Anda di halaman 1dari 45

[G.R. No. 199650. June 26, 2013.] J PLUS ASIA DEVELOPMENT CORPORATION, petitioner, vs.

UTILITY ASSURANCE CORPORATION, respondent. The Facts Petitioner J Plus Asia Development Corporation entered into a Construction Agreement whereby the latter undertook to build the former's 72-room condominium/hotel located at the Fairways & Bluewaters Golf & Resort in Boracay Island, Malay, Aklan. The project, costing P42,000,000.00, was to be completed within one year or 365 days reckoned from the first calendar day after signing of the Notice of Award and Notice to Proceed and receipt of down payment (20% of contract price). The P8,400,000.00 down payment was fully paid on January 14, 2008. Payment of the balance of the contract price will be based on actual work finished within 15 days from receipt of the monthly progress billings. Per the agreed work schedule, the completion date of the project was December 2008. Mabunay also submitted the required Performance Bond issued by respondent Utility Assurance Corporation (UTASSCO) in the amount equivalent to 20% down payment or P8.4 million. Mabunay commenced work at the project site on January 7, 2008. Petitioner paid up to the 7th monthly progress billing sent by Mabunay. As of September 16, 2008, petitioner had paid the total amount of P15,979,472.03 inclusive of the 20% down payment. However, as of said date, Mabunay had accomplished only 27.5% of the project. In the Joint Construction Evaluation Result and Status Report 8 signed by Mabunay assisted by Arch. Elwin Olavario, and Joo Han Lee assisted by Roy V Movido, the following findings were accepted as true, accurate and correct:
III]STATUS OF PROJECT AS OF 14 NOVEMBER 2008 1)After conducting a joint inspection and evaluation of the project to determine the actual percentage of accomplishment, the contracting parties, assisted by their respective technical groups, SSB assisted by Arch. Elwin Olavario and JPLUS assisted by Engrs. Joey Rojas and Shiela Botardo, concluded and agreed that as of 14 November 2008, the project is only Thirty One point Thirty Nine Percent (31.39%) complete.

ETaSDc

2)Furthermore, the value of construction materials allocated for the completion of the project and currently on site has been determined and agreed to be ONE MILLION FORTY NINE THOUSAND THREE HUNDRED SIXTY FOUR PESOS AND FORTY FIVE CENTAVOS (P1,049,364.45) 3)The additional accomplishment of SSB, reflected in its reconciled and consolidated 8th and 9th billings, is Three point Eighty Five Percent (3.85%) with a gross value of P1,563,553.34 amount creditable to SSB after deducting the withholding tax is P1,538,424.84 4)The unrecouped amount of the down payment is P2,379,441.53 after deducting the cost of materials on site and the net billable amount reflected in the reconciled and consolidated 8th and 9th billings. The uncompleted portion of the project is 68.61% with an estimated value per construction agreement signed is P27,880,419.52. 9 (Emphasis

supplied.) On November 19, 2008, petitioner terminated the contract and sent demand letters to Mabunay and respondent surety. As its demands went unheeded, petitioner filed a Request for Arbitration 10 before the Construction Industry Arbitration Commission (CIAC). Petitioner prayed that Mabunay and respondent be ordered to pay the sums of P8,980,575.89 as liquidated damages and P2,379,441.53 corresponding to the unrecouped down payment or overpayment petitioner made to Mabunay. 11 In his Answer, 12 Mabunay claimed that the delay was caused by retrofitting and other revision works ordered by Joo Han Lee. He asserted that he actually had until April 30, 2009 to finish the project since the 365 days period of completion started only on May 2, 2008 after clearing the retrofitted old structure. Hence, the termination of the contract by petitioner was premature and the filing of the complaint against him was baseless, malicious and in bad faith.
DTcASE

Respondent, on the other hand, filed a motion to dismiss on the ground that petitioner has no cause of action and the complaint states no cause of action against it. The CIAC denied the motion to dismiss. Respondent's motion for reconsideration was likewise denied. 13 In its Answer Ex Abundante Ad Cautelam With Compulsory Counterclaims and Cross-claims, 14 respondent argued that the performance bond merely guaranteed the 20% down payment and not the entire obligation of Mabunay

under the Construction Agreement. Since the value of the project's accomplishment already exceeded the said amount, respondent's obligation under the performance bond had been fully extinguished. As to the claim for alleged overpayment to Mabunay, respondent contended that it should not be credited against the 20% down payment which was already exhausted and such application by petitioner is tantamount to reviving an obligation that had been legally extinguished by payment. Respondent also set up a cross-claim against Mabunay who executed in its favor an Indemnity Agreement whereby Mabunay undertook to indemnify respondent for whatever amounts it may be adjudged liable to pay petitioner under the surety bond. Both petitioner and respondent submitted their respective documentary and testimonial evidence. Mabunay failed to appear in the scheduled hearings and to present his evidence despite due notice to his counsel of record. The CIAC thus declared that Mabunay is deemed to have waived his right to present evidence. 15 On February 2, 2010, the CIAC rendered its Decision award:
16

and made the following

Accordingly, in view of our foregoing discussions and dispositions, the Tribunal hereby adjudges, orders and directs: 1.Respondents Mabunay and Utassco to jointly and severally pay claimant the following: a)P4,469,969.90, as liquidated damages, plus legal interest thereon at the rate of 6% per annum computed from the date of this decision up to the time this decision becomes final, and 12% per annum computed from the date this decision becomes final until fully paid, and b)P2,379,441.53 as unrecouped down payment plus interest thereon at the rate of 6% per annum computed from the date of this decision up to the time this decision becomes final, and 12% per annum computed from the date this decision becomes final until fully paid[.] It being understood that respondent Utassco's liability shall in no case exceed P8.4 million.
ASTDCH

2.Respondent Mabunay to pay to claimant the amount of P98,435.89, which is respondent [Mabunay's] share in the arbitration cost claimant

had advanced, with legal interest thereon from January 8, 2010 until fully paid. 3.Respondent Mabunay to indemnify respondent Utassco of the amounts respondent Utassco will have paid to claimant under this decision, plus interest thereon at the rate of 12% per annum computed from the date he is notified of such payment made by respondent Utassco to claimant until fully paid, and to pay Utassco P100,000.00 as attorney's fees. SO ORDERED.
17

Dissatisfied, respondent filed in the CA a petition for review under Rule 43 of the 1997 Rules of Civil Procedure, as amended. In the assailed decision, the CA agreed with the CIAC that the specific condition in the Performance Bond did not clearly state the limitation of the surety's liability. Pursuant to Article 1377 18 of the Civil Code, the CA said that the provision should be construed in favor of petitioner considering that the obscurely phrased provision was drawn up by respondent and Mabunay. Further, the appellate court stated that respondent could not possibly guarantee the down payment because it is not Mabunay who owed the down payment to petitioner but the other way around. Consequently, the completion by Mabunay of 31.39% of the construction would not lead to the extinguishment of respondent's liability. The P8.4 million was a limit on the amount of respondent's liability and not a limitation as to the obligation or undertaking it guaranteed. However, the CA reversed the CIAC's ruling that Mabunay had incurred delay which entitled petitioner to the stipulated liquidated damages and unrecouped down payment. Citing Aerospace Chemical Industries, Inc. v. Court of Appeals, 19the appellate court said that not all requisites in order to consider the obligor or debtor in default were present in this case. It held that it is only from December 24, 2008 (completion date) that we should reckon default because the Construction Agreement provided only for delay in the completion of the project and not delay on a monthly basis using the work schedule approved by petitioner as the reference point. Hence, petitioner's termination of the contract was premature since the delay in this case was merely speculative; the obligation was not yet demandable. The dispositive portion of the CA Decision reads:
WHEREFORE, premises considered, the instant petition for review is GRANTED. The assailed Decision dated 13 January 2010 rendered by

the CIAC Arbitral Tribunal in CIAC Case No. 03-2009 is hereby REVERSED and SET ASIDE. Accordingly, the Writ of Execution dated 24 November 2010 issued by the same tribunal is hereby ANNULLED and SET ASIDE. SO ORDERED.
20

Petitioner moved for reconsideration of the CA decision while respondent filed a motion for partial reconsideration. Both motions were denied. The Issues Before this Court petitioner seeks to reverse the CA insofar as it denied petitioner's claims under the Performance Bond and to reinstate in its entirety the February 2, 2010 CIAC Decision. Specifically, petitioner alleged that
A.THE COURT OF APPEALS SERIOUSLY ERRED IN NOT HOLDING THAT THE ALTERNATIVE DISPUTE RESOLUTION ACT AND THE SPECIAL RULES ON ALTERNATIVE DISPUTE RESOLUTION HAVE STRIPPED THE COURT OF APPEALS OF JURISDICTION TO REVIEW ARBITRAL AWARDS. B.THE COURT OF APPEALS SERIOUSLY ERRED IN REVERSING THE ARBITRAL AWARD ON AN ISSUE THAT WAS NOT RAISED IN THE ANSWER. NOT IDENTIFIED IN THE TERMS OF REFERENCE, NOT ASSIGNED AS AN ERROR, AND NOT ARGUED IN ANY OF THE PLEADINGS FILED BEFORE THE COURT. C.THE COURT OF APPEALS SERIOUSLY ERRED IN RELYING ON THE CASE OF AEROSPACE CHEMICAL INDUSTRIES, INC. v. COURT OF APPEALS, 315 SCRA 94, WHICH HAS NOTHING TO DO WITH CONSTRUCTION AGREEMENTS. 21

Our Ruling On the procedural issues raised, we find no merit in petitioner's contention that with the institutionalization of alternative dispute resolution under Republic Act (R.A.) No. 9285, 22 otherwise known as the Alternative Dispute Resolution Act of 2004, the CA was divested of jurisdiction to review the decisions or awards of the CIAC. Petitioner erroneously relied on the provision in said law allowing any party to a domestic arbitration to file in the Regional Trial Court (RTC) a petition either to confirm, correct or vacate a domestic arbitral award.

