Civil Procedure Summary Procedures Supreme Court

SUMMARY PROCEDURES

SUMMARY PROCEDURES1 Alfredo F. Tadiar

I. CONCEPT OF SUMMARY PROCEDURES In essence, all rules on summary procedures provide for abbreviated periods within which to do certain acts, such as: 1) filing of required pleadings/papers,2 and 2) rendition of judgment.3 The reason for such shortened periods is that the issue or issues to be resolved summarily are simple and not complex. Thus, in seeking to enforce an arbitration agreement in a contract, the only issue is whether the parties had entered into that agreement “knowingly, intelligently and voluntarily.”4 II. NATURE AND PURPOSE Summary procedure is in accord with the Constitutional mandate for the Supreme Court to promulgate rules that will “provide a simplified and inexpensive procedures for the speedy disposition of cases.”5 The original Rule on Summary Procedures for Summary Procedures in Special Cases was promulgated on August 1, 1983. This was pursuant to BP. 129, otherwise known as the Judiciary Reorganization Act of 1980. Said statutory provision authorizes the promulgation of special rules “to achieve an 1

This is intended to be a generic title and, although it includes the Revised Rules on Summary Procedure, which applies only to First Level Courts, it is not confined to that subject alone. Thus, summary proceedings in arbitration under the Special Rules of Court on ADR, which are within the jurisdiction of Regional Trial Courts, are included herein. 2 REVISED RULE ON SUMMARY PROCEDURES, Sec. 5 for instance, requires an answer to be filed within ten (10) days from service of summons. Cf, RULES OF COURT, Rule 11, Sec. 1 that answer must be filed within fifteen (15) days. 3 Sec. 17, supra, as another instance, requires that judgment be promulgated “not later than thirty (30) days after termination of trial.” Contrast with Rule 36 which does not provide time for rendition of judgment in regular trial but is restricted to the Constitutional limit set in Section 15 (1), Article VIII, that cases must be decided or resolved within three (3) months from submission. Summary proceedings are common in Arbitration proceedings. Thus, a petition to enforce an arbitration agreement is required by Rep. Act No. 876, Sec. 6, the general Arbitration Law, to be decided “within ten days after such motions, petitions or applications have been heard by it.” 4 KIV is the acronym to denote the essential elements of consent. Thus, the issue to be resolved is narrowed down to what is alleged by a party as having vitiated his consent to the arbitration agreement, namely, fraud, deceit, mistake, minority, or violence, intimidation or undue influence. 5 1987 CONSTITUTION, Art. VIII, Sec. 5 (5). G-1

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expeditious and inexpensive determination (of cases) without regard to technical rules.”6 After more than seven years in operation, on November 15, 1991,7 the Revised Rule on Summary Procedures promulgated by the Supreme Court became effective. On October 1, 2008, the Rule of Procedure for Small Claims Cases was promulgated also with the same objective of expediting the resolution of disputes in the shortest time possible.

III. THE REVISED RULE ON SUMMARY PROCEDURES A. Features 1. To Accomplish its Laudable Objective, the Rule Prohibits the Filing of Certain Motions and Pleadings8 The plain purpose of this prohibition is for the court not to get entangled in procedural matters that will prevent it from going into the merits of the controversy itself. Such wastage of judicial time delays resolution of the dispute and makes it more expensive for the parties, contrary to the constitutional mandate of rules that provide a simplified, inexpensive, and speedy determination of every action.9

6

Batas Pambansa Blg. 129, Sec. 36. REVISED RULE ON SUMMARY PROCEDURES, Sec. 23. Effectivity. 8 Sec. 19. Prohibited pleadings and motions. – The following pleadings, motions, or petitions shall not be allowed in the cases covered by this Rule: (a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with the preceding section (failure to undergo conciliation under the KB Law); (b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a judgment or for re-opening of trial; (d) Petition for relief from judgment; (e) Motion for extension of time to file pleadings, affidavits or any other paper; (f) Memoranda; (g) Petition for certiorari, mandamus or prohibition against any interlocutory order issued by the court; (h) Motion to declare the defendant in default; (i) Dilatory motions for postponement; (j) Reply; (k) Third party complaints; (l) Interventions. 9 See also REVISED RULES OF COURT, Rule 1, Sec. 6. 7

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2. The Judge is Empowered to “Dismiss the Case Outright on Any of the Grounds Apparent therefrom for the Dismissal of a Civil Action”10 This is intended to make the judges in summary proceedings more active than passive as they usually are in normal judicial proceedings. In a case handled by the author as defense counsel, he filed a “Motion to Assist the Court Perform its Duty to Determine that the Case should be Dismissed Outright.” He argued from three premises: 1) a judge is much too busy to personally look for a ground to dismiss the case; 2) if the case is dismissed on the judge’s own initiative, the suspicion cannot be escaped that he was biased in favor of the defendant and this may lead to a motion to inhibit the judge or an administrative disciplinary action against the judge; and 3) it is the burden of defense counsel to point out, as he is doing by said motion, the grounds for dismissing the case outright. The motion was accepted and the case dismissed. The lesson that may be learned from this is for judges to take an attitude of liberality in accepting such innovative interventions of lawyers to attain the objective of summary procedures.

