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BETWEEN
10
11
(Claimant)
12
13
V.
14
15
CONSTRUCTION COMPANY
16
(Respondent)
17
1
2
Page 1 of 17
18STATEMENT OF THE
FACTS
19
20Pampanga
21of
22construct,
commission, test, complete and hand over the power station to it. In the
23engineering
24Philippine
25
(a) that any unresolved dispute shall be referred to and finally resolved by the
26
27
arbitration shall be Hong Kong, and that the agreement shall be governed by
28
29
30
31
Act of 2004) and any other laws prescribing a dispute resolution mechanism
32
33
and are hereby waived by the parties and shall not be invoked by them.
34Disputes
35proceedings
On
36November
18, 2013, CC commenced its own arbitration proceedings against PEC and
37submitted
38Commission
39Trial
40proceedings.
3
4
(CIAC); and on the same day filed a case before the Manila Regional
On November 25, 2013, the Manila RTC granted the anti-suit injunction.
Page 2 of 17
41On
November 29, 2013, CC served its answer to the HKIAC arbitration and contended
42that
the said arbitral tribunal did not have jurisdiction, and that the Manila RTC has
43already issued
44HKIAC
arbitral tribunal is now asking the parties for submissions relating to its
45jurisdiction
46position
an anti-suit injunction.
Hence, this
paper.
47
48
INTRODUCTION
49
50Claimant
51submits
52Honorable
53Construction
54
55Claimant
56its
Submission before this Honorable Tribunal, and will demonstrate that: (i) CIAC
57does
58the
not possess exclusive jurisdiction over the case; (ii) this Tribunal may disregard
anti-injunction suit of the Regional Trial Court of Manila and (iii) this Tribunal has
59jurisdiction
60
61Claimant
62basic
5
6
will demonstrate that based on the record now before the Tribunal, and on
63jurisprudence
64Respondents objections
65
66REFUTATION
67
A. CIAC
68
DOES
NOT
POSSESS
SOLE
JURISDICTION
OVER
69
70
71
72Respondent
73the
Philippines are within the original and exclusive jurisdiction of the Construction
74Industry
75to
first claims that any dispute arising from or connected with construction in
Arbitration Commission (CIAC) and that the only requirement for the CIAC
acquire jurisdiction is that the parties must agree to submit their dispute to voluntary
76arbitration.
77To
bolster their claims, Respondents cited several decisions by the Supreme Court of
78the
79connection
80This
81on
the matter. A more careful and critical reading of the said cases, and indeed
82prevailing
83Claimant
84CIAC
7
8
respectfully submits that while the Philippine laws vests jurisdiction with the
by the mere fact that the parties agreed to submit themselves to arbitration, it
Page 4 of 17
85does
not mean that the alternative arbitral forum identified by the parties will be
86entirely precluded
87Thus,
said the Supreme Court of the Philippines in the case of China Chang v. Rosal:
88
89
90
However, this should not be understood to mean that the parties may
91
92
93
94
95
supplied]
96Further, in
the same case, the Court elucidated the true nature of CIACs jurisdiction.
97
When the law provides that the Board acquires jurisdiction when the
98
99
100
before whom they may submit their disputes. That alternative forum is
101
the CIAC. This, to the mind of the Court, is the real spirit of E.O. No.
102
103
[emphasis supplied]
Page 5 of 17
104It
is therefore clear that the CIAC, far from being the automatic forum the parties must
105submit
106an
their disputes to, as Respondents would like the Tribunal to believe, is merely
alternative forum.
107Similarly, in
108the
High Court reiterated the ruling that the law does not preclude the parties from
109stipulating
110its
the case of Excellent Quality Apparel, Inc v. Win Multi Rich Builders, Inc.,
a preferred forum or arbitral body so long as they do not divest the CIAC of
jurisdiction.3
111Arbitration
112of
113with
jurisdiction over the dispute even if the arbitration clause refers to a different
114institution
(e.g. HKIAC).
115However,
such reference to another institution does not mean that the other institution
only means that the parties are allowed a choice of arbitrator, namely the CIAC or
118the
named institution. It may be inferred from this and other previous Supreme Court
119decisions
120request
for arbitration is first filed is the institution that shall have jurisdiction over the
121construction
dispute.4
143 Excellent Quality Apparel Inc v Win Multi Rich Builders Inc, G.R. No.
15175048, 10 February 2009
164 Page 69, The Baker & McKenzie International Arbitration Yearbook 2009
17
18
19
Page 6 of 17
122As
123on
November 04, 2013 and filed a Notice of Arbitration with this honorable Tribunal.