We hold that R.A. No. 9285 did not confer on regional trial courts jurisdiction to review awards or decisions of the CIAC in construction disputes. On the contrary, Section 40 thereof expressly declares that confirmation by the RTC is not required, thus:
SEC. 40.Corifirmation of Award. The confirmation of a domestic arbitral award shall be governed by Section 23 of R.A. 876. A domestic arbitral award when confirmed shall be enforced in the same manner as final and executory decisions of the Regional Trial Court. The confirmation of a domestic award shall be made by the regional trial court in accordance with the Rules of Procedure to be promulgated by the Supreme Court. A CIAC arbitral award need not be confirmed by the regional trial court to be executory as provided under E.O. No. 1008. (Emphasis supplied.)
aAHSEC

Executive Order (EO) No. 1008 vests upon the CIAC 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. By express provision of Section 19 thereof, the arbitral award of the CIAC is final and unappealable, except on questions of law, which are appealable to the Supreme Court. With the amendments introduced by R.A. No. 7902 and promulgation of the 1997 Rules of Civil Procedure, as amended, the CIAC was included in the enumeration of quasi-judicial agencies whose decisions or awards may be appealed to the CA in a petition for review under Rule 43. Such review of the CIAC award may involve either questions of fact, of law, or of fact and law. 23 Petitioner misread the provisions of A.M. No. 07-11-08-SC (Special ADR Rules) promulgated by this Court and which took effect on October 30, 2009. Since R.A. No. 9285 explicitly excluded CIAC awards from domestic arbitration awards that need to be confirmed to be executory, said awards are therefore not covered by Rule 11 of the Special ADR Rules,24 as they continue to be governed by EO No. 1008, as amended and the rules of procedure of the CIAC. The CIAC Revised Rules of Procedure Governing Construction Arbitration 25 provide for the manner and mode of appeal from CIAC decisions or awards in Section 18 thereof, which reads:

SECTION 18.2Petition for review. A petition for review from a final award may be taken by any of the parties within fifteen (15) days from receipt thereof in accordance with the provisions of Rule 43 of the Rules of Court.

As to the alleged error committed by the CA in deciding the case upon an issue not raised or litigated before the CIAC, this assertion has no basis. Whether or not Mabunay had incurred delay in the performance of his obligations under the Construction Agreement was the very first issue stipulated in the Terms of Reference 26 (TOR), which is distinct from the issue of the extent of respondent's liability under the Performance Bond. Indeed, resolution of the issue of delay was crucial upon which depends petitioner's right to the liquidated damages pursuant to the Construction Agreement. Contrary to the CIAC's findings, the CA opined that delay should be reckoned only after the lapse of the one-year contract period, and consequently Mabunay's liability for liquidated damages arises only upon the happening of such condition.
ESDcIA

We reverse the CA. Default or mora on the part of the debtor is the delay in the fulfillment of the prestation by reason of a cause imputable to the former. It is the non-fulfillment of an obligation with respect to time. 27 Article 1169 of the Civil Code provides:
ART. 1169.Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation. xxx xxx xxx

It is a general rule that one who contracts to complete certain work within a certain time is liable for the damage for not completing it within such time, unless the delay is excused or waived. 28 The Construction Agreement provides in Article 10 thereof the following conditions as to completion time for the project:
1.The CONTRACTOR shall complete the works called for under this Agreement within ONE (1) YEAR or 365 Days reckoned from the

1st calendar day after signing of the Notice of Award and Notice to Proceed and receipt of down payment. 2.In this regard the CONTRACTOR shall submit a detailed work schedule for approval by OWNER within Seven (7) days after signing of this Agreement and full payment of 20% of the agreed contract price. Said detailed work schedule shall follow the general schedule of activities and shall serve as basis for the evaluation of the progress of work by CONTRACTOR. 29

In this jurisdiction, the following requisites must be present in order that the debtor may be in default: (1) that the obligation be demandable and already liquidated; (2) that the debtor delays performance; and (3) that the creditor requires the performance judicially or extrajudicially. 30 In holding that Mabunay has not at all incurred delay, the CA pointed out that the obligation to perform or complete the project was not yet demandable as of November 19, 2008 when petitioner terminated the contract, because the agreed completion date was still more than one month away (December 24, 2008). Since the parties contemplated delay in the completion of the entire project, the CA concluded that the failure of the contractor to catch up with schedule of work activities did not constitute delay giving rise to the contractor's liability for damages. We cannot sustain the appellate court's interpretation as it is inconsistent with the terms of the Construction Agreement. Article 1374 of the Civil Code requires that the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. Here, the work schedule approved by petitioner was intended, not only to serve as its basis for the payment of monthly progress billings, but also for evaluation of the progress of work by the contractor. Article 13.01 (g) (iii) of the Construction Agreement provides that the contractor shall be deemed in default if, among others, it had delayed without justifiable cause the completion of the project "by more than thirty (30) calendar days based on official work schedule duly approved by the OWNER." 31 Records showed that as early as April 2008, or within four months after Mabunay commenced work activities, the project was already behind schedule for reasons not attributable to petitioner. In the succeeding months, Mabunay was still unable to catch up with his accomplishment even as petitioner constantly advised him of the delays, as can be gleaned from the following notices of delay sent by petitioner's engineer and construction manager, Engr. Sheila N. Botardo:

April 30, 2008 Seven Shades of Blue Boracay Island Malay, Aklan Attention : Mr. Martin Mabunay General Manager : Engr. Reynaldo Gapasin : Villa Beatriz : Notice of Delay Dear Mr. Mabunay:
cIEHAC

Thru Project Subject

This is to formalize our discussion with your Engineers during our meeting last April 23, 2008 regarding the delay in the implementation of major activities based on your submitted construction schedule. Substantial delay was noted in concreting works that affects your roof framing that should have been 40% completed as of this date. This delay will create major impact on your over-all schedule as the finishing works will all be dependent on the enclosure of the building. In this regard, we recommend that you prepare a catch-up schedule and expedite the delivery of critical materials on site. We would highly appreciate if you could attend our next regular meeting so we could immediately address this matter. Thank you. Very truly yours, Engr. Sheila N. Botardo Construction Manager LMI/FEPI October 15, 2008 xxx xxx xxx Dear Mr. Mabunay, We have noticed continuous absence of all the Engineers that you have assigned on-site to administer and supervise your contracted work. For the past two (2) weeks[,] your company does not have a

32

Technical Representative manning the jobsite considering the critical activities that are in progress and the delays in schedule that you have already incurred. In this regard, we would highly recommend the immediate replacement of your Project Engineer within the week. We would highly appreciate your usual attention on this matter. xxx xxx xxx November 5, 2008 xxx xxx xxx Dear Mr. Mabunay, This is in reference to your discussion during the meeting with Mr. Joohan Lee last October 30, 2008 regarding the construction of the Field Office and Stock Room for Materials intended for Villa Beatriz use only. We understand that you have committed to complete it November 5, 2008 but as of this date there is no improvement or any ongoing construction activity on the said field office and stockroom. We are expecting deliveries of Owner Supplied Materials very soon, therefore, this stockroom is badly needed. We will highly appreciate if this matter will be given your immediate attention.
SIaHDA

33

Thank you. xxx xxx xxx November 6, 2008 xxx xxx xxx Dear Mr. Mabunay, We would like to call your attention regarding the decrease in your manpower assigned on site. We have observed that for the past three (3) weeks instead of increasing your manpower to catch up with the delay it was reduced to only 8 workers today from an average of 35 workers in the previous months. Please note that based on your submitted revised schedule you are already delayed by approximately 57% and this will worsen should you not address this matter properly.
34

We are looking forward for [sic] your cooperation and continuous commitment in delivering this project as per contract agreement. xxx xxx xxx
35

Subsequently, a joint inspection and evaluation was conducted with the assistance of the architects and engineers of petitioner and Mabunay and it was found that as of November 14, 2008, the project was only 31.39% complete and that the uncompleted portion was 68.61% with an estimated value per Construction Agreement as P27,880,419.52. Instead of doubling his efforts as the scheduled completion date approached, Mabunay did nothing to remedy the delays and even reduced the deployment of workers at the project site. Neither did Mabunay, at anytime, ask for an extension to complete the project. Thus, on November 19, 2008, petitioner advised Mabunay of its decision to terminate the contract on account of the tremendous delay the latter incurred. This was followed by the claim against the Performance Bond upon the respondent on December 18, 2008. Petitioner's claim against the Performance Bond included the liquidated damages provided in the Construction Agreement, as follows:
ARTICLE 12 LIQUIDATED DAMAGES: 12.01Time is of the essence in this Agreement. Should the CONTRACTOR fail to complete the PROJECT within the period stipulated herein or within the period of extension granted by the OWNER, plus One (1) Week grace period, without any justifiable reason, the CONTRACTOR hereby agrees a.The CONTRACTOR shall pay the OWNER liquidated damages equivalent to One Tenth of One Percent (1/10 of 1%) of the Contract Amount for each day of delay after any and all extensions and the One (1) week Grace Period until completed by the CONTRACTOR.
AcDHCS

b.The CONTRACTOR, even after paying for the liquidated damages due to unexecuted works and/or delays shall not relieve it of the obligation to complete and finish the construction. Any sum which maybe payable to the OWNER for such loss may be deducted from the amounts retained under Article 9 or retained by the OWNER when the works called for under this Agreement have been finished and completed.

