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The International Comparative Legal Guide to:

A practical cross-border insight into litigation and dispute resolution work

11th Edition

Litigation & Dispute Resolution 2018

ICLGArendt & Medernach SAArio Law FirmARNECKE SIBETH RechtsanwälteSteuerberater Partnerschaftsgesellschaft mbBBae, Kim & Lee LLCBaker Botts L.L.P.Bär & Karrer Ltd.Blake, Cassels & Graydon LLPBorenius Attorneys LtdClayton UtzCovington & Burling LLPDrinker Biddle & Reath LLPFlorentGün + PartnersGürlich & Co.Hamdan AlShamsi Lawyers & Legal ConsultantsJackson Walker LLPJunHe LLPKammeradvokaten, Poul Schmith

KennedysKubas Kos GałkowskiLennox PatonMiller & Chevalier CharteredMunari CavaniNagashima Ohno & TsunematsuNorburg & Scherp Advokatbyrå ABOblin MelicharOon & Bazul LLPPolenak Law FirmPotter Anderson & Corroon LLPRichman Greer, P.A.SBH Law OfficeSoteris Flourentzos & Associates L.L.C.SyCip Salazar Hernandez & GatmaitanVieira de AlmeidaWoods LLPZamfirescu Racoţi & Partners Attorneys at Law

Published by Global Legal Group, in association with CDR, with contributions from:

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DisclaimerThis publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

Continued Overleaf

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General Chapter:

2 Angola Vieira de Almeida: Frederico Gonçalves Pereira & Rui Andrade 6

3 Australia Clayton Utz: Colin Loveday & Scott Grahame 13

4 Austria Oblin Melichar: Dr. Klaus Oblin 22

5 Belarus SBH Law Office: Timour Sysouev & Alexandre Khrapoutski 29

6 British Virgin Islands Lennox Paton: Scott Cruickshank & Matthew Freeman 40

7 Canada – Quebec Woods LLP: Marie-Louise Delisle & Annike Flomen 54

8 Canada – Excluding Quebec Blake, Cassels & Graydon LLP: Erin Hoult & Daniel Styler 61

9 China JunHe LLP: Weining Zou & Lihua Wang 69

10 Cyprus Soteris Flourentzos & Associates L.L.C.: Soteris Flourentzos & Nikoleta Christofidi 77

11 Czech Republic Gürlich & Co.: Richard Gürlich & Kamila Janoušková 84

12 Denmark Kammeradvokaten, Poul Schmith: Kasper Mortensen & Henrik Nedergaard Thomsen 91

13 England & Wales Covington & Burling LLP: Greg Lascelles & Tom Jackson 99

14 Finland Borenius Attorneys Ltd: Kristiina Liljedahl & Caius Honkanen 111

15 Germany ARNECKE SIBETH Rechtsanwälte Steuerberater Partnerschaftsgesellschaft mbB: Dr. Robert Safran & Ulrich Steppler 118