124It
was only on November 18, 2013 when CC commenced its own arbitration
125proceedings
against PEC and submitted its Request for Arbitration to the Construction
126Industry Arbitration
Commission.
127Assuming
that we may not waive the jurisdiction of the CIAC, notwithstanding the
128stipulation
of the parties, the fact that the Claimant has commenced arbitration
129proceedings
130CIAC,
131Another
defense raised by the Respondent is that since the contract involves the
132construction
133arbitration,
134E.O.
135In
before Respondent several days before the latter filed for arbitration in the
arbitrators have the responsibility to apply mandatory laws, in this case, the
truth however, public policy requires that the parties observe the arbitration
136arrangement
137
138Once
arbitration has been agreed upon, the parties must perform their agreement as
139required
140precludes
205 According to Conde Silva, the principle of pacta sunt servanda has been
21included in the notion of public policy by several authors. He cited P. Mayer
22and A. Sheppard, Final ILA Report on Public Policy as a Bar to Enforcement
23of International Arbitral Awards, commentary to Recommendation 1(e),
2419(2) Arb Int 249 - 263 (2003) at p. 256.
25
Page 7 of 17
26
141national
law, immunity from suit a unilateral repudiation of the contract or some other
142act of
143
144
145
146Respondent
147issued
148the
Arbitration Ordinance of Hong Kong (CAP 609) to categorically state that relief
149granted
150This
151of
153grant
45 of the Arbitration Ordinance grants the Hong Kong courts the power to
interim measures in relation to any arbitral proceedings that have been or are to
155state
156on
152Section
154be
would have this honorable Tribunal recognize the anti-suit injunction order
that interim measures or relief granted by foreign courts are automatically binding
157This
brings us to the more important point on this matter, and that is that the parties
158have
159Procurement and
Construction Contract:
Page 8 of 17
160
161
162
Centre under the Rules, except as the Rules may be modified herein.
163
164
165
Kong.
166Further,
167their
under clause 31.2, the Parties have stipulated that the Arbitration clause and
168Choosing
169of
the seat of the arbitration is important because generally, the arbitration law
the arbitral situs will be the law that governs the arbitration (the lex arbitri).8
170The
171view
that the law applicable to the arbitration should be that of the arbitral seat: it
172shall
be governed by the will of the parties and by the law of the country in whose
takes place.9
lex arbitri, which translates to the law of arbitration, is concerned with the totality
176Greenberg,
177
178
179
180
181
arbitration. It can also include other statutes and codes (even those not
182
specifically dealing with arbitration), and case law which relates to the
183
184Among
other things, lex arbitri will provide for the external relationship between the
185arbitration
186as
and the courts, whose powers may be both supportive and supervisory, such
grant of interim relief, procuring evidence from third parties and securing the
187attendance of
188An
agreement as to the seat of an arbitration brings in the law of that country as the
189curial law
190Not
only is there agreement to the curial law of the seat, but also to the courts of the
191seat
having supervisory jurisdiction over the arbitration, so that, by agreeing to the seat,
192the
parties agree that any challenge to an interim or final award is to be made only in
193the
4111 Supra note 10, citing: Greenberg, S., Kee, C., & Weeramantry, J. (2011).
42International Commercial Arbitration: An Asia-Pacific Perspective. Cambridge:
43Cambridge University Press.
4412 Supra note 10
4513 Roger Shahshoua, Rodemadan Holdings Limited, Stancroft Trust Limited
46v. Mukesh Sharma, Neutral Citation Number: [2009] EWHC 957 (Comm), 5
47July 2009
4814 Ibid
49
50
Page 10 of 17
194Therefore,
195Regional
196above,
this Tribunal may validly disregard the same as it is not a court of the seat of
197arbitration
198so,
which issued the anti-suit injunction. Only the Courts of Hong Kong may do
since the seat of arbitration is Hong Kong, and not the Philippines.