Liquidated Damage[s] payable to the OWNER shall be automatically deducted from the contractors collectibles without prior consent and concurrence by the CONTRACTOR. 12.02To give full force and effect to the foregoing, the CONTRACTOR hereby, without necessity of any further act and deed, authorizes the OWNER to deduct any amount that may be due under Item (a) above, from any and all money or amounts due or which will become due to the CONTRACTOR by virtue of this Agreement and/or to collect such amounts from the Performance Bond filed by the CONTRACTOR in this Agreement. 36 (Emphasis supplied.)

Liability for liquidated damages is governed by Articles 2226 to 2228 of the Civil Code, which provide:
ART. 2226.Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof. ART. 2227.Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable. ART. 2228.When the breach of the contract committed by the defendant is not the one contemplated by the parties in agreeing upon the liquidated damages, the law shall determine the measure of damages, and not the stipulation.

A stipulation for liquidated damages is attached to an obligation in order to ensure performance and has a double function: (1) to provide for liquidated damages, and (2) to strengthen the coercive force of the obligation by the threat of greater responsibility in the event of breach. 37 The amount agreed upon answers for damages suffered by the owner due to delays in the completion of the project. 38 As a precondition to such award, however, there must be proof of the fact of delay in the performance of the obligation. 39 Concededly, Article 12.01 of the Construction Agreement mentioned only the failure of the contractor to complete the project within the stipulated period or the extension granted by the owner. However, this will not defeat petitioner's claim for damages nor respondent's liability under the Performance Bond. Mabunay was clearly in default considering the dismal percentage of his accomplishment (32.38%) of the work he contracted on account of delays in executing the scheduled work activities and repeated failure to provide sufficient

manpower to expedite construction works. The events of default and remedies of the Owner are set forth in Article 13, which reads:
IDTHcA

ARTICLE 13 DEFAULT OF CONTRACTOR: 13.01Any of the following shall constitute an Event of Default on the [part] of the CONTRACTOR. xxx xxx xxx g.In case the CONTRACTOR has done any of the following: (i.)has abandoned the Project (ii.)without reasonable cause, has failed to commence the construction or has suspended the progress of the Project for twenty-eight days (iii.)without justifiable cause, has delayed the completion of the Project by more than thirty (30) calendar days based on official work schedule duly approved by the OWNER (iv.)despite previous written warning by the OWNER, is not executing the construction works in accordance with the Agreement or is persistently or flagrantly neglecting to carry out its obligations under the Agreement. (v.)has, to the detriment of good workmanship or in defiance of the Owner's instructions to the contrary, sublet any part of the Agreement. 13.02If the CONTRACTOR has committed any of the above reasons cited in Item 13.01, the OWNER may after giving fourteen (14) calendar days notice in writing to the CONTRACTOR, enter upon the site and expel the CONTRACTOR therefrom without voiding this Agreement, or releasing the CONTRACTOR from any of its obligations, and liabilities under this Agreement. Also without diminishing or affecting the rights and powers conferred on the OWNER by this Agreement and the OWNER may himself complete the work or may employ any other contractor to complete the work. If the OWNER shall enter and expel the CONTRACTOR under this clause, the OWNER shall be entitled to confiscate the performance bond of the CONTRACTOR to compensate for all kinds of damages the OWNER may suffer. All expenses incurred to finish the Project shall

be charged to the CONTRACTOR and/or his bond. Further, the OWNER shall not be liable to pay the CONTRACTOR until the cost of execution, damages for the delay in the completion, if any, and all; other expenses incurred by the OWNER have been ascertained which amount shall be deducted from any money due to the CONTRACTOR on account of this Agreement. The CONTRACTOR will not be compensated for any loss of profit, loss of goodwill, loss of use of any equipment or property, loss of business opportunity, additional financing cost or overhead or opportunity losses related to the unaccomplished portions of the work. 40 (Emphasis supplied.)

As already demonstrated, the contractor's default in this case pertains to his failure to substantially perform the work on account of tremendous delays in executing the scheduled work activities. Where a party to a building construction contract fails to comply with the duty imposed by the terms of the contract, a breach results for which an action may be maintained to recover the damages sustained thereby, and of course, a breach occurs where the contractor inexcusably fails to perform substantially in accordance with the terms of the contract. 41 The plain and unambiguous terms of the Construction Agreement authorize petitioner to confiscate the Performance Bond to answer for all kinds of damages it may suffer as a result of the contractor's failure to complete the building. Having elected to terminate the contract and expel the contractor from the project site under Article 13 of the said Agreement, petitioner is clearly entitled to the proceeds of the bond as indemnification for damages it sustained due to the breach committed by Mabunay. Such stipulation allowing the confiscation of the contractor's performance bond partakes of the nature of a penalty clause. A penalty clause, expressly recognized by law, is an accessory undertaking to assume greater liability on the part of the obligor in case of breach of an obligation. It functions to strengthen the coercive force of obligation and to provide, in effect, for what could be the liquidated damages resulting from such a breach. The obligor would then be bound to pay the stipulated indemnity without the necessity of proof on the existence and on the measure of damages caused by the breach. It is well-settled that so long as such stipulation does not contravene law, morals, or public order, it is strictly binding upon the obligor. 42 Respondent, however, insists that it is not liable for the breach committed by Mabunay because by the terms of the surety bond it issued, its liability is limited to the performance by said contractor to the extent equivalent to 20% of the down payment. It stresses that with the 32.38% completion of the project by Mabunay, its liability was extinguished because the value of such

accomplishment already exceeded the sum equivalent to 20% down payment (P8.4 million). The appellate court correctly rejected this theory of respondent when it ruled that the Performance Bond guaranteed the full and faithful compliance of Mabunay's obligations under the Construction Agreement, and that nowhere in law or jurisprudence does it state that the obligation or undertaking by a surety may be apportioned.
CaESTA

The pertinent portions of the Performance Bond provide:


The conditions cf this obligation are as follows:
Whereas the JPLUS ASIA, requires the principal SEVEN SHADES OF BLUE CONSTRUCTION AND DEVELOPMENT, INC. to post a bond of the abovestated sum to guarantee 20% down payment for the construction of Building 25 (Villa Beatriz) 72-Room Condotel, The Lodgings inside Fairways and Bluewater, Boracay Island, Malay, Aklan. Whereas, said contract required said Principal to give a good and sufficient bond in the above-stated sum to secure the full and faithful performance on his part of said contract.

It is a special provision of this undertaking that the liability of the surety under this bond shall in no case exceed the sum of P8,400,000.00 Philippine Currency.
Now, Therefore, if the Principal shall well and truly perform and fulfill all the undertakings, covenants, terms, conditions and agreements stipulated in said contract, then this obligation shall be null and void; otherwise to remain in full force and effect. 43 (Emphasis supplied.)

AIHaCc

While the above condition or specific guarantee is unclear, the rest of the recitals in the bond unequivocally declare that it secures the full and faithful performance of Mabunay's obligations under the Construction Agreement with petitioner. By its nature, a performance bond guarantees that the contractor will perform the contract, and usually provides that if the contractor defaults and fails to complete the contract, the surety can itself complete the contract or pay damages up to the limit of the bond. 44 Moreover, the rule is that if the language of the bond is ambiguous or uncertain, it will be construed most strongly against a compensated surety and in favor of the obligees or beneficiaries under the bond,

in this case petitioner as the Project Owner, for whose benefit it was ostensibly executed. 45 The imposition of interest on the claims of petitioner is likewise in order. As we held in Commonwealth Insurance Corporation v. Court of Appeals. 46
Petitioner argues that it should not be made to pay interest because its issuance of the surety bonds was made on the condition that its liability shall in no case exceed the amount of the said bonds. We are not persuaded. Petitioner's argument is misplaced. Jurisprudence is clear on this matter. As early as Tagawa vs. Aldanese and Union Guarantee Co. and reiterated in Plaridel Surety & Insurance Co., Inc. vs. P.L. Galang Machinery Co., Inc., and more recently, in Republic vs. Court of Appeals and R & B Surety and Insurance Company, Inc., we have sustained the principle that if a surety upon demand fails to pay, he can be held liable for interest, even if in thus paying, its liability becomes more than the principal obligation. The increased liability is not because of the contract but because of the default and the necessity of judicial collection. Petitioner's liability under the suretyship contract is different from its liability under the law. There is no question that as a surety, petitioner should not be made to pay more than its assumed obligation under the surety bonds. However, it is clear from the above-cited jurisprudence that petitioner's liability for the payment of interest is not by reason of the suretyship agreement itself but because of the delay in the payment of its obligation under the said agreement. 47 (Emphasis supplied; citations omitted.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated January 27, 2011 and Resolution dated December 8, 2011 of the Court of Appeals in CA-G.R. SP No. 112808 are hereby REVERSED and SET ASIDE. The Award made in the Decision dated February 2, 2010 of the Construction Industry Arbitration Commission is herebyREINSTATED with the following MODIFICATIONS:
"Accordingly, in view of our foregoing discussions and dispositions, the Tribunal hereby adjudges, orders and directs:
HDTSCc

1)Respondent Utassco to pay to petitioner J Plus Asia Development Corporation the full amount of the Performance Bond, P8,400,000.00, pursuant to Art. 13 of the Construction Agreement dated December 24, 2007, with interest at the rate of 6% per annum computed from the date of the filing of the complaint until the finality of this decision, and 12% per annum computed from the date this decision becomes final until fully paid; and 2)Respondent Mabunay to indemnify respondent Utassco of the amounts respondent Utassco will have paid to claimant under this decision, plus interest thereon at the rate of 12% per annum computed from the date he is notified of such payment made by respondent Utassco to claimant until fully paid, and to pay Utassco P100,000.00 as attorney's fees. SO ORDERED."

