacating the award upon the petition of any party to the controversy when such party proves affirmatively that in the arbitration proceedings: (a) The award was procured by corruption, fraud, or other undue means; or (b) That there was evident partiality or corruption in the arbitrators or any of them; or (c) That 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; that one or more of the arbitrators was disqualified to act as such under section nine hereof, and willfully

refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced; or (d) That 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. The law itself clearly provides that the RTC must issue an order vacating an arbitral award only "in any one of the . . . cases" enumerated therein. Under the legal maxim in statutory construction expressio unius est exclusio alterius, the explicit mention of one thing in a statute means the elimination of others not specifically mentioned. As RA 876 did not expressly provide for errors of fact and/or law and grave abuse of discretion (proper grounds for a petition for review under Rule 43 and a petition for certiorari under Rule 65, respectively) as grounds for maintaining a petition to vacate an arbitral award in the RTC, it necessarily follows that a party may not avail of the latter remedy on the grounds of errors of fact and/or law or grave abuse of discretion to overturn an arbitral award.

TRANSFIELD PHILIPPINES, INC., petitioner, vs. LUZON HYDRO CORPORATION, AUSTRALIA and NEW ZEALAND BANKING GROUP LIMITED and SECURITY BANK CORPORATION, respondents.

FACTS: Transfield Philippines and Luzon Hydro Corporation entered into a contract whereby Transfield undertook to construct a hydro-electric power station at the Bakun River in the provinces of Benguet and Ilocos Sur. The parties stipulated in the contract that in case of dispute, the parties are bound to settle their differences through mediation, conciliation and such other means enumerated under the same. In the course of the construction of the project, Transfield sought various extensions of time to complete the Project. The extensions were requested allegedly due to several factors which prevented the completion of the Project on target date, such as force majeure occasioned by typhoon Zeb, barricades and demonstrations. Luzon Hydro denied the requests, however. This gave rise to a series of legal actions between the parties. The adjudication of this case proved to be a two-stage process as its constituent parts involve two segregate but equally important issues. The first stage relating to the merits of the case, specifically the question of the propriety of calling on the securities during the pendency of the arbitral proceedings, was resolved in favor of Luzon Hydro with the Courts Decision of 22 November 2004. The second stage involved the issue of forum-shopping. Luzon Hydro claims that Transfield is guilty of forum-shopping when it filed the following suits: 1. a civil case pending before the RTC of Makati for confirmation, recognition and enforcement of the Third Partial Award in the case entitled Transfield Philippines, Inc. v. Luzon Hydro Corporation filed before the International Court of Arbitration, ICC 2. ICC Case Transfield Philippines, Inc. v. Luzon Hydro Corporation filed before the International Court of Arbitration, ICC a request for arbitration pursuant to the contract between Luzon Hydro and Transfield; and 3. G.R. No. 146717, Transfield Philippines, Inc. v. Luzon Hydro Corporation, Australia and New Zealand Banking Group Limited and Security Bank Corp., which was an appeal by certiorari with prayer for TRO/preliminary prohibitory and mandatory injunction, of the Court of Appeals Decision ISSUE: Whether or not Transfield Philippines is guilty of forum-shopping when it filed a civil case before the RTC of Makati and an appeal by certiorari on the Court of Appeals Decision while an arbitration case filed before the International Court of Arbitration is still pending. HELD: NO. Forum-shopping has been defined as the act of a party against whom an adverse judgment has been rendered in one forum, seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. Thus, for forum-shopping to exist, there must be (a) identity of parties, or at least such parties as represent the same interests in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars is such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration. There is no identity of causes of action between and among the arbitration case, the appeal by certiorari, and the civil case filed before the RTC. Neither is there an identity of parties between and among the three (3) cases.

As a fundamental point, the pendency of arbitral proceedings does not foreclose resort to the courts for provisional reliefs. The Rules of the International Chamber of Commerce (ICC), which governs the parties arbitral dispute, allows the application of a party to a judicial authority for interim or conservatory measures. Likewise, Section 14 of Republic Act No. 876 (The Arbitration Law) recognizes the rights of any party to petition the court to take measures to safeguard and/or conserve any matter which is the subject of the dispute in arbitration. In addition, R.A. 9285, otherwise known as the "Alternative Dispute Resolution Act of 2004," allows the filing of provisional or interim measures with the regular courts whenever the arbitral tribunal has no power to act or to act effectively. Thus, the civil case filed in the RTC f Makati and the appeal on certiorari on the CAs decision filed by Transfield Philippines pending an arbitration case in the International Chamber of Commerce does not constitute forum-shopping. They are rather interim or conservatory measures resorted by the Transfield Philippines to safeguard its interests regarding the two (2) standby letters of credit it opened in favour of Luzon Hydro as a security for its performance of its obligation under their contract.