3. Submission of Affidavits in Lieu of Direct Testimony of Witnesses11 This procedure was patterned after the presentation of evidence in arbitration processes. By adopting it, much time spent for the presentation of a witness on direct examination is dispensed with. This requirement is modeled from a specific rule in construction arbitration proceedings.12

10

REVISED RULE ON SUMMARY PROCEDURES, Secs. 4 and 12. Id., Sec. 20 12 CIAC REVISED RULES ON ARBITRATION, Rule 13.6. Affidavit in lieu of direct testimony. 11

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4. Cross-Examination is Made on the Basis of Such Affidavits on the Day of Trial13 Generally, manifestations of counsel, additional direct examination questions, or modifications in the affidavits that are sought to be made by counsel, should be denied. Counsel should be directed to proceed with the cross-examination as the parties have been forewarned. Despite being sworn to before a notary public or any other official, the judge usually requires affiant-witnesses to affirm the veracity of their affidavit and that they voluntarily executed and understood the same. 5. Submission of Position Papers, Together with the Affidavits This is in lieu of a memorandum of arguments that is usually submitted at the end of the trial. Memoranda are now prohibited from being filed by any party.14 In arbitration proceedings, what is required to be submitted at the conclusion of a trial is Claimant’s (or Respondent’s) Draft Decision. The advantage of requiring parties to submit draft decisions in their own favor is that they are being asked to take the role of a neutral judge and, therefore, must address the arguments of the opposing side. A position paper simply loads everything favorable to the side presenting that position. Another effective technique is to require parties to argue on each issue that have been formulated for resolution. Such formulation of issues is contained in the Terms of Reference (TOR) for arbitration and in the Pre-Trial Order in judicial proceedings. 6. No Extension of Periods15 In Gachon v. Guevara,16 the Supreme Court held “that the period for filing pleadings in cases covered by the Rule on Summary Procedure shall be ‘non-extendible.’”

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REVISED RULES ON SUMMARY PROCEDURE, Sec. 15. Id., Sec. 19 (f). 15 Id., Dilatory motions for postponement are disallowed under, Sec. 10, par. (i). 16 G.R. No. 116695, June 20, 1997, 274 SCRA 540. 14

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7. Limited Amount of Award for Attorney’s Fees.17

B. Applicability - Not Applicable to RTC in Appealed Cases This Rule shall govern the summary procedures in all First Level Courts only.18 Thus, on appeal from an adverse judgment in an unlawful detainer case under summary procedures, the RTC is not bound to observe the same rule on summary procedures.19 Accordingly, the RTC may validly take cognizance of a motion for reconsideration of its decision rendered in the exercise of its appellate jurisdiction over decisions of the first level courts in ejectment cases.20 C. Coverage/Scope21 I. Civil Cases 1. All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. 2. All other cases, except probate proceedings,22 where the total amount of the plaintiff's claim does not exceed one hundred

17

REVISED RULES ON SUMMARY PROCEDURE, Sec. 1, A (1), limits the amount of attorney’s fees to be awarded in forcible entry and unlawful detainer cases to P20,000.00. 18 Id., Sec. 1. 19 Jakihaca v. Aquino, G.R. No. 83982, January 12, 1990, 181 SCRA 67. This is a case for unlawful detainer under summary procedure, where judgment was rendered in favor of the plaintiff-owner. Defendants-lessees were accordingly directed to surrender possession and to remove their house built thereon. RTC, on appeal, dismissed the case on the ground that the MTC acted without jurisdiction as there is no showing that the demand to vacate was made within the 1 year required. Landowner Jarihaca moved to reconsider. This was denied by RTC two months later. Landowner filed a petition to review RTC decision. Respondent contends that the petition was filed out of time since it was filed beyond the 15-day reglementary period from receipt of decision. Respondent’s computation did not consider the period within which the Landowner’s motion for reconsideration was pending since a motion for reconsideration is a prohibited pleading in summary procedure. The Supreme Court held that the prohibition against reconsideration is only applicable to proceedings in the MTC and not in the RTC where it was filed. In the latter court, there is no prohibition against a reconsideration being sought and the regular procedure is followed. 20 Refugia, et al., v. CA, et al., G.R. No. 118284, July 5, 1996, 258 SCRA 347. 21 REVISED RULE ON SUMMARY PROCEDURES, Sec. 1. G-5

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thousand pesos (P100,000.00) or two hundred thousand pesos (P200,000.00) in Metropolitan Manila23, exclusive of interest and costs.

II. Criminal Cases

1. 2. 3. 4.