With the above modifications, the Writ of Execution dated November 24, 2010 issued by the CIAC Arbitral Tribunal in CIAC Case No. 03-2009 is hereby REINSTATED and UPHELD. No pronouncement as to costs. SO ORDERED.

Sereno, C.J., Leonardo-de Castro, Bersamin and Reyes, JJ., concur.

[G.R. No. 198075. September 4, 2013.] KOPPEL, INC. (formerly known as KPL AIRCON, INC.), petitioner, vs. MAKATI ROTARY CLUB FOUNDATION, INC., respondent. This case is an appeal 1 from the Decision of Appeals in C.A.-G.R. SP No. 116865. The facts:
2

dated 19 August 2011 of the Court

The Donation

Fedders Koppel, Incorporated (FKI), a manufacturer of air-conditioning products, was the registered owner of a parcel of land located at Km. 16, South Superhighway, Paraaque City (subject land). 3 Within the subject land are buildings and other improvements dedicated to the business of FKI. 4 In 1975, FKI 5 bequeathed the subject land (exclusive of the improvements thereon) in favor of herein respondent Makati Rotary Club Foundation, Incorporated by way of a conditional donation. 6 The respondent accepted the donation with all of its conditions. 7 On 26 May 1975, FKI and the respondent executed a Deed of Donation 8 evidencing their consensus.
DHcSIT

The Lease and the Amended Deed of Donation


One of the conditions of the donation required the respondent to lease the subject land back to FKI under terms specified in their Deed of Donation. 9 With the respondent's acceptance of the donation, a lease agreement between FKI and the respondent was, therefore, effectively incorporated in the Deed of Donation. Pertinent terms of such lease agreement, as provided in the Deed of Donation, were as follows: 1.The period of the lease is for twenty-five (25) years, the 25th of May 2000;
10

or until

2.The amount of rent to be paid by FKI for the first twenty-five (25) years is P40,126.00 per annum.11 The Deed of Donationalso stipulated that the lease over the subject property is renewable for another period of twenty-five (25) years "upon mutual agreement" of FKI and the respondent. 12 In which case, the amount of rent shall be determined in accordance with item 2 (g) of the Deed of Donation, viz.:
g.The rental for the second 25 years shall be the subject of mutual agreement and in case of disagreement the matter shall be referred to a Board of three Arbitrators appointed and with powers in accordance with the Arbitration Law of the Philippines, Republic Act 878, whose function shall be to decide the current fair market value of the land excluding the improvements, provided, that, any increase in the fair market value of the land shall not exceed twenty five percent (25%) of the original value of the land donated as stated in paragraph 2(c) of this Deed. The rental for the second 25 years shall not exceed three percent (3%) of the fair

market value of the land excluding the improvements as determined by the Board of Arbitrators. 13

In October 1976, FKI and the respondent executed an Amended Deed of Donation 14 that reiterated the provisions of the Deed of Donation, including those relating to the lease of the subject land. Verily, by virtue of the lease agreement contained in the Deed of Donation and Amended Deed of Donation, FKI was able to continue in its possession and use of the subject land.

2000 Lease Contract


Two (2) days before the lease incorporated in the Deed of Donation and Amended Deed of Donation was set to expire, or on 23 May 2000, FKI and respondent executed another contract of lease (2000 Lease Contract) 15 covering the subject land. In this 2000 Lease Contract, FKI and respondent agreed on a new five-year lease to take effect on the 26th of May 2000, with annual rents ranging from P4,000,000 for the first year up to P4,900,000 for the fifth year. 16 The 2000 Lease Contract also contained an arbitration clause enforceable in the event the parties come to disagreement about the "interpretation, application and execution" of the lease, viz.:
EcAHDT

19.Governing Law The provisions of this [2000 Lease Contract] shall be governed, interpreted and construed in all aspects in accordance with the laws of the Republic of the Philippines. Any disagreement as to the interpretation, application or execution of this [2000 Lease Contract] shall be submitted to a board of three (3) arbitrators constituted in accordance with the arbitration law of the Philippines. The decision of the majority of the arbitrators shall be binding upon [FKI and respondent]. 17 (Emphasis supplied)

2005 Lease Contract


After the 2000 Lease Contract expired, FKI and respondent agreed to renew their lease for another five (5) years. This new lease (2005 Lease Contract) 18 required FKI to pay a fixed annual rent of P4,200,000. 19 In addition to paying the fixed rent, however, the 2005 Lease Contract also obligated FKI to

make a yearly "donation" of money to the respondent. 20 Such donations ranged from P3,000,000 for the first year up to P3,900,000 for the fifth year. 21 Notably, the 2005 Lease Contract contained an arbitration clause similar to that in the 2000 Lease Contract, to wit:
19.Governing Law The provisions of this [2005 Lease Contract] shall be governed, interpreted and construed in all aspects in accordance with the laws of the Republic of the Philippines. Any disagreement as to the interpretation, application or execution of this [2005 Lease Contract] shall be submitted to a board of three (3) arbitrators constituted in accordance with the arbitration law of the Philippines. The decision of the majority of the arbitrators shall be binding upon [FKI and respondent]. 22 (Emphasis supplied)

The Assignment and Petitioner's Refusal to Pay


From 2005 to 2008, FKI faithfully paid the rentals and "donations" due it per the 2005 Lease Contract. 23 But in June of 2008, FKI sold all its rights and properties relative to its business in favor of herein petitioner Koppel, Incorporated. 24On 29 August 2008, FKI and petitioner executed an Assignment and Assumption of Lease and Donation 25 wherein FKI, with the conformity of the respondent, formally assigned all of its interests and obligations under the Amended Deed of Donation and the 2005 Lease Contract in favor of petitioner.
EDcICT

The following year, petitioner discontinued the payment of the rent and "donation" under the 2005 Lease Contract. Petitioner's refusal to pay such rent and "donation" emanated from its belief that the rental stipulations of the 2005 Lease Contract, and even of the 2000 Lease Contract, cannot be given effect because they violated one of the "material conditions" of the donation of the subject land, as stated in the Deed of Donation and Amended Deed of Donation. 26 According to petitioner, the Deed of Donation and Amended Deed of Donation actually established not only one but two (2) lease agreements between FKI and respondent, i.e., one lease for the first twenty-five (25) years or from 1975 to 2000, and another lease for the next twenty-five (25) years

thereafter or from 2000 to 2025. donation of the subject land.

27

Both leases are material conditions of the

Petitioner points out that while a definite amount of rent for the second twentyfive (25) year lease was not fixed in theDeed of Donation and Amended Deed of Donation, both deeds nevertheless prescribed rules and limitations by which the same may be determined. Such rules and limitations ought to be observed in any succeeding lease agreements between petitioner and respondent for they are, in themselves, material conditions of the donation of the subject land.28 In this connection, petitioner cites item 2 (g) of the Deed of Donation and Amended Deed of Donation that supposedly limits the amount of rent for the lease over the second twenty-five (25) years to only "three percent

(3%) of the fair market value of the [subject] land excluding the improvements." 29

For petitioner then, the rental stipulations of both the 2000 Lease Contract and 2005 Lease Contract cannot be enforced as they are clearly, in view of their exorbitant exactions, in violation of the aforementioned threshold in item 2 (g) of theDeed of Donation and Amended Deed of Donation. Consequently, petitioner insists that the amount of rent it has to pay thereon is and must still be governed by the limitations prescribed in the Deed of Donation and Amended Deed of Donation. 30
cIECaS

The Demand Letters


On 1 June 2009, respondent sent a letter (First Demand Letter) 31 to petitioner notifying the latter of its default "per Section 12 of the [2005 Lease Contract]" and demanding for the settlement of the rent and "donation" due for the year 2009. Respondent, in the same letter, further intimated of cancelling the 2005 Lease Contract should petitioner fail to settle the said obligations. 32 Petitioner received the First Demand Letter on 2 June 2009. 33 On 22 September 2009, petitioner sent a reply 34 to respondent expressing its disagreement over the rental stipulations of the 2005 Lease Contract calling them "severely disproportionate," "unconscionable" and "in clear violation to the nominal rentals mandated by the Amended Deed of Donation." In lieu of the amount demanded by the respondent, which purportedly totaled to P8,394,000.00, exclusive of interests, petitioner offered to pay only P80,502.79, 35 in accordance with the rental provisions of the Deed of Donation and Amended Deed of Donation. 36 Respondent refused this offer. 37

On 25 September 2009, respondent sent another letter (Second Demand Letter) 38 to petitioner, reiterating its demand for the payment of the obligations already due under the 2005 Lease Contract. The Second Demand Letter also contained a demand for petitioner to "immediately vacate the leased premises" should it fail to pay such obligations within seven (7) days from its receipt of the letter. 39 The respondent warned of taking "legal steps" in the event that petitioner failed to comply with any of the said demands. 40 Petitioner received the Second Demand Letter on 26 September 2009. 41 Petitioner refused to comply with the demands of the respondent. Instead, on 30 September 2009, petitioner filed with the Regional Trial Court (RTC) of Paraaque City a complaint 42 for the rescission or cancellation of the Deed of Donation and Amended Deed of Donation against the respondent. This case is currently pending before Branch 257 of the RTC, docketed as Civil Case No. CV 09-0346.

