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BETWEEN
(Philippines)
(Claimant)
V.
CONSTRUCTION COMPANY
(Philippines)
(Respondent)
_____________________________________________
________________________________________________
herewith the factual and legal basis for its objection regarding the Tribunal’s
jurisdiction and the effect of the anti-suit injunction issued by the Regional Trial
products and services. Claimant is the owner of a power station located in the
pavement, demolition works and hauling of debris and excess soil and bulk
excavation.
III. DISAGREEMENT
asked for numerous extensions of time that it was entitled, but Claimant did not
under the contract. However, Claimant resists the demand claiming that there
were many technical design and construction defects in various parts of the
project.
Respondent and filed a Notice of Arbitration with the Hong Kong International
against Claimant and submitted its Request for Arbitration to the Construction
filed a case before the Regional Trial Court of Manila, Philippines and asked for
9. On November 25, 2013, the Regional Trial Court of Manila granted Respondent’s
10. On November 29, 2013, Respondent served its answer to the Notice of
jurisdiction. Respondent also pointed out that Manila Regional Trial Court of
Arbitrator’s responsibility to uphold the choice of law of the parties and the duty
11. An arbitrator has a duty to make best efforts to render an award that is
it must generally meet formal requirements and not be against public policy.
can be challenged if it is against the public policy of a jurisdiction. The award and
the underlying arbitration agreement must therefore comply with the lex arbitri
12. Under the principle of lex arbitri, the arbitration agreement should be valid and
the subject matter should be arbitrable in order to prevent an award from being
jurisdiction. On the other hand, mandatory and public policy dictates that a
tribunal must consider the public interest in ways expected under the enacted
statutes in order to prevent the risks of offending the public policy in the
13. The engineering procurement and construction contract between Claimant and
2 Id.
“31.1 Any unresolved dispute shall be referred to and finally
14. The law expressly chosen by the parties to govern the arbitration agreement and
the lex arbitri is Hong Kong law. In effect, the laws of Hong Kong governs the
15. If arbitration will ensue and the Tribunal will render an arbitral award, it can be
deduced that the award will be enforced in the Philippines since both the parties
are Philippine corporations located in the Philippines and the contract involves
16. The Respondent would like to invite the Tribunal’s attention to clause 31.10 of
17. Under the laws of Hong Kong, such stipulation is valid in view of the principle that
the contract between the parties is the law which governs their relation. It was
mutually agreed upon and therefore binds the parties up to its fulfillment.
18. On the other hand, clause 31.10 is invalid under the Philippine laws. Article 1306
19. Although parties may freely stipulate the terms and conditions of the contract,
such autonomy is limited by law and public policy. 3 In the present case, the
3 Id.
because they are the laws which grants jurisdiction to the Construction Industry
20. As a result, the Tribunal is confronted with an issue concerning the duty to
uphold the parties’ agreement in one hand, and the duty to render an enforceable
award on the other. Therefore, application of rules on conflict of laws is called for
21. One of the possible laws that could govern the questions relating to the intrinsic
validity of contracts is Lex Loci Contractus, which refers to the law of the place
where the contract is made.5 In the present case, the contract is celebrated in the
22. Another law that can be considered is Lex Loci Solutionis, which is the law
governing the place of performance.6 All the matters relating to the time, place
test, complete and hand over the power station to the Claimant is to be
4 Willard Riano, “Civil Procedure (The Bar Lectures Series), Vol.1”, (Rex Bookstore, 2011)
5 Jorge Coquia, “Conflict of Laws: Cases, Materials and Comments” (Central Book Supply Inc.,2000)
6 Id.
23. Lastly, the intrinsic validity of a contract may be governed by the law intended by
the parties or Lex Loci Intentionis. However, there is a limitation to this principle.
The parties may not select a law to govern their contract if said law selected has
no connection at all with the transaction or the parties.7 In the present case, the
law intended by the parties to govern their arbitration agreement is the law of
Hong Kong. However, it can be gleaned from the facts that such law is in no way
connected to the transaction involved since the perfection of the contract and the
are both Philippine companies. Therefore, Lex Loci Intentionis cannot be applied
Philippine law is the governing law in determining the validity of the arbitration
agreement.