Violations traffic laws, rules and regulations; Violations of the rental law; Violations of municipal or city ordinances; Violations of Batas Pambansa Bilang 22 (Bouncing Checks Law);24 5. All other criminal case where the penalty prescribed by law for the offense charge is imprisonment not exceeding six months or a fine not exceeding one thousand pesos (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising from the offense, provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000.00).

D. Jurisprudence 1. Summary rules of procedures is mandatory in ejectment25 cases and, therefore, “the period for filing pleadings in cases covered by the rule on summary procedures shall be non-extendible.”26 2. Thus, Defendant is required to file his answer “within ten (10) days from service of summons and serve a copy thereof on the plaintiff.”27 “Affirmative and negative defenses not pleaded therein shall be deemed waived except lack of jurisdiction over 22

B.P. Blg. 129, Sec. 33, The Judiciary Reorganization Act of 1980, grants exclusive original jurisdiction to first level courts over probate proceedings where the value of the estate does not exceed P 100,000.00 or P 200,000.00 in Metro Manila. 23 A.M. No. 02-11-09-SC which took effect on November 25, 2002. 24 A.M. No. 00-11-01-SC which took effect on April 15, 2003. 25 Ejectment (accion intertictal) is a generic term that covers both forcible entry (detentacion) and unlawful detainer cases (desahucio). 26 Gachon v. Guevara, supra note 16. 27 RULE ON SUMMARY PROCEDURES, Sec. 6. G-6

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the subject matter. Cross claims and compulsory counterclaims not asserted in the answer shall be considered barred.” 3. “The answer to counterclaims or cross-claims shall be served and filed within ten (10) days from service of the answer in which they are pleaded.”28 4. In Gachon, the Supreme Court excluded the answer of Defendant that was filed five (5) days late. 5. “A speedy resolution of unlawful detainer cases is a matter of public policy.”29 6. Immediate execution of judgment rendered against defendant, unless sufficient supersedeas bond was filed by him and approved by MTC executed in favor of the plaintiff to pay rents, damages and costs accruing down to the time of judgment appealed from.30 7. The time for deposit of rentals cannot be extended by the Regional Trial Court nor can it excuse a default in such payments in the absence of fraud, accident, mistake or excusable negligence (FAME) and neither can it modify the amount thereof.31 IV. THE RULE OF PROCEDURES FOR SMALL CLAIMS CASES32 A. Features 1. Greatly broadens access to judicial justice This rule is considered by the author as the most significant issuance of the Supreme Court in terms of broadening access to judicial justice by those who would not otherwise resort to litigation to pursue their small claims because it may not be worth the expenditure of costs and time involved. 28

Id. BPI v. Generoso, A.M. No. MTJ-94-907, October 25, 1995, 249 SCRA 477. 30 REVISED RULES OF COURT, Rule 70, Sec. 19. 31 Lopez, Inc. v. Phil. & Eastern Trading Co., Inc., 98 Phil. 348 (1956). 32 A.M. No. 08-8-7-SC, Sec. 26 Effectivity - This Rule shall take effect on October 1, 2008, for the pilot courts designated to apply the procedure for small claims cases following its publication in two newspapers of general circulation (Philippine Daily Inquirer, September 18, 2008). The amendments to this Rule took effect on November 3, 2009 (SC En Banc Resolution, dated October 27, 2009, A.M. No. 08-8-7-SC). 29

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2. Started as pilot project in selected first level courts This was started as a pilot project for selected first level courts.

3. Subsequently expanded nationwide. The nationwide application of the Rule took effect on March 18, 2010 (OCA Circular NO. 35-1010, dated March 3, 2010).

4. Bilingual instructions in English and Filipino

5. Detailed instructions for both plaintiff and defendant provided

6. Model forms provided for ready use of parties and court On February 16, 2010, the Supreme Court issued AM No. 08-8-7-SC containing a detailed simplified bilingual (English and Filipino) INFORMATION FOR THE PLAINTIFF and another INFORMATION FOR THE DEFENDANT. These contain step-bystep instructions for each party to follow in chronological sequence and information on what to expect at each stage.

7. The plaintiff is instructed: “YOU CANNOT HAVE A LAWYER AT THE HEARING. You may consult a lawyer before or after the hearing but the lawyer cannot appear for or with you at the hearing.”33

8. Defendant is instructed: “You may consult a lawyer BUT YOU CANNOT HAVE A LAWYER WITH YOU AT THE HEARING.”34

33 34

Instruction to the plaintiff no. 10. Instruction to the defendant no. 6. G-8

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9. Said circular also contains Administrative Guidelines for (a) Judges and (b) Executive Judges, Clerks of Courts in multi-sala stations and Branch Clerks of Courts. It contains detailed step-bystep directions on what each of these officials are expected to do. 10. Parties are required to use prepared forms35 Plaintiff to use: 1) FORM 1-SCC – Verified Statement of Claim 2) FORM 1-A – SCC Certification on Non-Forum Shopping 3) FORM 5-SCC – Special Power of Attorney 4) FORM 6-SCC – Motion to Plead as Indigent 5) FORM 10-SCC– Motion for another judge 6) FORM 8-SCC – Joint Motion to Dismiss 7) FORM 6-SCC – Motion to Plead as Indigent 8) FORM 7-SCC – Motion for Approval of Compromise Agreement 9) FORM 9-SCC – Motion for Execution

