civil procedure summary procedures supreme court

7/28/2019 Civil Procedure Summary Procedures Supreme Court

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SUMMARY PROCEDURES1Alfredo F. Tadiar

I. CONCEPT OF SUMMARY PROCEDURES

In essence, all rules on summary procedures provide for abbreviatedperiods within which to do certain acts, such as:

1) filing of required pleadings/papers,2 and2) rendition of judgment.3

The reason for such shortened periods is that the issue or issues to beresolved summarily are simple and not complex. Thus, in seeking to enforcean arbitration agreement in a contract, the only issue is whether the partieshad entered into that agreement knowingly, intelligently and voluntarily.4

II. NATURE AND PURPOSE

Summary procedure is in accord with the Constitutional mandate forthe Supreme Court to promulgate rules that will provide a simplified andinexpensive procedures for the speedy disposition of cases.5

The original Rule on Summary Procedures for Summary Proceduresin Special Cases was promulgated on August 1, 1983. This was pursuant toBP. 129, otherwise known as the J udiciary Reorganization Act of 1980. Said

statutory provision authorizes the promulgation of special rules to achieve an

1This is intended to be a generic title and, although it includes the Revised Rules on

Summary Procedure, which applies only to First Level Courts, it is not confined to that subjectalone. Thus, summary proceedings in arbitration under the Special Rules of Court on ADR,which are within the jurisdiction of Regional Trial Courts, are included herein.2

REVISED RULE ON SUMMARY PROCEDURES,Sec. 5 for instance, requires an answer to be filedwithin ten (10) days from service of summons. Cf, RULES OF COURT, Rule 11, Sec. 1 thatanswer must be filed within fifteen (15) days.3

Sec. 17, supra, as another instance, requires that judgment be promulgated not later thanthirty (30) days after termination of trial. Contrast with Rule 36 which does not provide timefor rendition of judgment in regular trial but is restricted to the Constitutional limit set inSection 15 (1), Article VIII, that cases must be decided or resolved within three (3) months

from submission.Summary proceedings are common in Arbitration proceedings. Thus, a petition to

enforce an arbitration agreement is required by Rep. Act No. 876, Sec. 6, the generalArbitration Law, to be decided within ten days after such motions, petitions or applicationshave been heard by it.4

KIV is the acronym to denote the essential elements of consent. Thus, the issue to beresolved is narrowed down to what is alleged by a party as having vitiated his consent to thearbitration agreement, namely, fraud, deceit, mistake, minority, or violence, intimidation orundue influence.5

1987 CONSTITUTION, Art. VIII, Sec. 5 (5).


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expeditious and inexpensive determination (of cases) without regard totechnical rules.6

After more than seven years in operation, on November 15, 1991,7 theRevised Rule on Summary Procedures promulgated by the Supreme Court

became effective.

On October 1, 2008, the Rule of Procedure for Small ClaimsCaseswas promulgated also with the same objective of expediting the resolution ofdisputes in the shortest time possible.

III.THE REVISED RULE ON SUMMARY PROCEDURES

A. Features

1. To Accomplish its Laudable Objective, the Rule Prohibitsthe Filing of Certain Motions and Pleadings8

The plain purpose of this prohibition is for the court not toget entangled in procedural matters that will prevent it fromgoing into the merits of the controversy itself. Such wastage ofjudicial time delays resolution of the dispute and makes it moreexpensive for the parties, contrary to the constitutional mandateof rules that provide a simplified, inexpensive, and speedydetermination of every action.9

6Batas Pambansa Blg. 129, Sec. 36.

7REVISED RULE ON SUMMARY PROCEDURES, Sec. 23. Effectivity.

8Sec. 19. Prohibited pleadings and motions. The following pleadings, motions, or petitions

shall not be allowed in the cases covered by this Rule:(a) Motion to dismiss the complaint or to quash the complaint or information excepton the ground of lack of jurisdiction over the subject matter or failure to comply withthe preceding section (failure to undergo conciliation under the KB Law);(b) Motion for a bill of particulars;(c) Motion for new trial, or for reconsideration of a judgment or for re-opening of trial;(d) Petition for relief from judgment;

(e) Motion for extension of time to file pleadings, affidavits or any other paper;(f) Memoranda;(g) Petition for certiorari, mandamus or prohibition against any interlocutory orderissued by the court;(h) Motion to declare the defendant in default;(i) Dilatory motions for postponement;(j) Reply;(k) Third party complaints;(l) Interventions.

9See also REVISED RULES OF COURT, Rule 1, Sec. 6.


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2. The Judge is Empowered to Dismiss the Case Outright onAny of the Grounds Apparent therefrom for the Dismissalof a Civil Action 10

This is intended to make the judges in summary

proceedings more active than passive as they usually are innormal judicial proceedings.

