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VOL. 490, MAY 19, 2006 15

Transfield Philippines, Inc. vs. Luzon Hydro Corporation

*
G.R. No. 146717. May 19, 2006.
matter which is the subject of the dispute in arbitration. In
TRANSFIELD PHILIPPINES, INC., petitioner, vs. LUZON addition, R.A. 9285, otherwise known as the “Alternative Dispute
HYDRO CORPORATION, AUSTRALIA AND NEW Resolution Act of 2004,” allows the filing of provisional or interim
ZEALAND BANKING GROUP LIMITED and SECURITY measures with the regular courts whenever the arbitral tribunal
BANK CORPORATION, respondents. has no power to act or to act effectively.

PETITION for review on certiorari of a decision of the

Civil Procedure; Actions; Forum Shopping; The essence of Court of Appeals.
forum shopping is the filing of multiple suits involving the same
parties for the same cause of action, either simultaneously or The facts are stated in the resolution of the Court.
successively, for the purpose of obtaining a favorable judgment;      Manuel M. Cosico and M.B. Tomacruz & Associates
Grounds for Forum Shopping to Exist.—The essence of forum for petitioner.
shopping is the filing of multiple suits involving the same parties           Lariba, Perez, Anastacio, Mangrobang, Miralles &
for the same cause of action, either simultaneously or Vil-lones for respondent Security Bank.
successively, for the purpose of obtaining a favorable judgment.           Quasha, Ancheta, Peña & Nolasco Law Office for
Forum shopping has likewise been defined as the act of a party respondent ANZ Bank.
against whom an adverse judgment has been rendered in one           Sycip, Salazar, Hernandez & Gatmaitan for
forum, seeking and possibly getting a favorable opinion in another respondent LHC.
forum, other than by appeal or the special civil action of
certiorari, or the institution of two or more actions or proceedings
RESOLUTION
grounded on the same cause on the supposition that one or the
other court would make a favorable disposition. Thus, for forum
shopping to exist, there must be (a) identity of parties, or at least TINGA, J.:
such parties as represent the same interests in both actions; (b)
identity of rights asserted and relief prayed for, the relief being The adjudication of this case proved to be a two-stage
founded on the same facts; and (c) the identity of the two process as its constituent parts involve two segregate but
preceding particulars is such that any judgment rendered in the equally important issues. The first stage relating to the
other action will, regardless of which party is successful, amount merits of the case, specifically the question of the propriety
to res judicata in the action under consideration. of calling on the securities during the pendency of the
Same; Same; Same; Arbitration; The pendency of arbitral arbitral proceedings, was resolved in favor of Luzon 1
Hydro
proceedings does not foreclose resort to the courts for provisional Corporation (LHC) with the Court’s Decision of 22
reliefs.—As a fundamental point, the pendency of arbitral November 2004. The second stage involving the issue of
proceedings does not foreclose resort to the courts for provisional forum shopping on which the Court 2required the parties to
reliefs. The Rules of the ICC, which governs the parties’ arbitral submit their respective memoranda is disposed of in this
dispute, allows the application of a party to a judicial authority Resolution.
for interim or conservatory measures. Likewise, Section 14 of The disposal of the forum shopping charge is crucial to
Republic Act (R.A.) No. 876 (The Arbitration Law) recognizes the the parties to this case on account of its profound effect on
rights of any party to petition the court to take measures to the
safeguard and/or conserve any
_______________

_______________ 1 443 SCRA 307 (2004).

2 Resolution dated 27 April 2005, Rollo, pp. 1213-1219.
* SPECIAL SECOND DIVISION.
16

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16 SUPREME COURT REPORTS ANNOTATED 17