16 Ireland Kennedys: Daniel Scanlon & Orla Veale Martin 127

17 Italy Munari Cavani: Raffaele Cavani & Bruna Alessandra Fossati 137

18 Japan Nagashima Ohno & Tsunematsu: Koki Yanagisawa 145

19 Korea Bae, Kim & Lee LLC: Kap-You (Kevin) Kim & John P. Bang 153

20 Luxembourg Arendt & Medernach SA: Marianne Rau 160

21 Macedonia Polenak Law Firm: Tatjana Popovski Buloski & Aleksandar Dimic 167

22 Mozambique Vieira de Almeida: Frederico Gonçalves Pereira & Rui Andrade 177

23 Netherlands Florent: Yvette Borrius & Cathalijne van der Plas 185

24 Philippines SyCip Salazar Hernandez & Gatmaitan: Ramon G. Songco & Anthony W. Dee 193

25 Poland Kubas Kos Gałkowski: Paweł Sikora & Wojciech Wandzel 200

26 Romania Zamfirescu Racoţi & Partners Attorneys at Law: Cosmin Vasile & Alina Tugearu 208

27 Russia Baker Botts L.L.P.: Ivan Marisin & Vasily Kuznetsov 216

28 Singapore Oon & Bazul LLP: Bazul Ashhab 223

29 Sweden Norburg & Scherp Advokatbyrå AB: Fredrik Norburg & Erika Finn 229

30 Switzerland Bär & Karrer Ltd.: Matthew Reiter & Simone Burlet-Fuchs 236

31 Turkey Gün + Partners: Pelin Baysal & Beril Yayla Sapan 244

32 Ukraine Ario Law Firm: Yevhen Hrushovets & Kyrylo Yukhno 252

33 United Arab Emirates Hamdan AlShamsi Lawyers & Legal Consultants: Hamdan AlShamsi & Dr. Ghandy Abuhawash 259

34 USA – Delaware Potter Anderson & Corroon LLP: Jonathan A. Choa & John A. Sensing 266

35 USA – Florida Richman Greer, P.A.: Leslie Arsenault Metz 274

36 USA – Illinois Drinker Biddle & Reath LLP: Justin O. Kay & Matthew M. Morrissey 281

37 USA – New Jersey Drinker Biddle & Reath LLP: Andrew B. Joseph & William A. Wright 290

Country Question and Answer Chapters:

1 Recent Clarifications on the Ambit of Legal Privilege in England & Wales – Greg Lascelles & Tom Jackson, Covington & Burling LLP 1

Contributing EditorsGreg Lascelles and Tom Jackson, Covington & Burling LLP

Sales DirectorFlorjan Osmani

Account DirectorOliver Smith

Sales Support ManagerToni Hayward

Sub EditorJane Simmons

Senior EditorsSuzie LevyCaroline Collingwood

Chief Operating OfficerDror Levy

Group Consulting EditorAlan Falach

PublisherRory Smith

Published byGlobal Legal Group Ltd.59 Tanner StreetLondon SE1 3PL, UKTel: +44 20 7367 0720Fax: +44 20 7407 5255Email: [email protected]: www.glgroup.co.uk

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Printed byStephens & George Print GroupFebruary 2018

Copyright © 2018Global Legal Group Ltd.All rights reservedNo photocopying

ISBN 978-1-911367-94-9 ISSN 1755-1889

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The International Comparative Legal Guide to: Litigation & Dispute Resolution 2018

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Country Question and Answer Chapters:

The International Comparative Legal Guide to: Litigation & Dispute Resolution 2018

38 USA – New York Drinker Biddle & Reath LLP: Clay J. Pierce & Marsha J. Indych 297

39 USA – Pennsylvania Drinker Biddle & Reath LLP: Michael W. McTigue Jr. & Marie Bussey-Garza 306

40 USA – Texas Jackson Walker LLP: Retta A. Miller & Devanshi M. Somaya 313

41 USA – Washington, D.C. Miller & Chevalier Chartered: Brian A. Hill & John C. Eustice 320

EDITORIAL

Welcome to the eleventh edition of The International Comparative Legal Guide to: Litigation & Dispute Resolution.This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations of litigation and dispute resolution.It is divided into two main sections:One general chapter. This chapter provides an overview of legal privilege in litigation, particularly from a UK perspective.Country question and answer chapters. These provide a broad overview of common issues in litigation and dispute resolution in 40 jurisdictions, with the USA being sub-divided into eight separate state-specific chapters.All chapters are written by leading litigation and dispute resolution lawyers and industry specialists, and we are extremely grateful for their excellent contributions.Special thanks are reserved for the contributing editors Greg Lascelles and Tom Jackson of Covington & Burling LLP for their invaluable assistance.Global Legal Group hopes that you find this guide practical and interesting.The International Comparative Legal Guide series is also available online at www.iclg.com. Alan Falach LL.M.Group Consulting EditorGlobal Legal [email protected]

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Chapter 24

SyCip Salazar Hernandez & Gatmaitan

Ramon G. Songco

Anthony W. Dee

Philippines

1.3 What are the main stages in civil proceedings in your jurisdiction? What is their underlying timeframe (please include a brief description of any expedited trial procedures)?

The main stages in civil proceedings are: (1) the filing of the complaint, issuance of summons and exchange of other operative pleadings, which generally takes three to six months; (2) referral to two-stage mediation, pre-trial and discovery, which could take six months to one year; (3) trial proper, which, depending on the complexity of the case, number of witnesses and other exigencies, could take anywhere from six months to three years; and (4) rendition of judgment, which could take from six months to two years. While the ROC prescribes periods for both litigants and the court throughout the process, these are very seldom observed in view of docket congestion and general inefficiencies of Philippine courts. There are expedited trial procedures for small claims cases and summary proceedings. Small claims cases involve payment of money where the value of the claim does not exceed PhP200,000, exclusive of interest and costs. Summary procedure is applied in all other civil cases, except probate proceedings, where the total amount of the claim does not exceed PhP100,000 or PhP200,000 depending on the territorial jurisdiction of the court.