In a case handled by the author as defense counsel, hefiled a Motion to Assist the Court Perform its Duty toDetermine that the Case should be Dismissed Outright.He argued from three premises:

1) a judge is much too busy to personally look for aground to dismiss the case;

2) if the case is dismissed on the judges own initiative,the suspicion cannot be escaped that he was biasedin favor of the defendant and this may lead to amotion to inhibit the judge or an administrativedisciplinary action against the judge; and

3) it is the burden of defense counsel to point out, as heis doing by said motion, the grounds for dismissingthe case outright.

The motion was accepted and the case dismissed.

The lesson that may be learned from this is for judges totake an attitude of liberality in accepting such innovativeinterventions of lawyers to attain the objective of summaryprocedures.

3. Submission of Affidavits in Lieu of Direct Testimony ofWitnesses11

This procedure was patterned after the presentation ofevidence in arbitration processes. By adopting it, much timespent for the presentation of a witness on direct examination isdispensed with. This requirement is modeled from a specific rulein construction arbitration proceedings.12

10REVISED RULE ON SUMMARY PROCEDURES, Secs. 4 and 12.

11Id., Sec. 20

12 CIACREVISED RULES ON ARBITRATION, Rule 13.6.Affidavit in lieu of direct testimony.


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4. Cross-Examination is Made on the Basis of Such Affidavitson the Day of Trial13

Generally, manifestations of counsel, additional directexamination questions, or modifications in the affidavits that are

sought to be made by counsel, should be denied. Counselshould be directed to proceed with the cross-examination as theparties have been forewarned.

Despite being sworn to before a notary public or anyother official, the judge usually requires affiant-witnesses toaffirm the veracity of their affidavit and that they voluntarilyexecuted and understood the same.

5. Submission of Posit ion Papers, Together with the Affidavits

This is in lieu of a memorandum of arguments that isusually submitted at the end of the trial. Memoranda are nowprohibited from being filed by any party.14 In arbitrationproceedings, what is required to be submitted at the conclusionof a trial is Claimants (or Respondents) Draft Decision.

The advantage of requiring parties to submit draftdecisions in their own favor is that they are being asked to takethe role of a neutral judge and, therefore, must address thearguments of the opposing side. A position paper simply loadseverything favorable to the side presenting that position.

Another effective technique is to require parties to argueon each issue that have been formulated for resolution. Suchformulation of issues is contained in the Terms of Reference(TOR) for arbitration and in the Pre-Trial Order in judicialproceedings.

6. No Extension of Periods15

In Gachon v. Guevara,16 the Supreme Court held thatthe period for filing pleadings in cases covered by the Rule onSummary Procedure shall be non-extendible.

13REVISED RULES ON SUMMARY PROCEDURE, Sec. 15.

14Id., Sec. 19 (f).

15Id., Dilatory motions for postponement are disallowed under, Sec. 10, par. (i).

16G.R. No. 116695, J une 20, 1997, 274 SCRA 540.


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7. Limi ted Amount of Award for Attorneys Fees.17

B. Applicability - Not Applicable to RTC in Appealed Cases

This Rule shall govern the summary procedures in all First LevelCourts only.18 Thus, on appeal from an adverse judgment in anunlawful detainer case under summary procedures, the RTC is notbound to observe the same rule on summary procedures.19Accordingly, the RTC may validly take cognizance of a motion forreconsideration of its decision rendered in the exercise of its appellatejurisdiction over decisions of the first level courts in ejectment cases.20

C. Coverage/Scope21

I. Civil Cases

1. All cases of forcible entry and unlawful detainer, irrespective ofthe amount of damages or unpaid rentals sought to berecovered.

2. All other cases, except probate proceedings,22 where the totalamount of the plaintiff's claim does not exceed one hundred

17REVISED RULES ON SUMMARY PROCEDURE, Sec. 1, A (1), limits the amount of attorneys fees

to be awarded in forcible entry and unlawful detainer cases to P20,000.00.18

Id., Sec. 1.19

Jakihaca v. Aquino, G.R. No. 83982, J anuary 12, 1990, 181 SCRA 67. This is a case forunlawful detainer under summary procedure, where judgment was rendered in favor of theplaintiff-owner. Defendants-lessees were accordingly directed to surrender possession andto remove their house built thereon.

RTC, on appeal, dismissed the case on the ground that the MTC acted withoutjurisdiction as there is no showing that the demand to vacate was made within the 1 yearrequired. Landowner Jarihaca moved to reconsider. This was denied by RTC two monthslater.

Landowner filed a petition to review RTC decision. Respondent contends that the

petition was filed out of time since it was filed beyond the 15-day reglementary period fromreceipt of decision. Respondents computation did not consider the period within which theLandowners motion for reconsideration was pending since a motion for reconsideration is aprohibited pleading in summary procedure.

The Supreme Court held that the prohibition against reconsideration is onlyapplicable to proceedings in the MTC and not in the RTC where it was filed. In the lattercourt, there is no prohibition against a reconsideration being sought and the regularprocedure is followed.20

Refugia, et al., v. CA, et al., G.R. No. 118284, J uly 5, 1996, 258 SCRA 347.21

REVISED RULE ON SUMMARY PROCEDURES, Sec. 1.