24. Under the cumulative approach, when all the relevant conflicts rules points to the
same law, that law becomes the applicable law. Considering that both lex loci
contractus and lex loci solutionis points to the same law, which is the Philippine
law, it is clear that it must be the governing law in determining the validity of the
arbitration agreement.
25. Under the Philippine law, clause 31.3 of the contract which provides that:
7 Id
31.3 PEC and CC hereby expressly agree that, to the fullest
award made.
law arising in the course of the arbitration. This is contrary to the clear
that Rights may be waived, unless the waiver is contrary to law, public
26. Furthermore, clause 31.3 is in conflict with clause 31.4 which provides
that:
31.4 The award shall be final and binding upon the parties,
jurisdiction.
The above quoted clause allows judgment upon any award to be entered
in any court having jurisdiction while clause 31.3 expressly prohibits any
covered under the stipulation in clause 31.4, such would defeat the
unenforceable.
that part of the Works in dispute shall only continue if, and in
to arbitration.
will of one party alone, as provided for by the Civil Code of the
Philippines.
28. The clause 31.10 of the contract is also invalid because it effectively waives the
conferred or waived by any or all of the parties.10 Hence, the waiver of the
29. Considering the fact that pertinent provisions of the arbitration clause were
invalid under the Philippine laws, it is clear that the arbitration agreement can be
considered invalid in its entirety. Since the substantial parts of the arbitration
agreement is invalid, the contract can no longer stand to effectively render its
objective which is to provide for a contract that will govern the arbitration
30. If the arbitration agreement is not valid, then there is no legal basis for the
8
Executive Order 1008
9
China Chang Jiang Energy Corporation v Rosal Infrastructure Builders; G.R. No. 125706; September
30, 1996
10 Willard Riano, “Civil Procedure (The Bar Lectures Series), Vol.1”, (Rex Bookstore, 2011)
VI. EFFECT OF ANTI SUIT INJUNCTION
31. An anti-suit injunction is a court order rendered against a private party with the
32. The Respondent invites the Tribunal’s attention to the recent case decided by the
Hong Kong Court of First Instance (HKFCI), Ever Judger Holding Company
Limited v Kroman Celik Sanayii Anonim Sirketi.12 The HKCFI, speaking through
Mr. Justice Godfrey Lam, granted an anti-suit injunction to restrain the further
proceedings.
34. The Regional Trial Court of Manila granted Respondent’s application and issued
11 Neil A Dowers, The Anti-Suit Injunction and the EU: Legal Tradition and Europeanisation in
International Private Law, Cambridge Journal of International and Comparative Law (2)4: 960-973 (213),
p. 960 (“Dowers”).
12 HCCT 6/2015
13 AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1
WLR 1889
14 R1 International Pte Ltd v Lonstroff AG[2014] 3 SLR 166
35. The Respondent, nevertheless, pleads to the Tribunal to revere the injunction
addressed to it.
36. The case of Ever Judger re-affirms the Hong Kong courts’ pro-arbitration
of its submission to arbitrate under another forum which is the CIAC, is akin to
such purpose.
Commission (CIAC) original and exclusive jurisdiction over disputes arising from
or connected with construction contracts entered into by parties that have agreed
1008, Series of 1985 (E.O. No. 1008) sets forth the jurisdiction of CIAC. To wit:
hand over the power station to it. It is clear that the present dispute concerning
39. Under the present Rules of Procedure, for a particular construction contract to fall
within the jurisdiction of CIAC, it is merely required that the parties agree to
submit the same to voluntary arbitration. As long as the parties agree to submit to
voluntary arbitration, regardless of what forum they may choose, their agreement
will fall within the jurisdiction of the CIAC, such that, even if they specifically
choose another forum, the parties will not be precluded from electing to submit
their dispute before the CIAC because this right has been vested upon each
party by law.