1.4 What is your jurisdiction’s local judiciary’s approach to exclusive jurisdiction clauses?

Exclusive jurisdiction clauses which use language that leaves no doubt as to the intention of the parties to vest jurisdiction exclusively in another country are usually upheld as valid. However, despite the existence of exclusive jurisdiction clauses, Philippine courts tend to still take cognisance of cases when they involve matters of public interest such as labour cases. A Philippine court may also assume jurisdiction if it chooses to do so, provided that it is one to which the parties may conveniently resort to, is in a position to make an intelligent decision as to the law and the facts, and has, or is likely to have, power to enforce its decision.

1.5 What are the costs of civil court proceedings in your jurisdiction? Who bears these costs? Are there any rules on costs budgeting?

The costs of civil court proceedings include filing fees, counsel’s legal fees, and witness and commissioner’s fees as applicable. Costs are, as a general rule, borne by each party, but the court nevertheless

I. LITIGATION

1 Preliminaries

1.1 What type of legal system has your jurisdiction got? Are there any rules that govern civil procedure in your jurisdiction?

The Philippine legal system is primarily a civil law system, although it may be considered a mixed regime consisting of both civil and common law traditions. Civil procedure is governed primarily by the 1997 Rules of Civil Procedure, or Rules 1 to 71 of the Rules of Court (“ROC”), and various issuances promulgated by the Supreme Court.

1.2 How is the civil court system in your jurisdiction structured? What are the various levels of appeal and are there any specialist courts?

The first level courts are: Metropolitan Trial Courts for metropolitan areas, Municipal Trial Courts in Cities for locations that are not part of a metropolitan area, Municipal Trial Courts in other municipalities, and Municipal Circuit Trial Courts for areas comprising municipalities that are grouped together (collectively, “MTCs”). MTCs generally exercise jurisdiction over civil cases involving claims the value of which does not exceed PhP400,000 or PhP300,000 depending on the territorial jurisdiction of the court.The Regional Trial Courts (“RTCs”) are established in each region and consist of several branches. RTCs act as first level courts with general jurisdiction over cases outside the MTCs’ jurisdiction and over appeals from decisions of MTCs. There are RTCs designated as special commercial courts and family courts.The Court of Appeals is organised into 17 divisions. It reviews appeals from the RTC and quasi-judicial agencies. Two specialised courts that are on the same level are the Sandiganbayan, which hears cases against government officials for graft and corruption, and the Court of Tax Appeals, which generally has jurisdiction over tax and customs cases.The Supreme Court is at the highest level of the judiciary, composed of 15 members that sit en banc or in divisions. It has the power to review judgments of lower courts and determine the existence of grave abuse of discretion by any government instrumentality.There are also Shari’a Courts in Muslim regions that handle cases involving the Muslim code on personal law, which principally governs matters of marriage and inheritance.

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3 Commencing Proceedings

3.1 How are civil proceedings commenced (issued and served) in your jurisdiction? What various means of service are there? What is the deemed date of service? How is service effected outside your jurisdiction? Is there a preferred method of service of foreign proceedings in your jurisdiction?

After the filing of the initiatory pleading, the court shall issue a summons directing the other party to file a responsive pleading or answer within 15 days. Service shall be in person by handing a copy to the defendant, or by tendering it to him if he refuses to receive it. For justifiable causes, substituted service may be done by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion, or by leaving the copies at the defendant’s office with a competent person in charge therein.Service to persons outside Philippine jurisdiction may be effected through extraterritorial service. It may only be done when the action either: (1) affects the personal status of the plaintiff; or (2) relates to, or the subject of which is, property within the Philippines in which the defendant claims an interest and the action involves excluding the defendant from any interest thereto; or (3) involves property of the defendant that has been attached. It may be done by effecting personal service, or by publishing the summons in a newspaper of general circulation and at the same time sending a copy of the summons to the last known address of the defendant. The preferred mode is generally publication.

3.2 Are any pre-action interim remedies available in your jurisdiction? How do you apply for them? What are the main criteria for obtaining these?

Interim remedies are generally available only when a case is already pending. There are, as a rule, no pre-action remedies. When there is an arbitration agreement, however, the parties may request a court to grant them interim measures of protection, such as preliminary injunction or appointment of a receiver, before the constitution of the arbitral tribunal.