Defendant to use: 1) FORM 3-SCC – Verified Response 2) FORM 5-SCC – Special Power of Attorney 3) FORM 6-SCC – Motion to Plead as Indigent 4) FORM 10-SCC– Motion for another judge 5) FORM 8-SCC – Joint Motion to Dismiss 6) FORM 7-SCC – Motion for Approval of Compromise Agreement 7) FORM 9-SCC – Motion for Execution

11. The judge or clerk of court is also required to use prepared forms. 1) FORM 2-SCC – Summons 2) FORM 4-SCC – Notice of Hearing 3) FORM 6A-SCC – Opening Statement by Judge 4) FORM 11-SCC – Order to Re-Raffle to Another Judge 5) FORM 12-SCC – Decision based on Compromise Agreement 6) FORM 13-SCC - DECISION 35

The author put to a test the mandatory character of the use of prescribed forms. G-9

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12. The plaintiff must include all evidence that is intended to be presented in the case and no other evidence will be allowed without good cause.36 The same holds true for the defendant.37

13. The defendant shall file with the Court and serve on the Plaintiff a Response within TEN (10) DAYS from service of summons.38

14. However, no default order shall be issued against a defendant for failure to file a timely answer. Said defendant is still allowed to appear at the scheduled hearing to offer a defense, negotiate a settlement and, with good cause, be allowed to present evidence on his defense.39 B. APPLICABILITY First level courts shall apply this Rule in all the following actions:40 (1) purely civil actions where the claim of the plaintiff is solely for payment of a sum of money not exceeding P100,000.00, exclusive of interest and costs; But claims exceeding said amount may be allowed as small claims, provided the plaintiff waives right to the excess amount;41 (2) civil aspect of criminal actions with the same maximum limit. But this may only be eligible if filed before the initiation of the criminal action or reserved when the criminal action was filed.42 (3) Such claims or demands may be: (a) For money owed under any of the following: Contracts of Lease, Loan, Services, Sale, or Mortgage. (b) For damages arising from any of the following: Fault or negligence; Quasi-Contract; or Breach of Contract. 36

AMENDED RULE OF PROCEDURE FOR SMALL CLAIMS CASES, Sec. 5. Id., Sec. 11. 38 Id. 39 Id., Sec. 12. 40 RULE OF PROCEDURE FOR SMALL CLAIMS, Sec. 4. 41 Administrative Guidelines, Sec. A (1.2). 42 AMENDED RULE OF PROCEDURE FOR SMALL CLAIMS, Sec, 2. 37

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(c) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule, pursuant to Sec. 417 of Republic Act No. 7160 (Local Government Code of 1991).43 (4) Claims that include non-monetary relief, such as eviction, are not eligible44 to avail of the small claims procedures. (5) A defendant may file a counterclaim provided that: a. the amount does not exceed P100,000.00; b. it does not require joinder of third parties; and c. it is not the subject of another action.45 (6) If the counterclaim is not compulsory, i.e., does not arise from the same transaction or event as plaintiff’s claim, defendant must pay docket and other legal fees.46 (7) It is significant to note that the enforcement of a barangay compromise agreement or arbitration award is not limited to P100,000.00, since the KB Law subjects “all disputes.”47 irrespective of the amount involved. The authority of the Lupon is limited only in criminal cases where the offense is punishable by imprisonment not exceeding 1 year or a fine not exceeding P5,000.00, but there is no limit set for civil cases. (8) The enforcement of barangay settlements by action in court may be resorted to only after the lapse of six months from date of settlement.48

43

Said Sec. 17 provides that execution of the settlement or arbitration award may be made by the lupon within six (6) months from date of settlement and thereafter, by action in the proper city or municipal court. 44 AMENDED RULE OF PROCEDURE FOR SMALL CLAIMS, Sec. 4. 45 Id., Sec. 13. 46 Id. 47 Rep. Act. No. 7160, Local Government Code, Chapter 7, Sec. 408. 48 Id., Sec. 417. G-11

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V. OTHER CASES OF SUMMARY PROCEDURES A. Settlement of Estates Section 2, Rule 74 of the Rules of Court authorizes the Summary settlement of estates of small value, whether the decedent died testate or intestate, where the gross value of the estate does not exceed ten thousand pesos (P10,000.00). This provision has not been amended since its promulgation in 1964. Under footnote 23, above, the opinion of the author was given that the increase in amount of what is classified as “small claims” to P100,000.00 under the Rule of Procedures for Small Claims Cases promulgated on October 1, 2008, may have been authorized by implied amendment from the smaller sum of P10,000.00 that was made in 1991 for the Revised Rule on Summary Procedures. Between 1991 to 2008, almost 17 years have elapsed. Between 1964 to 2008, 44 years have elapsed. A fortiori, the inferential amendment may likewise be made. Nonetheless, it should be mentioned that the Rules on Special Proceedings are now undergoing revision under a sub-committee headed by SC Associate Justice Antonio Eduardo Nachura. The proposal for amendment has not yet been submitted to the Supreme Court but an advance copy thereof commendably contains annotations that were made for each amendment.