199
200ARGUMENTS
FOR JURISDICTION
201
202
203Claimants
204its
submit that the HKIAC Tribunal is entitled to hear the dispute and determine
205
206Arbitral tribunals
207Kompetenz/Kompetenz
208by the
International Court of Justice to prevent national courts from interfering with its
209jurisdiction.15 It
210the
jurisdictional nature of the arbitration, confirmed by case law more than 100 years
211old
17
212
213The
214a
principle implies that the arbitral tribunal, rather than a national court, must decide
dispute concerning its jurisdiction. This has led several arbitration tribunals to uphold
215the
216which
no derogation is permitted.
217
218The
219UNCITRAL Model
Law.
220
221
The arbitral tribunal may rule on its own jurisdiction, including any
222
223
224
225
of the contract. A decision by the arbitral tribunal that the contract is null
226
and void shall not entail ipso jure the invalidity of the arbitration
227
228
229This
same doctrine has been made enforceable in Hong Kongs jurisdiction, under
230Section
231the
232
59
60
Page 12 of 17
233Conde
234competence
235where
236the
defendant was precluded from relying on an action instituted in the courts of Was
237Al Kaimah
238
239The
240Was
Al Khaimah and an exploration company to explore for oil and gas in the
241territorial
242Was
waters of Was Al Khaimah. In April 1979, defendants filed a suit with the
Al Kaimah court against DST and the original operator requesting that the
243agreements
be set aside and that DST and the original operator be restrained from
244continuing
with the reference to arbitration. The court issued an order to that effect.
245Considering
the court order, the tribunal found that the action instituted in the courts of
246Was
Al Khaimah could not stay the jurisdiction of the arbitration tribunal to proceed
247with
248
249Similarly, in
250the
tribunal ousted the effects of an injunction by the Supreme Court of Ethiopia to stay
251the
arbitral proceedings, pursuant to the code of civil procedure of that state. In the
252award
253
6117 Supra note 6, citing: ICC Case No. 3572 Final Award of 1982 Deutsche
62Schachtbau- und Tiefbohr GmbH v. Rakoil
6318 Supra note 6
64
65
Page 13 of 17
254
255
injunctions issued by the Supreme Court and the First Instance Court
256
257
258
259According
260fundamental
261proceedings
262tribunal's
263To
jurisdiction.19
264international
265the
266to
decline to comply with an order issued by a court of the seat, in the fulfilment of
267the
Tribunal's larger duty to the parties.21 Especially, if the order is one issued by a
268court
269Based
270found
its way not only in international and national laws, but also in the decisions of
271courts
272
6619 Salini Construttori S.P.A v. The Federal Democratic Republic of Ethiopia,
67Addis Ababa Water and Sewerage Authority, ICC Arbitration No.
6810623/AER/ACS, December 2001
6920 Supra note 6
7021 Supra note 19
71
72
Page 14 of 17
273Thus,
the Tribunal is, beyond any iota of doubt, capable of determining and
274establishing
275commenced
276
277
278
279
280
281It
282filed
283November
04, 2013, there being no showing that there was a deficiency or failure in
284compliance with
285
286Under
HKIAC Rules, the arbitration is deemed to commence on the date a copy of the
287Notice of Arbitration
288
289Therefore,
290moment
Claimant posits that jurisdiction has been vested with the HKIAC, the
291proceedings.
292
293
294
295
7322 Article 4.2 HKIAC Rules
74
75
Page 15 of 17
296RELIEF
297
298It
is finally submitted that while the law confers jurisdiction, the parties are allowed to
299choose
the law, and thus the jurisdiction, that will govern their contracts or agreements,
300and
301and
verily on its submissions before this Tribunal, that the parties have validly agreed
302on
a specific forum, and that after Claimant has satisfactorily complied with the rules
303of
the HKIAC, it is the Hong Kong International Arbitration Centre which thus
304exercises
305
306In
307opposition
308dismissed;
that the Tribunal disregard the anti-injunction suit filed by the Manila
309Regional
Trial Court, which is a court not belonging to the seat of arbitration, and that
310the Tribunal
311
312
313
314DATED:
315
316
317
318
319
76
77
NAMES OF COUNSEL
Page 16 of 17
320
321
322
323
324
yayin_29@yahoo.com
325
fax: 63-45-3228027
326
telephone: 63-45-4580188
78
79
Mac-Arthur
abree_esteban@yahoo.com
Page 17 of 17