3.3 What are the main elements of the claimant’s pleadings?

The complaint must state the ultimate facts comprising the plaintiff’s cause/s of action, and state both the plaintiff and defendant’s respective names and residences. It also needs to be verified by the plaintiff by executing an affidavit to the effect that he has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. It shall further contain a Certification Against Forum Shopping in which the plaintiff certifies under oath that he has not commenced any action or filed any claim involving the same issues in any other court or tribunal.

3.4 Can the pleadings be amended? If so, are there any restrictions?

Pleadings may be amended as a matter of right before a responsive pleading thereto is filed. Similarly, formal amendments to pleadings may be done at any stage of the action provided no prejudice is caused to the adverse party. All other substantial amendments, however, can only be done with leave of court.

has the power to adjudge the losing party liable for costs of the suit. As a general rule, a 2% filing fee based on the total amount of the claim is imposed. There are currently no rules on cost budgeting.

1.6 Are there any particular rules about funding litigation in your jurisdiction? Are contingency fee/conditional fee arrangements permissible?

There are no particular rules about funding litigation. Contingency fee arrangements are an internal matter between the litigant and counsel. As a rule, contingency fee arrangements are permissible so long as they do not amount to a champertous agreement, or one where the lawyer agrees to conduct the litigation in his own account and to receive as his fee a portion of the proceeds of the judgment.

1.7 Are there any constraints to assigning a claim or cause of action in your jurisdiction? Is it permissible for a non-party to litigation proceedings to finance those proceedings?

There are no constraints in assigning a claim or cause of action, for as long as the substituting party also has the requisite interest in commencing or maintaining litigation. The party must be a real party in interest, or one who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. There are no particular rules about funding litigation.

1.8 Can a party obtain security for/a guarantee over its legal costs?

Pending litigation, a party may obtain security by availing himself of the provisional remedy of attachment, where the property of the adverse party is attached as security for the satisfaction of any judgment that the court may eventually adjudge.

2 Before Commencing Proceedings

2.1 Is there any particular formality with which you must comply before you initiate proceedings?

Among the grounds for the outright dismissal of a complaint is the failure of a party to comply with a condition precedent. There is no particular condition or formality that applies to all cases. One condition precedent is the referral of certain cases to barangay (village) conciliation. No complaint may be filed in court involving any matter that is within the jurisdiction of the barangay unless no conciliation or settlement has been reached in that venue. Case law also holds that it is a condition precedent, before resorting to litigation, for a consignee to file a timely claim with the carrier, and for a plaintiff to comply in good faith with an agreement to refer a dispute to arbitration.

2.2 What limitation periods apply to different classes of claim for the bringing of proceedings before your civil courts? How are they calculated? Are time limits treated as a substantive or procedural law issue?

Prescriptive periods in filing cases are usually determined by substantive law, and range from one year to 30 years counted from the time the cause of action accrues. Generally, there is a five-year prescriptive period for actions except where the law or rules specify a particular period within which an action should be filed.

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5 Joinder & Consolidation

5.1 Is there a mechanism in your civil justice system whereby a third party can be joined into ongoing proceedings in appropriate circumstances? If so, what are those circumstances?

In addition to the mechanism discussed in question 4.3 regarding third-party complaint, joinder of parties is also allowed when any question of law or fact common to all such third-party plaintiffs or defendants may arise in the action.

5.2 Does your civil justice system allow for the consolidation of two sets of proceedings in appropriate circumstances? If so, what are those circumstances?

Where two pending actions involve a common question of law or fact, the court may order a joint hearing or trial of any or all the matters in issue in the actions or even order the consolidation of the actions.

5.3 Do you have split trials/bifurcation of proceedings?

At the discretion of the court, bearing in mind the convenience of the parties or to avoid prejudice, a court may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue from such claims.

6 Duties & Powers of the Courts

6.1 Is there any particular case allocation system before the civil courts in your jurisdiction? How are cases allocated?

Assignment of cases to the different branches of the MTC or RTC are done exclusively by raffle in open session and with adequate notice to interested parties. Certain cases such as those involving family law or intra-corporate disputes are raffled to specially-designated courts.

6.2 Do the courts in your jurisdiction have any particular case management powers? What interim applications can the parties make? What are the cost consequences?

During pre-trial, the court shall consider, among other things, the possibility of an amicable settlement, possible submission to alternative modes of dispute resolution, simplification of issues, and the possibility of obtaining admissions. As regards interim applications, parties may avail themselves of provisional remedies, including preliminary attachment, preliminary injunction, writ of replevin, and receivership. This will entail additional cost because a bond is generally required from the applicant before relief is granted.