B. Arbitration Proceedings SPECIAL RULES OF COURT ON ADR49 The following proceedings are declared summary in nature: a. Judicial relief involving issue of existence, validity, or enforceability of the arbitration agreement; b. Referral to ADR; c. Interim measures of protection; d. Appointment of arbitrator; e. Challenge of arbitrator’s appointment; f. Termination of arbitrator’s mandate; g. Assistance in taking evidence; h. Confidentiality/Protective Orders; and 49

Cross reference to ADR by same author, where the Table of Contents of the Special ADR Rules of Court may be found. G-12

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i. Deposit and agreements.50

Enforcement

of

mediated

settlement

A. Features To ensure that the abbreviated periods given in summary procedures are followed, as stated at the outset of this paper, the following provisions have been adopted: 1. No summons is necessary. Court acquires “authority to act on the petition or motion” upon proof of service of the petition or notice of hearing of the motion.51 2. Only personal service or service by courier is allowed.52 Proof of service shall be attached to the petition filed in court. 3. Thus, no service by registered mail is allowed. 4. As with other summary proceedings, certain “pleadings, motions, or petitions shall not be allowed.53 5. To further show its mandatory character, it is directed that said prohibited papers “shall not be accepted by the Clerk of Court.”54 6. It is further directed that the hearing “shall be conducted in one (1) day and only for purposes of clarifying facts.”55

50

SPECIAL RULES OF COURT ON ADR. Rule 1.3. Id., Rule 1.9. 52 Id., Rule 1.3 (A). 53 Id., Rule 1.6 enumerates the disallowed pleadings, as follows: a. Motion to dismiss; b. Motion for bill of particulars; c. Motion for new trial or for re-opening 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 Rules on ADR. 54 Id. 55 Id., Rule 1.3 C. 51

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7. Said hearing shall be conducted by the Court “within five (5) days from the lapse of the period for filing the opposition or comment.”56 8. “The Court shall resolve the matter within thirty (30) days from the day of the hearing.” 57

B. Specific Summary ADR Proceedings a. Judicial Relief as to Arbitration Agreement58 1. The specific issues involved on this matter are: i. whether the arbitration agreement relied upon by a party is in existence; and ii. if so, whether it is valid and enforceable.

2. Any of the foregoing issues may be raised by petition in court by an interested party, either before arbitration commences or thereafter, for a judicial determination of said issues.59

Before Arbitration Commences 3. Venue. The party raising any of the foregoing issues may file a petition before a Regional Trial Court where any of the parties has his principal place of business.60

4. Grounds. The grounds raised may be on the existence of the agreement itself, or that, if it exists, it is void, invalid or unenforceable under the applicable law.61

56

Id. Id., Rule 1.3 (D). 58 Id., Rule 3. 59 Id., Rule 3.1. 60 Id., Rule 3.4. 61 Id., Rule 3.5. 57

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5. Comment/Opposition. The other party may file comment/opposition to said petition within fifteen (15) days from service thereof.62

6. No reconsideration, appeal, or certiorari. The court’s prima facie determination upholding the agreement shall not be subject to a motion for reconsideration, appeal, or certiorari.63

7.Court decision not conclusive. The losing party may, however, renew the challenge before the arbitral tribunal once it is constituted.64

8. Further challenge on jurisdiction. The losing party may still further renew the challenge if he loses in the award by raising the same issue in a petition to vacate or set aside the award in favor of the adverse party.65 After Arbitration Has Commenced 9. Issues on arbitration agreement for Tribunal. The interested party may raise the issues relating to the arbitration agreement as a preliminary question to the arbitral tribunal. 10. Deferral of resolution. The arbitral tribunal may defer ruling on said preliminary question until it renders its award. In this situation, the aggrieved party may not move to reconsider the same or seek judicial relief from said deferral by way of appeal or certiorari.66

11. Tribunal decision to RTC. The resolution of the arbitral tribunal upholding or declining its jurisdiction

62

Id., Rule 3.7. Id., Rule 3.11. 64 Id. 65 Id. 66 Id., Rule 3.20. 63

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may be challenged by petition to the Regional Trial Court within thirty (30) days from notice thereof.67