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

II. Criminal Cases

1. Violations traffic laws, rules and regulations;2. Violations of the rental law;3. Violations of municipal or city ordinances;4. Violations of Batas Pambansa Bilang 22 (Bouncing Checks

Law);245. All other criminal case where the penalty prescribed by law for

the offense charge is imprisonment not exceeding six months or

a fine not exceeding one thousand pesos (P1,000.00), or both,irrespective of other imposable penalties, accessory orotherwise, or of the civil liability arising from the offense,provided, however, that in offenses involving damage toproperty through criminal negligence, this Rule shall governwhere the imposable fine does not exceed ten thousand pesos(P10,000.00).

D. Jurisprudence

1. Summary rules of procedures is mandatory in ejectment25 casesand, therefore, the period for filing pleadings in cases coveredby the rule on summary procedures shall be non-extendible.26

2. Thus, Defendant is required to file his answer within ten (10)days from service of summons and serve a copy thereof on theplaintiff.27 Affirmative and negative defenses not pleadedtherein shall be deemed waived except lack of jurisdiction over

22B.P. Blg. 129, Sec. 33, The J udiciary Reorganization Act of 1980, grants exclusive original

jurisdiction to first level courts over probate proceedings where the value of the estate doesnot exceed P 100,000.00 or P 200,000.00 in Metro Manila.23A.M. No. 02-11-09-SC which took effect on November 25, 2002.

24A.M. No. 00-11-01-SC which took effect on April 15, 2003.

25Ejectment (accion intertictal) is a generic term that covers both forcible entry (detentacion)

and unlawful detainer cases (desahucio).26

Gachon v. Guevara, supra note 16.27

RULE ON SUMMARY PROCEDURES, Sec. 6.


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the subject matter. Cross claims and compulsory counterclaimsnot asserted in the answer shall be considered barred.

3. The answer to counterclaims or cross-claims shall be servedand filed within ten (10) days from service of the answer in

which they are pleaded.

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4. In Gachon, the Supreme Court excluded the answer ofDefendant that was filed five (5) days late.

5. A speedy resolution of unlawful detainer cases is a matter ofpublic policy.29

6. Immediate execution of judgment rendered against defendant,unless sufficient supersedeas bond was filed by him andapproved by MTC executed in favor of the plaintiff to pay rents,

damages and costs accruing down to the time of judgmentappealed from.30

7. The time for deposit of rentals cannot be extended by theRegional Trial Court nor can it excuse a default in suchpayments in the absence of fraud, accident, mistake orexcusable negligence (FAME) and neither can it modify theamount thereof.31

IV. THE RULE OF PROCEDURES FOR SMALL CLAIMS CASES32

A. Features

1. Greatly broadens access to judicial justice

This rule is considered by the author as the most significantissuance of the Supreme Court in terms of broadening access tojudicial justice by those who would not otherwise resort to litigationto pursue their small claims because it may not be worth theexpenditure of costs and time involved.

28

Id.29BPI v. Generoso, A.M. No. MTJ -94-907,October 25, 1995, 249 SCRA 477.

30REVISED RULES OF COURT, Rule 70, Sec. 19.

31Lopez, Inc. v. Phil. & Eastern Trading Co., Inc., 98 Phil. 348 (1956).

32A.M. No. 08-8-7-SC, Sec. 26 Effectivity - This Rule shall take effect on October 1, 2008,

for the pilot courts designated to apply the procedure for small claims cases following itspublication in two newspapers of general circulation (Philippine Daily Inquirer, September 18,2008).

The amendments to this Rule took effect on November 3, 2009 (SC En Banc Resolution,dated October 27, 2009, A.M. No. 08-8-7-SC).


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2. Started as pilot project in selected first level courts

This was started as a pilot project for selected first levelcourts.

3. Subsequently expanded nationwide.

The nationwide application of the Rule took effect on March18, 2010 (OCA Circular NO. 35-1010, dated March 3, 2010).

4. Bilingual instructions in English and Filipino

5. Detailed instructions for both plaintiff and defendant provided

6. Model forms provided for ready use of parties and court

On February 16, 2010, the Supreme Court issued AM No.08-8-7-SC containing a detailed simplified bilingual (English andFilipino) INFORMATION FOR THE PLAINTIFF and anotherINFORMATION FOR THE DEFENDANT. These contain step-by-step instructions for each party to follow in chronological sequenceand information on what to expect at each stage.

7. The plaintiff is instructed:

YOU CANNOT HAVE A LAWYER AT THEHEARING. You may consult a lawyer before or after thehearing but the lawyer cannot appear for or with you atthe hearing.33

8. Defendant is instructed:

You may consult a lawyer BUT YOU CANNOTHAVE A LAWYER WITH YOU AT THE HEARING.34

33Instruction to the plaintiff no. 10.