6.3 What sanctions are the courts in your jurisdiction empowered to impose on a party that disobeys the court’s orders or directions?

Courts have the power to declare a person in contempt either summarily in case of direct contempt, or after the conduct of a hearing in case of indirect contempt. Persons declared in contempt of court may be punished with imprisonment and/or fine at the discretion of the court.

3.5 Can the pleadings be withdrawn? If so, at what stage and are there any consequences?

In practice, pleadings may generally be withdrawn without leave of court before a response thereto is filed. Leave of court will not usually be withheld if no prejudice is caused to the opposing party.

4 Defending a Claim

4.1 What are the main elements of a statement of defence? Can the defendant bring a counterclaim(s) or defence of set-off?

In the answer, the defendant shall specifically deny allegations that he does not admit by, as far as practicable, setting forth the substance of the matters upon which he relies to support his denial. Allegations not specifically denied are deemed admitted. Actions or defences founded upon written instruments, copied in or attached to a pleading, shall additionally be denied under oath.The defendant shall raise all defences available to him, including the defence of set-off. Defences and objections not raised in the answer are deemed waived. The defendant may raise a counterclaim when it arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

4.2 What is the time limit within which the statement of defence has to be served?

The defendant shall file his answer to the complaint within 15 days after the service of summons, unless a different period is fixed by the court. It must likewise be served on the other party within the same period. Extensions of time to file the answer may be requested.

4.3 Is there a mechanism in your civil justice system whereby a defendant can pass on or share liability by bringing an action against a third party?

A defendant may pass on or share liability with a person not yet a party to the action by filing a third-party complaint against that person.

4.4 What happens if the defendant does not defend the claim?

If the defendant fails to file an answer, the plaintiff may file a motion to declare the defendant in default. If the motion is granted, the court may proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court, in its discretion, requires the plaintiff to submit further evidence.

4.5 Can the defendant dispute the court’s jurisdiction?

The defendant may dispute the court’s jurisdiction by either filing a motion to dismiss raising therein the ground of lack of jurisdiction and/or raise the jurisdictional challenge as an affirmative defence in the answer.



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insanity of the adverse party, attorney-client privilege, priest-penitent privilege, physician-patient privilege, and public officer’s privilege. There are also a few other privileges recognised in jurisprudence such as newsman or informer’s privilege, trade secrets privilege, and executive and judicial deliberations privilege.

7.3 What are the rules in your jurisdiction with respect to disclosure by third parties?

Even persons not party to a case may be required to disclose information provided it is requested in accordance with the limits provided under the ROC. Third parties may also be subject of the court’s subpoena power to require testimony or the submission of documents.

7.4 What is the court’s role in disclosure in civil proceedings in your jurisdiction?

The court’s approval is, as a general rule, required before depositions may be taken. Courts may likewise issue commissions and letters rogatory in case the witness or the person who is to be deposed is outside the Philippines. Courts also have the power to limit the scope of depositions, issue orders for the protection of parties or deponents, and punish for contempt those who unjustifiably refuse to answer questions during the taking of depositions.

7.5 Are there any restrictions on the use of documents obtained by disclosure in your jurisdiction?

Depositions are generally admissible only when the person deposed can no longer testify in open court due to valid reasons such as, but not limited to, death, incapacity, or being outside of the jurisdiction of the court. When the person is able to testify, the deposition is inadmissible in evidence. Documents obtained through discovery may be used for any purpose.

8 Evidence

8.1 What are the basic rules of evidence in your jurisdiction?

The basic requirement for admissibility of evidence in Philippine courts is that it must be both relevant and competent. The evidence presented not only has a rational relationship with the fact proved, but it also must not be forbidden or excluded by any specific law or rule.

8.2 What types of evidence are admissible, which ones are not? What about expert evidence in particular?

Evidence is characterised into either object evidence, documentary evidence, and testimonial evidence. All three are generally admissible provided the evidence is relevant and competent. Expert witness testimony is admissible provided that the matter to be testified to requires special knowledge, skill, experience or training. It is also required before an expert witness is allowed to testify that his expertise or qualifications in the particular field are established.

6.4 Do the courts in your jurisdiction have the power to strike out part of a statement of case or dismiss a case entirely? If so, at what stage and in what circumstances?