The Ejectment Suit


On 5 October 2009, respondent filed an unlawful detainer case 43 against the petitioner before the Metropolitan Trial Court (MeTC) of Paraaque City. The ejectment case was raffled to Branch 77 and was docketed as Civil Case No. 2009-307.
DTEScI

On 4 November 2009, petitioner filed an Answer with Compulsory Counterclaim. 44 In it, petitioner reiterated its objection over the rental stipulations of the 2005 Lease Contract for being violative of the material conditions of theDeed of Donation and Amended Deed of Donation. 45 In addition to the foregoing, however, petitioner also interposed the following defenses: 1.The MeTC was not able to validly acquire jurisdiction over the instant unlawful detainer case in view of the insufficiency of respondent's demand. 46 The First Demand Letter did not contain an actual demand to vacate the premises and, therefore, the refusal to comply therewith does not give rise to an action for unlawful detainer. 47 2.Assuming that the MeTC was able to acquire jurisdiction, it may not exercise the same until the disagreement between the parties is first referred to arbitration pursuant to the arbitration clause of the 2005 Lease Contract. 48

3.Assuming further that the MeTC has jurisdiction that it can exercise, ejectment still would not lie as the 2005 Lease Contract is void ab initio. 49 The stipulation in the 2005 Lease Contract requiring petitioner to give yearly "donations" to respondent is a simulation, for they are, in fact, parts of the rent. 50 Such grants were only denominated as "donations" in the contract so that the respondent a non-stock and non-profit corporation could evade payment of the taxes otherwise due thereon.

51

In due course, petitioner and respondent both submitted their position papers, together with their other documentary evidence. 52 Remarkably, however, respondent failed to submit the Second Demand Letter as part of its documentary evidence.

Rulings of the MeTC, RTC and Court of Appeals


On 27 April 2010, the MeTC rendered judgment 53 in favor of the petitioner. While the MeTC refused to dismiss the action on the ground that the dispute is subject to arbitration, it nonetheless sided with the petitioner with respect to the issues regarding the insufficiency of the respondent's demand and the nullity of the 2005 Lease Contract. 54 The MeTC thus disposed:
DcCIAa

WHEREFORE, judgment is hereby rendered dismissing the case . . ., without pronouncement as to costs. SO ORDERED.
55

The respondent appealed to the Regional Trial Court (RTC). This appeal was assigned to Branch 274 of the RTC of Paraaque City and was docketed as Civil Case No. 10-0255. On 29 October 2010, the RTC reversed the petitioner from the subject land:
56

the MeTC and ordered the eviction of

WHEREFORE, all the foregoing duly considered, the appealed Decision of the Metropolitan Trial Court, Branch 77, Paraaque City, is hereby reversed, judgment is thus rendered in favor of the plaintiff-appellant and against the defendant-appellee, and ordering the latter (1)to vacate the lease[d] premises made subject of the case and to restore the possession thereof to the plaintiff-appellant;

(2)to pay to the plaintiff-appellant the amount of Nine Million Three Hundred Sixty Two Thousand Four Hundred Thirty Six Pesos (P9,362,436.00), penalties and net of 5% withholding tax, for the lease period from May 25, 2009 to May 25, 2010 and such monthly rental as will accrue during the pendency of this case; (3)to pay attorney's fees in the sum of P100,000.00 plus appearance fee of P3,000.00; (4)and costs of suit. As to the existing improvements belonging to the defendantappellee, as these were built in good faith, the provisions of Art. 1678 of the Civil Code shall apply. SO ORDERED.
57
DCcHAa

The ruling of the RTC is premised on the following ratiocinations: 1.The respondent had adequately complied with the requirement of demand as a jurisdictional precursor to an unlawful detainer actions. 58 The First Demand Letter, in substance, contains a demand for petitioner to vacate when it mentioned that it was a notice "per Section 12 of the [2005 Lease Contract]." 59 Moreover, the issue of sufficiency of the respondent's demand ought to have been laid to rest by the Second Demand Letter which, though not submitted in evidence, was nonetheless admitted by petitioner as containing a "demand to eject" in its Answer with

Compulsory Counterclaim.

60

2.The petitioner cannot validly invoke the arbitration clause of the 2005 Lease Contract while, at the same time, impugn such contract's validity. 61 Even assuming that it can, petitioner still did not file a formal application before the MeTC so as to render such arbitration clause operational. 62 At any rate, the MeTC would not be precluded from exercising its jurisdiction over an action for unlawful detainer, over which, it has exclusive original jurisdiction. 63 3.The 2005 Lease Contract must be sustained as a valid contract since petitioner was not able to adduce any evidence to

support its allegation that the same is void. 64 There was, in this case, no evidence that respondent is guilty of any tax evasion. 65 Aggrieved, the petitioner appealed to the Court of Appeals. On 19 August 2011, the Court of Appeals affirmed
66

the decision of the RTC:

WHEREFORE, the petition is DENIED. The assailed Decision of the Regional Trial Court of Paraaque City, Branch 274, in Civil Case No. 100255 is AFFIRMED. xxx xxx xxx SO ORDERED.
67

Hence, this appeal.

ACEIac

On 5 September 2011, this Court granted petitioner's prayer for the issuance of a Temporary Restraining Order 68staying the immediate implementation of the decisions adverse to it. OUR RULING Independently of the merits of the case, the MeTC, RTC and Court of Appeals all erred in overlooking the significance of the arbitration clause incorporated in the 2005 Lease Contract. As the Court sees it, that is a fatal mistake. For this reason, We grant the petition.

Present Dispute is Arbitrable Under the Arbitration Clause of the 2005 Lease Agreement Contract
Going back to the records of this case, it is discernable that the dispute between the petitioner and respondent emanates from the rental stipulations of the 2005 Lease Contract. The respondent insists upon the enforceability and validity of such stipulations, whereas, petitioner, in substance, repudiates them. It is from petitioner's apparent breach of the 2005 Lease Contract that respondent filed the instant unlawful detainer action. One cannot escape the conclusion that, under the foregoing premises, the dispute between the petitioner and respondent arose from

the application or execution of the 2005 Lease Contract. Undoubtedly, such kinds of dispute are covered by the arbitration clause of the 2005 Lease Contract to wit:
19.Governing Law The provisions of this [2005 Lease Contract] shall be governed, interpreted and construed in all aspects in accordance with the laws of the Republic of the Philippines. Any disagreement as to the interpretation, application or execution of this [2005 Lease Contract] shall be submitted to a board of three (3) arbitrators constituted in accordance with the arbitration law of the Philippines. The decision of the majority of the arbitrators shall be binding upon [FKI and respondent]. 69 (Emphasis supplied)

The arbitration clause of the 2005 Lease Contract stipulates that "any disagreement" as to the "interpretation, application or execution" of the 2005 Lease Contract ought to be submitted to arbitration. 70 To the mind of this Court, such stipulation is clear and is comprehensive enough so as to include virtually any kind of conflict or dispute that may arise from the 2005 Lease Contract including the one that presently besets petitioner and respondent. The application of the arbitration clause of the 2005 Lease Contract in this case carries with it certain legal effects. However, before discussing what these legal effects are, We shall first deal with the challenges posed against the application of such arbitration clause.
HcSCED

Challenges Against the Application of the Arbitration Clause of the 2005 Lease Contract
Curiously, despite the lucidity of the arbitration clause of the 2005 Lease Contract, the petitioner, as well as the MeTC, RTC and the Court of Appeals, vouched for the non-application of the same in the instant case. A plethora of arguments was hurled in favor of bypassing arbitration. We now address them. At different points in the proceedings of this case, the following arguments were offered against the application of the arbitration clause of the 2005 Lease

Contract:

1.The disagreement between the petitioner and respondent is nonarbitrable as it will inevitably touch upon the issue of the

validity of the 2005 Lease Contract. 71 It was submitted that one of the reasons offered by the petitioner in justifying its failure to pay under the 2005 Lease Contract was the nullity of such contract for being contrary to law and public policy. 72 The Supreme Court, inGonzales v. Climax Mining, Ltd., 73 held that "the validity of contract cannot be subject of arbitration proceedings" as such questions are "legal in nature and require the application and

interpretation of laws and jurisprudence which is necessarily a judicial function." 74


2.The petitioner cannot validly invoke the arbitration clause of the 2005 Lease Contract while, at the same time, impugn such contract's validity. 75

3.Even assuming that it can invoke the arbitration clause whilst denying the validity of the 2005 Lease Contract, petitioner still did not file a formal application before the MeTC so as to render such arbitration clause operational. 76 Section 24 of Republic Act No. 9285 requires the party seeking arbitration to first file a "request" or an application therefor with the court not later than the preliminary conference. 77 4.Petitioner and respondent already underwent Judicial Dispute Resolution (JDR) proceedings before the RTC. 78 Hence, a further referral of the dispute to arbitration would only be circuitous. 79Moreover, an ejectment case, in view of its summary nature, already fulfills the prime purpose of arbitration, i.e., to provide parties in conflict with an expedient method for the resolution of their dispute. 80 Arbitration then would no longer be necessary in this case. 81 None of the arguments have any merit.

First. As highlighted in the previous discussion, the disagreement between the

petitioner and respondent falls within the all-encompassing terms of the arbitration clause of the 2005 Lease Contract. While it may be conceded that in the arbitration of such disagreement, the validity of the 2005 Lease Contract, or at least, of such contract's rental stipulations would have to be determined, the same would not render such disagreement non-arbitrable. The quotation

from Gonzales that was used to justify the contrary position was taken out of context. A rereading of Gonzales would fix its relevance to this case.
AcIaST

In Gonzales, a complaint for arbitration was filed before the Panel of Arbitrators of the Mines and Geosciences Bureau (PA-MGB) seeking the nullification of a Financial Technical Assistance Agreement and other mining related agreements entered into by private parties. 82 Grounds invoked for the nullification of such agreements include fraud and unconstitutionality. 83 The pivotal issue that confronted the Court then was whether the PA-MGB has jurisdiction over that particular arbitration complaint. Stated otherwise, the question was whether the complaint for arbitration raises arbitrable issues that the PA-MGB can take cognizance of.