40. Based on the foregoing, there are two acts which may vest the CIAC with
clause in a construction contract, and the other is the agreement by the parties to
41. The first act is applicable to the case at bar. The bare fact that the parties
construction contract is sufficient to vest the CIAC with jurisdiction over any
15 Stronghold Insurance Company Inc. v Spouses Stroem; G.R. No. 204689; January 21, 2015
16 Heunghwa Industry Co., Ltd v DJ Builders Corporation; G.R. No. 169095; December 8, 2008
construction controversy or claim between the parties. The rule is explicit that the
body.
42. Since the jurisdiction of CIAC is conferred by law, it cannot be subjected to any
the parties, as long as the parties agreed to submit their construction contract
contract.17
43. The stipulation under clause 31.10 of the contract directly contravenes to the
express mandate of the law prohibiting any waiver by stipulation of the CIAC’s
17 Golangco v Ray Burton Development Corporation, G.R. No. 163582; August 9, 2010
connection therewith and are hereby irrevocably waived by
44. It is clear that such waiver cannot stand because under the elementary
part of all agreements. When the law provides that the Board acquires
jurisdiction when the parties to the contract agree to submit the same to
alternative forum before whom they may submit their disputes. That
45. The CIAC was created in recognition of the fact that delays in the resolution
expeditiously settle construction industry disputes and, for this purpose, vests
in the CIAC original and exclusive jurisdiction over disputes arising from, or
not only practical but also in accordance with the objective of voluntary
arbitration that in resolving their disputes they shall proceed before the CIAC.
18 China Chang Jiang Energy Corporation v Rosal Infrastructure Builders; G.R. No. 125706; September
30, 1996
19
Golangco v Ray Burton Development Corporation, G.R. No. 163582; August 9, 2010
46. Although the arbitration clause is invalid, CIAC still have jurisdiction over the
dispute because mere intent of the parties to submit the case to arbitration is
Construction Arbitration provides that as long as the intent is clear that the
dispute. To stress, the CIAC was already vested with jurisdiction the moment
latter, such does not bar the CIAC from acquiring jurisdiction over the case
48. If the Tribunal, considering the position of the Respondent regarding its
49. The Respondent, however, would like the Tribunal to consider the rudiments
50. As stated, both the Claimant and the Respondent, being duly formed and
organized under the Corporation Code, are to be located in the Philippines with
their assets and other properties. The construction contract was celebrated in the
Philippines. In addition, the object of the contract is to be located at a province in
the Philippines. Bearing in mind all these, it is safe to say that the enforcement of
52. The recognition and enforcement of such award shall be filled with the Regional
Trial Court.
may oppose an application for recognition and enforcement of the arbitral award
only on those grounds enumerated under Article V of the New York Convention.
finds that:
non-existent or not written. Such is the case, the Tribunal cannot acquire
55. Award made by tribunal not having jurisdiction will not be enforced by the
Philippine courts for recognition and enforcement will be contrary to public policy.
56. Thus, if the tribunal will exercise jurisdiction using a void arbitration clause under
Philippine laws, due to wide definition of public policy, enforcement may fall
57. The CIAC, on the other hand, may be eyed as a more fitting forum.
58. CIAC is vested by law with powers for safety measures in assuring a tenacious
award. In the CIAC, as soon as a decision, order to award has become final and
executory, the Arbitral Tribunal or the single arbitrator with the occurrence of the
CIAC shall motu propio, or on motion of any interested party, issue a writ of
execution requiring any sheriff or other proper officer to execute said decision,
order or award.21
59. This indicates that the award, endowed with great respect, need not be
60. As a doctrine of the conflict of laws, Forum Non Conveniens dictates that courts,
in this case the tribunal, may refuse to take jurisdiction over matters where there
61. The Respondent maintains its request for relief as set out in the Answer to the
Request for Arbitration, that the Tribunal recognize and respect the antisuit
injunction issued by the Manila Regional Trial Court and/or dismiss the arbitral
62. The Respondent reserves the right to submit such further supplemental or
Philippines 2009