Courts have the power to strike out any pleading or parts thereof from the record when these are found to be sham or false, redundant, immaterial, impertinent, or contain scandalous matters. Courts also have the power to dismiss a case entirely when a meritorious motion to dismiss has been filed by the defendant. Even without a motion to dismiss, the court may on its own dismiss a case when it appears that any of the following grounds are present: lack of jurisdiction over the subject matter; existence of a pending litigation between the same parties for the same cause; or when the case has been barred by prior judgment; and when the action has been barred by prescription.

6.5 Can the civil courts in your jurisdiction enter summary judgment?

Summary judgments may be entered by courts when it is clear, after the defendant has filed an answer, that there exists no genuine issue or controversy as to any material fact, except as to the amount of damages.

6.6 Do the courts in your jurisdiction have any powers to discontinue or stay the proceedings? If so, in what circumstances?

Proceedings may be stayed upon a motion by the party to refer the case to arbitration pursuant to a valid arbitration agreement. The court may also suspend proceedings when the parties manifest an intention to negotiate a settlement of the case. A case may also be archived where the defendant cannot be served with summons. Lastly, a civil action arising from a criminal act shall be suspended when the criminal action for the same act is thereafter filed.

7 Disclosure

7.1 What are the basic rules of disclosure in civil proceedings in your jurisdiction? Is it possible to obtain disclosure pre-action? Are there any classes of documents that do not require disclosure? Are there any special rules concerning the disclosure of electronic documents or acceptable practices for conducting e-disclosure, such as predictive coding?

Parties may avail themselves of depositions, either by oral examination or by written interrogatories, as a mode of discovery or disclosure. Depositions may likewise be taken prior to an action when a person desires to perpetuate his own or another’s testimony. There are no classes of documents which as a rule do not require disclosure nor are there special rules concerning the disclosure of electronic documents.

7.2 What are the rules on privilege in civil proceedings in your jurisdiction?

The rules of privilege in civil proceedings include marital communications privilege, disqualification by reason of death or



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and executory. In case an appeal was perfected and it is the decision of the appellate court which became final, the motion for execution may be filed in the court of origin.An action must be filed in the RTC for recognition of a foreign judgment. The foreign judgment may be repelled by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. It is the RTC’s or the appellate court’s decision upholding the foreign judgment that will be executed.

9.4 What are the rules of appeal against a judgment of a civil court of your jurisdiction?

As a general rule, an ordinary appeal is perfected by filing a notice of appeal with the court which rendered the decision or final order appealed from within 15 days from notice of the decision or final order. For special proceedings, such as in estate proceedings or eminent domain proceedings, where multiple appeals may be taken, an appeal shall be taken by filing a notice of appeal and record on appeal within 30 days from notice of the decision or final order appealed from.

10 Settlement

10.1 Are there any formal mechanisms in your jurisdiction by which parties are encouraged to settle claims or which facilitate the settlement process?

Cases in general are referred to Court-Annexed Mediation (“CAM”) before proceeding with the pre-trial conference. During CAM, a trained and accredited mediator assists the parties in exploring avenues for a settlement. If the parties do not settle, Judicial Dispute Resolution (“JDR”) commences wherein the judge acts as a mediator and neutral evaluator who actively assists and facilitates negotiations among the parties for them to settle their dispute. Referral to CAM and JDR is generally mandatory except for cases that under substantive law cannot be compromised.

II. ALTERNATIVE DISPUTE RESOLUTION

1 General

1.1 What methods of alternative dispute resolution are available and frequently used in your jurisdiction? Arbitration/Mediation/Expert Determination/Tribunals (or other specialist courts)/Ombudsman? (Please provide a brief overview of each available method.)

In addition to CAM and JDR discussed in question 10.1, the alternative modes of dispute resolution available in the Philippines are arbitration, mediation, early neutral evaluation, mini-trial, mediation-arbitration, or any combination thereof.Arbitration is a process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to Republic Act No. 9285 or the Alternative Dispute Resolution Act of 2004 (“ADR Law”), resolve a dispute by rendering an award. Mediation is a process in which a mediator selected by the disputing parties facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement. Early Neutral Evaluation is a process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a non-binding assessment by an experienced person with expertise in the subject,

8.3 Are there any particular rules regarding the calling of witnesses of fact? The making of witness statements or depositions?

A witness may only testify on facts of which he has personal knowledge. The number and names of witnesses which a party intends to present should be indicated in the pre-trial brief which is submitted during the pre-trial stage. No further witnesses shall be allowed to be presented or offered during the trial to support a party’s evidence-in-chief without good reason and if no reservation is indicated in the pre-trial brief. As a general rule, the direct testimony of witnesses shall be in the form of a written judicial affidavit and they shall only take the witness stand for cross-examination, redirect, and re-cross examination.