Gonzales decided the issue in the negative. In holding that the PA-MGB was

devoid of any jurisdiction to take cognizance of the complaint for arbitration, this Court pointed out to the provisions of R.A. No. 7942, or the Mining Act of 1995, which granted the PA-MGB with exclusive original jurisdiction only over mining disputes, i.e., disputes involving"rights to mining areas," "mineral agreements or permits," and "surface owners, occupants, claimholders or concessionaires" requiring the technical knowledge and experience of mining authorities in order to be resolved. 84Accordingly, since the complaint for arbitration in Gonzales did not raise mining disputes as contemplated under R.A. No. 7942 but only issues relating to the validity of certain mining related agreements, this Court held that such complaint could not be arbitrated before the PA-MGB. 85 It is in this context that we made the pronouncement now in discussion:
Arbitration before the Panel of Arbitrators is proper only when there is a disagreement between the parties as to some provisions of the contract between them, which needs the interpretation and the application of that particular knowledge and expertise possessed by members of that Panel. It is not proper when one of the parties repudiates the existence or validity of such contract or agreement on the ground of fraud or oppression as in this case. The validity of the contract cannot be subject of arbitration proceedings. Allegations of fraud and duress in the execution of a contract are matters within the jurisdiction of the ordinary courts of law. These questions are legal in nature and require the application and interpretation of laws and jurisprudence which is necessarily a judicial function. 86 (Emphasis supplied)
CDTHSI

The Court in Gonzalesdid not simply base its rejection of the complaint for arbitration on the ground that the issue raised therein, i.e., the validity of contracts, is per se non-arbitrable. The real consideration behind the ruling was thelimitation that was placed by R.A. No. 7942 upon the jurisdiction of the PA-MGB as an arbitral body.Gonzales rejected the complaint for arbitration because the issue raised therein is not a mining dispute per R.A. No. 7942 and it is for this reason, and only for this reason, that such issue is rendered non-arbitrable before the PA-MGB. As stated beforehand, R.A. No. 7942 clearly limited the jurisdiction of the PA-MGB only to mining disputes. 87 Much more instructive for our purposes, on the other hand, is the recent case of Cargill Philippines, Inc. v. San Fernando Regal Trading, Inc. 88 In Cargill, this Court answered the question of whether issues involving therescission of a contract are arbitrable. The respondent in Cargill argued against arbitrability, also citing thereinGonzales. After dissecting Gonzales, this Court ruled in favor of arbitrability. 89 Thus, We held:
Respondent contends that assuming that the existence of the contract and the arbitration clause is conceded, the CA's decision declining referral of the parties' dispute to arbitration is still correct. It claims that its complaint in the RTC presents the issue of whether under the facts alleged, it is entitled to rescind the contract with damages; and that issue constitutes a judicial question or one that requires the exercise of judicial function and cannot be the subject of an arbitration proceeding. Respondent cites our ruling inGonzales, wherein we held that a panel of arbitrator is bereft of jurisdiction over the complaint for declaration of nullity/or termination of the subject contracts on the grounds of fraud and oppression attendant to the execution of the addendum contract and the other contracts emanating from it, and that the complaint should have been filed with the regular courts as it involved issues which are judicial in nature. Such argument is misplaced and respondent cannot rely on the Gonzales case to support its argument. 90 (Emphasis ours)

Second. Petitioner may still invoke the arbitration clause of the 2005 Lease Contract notwithstanding the fact that it assails the validity of such contract. This is due to the doctrine of separability. 91
EcTCAD

Under the doctrine of separability, an arbitration agreement is considered as independent of the main contract. 92 Being a separate contract in itself, the

arbitration agreement may thus be invoked regardless of the possible nullity or invalidity of the main contract. 93 Once again instructive is Cargill, wherein this Court held that, as a further consequence of the doctrine of reparability, even the very party who repudiates the main contract may invoke its arbitration clause. 94

Third. The operation of the arbitration clause in this case is not at all defeated by the failure of the petitioner to file a formal "request" or application therefor with the MeTC. We find that 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. [Emphasis ours; italics original]

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.
cCHITA

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 provided in the immediately succeeding Rule before the hearing. [Emphasis ours; italics original]

Attention must be paid, however, to the salient wordings of Rule 4.1. It reads: "[a] party to a pending action filed in violation of the arbitration

agreement . . . may request the court to refer the parties to arbitration in accordance with such agreement."
In using the word "may" to qualify the act of filing a "request" under Section 24 of R.A. No. 9285, the Special ADR Rules clearly did not intend to limit the invocation of an arbitration agreement in a pending suit solely via such "request." After all, non-compliance with an arbitration agreement is a valid defense to any offending suit and, as such, may even be raised in an answer as provided in our ordinary rules of procedure. 95
HIaTDS

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 96 and, more significantly, of its desire to have the same enforced in this case. 97 This act of petitioner is enough valid invocation of his right to arbitrate.

Fourth. The fact that the petitioner and respondent 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.

The JDR framework is based on the processes of mediation, conciliation or early neutral evaluation which entails the submission of a dispute before a "JDR judge" who shall merely "facilitate settlement" between the parties in conflict or make a "non-binding evaluation or assessment of the chances of each party's case." 98 Thus in JDR, the JDR judge lacks the authority to render a resolution of the dispute that is binding upon the parties in conflict. In arbitration, on the other hand, the dispute is submitted to an arbitrator/s a neutral third person or a group of thereof who shall have the authority to render a resolution binding upon the parties. 99 Clearly, the mere submission of a dispute to JDR proceedings would not necessarily render the subsequent conduct of arbitration a mere surplusage. The failure of the parties in conflict to reach an amicable settlement before the JDR may, in fact, be supplemented by their resort to arbitration where a binding resolution to the dispute could finally be achieved. This situation precisely finds application to the case at bench. Neither would the summary nature of ejectment cases be a valid reason to disregard the enforcement of the arbitration clause of the 2005 Lease Contract. Notwithstanding the summary nature of ejectment cases, arbitration still remains relevant as it aims not only to afford the parties an expeditious method of resolving their dispute.
CIScaA

A pivotal feature of arbitration as an alternative mode of dispute resolution is that it is, first and foremost, a product ofparty autonomy or the freedom of the parties to "make their own arrangements to resolve their own disputes." 100Arbitration agreements manifest not only the desire of the parties in conflict for an expeditious resolution of their dispute. They also represent, if not more so, the parties' mutual aspiration to achieve such resolution outside of judicial auspices, in a more informal and less antagonistic environment under the terms of their choosing. Needless to state, this critical feature can never be satisfied in an ejectment case no matter how summary it may be. Having hurdled all the challenges against the application of the arbitration clause of the 2005 Lease Agreement in this case, We shall now proceed with the discussion of its legal effects.

Legal Effect of the Application of the Arbitration Clause

Since there really are no legal impediments to the application of the arbitration clause of the2005 Contract of Lease in this case, We find that the instant unlawful detainer action was instituted in violation of such clause. The Law, therefore, should have governed the fate of the parties and this suit:
R.A. No. 876 Section 7.Stay of civil action. If any suit or proceeding be brought upon an issue arising out of an agreement providing for the arbitration thereof, the court in which such suit or proceeding is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration, shall stay the action or proceeding until an arbitration has been had in accordance with the terms of the agreement: Provided, That the applicant for the stay is not in default in proceeding with such arbitration. [Emphasis supplied] R.A. No. 9285 Section 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. [Emphasis supplied]
CSAcTa

It is clear that under the law, the instant unlawful detainer action should have been stayed; 101 the petitioner and the respondent should have been referred to arbitration pursuant to the arbitration clause of the 2005 Lease Contract. The MeTC, however, did not do so in violation of the law which violation was, in turn, affirmed by the RTC and Court of Appeals on appeal. The violation by the MeTC of the clear directives under R.A. Nos. 876 and 9285 renders invalid all proceedings it undertook in the ejectment case after the filing by petitioner of its Answer with Counterclaim the point when the petitioner and the respondent should have been referred to arbitration. This case must, therefore, be remanded to the MeTC and be suspended at said point. Inevitably, the decisions of the MeTC, RTC and the Court of Appeals must all be vacated and set aside. The petitioner and the respondent must then be referred to arbitration pursuant to the arbitration clause of the 2005 Lease Contract.

This Court is not unaware of the apparent harshness of the Decision that it is about to make. Nonetheless, this Court must make the same if only to stress the point that, in our jurisdiction, bona fide arbitration agreements are recognized as valid; 102 and that laws, 103 rules and regulations 104 do exist protecting and ensuring their enforcement as a matter of state policy. Gone should be the days when courts treat otherwise valid arbitration agreements with disdain and hostility, if not outright "jealousy," 105 and then get away with it. Courts should instead learn to treat alternative means of dispute resolution as effective partners in the administration of justice and, in the case of arbitration agreements, to afford them judicial restraint. 106 Today, this Court only performs its part in upholding a once disregarded state policy.