12. Tribunal as nominal party. The arbitral tribunal shall be included as a nominal party respondent but shall not be required to make any submissions relating to its decision.68

13. Comment/Opposition. The opposing party may file opposition/comment within fifteen (15) days from service of the petition.69

14. Court upholds tribunal jurisdiction. If the court, within thirty (30) days after submission,70 reverses the ruling of the arbitral tribunal declining its jurisdiction, “the parties shall be free to replace the arbitrators or any one of them in accordance with the rules that were applicable for the appointment of the arbitrator sought to be replaced.”71

15. No injunction. The court shall not, during the pendency of the court proceedings, issue any injunctive order against the arbitral tribunal, which may accordingly continue its arbitration proceedings until it renders an award.72

16. No appeal or certiorari. The decision of the court affirming the arbitration agreement and upholding the jurisdiction of the arbitral tribunal, although subject to reconsideration,73 may not be subject to appeal or a petition for certiorari.74

67

Id., Rule 3.13. Id., Rule 3.22. 69 Id., Rule 3.17. 70 Id., Rule 3.18. 71 Id., Rule 3.12. 72 Id., Rule 3.18 (B). 73 Id., Rule 3.19. 74 Id. 68

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17. Certiorari allowed. However, “the ruling of the court that the arbitral tribunal has no jurisdiction, may be the subject of a petition for certiorari.”75 b. Referral to ADR 1. Enforcement of arbitration agreement. A defendant or respondent who is sued in court by a plaintiff or petitioner, who filed the action “in violation of the arbitration agreement,” may file a motion in court, not later than the pre-trial,76 to refer the parties to arbitration in accordance with their agreement.77

2. Notice of hearing. Said motion shall contain a notice of hearing,78 which shall be set on a date and time subsequent to the period allowed to file comment/opposition thereto.

3. Comment/Opposition, Comment/opposition shall be filed within fifteen (15) days from service of the motion.79

4. Subject of arbitration agreement not proper for arbitration. In addition to questioning the existence of the agreement, its validity or enforceability, oppositor may further raise the issue that its subject-matter is not capable of resolution by ADR in accordance with Section 6 of the ADR Act.80 5. No reconsideration, appeal or certiorari. 81 An order referring the dispute to arbitration shall be immediately executory and shall not be subject to reconsideration, appeal, or petition for certiorari.

75

Id. Id., Rule 4.2. 77 Id., Rule 4.1. 78 Id., Rule 4.3. 79 Id., Rule 4.4. 80 Exempted from the ADR Act are: (a) labor disputes; (b) civil status of persons; (c) validity of marriage; (d) grounds for legal separation; (e) jurisdiction of courts; (f) future legitime; (g) criminal liability; and (h) those which by law cannot be compromised. 81 Id., Rule 4.6. 76

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6. Reconsideration or certiorari, but no appeal. “An order denying referral to arbitration may be subject to reconsideration and/or certiorari but shall not be subject to appeal.82 7. No ground for declining referral.83 The court shall not decline to refer some or all of the parties to arbitration for any of the following reasons: a. Not all of the disputes subject of the civil action may be referred to arbitration; b. Not all of the parties to the civil action are bound by the arbitration agreement and referral to arbitration would result in multiplicity of suits; c. The issues raised in the civil action could be speedily and efficiently resolved in its entirety by the court rather than arbitration; d. Referral to arbitration does not appear to be the most prudent action; or the stay of the action would prejudice the rights of the parties to the civil action who are not bound by the arbitration agreement.

8. “The court may, however, issue an order directing the inclusion in arbitration of those who are not bound by the arbitration agreement but who agree to such inclusion, provided those originally bound by it do not object to their inclusion.”84

c. Interim Measures of Protection 1. Nature. This is similar to the provisional remedies in the Rules of Court that are attached to the principal action.85 The requirement of a principal action is not necessary since court intervention in ADR is a special 82

Id. Id., Rule 4.7. 84 Id., last paragraph. 85 RULES OF COURT, Rules 57 to 61. 83

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proceeding initiated by petition and not by complaint.86 Thus, the petition may be filed even if no arbitration has commenced.87

2. Who may petition. A party to an arbitration agreement may file the petition.88

3. Venue. Aside from the usual place of residence/ business, the petition may be filed “where any of the acts sought to be enjoined are being performed, threatened to be performed, or not being performed.”89

4. Grounds. These are not exclusive, but are merely indicative of the reasons that the court may use to grant the relief prayed for:90 NEED of a party to: a. prevent irreparable loss or injury; b. provide security for the performance of any obligation; c. produce or preserve evidence; or d. compel any other appropriate act or omission.