8.4 Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court? Are there any particular rules regarding concurrent expert evidence? Does the expert owe his/her duties to the client or to the court?

There are no particular rules regarding instructing expert witnesses, preparing expert reports, and giving evidence in court. Expert witnesses, like any other witnesses, are under oath when they testify. Hence, the expert arguably owes his duties to the court and not to the client.

9 Judgments & Orders

9.1 What different types of judgments and orders are the civil courts in your jurisdiction empowered to issue and in what circumstances?

Apart from summary judgments discussed in question 6.5, courts may also, upon motion, issue a “judgment on the pleadings” when the answer filed by the defendant fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading.When an action is filed against several defendants, courts may issue “several judgments” wherein it only renders judgment against one or more of them, leaving the action to proceed against the others. When there are several claims, on the other hand, courts may issue a “separate judgment” which disposes of one issue or claim, leaving the rest to proceed.Courts may likewise issue interlocutory orders which, unlike final orders, do not completely dispose of the case as it only deals with preliminary matters.

9.2 What powers do your local courts have to make rulings on damages/interests/costs of the litigation?

Costs are, as a general rule, borne by each party, but the court nevertheless has the power to adjudge the losing party liable for costs of the suit. Courts also have the power to order payment of interests and damages so long as the prevailing party has sufficiently proved its entitlement thereto.

9.3 How can a domestic/foreign judgment be recognised and enforced?

A domestic judgment may be enforced by filing a motion for execution in the court that rendered the decision which became final



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1.5 How binding are the available methods of alternative dispute resolution in nature? For example, are there any rights of appeal from arbitration awards and expert determination decisions, are there any sanctions for refusing to mediate, and do settlement agreements reached at mediation need to be sanctioned by the court? Is there anything that is particular to your jurisdiction in this context?

Agreements reached through mediation have the force and effect of res judicata. Hence, no appeal may be taken therefrom. When a settlement agreement is reached, the parties may file the settlement agreement with the RTC. Where there is a need to enforce the settlement agreement, a petition may be filed by any of the parties with the same court.Except for arbitral awards under the Construction Industry Arbitration Law, arbitral awards generally may not be reviewed on errors of fact or errors of law when a party applies to the court having jurisdiction for it to confirm the award. Courts may modify the award on evident miscalculation or an evident mistake in the description. Courts may vacate the award entirely on specific jurisdictional and due process grounds set out in the ADR Law, the UNCITRAL Model Law and Republic Act No. 876, such as but not limited to, corruption, fraud, evident partiality on the part of arbitrators, and arbitrators exceeding their powers.

2 Alternative Dispute Resolution Institutions

2.1 What are the major alternative dispute resolution institutions in your jurisdiction?

The Philippine Dispute Resolution Center administers alternative dispute resolution proceedings in mostly commercial disputes. Preferred arbitral institutions outside the Philippines, in our experience, are the Singapore International Arbitration Centre, Hong Kong International Arbitration Centre, and the International Chamber of Commerce – International Court of Arbitration. Within the Philippine court system, the Philippine Mediation Center administers mediation during all stages of proceedings and the mandatory CAM during pre-trial. The Construction Industry Arbitration Commission administers arbitration proceedings over construction disputes.

AcknowledgmentThe authors would like to acknowledge Ma. Patricia B. Paz and Harvey A. Bilang for their invaluable assistance in the writing of this chapter. Ma. Patricia B. Paz is a Senior Associate at SyCipLaw and her practice areas are dispute resolution and commercial arbitration. Ms. Paz is a member of the Philippine Institute of Arbitrators. Email: [email protected] A. Bilang is a Junior Associate at SyCipLaw. Email: [email protected].

to help the parties negotiate an amicable settlement. Mini-trial refers to a structured method in which the merits of the case are argued before a panel comprising of senior decision makers after which the parties seek a negotiated settlement. Lastly, mediation-arbitration is a two-step dispute resolution process involving both mediation and arbitration.

1.2 What are the laws or rules governing the different methods of alternative dispute resolution?

The ADR Law is the primary law as regards alternative modes of dispute resolution. Under the ADR Law, international commercial arbitration is primarily governed by the United Nations Commission on International Trade Law (UNCITRAL) Model Law (1985), while domestic arbitration is primarily governed by Republic Act No. 876 (1953) or the Arbitration Law. There are likewise special laws governing arbitration in specific industries such as Executive Order No. 1008 or the Construction Industry Arbitration Law. Finally, the Philippine Supreme Court has issued Administrative Order No. 07-11-08-SC, otherwise known as the Special Rules of Court for Alternative Dispute Resolution.