Civil Case No. CV 09-0346


This Court notes that, on 30 September 2009, petitioner filed with the RTC of Paraaque City, a complaint 107 for the rescission or cancellation of the Deed of Donation and Amended Deed of Donation against the respondent. The case is currently pending before Branch 257 of the RTC, docketed as Civil Case No. CV 09-0346.
IcTaAH

This Court recognizes the great possibility that issues raised in Civil Case No. CV 09-0346 may involve matters that are rightfully arbitrable per the arbitration clause of the 2005 Lease Contract. However, since the records of Civil Case No. CV 09-0346 are not before this Court, We can never know with true certainty and only speculate. In this light, let a copy of this Decision be also served to Branch 257 of the RTC of Paraaque for its consideration and, possible, application to Civil Case No. CV 09-0346. WHEREFORE, premises considered, the petition is hereby GRANTED. Accordingly, We hereby render a Decision: 1.SETTING ASIDE all the proceedings undertaken by the Metropolitan Trial Court, Branch 77, of Paraaque City in relation to Civil Case No. 2009-307 after the filing by petitioner of its Answer with Counterclaim; 2.REMANDING the instant case to the MeTC, SUSPENDED at the point after the filing by petitioner of its Answer with Counterclaim;

3.SETTING ASIDE the following: a.Decision dated 19 August 2011 of the Court of Appeals in C.A.-G.R. SP No. 116865, b.Decision dated 29 October 2010 of the Regional Trial Court, Branch 274, of Paraaque City in Civil Case No. 10-0255, c.Decision dated 27 April 2010 of the Metropolitan Trial Court, Branch 77, of Paraaque City in Civil Case No. 2009-307; and 4.REFERRING the petitioner and the respondent to arbitration pursuant to the arbitration clause of the 2005 Lease Contract, repeatedly included in the 2000 Lease Contract and in the 1976 Amended Deed of Donation.
CIDaTc

Let a copy of this Decision be served to Branch 257 of the RTC of Paraaque for its consideration and, possible, application to Civil Case No. CV 09-0346. No costs. SO ORDERED.

Brion, Del Castillo, Abad

and Perlas-Bernabe, JJ., concur.

[G.R. No. 185582. February 29, 2012.] TUNA PROCESSING, INC., petitioner, vs. PHILIPPINE KINGFORD, INC., respondent.

Can a foreign corporation not licensed to do business in the Philippines, but which collects royalties from entities in the Philippines, sue here to enforce a foreign arbitral award?
In this Petition for Review on Certiorari under Rule 45, 1 petitioner Tuna Processing, Inc. (TPI), a foreign corporation not licensed to do business in the Philippines, prays that the Resolution 2 dated 21 November 2008 of the Regional

Trial Court (RTC) of Makati City be declared void and the case be remanded to the RTC for further proceedings. In the assailed Resolution, the RTC dismissed petitioner's Petition for Confirmation, Recognition, and Enforcement of Foreign Arbitral Award 3 against respondent Philippine Kingford, Inc. (Kingford), a corporation duly organized and existing under the laws of the Philippines, 4 on the ground that petitioner lacked legal capacity to sue. 5

The Antecedents
Kanemitsu Yamaoka, co-patentee of U.S. Patent No. 5,484,619, Philippine Letters Patent No. 31138, and Indonesian Patent No. ID0003911 and five (5) Philippine tuna processors, namely, Angel Seafood Corporation, East Asia Fish Co., Inc., Mommy Gina Tuna Resources, Santa Cruz Seafoods, Inc., and respondent Kingford (collectively referred to as the "sponsors"/"licensees") entered into a Memorandum of Agreement (MOA)., 8 pertinent provisions of which read:
1.Background and objectives. The Licensor, co-owner of U.S. Patent No. 5,484,619, Philippine Patent No. 31138, and Indonesian Patent No. ID0003911 . . . wishes to form an alliance with Sponsors for purposes of enforcing his three aforementioned patents, granting licenses under those patents, and collecting royalties.
TcIaHC

The Sponsors wish to be licensed under the aforementioned patents in order to practice the processes claimed in those patents in the United States, the Philippines, and Indonesia, enforce those patents and collect royalties in conjunction with Licensor. xxx xxx xxx 4.Establishment of Tuna Processors, Inc. The parties hereto agree to the establishment of Tuna Processors, Inc. ("TPI"), a corporation established in the State of California, in order to implement the objectives of this Agreement. 5.Bank account. TPI shall open and maintain bank accounts in the United States, which will be used exclusively to deposit funds that it will collect and to disburse cash it will be obligated to spend in connection with the implementation of this Agreement. 6.Ownership of TPI. TPI shall be owned by the Sponsors and Licensor. Licensor shall be assigned one share of TPI for the purpose of being elected as member of the board of directors. The remaining

shares of TPI shall be held by the Sponsors according to their respective equity shares. 9 xxx xxx xxx

The parties likewise executed a Supplemental Memorandum of Agreement 10 dated 15 January 2003 and an Agreement to Amend Memorandum of Agreement 11 dated 14 July 2003. Due to a series of events not mentioned in the petition, the licensees, including respondent Kingford, withdrew from petitioner TPI and correspondingly reneged on their obligations. 12 Petitioner submitted the dispute for arbitration before the International Centre for Dispute Resolution in the State of California, United States and won the case against respondent. 13 Pertinent portions of the award read:
13.1Within thirty (30) days from the date of transmittal of this Award to the Parties, pursuant to the terms of this award, the total sum to be paid by RESPONDENT KINGFORD to CLAIMANT TPI, is the sum ofONE MILLION SEVEN HUNDRED FIFTY THOUSAND EIGHT HUNDRED FORTY SIX DOLLARS AND TEN CENTS ($1,750,846.10). (A)For breach of the MOA by not paying past due assessments, RESPONDENT KINGFORD shall payCLAIMANT the total sum of TWO HUNDRED TWENTY NINE THOUSAND THREE HUNDRED AND FIFTY FIVE DOLLARS AND NINETY CENTS ($229,355.90) which is 20% of MOA assessments since September 1, 2005[;] (B)For breach of the MOA in failing to cooperate with CLAIMANT TPI in fulfilling the objectives of theMOA, RESPONDENT KINGFORDshall pay CLAIMANT the total sum of TWO HUNDRED SEVENTY ONE THOUSAND FOUR HUNDRED NINETY DOLLARS AND TWENTY CENTS ($271,490.20)[;] 14 and (C)For violation of THE LANHAM ACT and infringement of the YAMAOKA 619 PATENT, RESPONDENT KINGFORD shall pay CLAIMANT the total sum of ONE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS AND NO CENTS ($1,250,000.00). . . . xxx xxx xxx
15

To enforce the award, petitioner TPI filed on 10 October 2007 a Petition for Confirmation, Recognition, and Enforcement of Foreign Arbitral Award before the RTC of Makati City. The petition was raffled to Branch 150 presided by Judge Elmo M. Alameda. At Branch 150, respondent Kingford filed a Motion to Dismiss. 16 After the court denied the motion for lack of merit, 17respondent sought for the inhibition of Judge Alameda and moved for the reconsideration of the order denying the motion. 18 Judge Alameda inhibited himself notwithstanding "[t]he unfounded allegations and unsubstantiated assertions in the motion." 19 Judge Cedrick O. Ruiz of Branch 61, to which the case was re-raffled, in turn, granted respondent's Motion for Reconsideration and dismissed the petition on the ground that the petitioner lacked legal capacity to sue in the Philippines. 20 Petitioner TPI now seeks to nullify, in this instant Petition for Review on Certiorari under Rule 45, the order of the trial court dismissing its Petition for

Confirmation, Recognition, and Enforcement of Foreign Arbitral Award. Issue

The core issue in this case is whether or not the court a quo was correct in so dismissing the petition on the ground of petitioner's lack of legal capacity to sue.

Our Ruling
The petition is impressed with merit. The Corporation Code of the Philippines expressly provides:
Sec. 133.Doing business without a license. No foreign corporation transacting business in the Philippines without a license, or its successors or assigns, shall be permitted to maintain or intervene in any action, suit or proceeding in any court or administrative agency of the Philippines; but such corporation may be sued or proceeded against before Philippine courts or administrative tribunals on any valid cause of action recognized under Philippine laws.

It is pursuant to the aforequoted provision that the court a quo dismissed the petition. Thus:
Herein plaintiff TPI's "Petition, etc." acknowledges that it "is a foreign corporation established in the State of California" and "was given the exclusive right to license or sublicense the Yamaoka Patent" and "was

assigned the exclusive right to enforce the said patent and collect corresponding royalties" in the Philippines. TPI likewise admits that it does not have a license to do business in the Philippines. There is no doubt, therefore, in the mind of this Court that TPI has been doing business in the Philippines, but sans a license to do so issued by the concerned government agency of the Republic of the Philippines, when it collected royalties from "five (5) Philippine tuna processors[,] namely[,] Angel Seafood Corporation, East Asia Fish Co., Inc., Mommy Gina Tuna Resources, Santa Cruz Seafoods, Inc. and respondent Philippine Kingford, Inc." This being the real situation, TPI cannot be permitted to maintain or intervene in any action, suit or proceedings in any court or administrative agency of the Philippines." A priori, the "Petition, etc." extant of the plaintiff TPI should be dismissed for it does not have the legal personality to sue in the Philippines. 21

The petitioner counters, however, that it is entitled to seek for the recognition and enforcement of the subject foreign arbitral award in accordance with Republic Act No. 9285 (Alternative Dispute Resolution Act of 2004), 22 the Convention on the Recognition and Enforcement of Foreign Arbitral Awards drafted during the United Nations Conference on International Commercial Arbitration in 1958 (New York Convention), and the UNCITRAL Model Law on International Commercial Arbitration (Model Law), 23 as none of these specifically requires that the party seeking for the enforcement should have legal capacity to sue. It anchors its argument on the following:
cCSHET