34Instruction to the defendant no. 6.


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9. Said circular also contains Administrative Guidelines for (a)J udges and (b) Executive J udges, Clerks of Courts in multi-salastations and Branch Clerks of Courts. It contains detailed step-by-step directions on what each of these officials are expected to do.

10. Parties are required to use prepared forms35

Plaintiff to use:

1) FORM 1-SCC Verified Statement of Claim2) FORM 1-A SCC Certification on Non-Forum

Shopping3) FORM 5-SCC Special Power of Attorney4) FORM 6-SCC Motion to Plead as Indigent5) FORM 10-SCC Motion for another judge

6) FORM 8-SCC J oint Motion to Dismiss7) FORM 6-SCC Motion to Plead as Indigent8) FORM 7-SCC Motion for Approval of Compromise

Agreement9) FORM 9-SCC Motion for Execution

Defendant to use:

1) FORM 3-SCC Verified Response2) FORM 5-SCC Special Power of Attorney3) FORM 6-SCC Motion to Plead as Indigent4) FORM 10-SCC Motion for another judge5) FORM 8-SCC J oint Motion to Dismiss6) FORM 7-SCC Motion for Approval of Compromise

Agreement7) FORM 9-SCC Motion for Execution

11. The judge or clerk of court is also required to use preparedforms.

1) FORM 2-SCC Summons2) FORM 4-SCC Notice of Hearing3) FORM 6A-SCC Opening Statement by J udge4) FORM 11-SCC Order to Re-Raffle to Another J udge5) FORM 12-SCC Decision based on CompromiseAgreement6) FORM 13-SCC - DECISION

35The author put to a test the mandatory character of the use of prescribed forms.


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12. The plaintiff must include all evidence that is intended to bepresented in the case and no other evidence will be allowed withoutgood cause.36 The same holds true for the defendant.37

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

14. However, no default order shall be issued against a defendantfor failure to file a timely answer. Said defendant is still allowed toappear at the scheduled hearing to offer a defense, negotiate asettlement and, with good cause, be allowed to present evidence

on his defense.

39

B. APPLICABILITY

First level courts shall apply this Rule in all the following actions:40

(1) purely civil actions where the claim of the plaintiff is solely forpayment of a sum of money not exceeding P100,000.00, exclusiveof interest and costs; But claims exceeding said amount may beallowed as small claims, provided the plaintiff waives right to theexcess amount;41

(2) civil aspect of criminal actions with the same maximum limit. Butthis may only be eligible if filed before the initiation of the criminalaction or reserved when the criminal action was filed.42

(3) Such claims or demands may be:

(a) For money owed under any of the following:Contracts of Lease, Loan, Services, Sale, or Mortgage.

(b) For damages arising from any of the following:Fault or negligence; Quasi-Contract; or Breach of Contract.

36AMENDED RULE OF PROCEDURE FOR SMALL CLAIMS CASES, Sec. 5.

37Id., Sec. 11.

38Id.

39Id., Sec. 12.

40RULE OF PROCEDURE FOR SMALL CLAIMS, Sec. 4.

41Administrative Guidelines, Sec. A (1.2).

42AMENDED RULE OF PROCEDURE FOR SMALL CLAIMS, Sec, 2.


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(c) The enforcement of a barangay amicable settlement or anarbitration award involving a money claim covered by thisRule, pursuant to Sec. 417 of Republic Act No. 7160 (LocalGovernment Code of 1991).43

(4) Claims that include non-monetary relief, such as eviction, are noteligible44 to avail of the small claims procedures.

(5) A defendant may file a counterclaim provided that:

a. the amount does not exceed P100,000.00;b. it does not require joinder of third parties; andc. it is not the subject of another action.45

(6) If the counterclaim is not compulsory, i.e., does not arise from the

same transaction or event as plaintiffs claim, defendant must paydocket and other legal fees.46

(7) It is significant to note that the enforcement of a barangaycompromise agreement or arbitration award is not limited toP100,000.00, since the KB Law subjects all disputes.47irrespective of the amount involved. The authority of the Lupon islimited only in criminal cases where the offense is punishable byimprisonment not exceeding 1 year or a fine not exceedingP5,000.00, but there is no limit set for civil cases.

(8) The enforcement of barangay settlements by action in court maybe resorted to only after the lapse of six months from date ofsettlement.48

43Said Sec. 17 provides that execution of the settlement or arbitration award may be made

by the lupon within six (6) months from date of settlement and thereafter, by action in theproper city or municipal court.44

AMENDED RULE OF PROCEDURE FOR SMALL CLAIMS, Sec. 4.45

Id., Sec. 13.46

Id.47

Rep. Act. No. 7160, Local Government Code, Chapter 7, Sec. 408.48Id., Sec. 417.