5. Time to file: a. Before arbitration is commenced; b. After arbitration has commenced, but before constitution of the arbitral tribunal;

86

SPECIAL RULES OF COURT ON ADR, Rule 1.2 “Nature of proceedings. - All proceedings under the Special ADR Rules are special proceedings.” 87 Id., Rule 5.2. 88 Id., Rule 5.1. 89 Id., Rule 5.3. 90 Id., Rule 5.4. G-19

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c. Any time during the arbitration proceedings, but only to the extent that the tribunal has no power to act or is unable to act effectively.91

6. Ex parte court action. Urgent need shown by petitioner to: a. preserve property; b. prevent respondent from disposing or concealing property; and that c. prior notice will make the grant of relief prayed for illusory.92

7. Temporary Protective Order. The court may issue this order after determining the existence and urgency of the above needs. Said Order is immediately executory, but good only for twenty (20) days after a bond has been posted by petitioner to answer for any damage that respondent may suffer by reason thereof.93

8. Respondent may file a counterbond to lift said Protective Order in such amount as may be determined by the court.94

9. Comment/Opposition. May be filed within fifteen (15) days from service of petition.95

10. Hearing. The court may set the petition for hearing “only if there is a need for clarification or further argument.”96

91

Id., Rule 5.2. Id., Rule 5.7. 93 Id., Rule 5.9. 94 Id., Rule 5.9 (b). 95 Id., Rule 5.8. 96 Id., Rule 5.9. 92

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11. Court action. Within thirty (30) days from hearing or after the lapse of the period to file comment/opposition,97 the court shall resolve the petition. If it decides to grant it, the court may issue the following interim measures, as: a) Preliminary injunction against respondent; b) Preliminary attachment of property or garnishment of funds in a bank or with a third person; c) Appoint a receiver; d) Detention, preservation, delivery or inspection of property; or e) Give assistance in the enforcement of an interim measure of protection granted by an arbitral tribunal when the latter cannot enforce it effectively.98

12. To show the primacy of arbitration proceedings, it must be noted that the arbitral tribunal may subsequently issue an interim protective order that may amend, modify, or even revoke the earlier order issued by the court on this matter.99 d. Appointment of Arbitrator 1. When court may appoint arbitrator.100 It may be stated as a general rule that recourse to the courts is allowed only in default of what the parties had agreed to follow in the appointment of arbitrators. a) in ad hoc or individual arbitration where the two arbitrators appointed by the parties “have failed to reach an agreement on the third or presiding arbitrator.”101

97

Id. Id., Rule 5.6. 99 Id., Rule 5.11 (c). 100 Id., Rule 6.1. 101 Id., (a). 98

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b) In all instances of ad hoc arbitration where the parties failed to provide a method of appointing or replacing an arbitrator.”102 c)

If a party fails to appoint his arbitrator within thirty (30) days from request to do so.103

2. Venue. Aside from the usual place of residence/ business, the petition may be filed in the National Capital Region.104

3. Comment/Opposition. May be filed within fifteen (15) days from service of petition.105

4. Court action. The court may require each party to submit the names of at least three (3) arbitrators, together with their curriculum vitae and thereafter make the appointment prayed for or deny the same.106

e. Challenge to Appointment of Arbitrator 1. General qualifications of arbitrator.107 Of legal age, in full enjoyment of civil rights, able to read and write, not related by blood or marriage to either party within the sixth degree, no financial or fiduciary interest in the subject of the controversy, and without personal bias that might prejudice the right to a fair and impartial award.

2. Disclosure. A person suffering from any such circumstance, which may be perceived as a ground to disqualify, must disclose the same. However, the parties, after such disclosure, may “waive the presumptive disqualifying circumstance.”108 102

Id., (b). Id., (c). 104 Id., Rule 6.3. 105 Id., Rule 6.5. 106 Id., Rule 6.7. 107 Rep. Act. No. 876, [1953], Sec. 10. 108 Id., (a). 103

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3. Challenge. A party may pose the issue of competence, independence, and neutrality against the arbitrator nominated or appointed by the other party. 4. Condition for judicial recourse. If the arbitrator challenged refuses to recuse, the aggrieved party may request the President of the Integrated Bar of the Philippines, as the Appointing Authority, to rule on the issue. It is only when such person “fails or refuses to act on such challenge within thirty (30) days that the aggrieved party may renew the challenge in court.”109

5. Court action. “After hearing, the court shall remove the challenged arbitrator if it finds merit in the petition; otherwise, it shall dismiss the petition.”110 “The court shall allow the challenged arbitrator, who subsequently agrees to accept the challenge, to withdraw as arbitrator.” The court shall also remove the arbitrator in the following cases: a. The party who named the challenged arbitrator agreed to withdraw his appointment; b. The other arbitrators in the tribunal agree to the removal of the challenged arbitrator; and c. The challenged arbitrator fails to submit his comment or fails to object to his removal.