In the present case, enforcement has been effectively refused on a ground not found in the [Alternative Dispute Resolution Act of 2004], New York Convention, or Model Law. It is for this reason that TPI has brought this matter before this most Honorable Court, as it [i]s imperative to clarify whether the Philippines' international obligations and State policy to strengthen arbitration as a means of dispute resolution may be defeated by misplaced technical considerations not found in the relevant laws. 24

Simply put, how do we reconcile the provisions of the Corporation Code of the Philippines on one hand, and theAlternative Dispute Resolution Act of 2004, the New York Convention and the Model Law on the other? In several cases, this Court had the occasion to discuss the nature and applicability of the Corporation Code of the Philippines, a general law, viz--viz other special laws. Thus, in Koruga v. Arcenas, Jr., 25 this Court rejected the

application of the Corporation Code and applied the New Central Bank Act. It ratiocinated:
Koruga's invocation of the provisions of the Corporation Code is misplaced. In an earlier case with similar antecedents, we ruled that: "The Corporation Code, however, is a general law applying to all types of corporations, while the New Central Bank Act regulates specifically banks and other financial institutions, including the dissolution and liquidation thereof. As between a general and special law, the latter shall prevail generalia specialibus non derogant." (Emphasis supplied) 26

Further, in the recent case of Hacienda Luisita, Incorporated v. Presidential Agrarian Reform Council, 27 this Court held:
Without doubt, the Corporation Code is the general law providing for the formation, organization and regulation of private corporations. On the other hand, RA 6657 is the special law on agrarian reform. As between a general and special law, the latter shall prevail generalia specialibus non derogant. 28

Following the same principle, the Alternative Dispute Resolution Act of 2004 shall apply in this case as the Act, as its title An Act to Institutionalize the Use of an

Alternative Dispute Resolution System in the Philippines and to Establish the Office for Alternative Dispute Resolution, and for Other Purposes would

suggest, is a law especially enacted "to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes." 29 It specifically provides exclusive grounds available to the party opposing an application for recognition and enforcement of the arbitral award. 30 Inasmuch as the Alternative Dispute Resolution Act of 2004, a municipal law, applies in the instant petition, we do not see the need to discuss compliance with international obligations under the New York Convention and the Model Law. After all, both already form part of the law.
DaIACS

In particular, the Alternative Dispute Resolution Act of 2004 incorporated the New York Convention in the Act by specifically providing:
SEC. 42.Application of the New York Convention. The New York Convention shall govern the recognition and enforcement of arbitral awards covered by the said Convention.

xxx xxx xxx SEC. 45.Rejection of a Foreign Arbitral Award. A party to a foreign arbitration proceeding may oppose an application for recognition and enforcement of the arbitral award in accordance with the procedural rules to be promulgated by the Supreme Court only on those grounds enumerated under Article V of the New York Convention. Any other ground raised shall be disregarded by the regional trial court.

It also expressly adopted the Model Law, to wit:


Sec. 19.Adoption of the Model Law on International Commercial Arbitration. International commercial arbitration shall be governed by the Model Law on International Commercial Arbitration (the "Model Law") adopted by the United Nations Commission on International Trade Law on June 21, 1985 . . . ."

Now, does a foreign corporation not licensed to do business in the Philippines have legal capacity to sue under the provisions of the Alternative Dispute Resolution Act of 2004? We answer in the affirmative. Sec. 45 of the Alternative Dispute Resolution Act of 2004 provides that the opposing party in an application for recognition and enforcement of the arbitral award may raise only those grounds that were enumerated under Article V of the New York Convention, to wit:
Article V
1.Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a)The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b)The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or

(c)The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d)The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e)The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. 2.Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a)The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b)The recognition or enforcement of the award would be contrary to the public policy of that country.

Clearly, not one of these exclusive grounds touched on the capacity to sue of the party seeking the recognition and enforcement of the award. Pertinent provisions of the Special Rules of Court on Alternative Dispute Resolution, 31 which was promulgated by the Supreme Court, likewise support this position.
CAcEaS

Rule 13.1 of the Special Rules provides that "[a]ny party to a foreign arbitration may petition the court to recognize and enforce a foreign arbitral award." The contents of such petition are enumerated in Rule 13.5. 32 Capacity to sue is not included. Oppositely, in the Rule on local arbitral awards or arbitrations in instances where "the place of arbitration is in the Philippines," 33 it is specifically required that a petition "to determine any question concerning the existence, validity and enforceability of such arbitration agreement" 34 available to the parties before the commencement of arbitration and/or a petition for "judicial relief from the ruling of the arbitral tribunal on a preliminary question upholding

or declining its jurisdiction" 35 after arbitration has already commenced should state "[t]he facts showing that the persons named as petitioner or respondent have legal capacity to sue or be sued." 36 Indeed, it is in the best interest of justice that in the enforcement of a foreign arbitral award, we deny availment by the losing party of the rule that bars foreign corporations not licensed to do business in the Philippines from maintaining a suit in our courts. When a party enters into a contract containing a foreign arbitration clause and, as in this case, in fact submits itself to arbitration, it becomes bound by the contract, by the arbitration and by the result of arbitration, conceding thereby the capacity of the other party to enter into the contract, participate in the arbitration and cause the implementation of the result. Although not on all fours with the instant case, also worthy to consider is the wisdom of then Associate Justice Flerida Ruth P. Romero in her Dissenting Opinion in Asset Privatization Trust v. Court of Appeals,37 to wit:
. . . Arbitration, as an alternative mode of settlement, is gaining adherents in legal and judicial circles here and abroad. If its tested mechanism can simply be ignored by an aggrieved party, one who, it must be stressed, voluntarily and actively participated in the arbitration proceedings from the very beginning, it will destroy the very essence of mutuality inherent in consensual contracts. 38

Clearly, on the matter of capacity to sue, a foreign arbitral award should be respected not because it is favored over domestic laws and procedures, but because Republic Act No. 9285 has certainly erased any conflict of law question. Finally, even assuming, only for the sake of argument, that the court a quo correctly observed that the Model Law, not the New York Convention, governs the subject arbitral award, 39 petitioner may still seek recognition and enforcement of the award in Philippine court, since the Model Law prescribes substantially identical exclusive grounds for refusing recognition or enforcement. 40 Premises considered, petitioner TPI, although not licensed to do business in the Philippines, may seek recognition and enforcement of the foreign arbitral award in accordance with the provisions of the Alternative Dispute Resolution Act of

2004.

II The remaining arguments of respondent Kingford are likewise unmeritorious.

First. There is no need to consider respondent's contention that petitioner TPI

improperly raised a question of fact when it posited that its act of entering into a MOA should not be considered "doing business" in the Philippines for the purpose of determining capacity to sue. We reiterate that the foreign corporation's capacity to sue in the Philippines is not material insofar as the recognition and enforcement of a foreign arbitral award is concerned.

Second. Respondent cannot fault petitioner for not filing a motion for

reconsideration of the assailed Resolution dated 21 November 2008 dismissing the case. We have, time and again, ruled that the prior filing of a motion for reconsideration is not required in certiorari under Rule 45. 41

Third. While we agree that petitioner failed to observe the principle of hierarchy
of courts, which, under ordinary circumstances, warrants the outright dismissal of the case, 42 we opt to relax the rules following the pronouncement inChua v. Ang, 43 to wit:
IEaATD

[I]t must be remembered that [the principle of hierarchy of courts] generally applies to cases involving conflicting factual allegations. Cases which depend on disputed facts for decision cannot be brought immediately before us as we are not triers of facts. 44 A strict application of this rule may be excused when the reason behind the rule is not present in a case, as in the present case, where the issues are not factual but purely legal. In these types of questions, this Court has the ultimate say so that we merely abbreviate the review process if we, because of the unique circumstances of a case, choose to hear and decide the legal issues outright. 45

Moreover, the novelty and the paramount importance of the issue herein raised should be seriously considered. 46Surely, there is a need to take cognizance of the case not only to guide the bench and the bar, but if only to strengthen arbitration as a means of dispute resolution, and uphold the policy of the State embodied in theAlternative Dispute Resolution Act of 2004, to wit:
Sec. 2.Declaration of Policy. It is hereby declared the policy of the State to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and declog court dockets. . . .

Fourth. As regards the issue on the validity and enforceability of the foreign arbitral award, we leave its determination to the court a quo where its
recognition and enforcement is being sought.

Fifth. Respondent claims that petitioner failed to furnish the court of origin a copy of the motion for time to file petition for review on certiorari before the
petition was filed with this Court. Thus:
47

We, however, find petitioner's reply in order.

26.Admittedly, reference to "Branch 67" in petitioner TPI's "Motion for Time to File a Petition for Review on Certiorari under Rule 45" is a typographical error. As correctly pointed out by respondent Kingford, the order sought to be assailed originated from Regional Trial Court, Makati City, Branch 61. 27.. . . Upon confirmation with the Regional Trial Court, Makati City, Branch 61, a copy of petitioner TPI's motion was received by the Metropolitan Trial Court, Makati City, Branch 67. On 8 January 2009, the motion was forwarded to the Regional Trial Court, Makati City, Branch 61. 48
cHECAS

All considered, petitioner TPI, although a foreign corporation not licensed to do business in the Philippines, is not, for that reason alone, precluded from filing the Petition for Confirmation, Recognition, and Enforcement of Foreign Arbitral Award before a Philippine court. WHEREFORE, the Resolution dated 21 November 2008 of the Regional Trial Court, Branch 61, Makati City in Special Proceedings No. M-6533 is hereby REVERSED and SET ASIDE. The case is REMANDED to Branch 61 for further proceedings.
STEacI

SO ORDERED.

Carpio, Brion, Sereno and Reyes, JJ., concur.