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V. OTHER CASES OF SUMMARY PROCEDURES

A. Sett lement of Estates

Section 2, Rule 74 of the Rules of Court authorizes the

Summary settlement of estates of small value, whether the decedentdied testate or intestate, where the gross value of the estate does notexceed ten thousand pesos (P10,000.00).

This provision has not been amended since its promulgation in1964. Under footnote 23, above, the opinion of the author was giventhat the increase in amount of what is classified as small claims toP100,000.00 under the Rule of Procedures for Small Claims Casespromulgated on October 1, 2008, may have been authorized byimplied amendment from the smaller sum of P10,000.00 that wasmade in 1991 for the Revised Rule on Summary Procedures. Between

1991 to 2008, almost 17 years have elapsed. Between 1964 to 2008,44 years have elapsed. A fortiori, the inferential amendment maylikewise be made.

Nonetheless, it should be mentioned that the Rules on SpecialProceedings are now undergoing revision under a sub-committeeheaded by SC Associate J ustice Antonio Eduardo Nachura. Theproposal for amendment has not yet been submitted to the SupremeCourt but an advance copy thereof commendably contains annotationsthat were made for each amendment.

B. Arbitration Proceedings

SPECIAL RULES OF COURT ON ADR49

The following proceedings are declared summary in nature:

a. J udicial relief involving issue of existence, validity, orenforceability of the arbitration agreement;b. Referral to ADR;c. Interim measures of protection;d. Appointment of arbitrator;e. Challenge of arbitrators appointment;f. Termination of arbitrators mandate;g. Assistance in taking evidence;h. Confidentiality/Protective Orders; and

49Cross reference to ADR by same author, where the Table of Contents of the Special ADR

Rules of Court may be found.


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i. Deposit and Enforcement of mediated settlementagreements.50

A. Features

To ensure that the abbreviated periods given in summaryprocedures are followed, as stated at the outset of this paper,the following provisions have been adopted:

1. No summons is necessary. Court acquires authority to acton the petition or motion upon proof of service of thepetition or notice of hearing of the motion.51

2. Only personal service or service by courier is allowed.52Proof of service shall be attached to the petition filed in

court.

3. Thus, no service by registered mail is allowed.

4. As with other summary proceedings, certain pleadings,motions, or petitionsshallnot be allowed.53

5. To further show its mandatory character, it is directed thatsaid prohibited papers shall not be accepted by the Clerk ofCourt.54

6. It is further directed that the hearing shall be conducted inone (1) day and only for purposes of clarifying facts.55

50SPECIAL RULES OF COURT ON ADR. Rule 1.3.

51Id., Rule 1.9.

52Id., Rule 1.3 (A).

53Id., Rule 1.6enumerates the disallowed pleadings, as follows:

a. Motion to dismiss;b. Motion for bill of particulars;

c. Motion for new trial or for re-opening of trial;d. Petition for relief from judgment;e. Motion for extension, except in cases where an ex parte temporary order ofprotection has been issued;f. Rejoinder to reply;g. Motion to declare a party in default; andh. Any other pleading specifically disallowed under any provision of the SpecialRules on ADR.

54Id.

55Id., Rule 1.3 C.


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7. Said hearing shall be conducted by the Court within five (5)days from the lapse of the period for filing the opposition orcomment.56

8. The Court shall resolve the matter within thirty (30) days

from the day of the hearing.

57

B. Specific Summary ADR Proceedings

a. Judic ial Relief as to Arbitration Agreement58

1. The specific issues involved on this matter are:

i. whether the arbitration agreement relied upon by aparty is in existence; and

ii. if so, whether it is valid and enforceable.

2. Any of the foregoing issues may be raised by petitionin court by an interested party, either beforearbitration commences or thereafter, for a judicialdetermination of said issues.59

Before Arbitration Commences

3. Venue.The party raising any of the foregoing issuesmay file a petition before a Regional Trial Court whereany of the parties has his principal place ofbusiness.60

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

56Id.

57Id., Rule 1.3 (D).

58Id., Rule 3.

59Id., Rule 3.1.

60Id., Rule 3.4.

61Id., Rule 3.5.


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

6. No reconsideration, appeal, or certiorari. The courtsprima facie determination upholding the agreementshall not be subject to a motion for reconsideration,appeal, or certiorari.63

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

8. Further challenge on jurisdiction. The losing party maystill further renew the challenge if he loses in theaward by raising the same issue in a petition tovacate or set aside the award in favor of the adverseparty.65

After Arb it rat ion Has Commenced

9. Issues on arbitration agreement for Tribunal. Theinterested party may raise the issues relating to thearbitration agreement as a preliminary question to thearbitral tribunal.

10. Deferral of resolution. The arbitral tribunal may deferruling on said preliminary question until it renders itsaward. In this situation, the aggrieved party may notmove to reconsider the same or seek judicial relieffrom said deferral by way of appeal or certiorari.66

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

62Id., Rule 3.7.

63Id., Rule 3.11.

64Id.

65Id.

66Id., Rule 3.20.