1.3 Are there any areas of law in your jurisdiction that cannot use Arbitration/Mediation/Expert Determination/Tribunals/Ombudsman as a means of alternative dispute resolution?

The ADR Law does not apply to disputes involving labour disputes, civil status of persons, validity of marriage, any ground for legal separation of spouses, jurisdiction of courts, future legitime of heirs, criminal liability, and those which according to substantive law cannot be compromised.

1.4 Can local courts provide any assistance to parties that wish to invoke the available methods of alternative dispute resolution? For example, will a court – pre or post the constitution of an arbitral tribunal – issue interim or provisional measures of protection (i.e. holding orders pending the final outcome) in support of arbitration proceedings, will the court force parties to arbitrate when they have so agreed, or will the court order parties to mediate or seek expert determination? Is there anything that is particular to your jurisdiction in this context?

Court proceedings may be stayed upon a motion by the party to refer the case to arbitration pursuant to a valid arbitration agreement. A court may also dismiss a case on the ground of failure to comply with a condition precedent or suspend proceedings if the plaintiff fails to comply with an agreement to arbitrate before commencing litigation. Before the constitution of the tribunal, and after constitution of the arbitral tribunal and during arbitral proceedings but only to the extent that the arbitral tribunal has no power to act or is unable to act, a request for interim measures of protection may be made with the court. These measures include preliminary injunction and appointment of receiver, among other reliefs.



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SyCip Salazar Hernandez & Gatmaitan (SyCipLaw) was founded in 1945. It is the largest law firm in the Philippines. It has offices in Makati City, the country’s business and financial centre, as well as Cebu, Davao and the Subic Freeport.

SyCipLaw offers a broad and integrated range of legal services, covering the following fields: banking, finance and securities; special projects; corporate services; general business law; tax; intellectual property; employment and immigration; and dispute resolution. We have specialists in key practice areas such as mergers and acquisitions, energy, power, infrastructure, natural resources, transportation, government contracts, real estate, insurance, international arbitration, mediation, media, business process outsourcing, and technology.

We represent clients from almost every industry and enterprise, and the firm’s client portfolio includes local and global business leaders. We also act for governmental agencies, international organisations, and non-profit institutions.

We maintain links with established and leading firms based in other jurisdictions, including the United States, and countries in Europe and Asia. We are an active member of various international lawyers’ associations, such as the Employment Law Alliance, the First Law International, the Interlex Group, Multilaw, the Pacific Rim Advisory Council, the World Law Group, and the World Services Group.

Mr. Songco has established a career primarily as a litigator. He handles civil and commercial litigation and arbitration cases, and is currently involved in handling the defence in several mass tort cases and in an environmental action before the Supreme Court. Mr. Songco served as a director of the Integrated Bar of the Philippines – Makati Chapter, from 2003 to 2005. He has been a lecturer in Mandatory Continuing Legal Education seminars since 2006. He has been cited as a key individual in dispute resolution by ChambersAsia-Pacific.

Ramon G. SongcoSyCip Salazar Hernandez & GatmaitanSyCipLaw Center, 105 Paseo de RoxasMakati City, 1226Philippines

Tel: +632 982 3500 / +632 982 3600 +632 982 3700Email: [email protected]: www.syciplaw.com

Mr. Dee has represented numerous clients in all court levels and has extensive litigation and arbitration experience.

He has handled eminent domain projects involving millions of dollars, including the expropriation of land for the construction of a coal power plant and acquisition of rights-of-way for 37 kilometres of transmission lines for the Quezon Power Project.

Mr. Dee is currently advising foreign entities who have been improperly impleaded in a national inquiry concerning the impacts of climate change before the Philippine Commission on Human Rights, and is the lead partner in a case for the recovery by one of the country’s largest real estate firms from the Philippine government of several prime properties worth billions of pesos.

Mr. Dee is the President of the Integrated Bar of the Philippines – Makati Chapter. He was an accredited lecturer on Pre-trial and Trial Skills in the Philippine Supreme Court’s Mandatory Continuing Legal Education programme.

Anthony W. DeeSyCip Salazar Hernandez & GatmaitanSyCipLaw Center, 105 Paseo de RoxasMakati City, 1226Philippines

Tel: +632 982 3500 / +632 982 3600 +632 982 3700Email: [email protected]: www.syciplaw.com


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