6. No reconsideration, appeal or certiorari. A court order resolving the petition shall be immediately executory and shall not be subject to reconsideration, appeal or certiorari.111

109

SPECIAL RULES OF COURT ON ADR, Rule 7.2. Id., Rule 7.7. 111 Id., Rule 7.8. 110

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f. Termination of Mandate of Arbitrator 1. Grounds. Where an arbitrator becomes unable de jure or de facto to perform his functions as arbitrator; or fails to act as arbitrator without undue delay; and fails to withdraw as arbitrator upon request of a party.112 a. Court action. After hearing, the court shall, if it finds merit in the petition, terminate the mandate of the challenged arbitrator and shall appoint a substitute arbitrator according to the rules applicable to the appointment of the arbitrator being replaced.113

b. No reconsideration, appeal or certiorari. A court order resolving the petition shall be immediately executory and shall not be subject to reconsideration, appeal, or certiorari.114 g. Assistance in Taking Evidence 1. Grounds and type of assistance. The court may direct any person found in the Philippines to: a) comply with a subpoena duces tecum or ad testificandum; b) appear as witness for taking his deposition upon oral examination or by written interrogatories; c) allow the physical examination of the condition of persons, things, or premises (i.e., photographs, video and other means of recording/ documentation; d) allow the examination and copying of documents; and e) perform any similar acts.115

112

Id., Rule 8.1. Id., Rules 8.6 and 8.8. 114 Id., Rule 8.7. 115 Id., Rules 9.4 & 9.5. 113

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2. Court action. 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 the petitioner to pay the costs attendant to such assistance.

h. Confidentiality/Protective Orders 1. Who may request confidentiality. “A party, counsel or witness who disclosed or 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 confindential, 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.”116

2. Venue. “A petition for a protective order may be filed with the Regional Trial Court where that order would be implemented.”117 

If there is a pending court proceeding in which the information obtained in an ADR proceeding is required to be divulged, or is being divulged, the party seeking to enforce the confidentiality, may file a motion with the court to enjoin the confidential information from being divulged or to suppress said confidential information.118

3. Grounds. “Only if it is shown” by the applicant that material prejudice would be caused by an unauthorized disclosure of the information obtained, or to be obtained, during an ADR proceeding.119

116

Id., Rule 10.1. Id., Rule 10.3. 118 Id. 119 Id., Rule 10.4. 117

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4. Notice. If request for protective order is made by motion, a notice of hearing must be in accordance with Rule 15 of the Rules of Court.120

5. Comment/Opposition. Within fifteen (15) days from service of the petition.121 But if made by motion, within the period set by movant in the notice of hearing “not later than ten (10) days after the filing of the motion.”122 6. Court action.123 In resolving the petition/motion, the court shall be guided by the following principles applicable to all ADR proceedings: Confidential information shall not be subject to discovery and shall be inadmissible in any adversarial proceeding, whether judicial or quasi-judicial. 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. 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, mediator, or non-party participant may refuse to disclose and may prevent any other person from disclosing a mediation communication; c. In such adversarial proceeding, the following persons involved or previously involved in mediation, may not be compelled to disclose confidential information obtained during the mediation: 1. the parties to the dispute; 120

Id., Rule 10.6. Id., Rule 10.7. 122 RULES OF COURT, Rule 15, Sec. 5. 123 SPECIAL RULES OF COURT ON ADR, Rule 10.8. 121

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2. the mediator/s; 3. counsel for the parties; 4. the non-party participant/s; 5. any person/s hired as secretary, stenographer, clerk, or assistant; and 6. any other person/s who obtain or possess confidential information by reason of his/her/their 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; f. A mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his attorney’s fees and related expenses.

7. Relief from court action, The order enjoining the divulging of information shall be immediately executory and may not be enjoined while the order is being questioned in the appellate courts.124 7.1. However, if the court declines to issue an injunction, the aggrieved party may file a motion to reconsider or appeal therefrom.125

8. Sanction. Proper sanction may be imposed by the court upon a person who disobeys the court order to cease from divulging confidential information.

124 125

Id., Rule 10.9. Id. G-27

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i. Deposit/Enforcement Agreements

of

Mediated

Settlement

1. Who makes deposit. “Any party to a mediation that is not court annexed may deposit with the court the written settlement agreement resulting from said mediation,”126 with prior notice to the other party,127 or both parties may jointly make the deposit.

2. Venue. The Regional Trial Court of the place of business or residence of the parties, or in the National Capital Judicial Region.128

3. Registry Book and Certificate of Deposit. The Clerk of Court shall keep a Registry Book chronologically listing all deposits made and shall issue a Certificate of Deposit to the one who made the deposit.

4. Enforcement. The aggrieved party may file a verified petition to enforce an agreement that was breached.129

5. Opposition. The adverse party may file an opposition within fifteen (15) days from service of the petition.130

6.

Court action. The court shall resolve the petition after a summary hearing.131

126

Id., Rule 15.1. Id., Rule 15.3. 128 Id. 129 Id., Rule 15.5. 130 Id., Rule 15.7. 131 Id., Rule 15.8. 127

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