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

12. Tribunal as nominal party. The arbitral tribunal shall

be included as a nominal party respondent but shallnot be required to make any submissions relating toits decision.68

13. Comment/Opposition. The opposing party may fileopposition/comment within fifteen (15) days fromservice of the petition.69

14. Court upholds tribunal jurisdiction. If the court, within

thirty (30) days after submission,

70

reverses the rulingof the arbitral tribunal declining its jurisdiction, theparties shall be free to replace the arbitrators or anyone of them in accordance with the rules that wereapplicable for the appointment of the arbitrator soughtto be replaced.71

15. No injunction. The court shall not, during thependency of the court proceedings, issue anyinjunctive order against the arbitral tribunal, whichmay accordingly continue its arbitration proceedingsuntil it renders an award.72

16. No appeal or certiorari. The decision of the courtaffirming the arbitration agreement and upholding thejurisdiction of the arbitral tribunal, although subject toreconsideration,73 may not be subject to appeal or apetition for certiorari.74

67Id., Rule 3.13.

68Id., Rule 3.22.

69Id., Rule 3.17.

70Id., Rule 3.18.

71Id., Rule 3.12.

72Id., Rule 3.18 (B).

73Id., Rule 3.19.

74Id.


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17. Certiorari allowed. However, the ruling of the courtthat the arbitral tribunal has no jurisdiction, may bethe subject of a petition for certiorari.75

b. Referral to ADR

1. Enforcement of arbitration agreement. A defendant orrespondent who is sued in court by a plaintiff orpetitioner, who filed the action in violation of thearbitration agreement, may file a motion in court, notlater than the pre-trial,76 to refer the parties toarbitration in accordance with their agreement.77

2. Notice of hearing. Said motion shall contain a notice

of hearing,

78

which shall be set on a date and timesubsequent to the period allowed to filecomment/opposition thereto.

3. Comment/Opposition, Comment/opposition shall befiled within fifteen (15) days from service of themotion.79

4. Subject of arbitration agreement not proper forarbitration. In addition to questioning the existence ofthe agreement, its validity or enforceability, oppositormay further raise the issue that its subject-matter isnot capable of resolution by ADR in accordance withSection 6 of the ADR Act.80

5. No reconsideration, appeal or certiorari.81 An orderreferring the dispute to arbitration shall beimmediately executory and shall not be subject toreconsideration, appeal, or petition for certiorari.

75Id.

76Id., Rule 4.2.

77Id., Rule 4.1.

78Id., Rule 4.3.

79Id., Rule 4.4.

80Exempted from the ADR Act are: (a) labor disputes; (b) civil status of persons; (c) validity of

marriage; (d) grounds for legal separation; (e) jurisdiction of courts; (f) future legitime; (g)criminal liability; and (h) those which by law cannot be compromised.81Id., Rule 4.6.


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6. Reconsideration or certiorari, but no appeal. Anorder denying referral to arbitration may be subject toreconsideration and/or certiorari but shall not besubject to appeal.82

7. No ground for declining referral.83 The court shall notdecline to refer some or all of the parties to arbitrationfor any of the following reasons:

a. Not all of the disputes subject of the civil actionmay be referred to arbitration;

b. Not all of the parties to the civil action are boundby the arbitration agreement and referral to

arbitration would result in multiplicity of suits;

c. The issues raised in the civil action could bespeedily and efficiently resolved in its entirety bythe court rather than arbitration;

d. Referral to arbitration does not appear to be themost prudent action; or the stay of the actionwould prejudice the rights of the parties to the civilaction who are not bound by the arbitrationagreement.

8. The court may, however, issue an order directing theinclusion in arbitration of those who are not bound bythe arbitration agreement but who agree to suchinclusion, provided those originally bound by it do notobject to their inclusion.84

c. Interim Measures of Protection

1. Nature. This is similar to the provisional remedies inthe Rules of Court that are attached to the principalaction.85 The requirement of a principal action is notnecessary since court intervention in ADR is a special

82Id.

83Id., Rule 4.7.

84Id., last paragraph.

85RULES OF COURT,Rules 57 to 61.


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proceeding initiated by petition and not bycomplaint.86 Thus, the petition may be filed even if noarbitration has commenced.87

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

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

4. Grounds. These are not exclusive, but are merelyindicative of the reasons that the court may use togrant the relief prayed for:90

NEED of a party to:

a. prevent irreparable loss or injury;

b. provide security for the performance of any obligation;

c. produce or preserve evidence; or

d. compel any other appropriate act or omission.

5. Time to file:

a. Before arbitration is commenced;

b. After arbitration has commenced, but beforeconstitution of the arbitral tribunal;

86SPECIAL RULES OF COURT ON ADR, Rule 1.2 Nature of proceedings. - All proceedings

under the Special ADR Rules are special proceedings.87

Id., Rule 5.2.88

Id., Rule 5.1.89

Id., Rule 5.3.90Id., Rule 5.4.


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

6. Ex parte court action. Urgent need shown bypetitioner to:

a. preserve property;

b. prevent respondent from disposing or concealingproperty; and that

c. prior notice will make the grant of relief prayed forillusory.92

7. Temporary Protective Order. The court may issue thisorder after determining the existence and urgency ofthe above needs. Said Order is immediatelyexecutory, but good only for twenty (20) days after abond has been posted by petitioner to answer for anydamage that respondent may suffer by reasonthereof.93

8. Respondent may file a counterbond to lift saidProtective Order in such amount as may bedetermined by the court.94

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

10. Hearing. The court may set the petition for hearingonly if there is a need for clarification or furtherargument.96

91Id., Rule 5.2.

92Id., Rule 5.7.

93Id., Rule 5.9.

94Id., Rule 5.9 (b).

95Id., Rule 5.8.

96Id., Rule 5.9.


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11. Court action. Within thirty (30) days from hearing orafter the lapse of the period to filecomment/opposition,97 the court shall resolve thepetition. If it decides to grant it, the court may issuethe following interim measures, as:

a) Preliminary injunction against respondent;

b) Preliminary attachment of property or garnishmentof funds in a bank or with a third person;

c) Appoint a receiver;

d) Detention, preservation, delivery or inspection ofproperty; or

e) Give assistance in the enforcement of an interimmeasure of protection granted by an arbitraltribunal when the latter cannot enforce iteffectively.98

12. To show the primacy of arbitration proceedings, itmust be noted that the arbitral tribunal maysubsequently issue an interim protective order thatmay amend, modify, or even revoke the earlier orderissued by the court on this matter.99

d. Appointment of Arbitrator

1. When court may appoint arbitrator.100 It may be statedas a general rule that recourse to the courts isallowed only in default of what the parties had agreedto follow in the appointment of arbitrators.

a) in ad hoc or individual arbitration where the twoarbitrators appointed by the parties have failed toreach an agreement on the third or presidingarbitrator.101

97Id.

98Id., Rule 5.6.

99Id., Rule 5.11 (c).

100Id., Rule 6.1.

101Id., (a).


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b) In all instances of ad hoc arbitration where theparties failed to provide a method of appointing orreplacing an arbitrator.102

c) If a party fails to appoint his arbitrator within thirty

(30) days from request to do so.

103

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

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

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

e. Challenge to Appointment of Arbitrator

1. General qualifications of arbitrator.107Of legal age, infull enjoyment of civil rights, able to read and write,not related by blood or marriage to either party withinthe sixth degree, no financial or fiduciary interest inthe subject of the controversy, and without personalbias that might prejudice the right to a fair andimpartial award.

2. Disclosure. A person suffering from any suchcircumstance, which may be perceived as a ground todisqualify, must disclose the same. However, theparties, after such disclosure, may waive thepresumptive disqualifying circumstance.108

102Id., (b).

103Id., (c).

104Id., Rule 6.3.

105Id., Rule 6.5.

106Id., Rule 6.7.

107Rep. Act. No. 876, [1953], Sec. 10.

108Id., (a).


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3. Challenge. A party may pose the issue ofcompetence, independence, and neutrality againstthe arbitrator nominated or appointed by the other

party.

4. Condition for judicial recourse. If the arbitratorchallenged refuses to recuse, the aggrieved partymay request the President of the Integrated Bar of thePhilippines, as the Appointing Authority, to rule on theissue. It is only when such person fails or refuses toact on such challenge within thirty (30) days that theaggrieved party may renew the challenge in court.109

5. Court action. After hearing, the court shall removethe challenged arbitrator if it finds merit in the petition;otherwise, it shall dismiss the petition.110

The court shall allow the challenged arbitrator, whosubsequently agrees to accept the challenge, towithdraw as arbitrator.

The court shall also remove the arbitrator in thefollowing cases:

a. The party who named the challenged arbitratoragreed to withdraw his appointment;

b. The other arbitrators in the tribunal agree to theremoval of the challenged arbitrator; and

c. The challenged arbitrator fails to submit hiscomment or fails to object to his removal.

6. No reconsideration, appeal or certiorari. A court orderresolving the petition shall be immediately executory andshall not be subject to reconsideration, appeal orcertiorari.111

109SPECIAL RULES OF COURT ON ADR, Rule 7.2.

110Id., Rule 7.7.

111Id., Rule 7.8.


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f. Termination of Mandate of Arbitrator

1. Grounds. Where an arbitrator becomes unable de jureor de facto to perform his functions as arbitrator; orfails to act as arbitrator without undue delay; and fails

to withdraw as arbitrator upon request of a party.

112

a. Court action. After hearing, the court shall, if itfinds merit in the petition, terminate the mandateof the challenged arbitrator and shall appoint asubstitute arbitrator according to the rulesapplicable to the appointment of the arbitratorbeing replaced.113

b. No reconsideration, appeal or certiorari. A court

order resolving the petition shall be immediatelyexecutory and shall not be subject toreconsideration, appeal, or certiorari.114

g. Assistance in Taking Evidence

1. Grounds and type of assistance. The court maydirect any person found in the Philippines to:

a) comply with a subpoena duces tecum or adtestificandum;

b) appear as witness for taking his deposition uponoral examination or by written interrogatories;

c) allow the physical examination of the condition ofpersons, things, or premises (i.e., photographs,video and other means of recording/documentation;

d) allow the examination and copying of documents;and

e) perform any similar acts.115

112Id., Rule 8.1.

113Id., Rules 8.6 and 8.8.

114Id., Rule 8.7.

115Id., Rules 9.4 & 9.5.


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2. Court action. If the evidence sought is not privilegedand is material and relevant, the court shall grant theassistance in taking evidence requested and shallorder the petitioner to pay the costs attendant to such

assistance.

h. Confidentiality/Protective Orders

1. Who may request confidentiality.A party, counsel orwitness who disclosed or was compelled to discloseinformation relative to the subject of ADR undercircumstances that would create a reasonableexpectation, on behalf of the source, that theinformation shall be kept confindential, has the right to

prevent such information from being further disclosedwithout the express written consent of the source, orthe party who made the disclosure.116

2. Venue. A petition for a protective order may be filedwith the Regional Trial Court where that order wouldbe implemented.117

If there is a pending court proceeding in which theinformation obtained in an ADR proceeding is

required to be divulged, or is being divulged, theparty seeking to enforce the confidentiality, mayfile a motion with the court to enjoin theconfidential information from being divulged or tosuppress said confidential information.118

3. Grounds. Only if it is shown by the applicant thatmaterial prejudice would be caused by anunauthorized disclosure of the information obtained,or to be obtained, during an ADR proceeding.119

116Id., Rule 10.1.

117Id., Rule 10.3.

118Id.

119Id., Rule 10.4.


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

5. Comment/Opposition. Within fifteen (15) days fromservice of the petition.121 But if made by motion,within the period set by movant in the notice ofhearing not later than ten (10) days after the filingofthe motion.122

6. Court action.123 In resolving the petition/motion, thecourt shall be guided by the following principlesapplicable to all ADR proceedings:

Confidential information shall not be subject to

discovery and shall be inadmissible in any adversarialproceeding, whether judicial or quasi-judicial.

However, evidence or information that is otherwiseadmissible or subject to discovery, does not becomeinadmissible or protected from discovery solely byreason of its use therein.

For mediation proceedings, the court shall be furtherguided by the following principles:

a. Information obtained through mediation shallbe privileged and confidential;

b. A party, mediator, or non-party participant mayrefuse to disclose and may prevent any otherperson from disclosing a mediationcommunication;

c. In such adversarial proceeding, the followingpersons involved or previously involved inmediation, may not be compelled to discloseconfidential information obtained during themediation:

1. the parties to the dispute;

120Id., Rule 10.6.

121Id., Rule 10.7.

122RULES OF COURT, Rule 15, Sec. 5.

123SPECIAL RULES OF COURT ON ADR,Rule 10.8.


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2. the mediator/s;

3. counsel for the parties;

4. the non-party participant/s;

5. any person/s hired as secretary,stenographer, clerk, or assistant; and

6. any other person/s who obtain or possessconfidential information by reason ofhis/her/their profession.

d. The protection of the ADR laws shall continueto apply even if a mediator is found to have

failed to act impartially;

e. A mediator may not be called to testify toprovide information gathered in mediation;

f. A mediator who is wrongfully subpoenaed shallbe reimbursed the full cost of his attorneysfees and related expenses.

7. Relief from court action, The order enjoining thedivulging of information shall be immediatelyexecutory and may not be enjoined while the order isbeing questioned in the appellate courts.124

7.1. However, if the court declines to issue aninjunction, the aggrieved party may file a motion toreconsider or appeal therefrom.125

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

124Id., Rule 10.9.

125Id.


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i. Deposit /Enforcement of Mediated Sett lementAgreements

1. Who makes deposit. Any party to a mediation that isnot court annexed may deposit with the court the

written settlement agreement resulting from saidmediation,126 with prior notice to the other party,127 orboth parties may jointly make the deposit.

2. Venue. The Regional Trial Court of the place ofbusiness or residence of the parties, or in the NationalCapital J udicial Region.128

3. Registry Book and Certificate of Deposit. The Clerk of

Court shall keep a Registry Book chronologicallylisting all deposits made and shall issue a Certificateof Deposit to the one who made the deposit.

4. Enforcement. The aggrieved party may file a verifiedpetition to enforce an agreement that wasbreached.129

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

6. Court action. The court shall resolve the petition aftera summary hearing.131

126Id., Rule 15.1.

127Id., Rule 15.3.

128Id.

129Id., Rule 15.5.

130Id., Rule 15.7.

131Id., Rule 15.8.

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