Transfield Philippines, Inc. vs. Luzon Hydro Corporation

VOL. 490, MAY 19, 2006 17
final outcome of the international arbitral proceedings Transfield Philippines, Inc. vs. Luzon Hydro Corporation
which they have chosen3
as their principal dispute
resolution mechanism.
that the issue of default has not yet been resolved
LHC claims that Transfield Philippines, Inc. (TPI) is
with finality; the petition was however denied by
guilty of forum shopping when it filed the following suits:
the Court of Appeals;
1. Civil Case No. 04-332 filed on 19 March 2004, b. Civil Case No. 00-1312 was a complaint for
pending before the Regional Trial Court (RTC) of injunction with prayer for temporary restraining
Makati, Branch 56 for confirmation, recognition order and/or writ of preliminary injunction dated 5
and enforcement of the Third Partial Award in case November 2000, which sought to restrain LHC from
11264 TE/MW, ICC International Court of calling on the securities and respondent banks from
Arbitration, entitled Transfield
4
Philippines, Inc. v. transferring or paying of the securities; the
Luzon Hydro Corporation. complaint was denied by the RTC.
2. ICC Case No. 11264/TE/MW, Transfield
Philippines, Inc. v. Luzon Hydro Corporation filed On the other hand, TPI claims that it is LHC which is
before the International Court of Arbitration, guilty of forum shopping when it raised the issue of forum
International Chamber of Commerce (ICC) a shopping not only in this case, but also in Civil Case No.
request for arbitration dated 3 November 2000 04-332, and even asked for the dismissal of the other case
pursuant to the Turnkey Contract between LHC based on this ground. Moreover, TPI argues that LHC is
and TPI; relitigating in Civil Case No. 04-332 the very same causes
of action in ICC Case No. 11264/TE/MW, and even
3. G.R. No. 146717, Transfield Philippines, Inc. v.
manifesting therein that it will present evidence earlier
Luzon Hydro Corporation, Australia and New 5
presented before the arbitral tribunal.
Zealand Banking Group Limited and Security Bank
Meanwhile, ANZ Bank and Security Bank moved to be
Corp. filed on 5 February 2001, which was an
excused from filing a memorandum. They claim that with
appeal by certiorari with prayer for
the finality of the Court’s Decision dated 22 November
TRO/preliminary prohibitory and mandatory
2004, any resolution by the Court on the issue of forum
injunction, of the Court of Appeals Decision dated
shopping will not materially affect their role as the banking
31 January 2001 in CA-G.R. SP No. 61901. 6
entities involved are concerned. The Court granted their
respective motions.
a. CA-G.R. SP No. 61901 was a petition for review of
On 1 August 2005, TPI moved to set the case for oral
the Decision in Civil Case No. 00-1312, wherein TPI
argument, positing that the resolution of the Court on the
claimed that LHC’s call on the securities was
issue of forum shopping may have significant implications
premature considering
on the interpretation of the Alternative Dispute Resolution
Act of 2004, as well as the viability of international
_______________ commercial arbitration as 7an alternative mode of dispute
resolution in the country. Said motion was opposed by
3 The growth of international commercial arbitration (ICA) is both a
LHC in its opposition
rejection of the non-binding conciliation and mediation process and a
retreat from the vicissitudes and uncertainties of international business
litigation. More positively, the mechanism offers predictability and _______________

neutrality as a forum and allows the parties to select and shape the 5 Rollo, pp. 1289-1293.
procedures and costs of dispute resolution. On the other hand, ICA 6 ANZ Bank’s Motion to be Excused, Id., at p. 1220; Security Bank’s
procedures are often informal and not laden with legal rights. R. H.
Motion to be Excused, Temporary Rollo.
FOLSOM, M. W. GORDON, J. A. SPANOGLE, JR., INTERNATIONAL
7 Motion for Leave to Set Case for Oral Argument, Id., at pp. 1747-
BUSINESS TRANSACTIONS, pp. 1113-1114 (2nd ed., 1 year published).
1751.
4 The award purportedly held that LHC wrongfully drew on the
securities; and that TPI is entitled to the return of the said sums, 18
liquidated damages, and liquidation costs.

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18 SUPREME COURT REPORTS ANNOTATED that any judgment rendered in the other action will,
Transfield Philippines, Inc. vs. Luzon Hydro Corporation regardless of which party is successful,14 amount to res
judicata in the action under consideration.
There is no identity of causes of action between and
filed on 2 September 2005, with LHC arguing that the
among the arbitration case, the instant petition, and Civil
respective memoranda of the parties are sufficient for the
8 Case No. 04-332.
Court to resolve the issue of forum shopping. On 28
The arbitration case, ICC Case No. 11264 TE/MW, is an
October9 2005, TPI filed its Manifestation and Reiterative
arbitral proceeding commenced pursuant to the Turnkey
Motion to set the case for oral argument, where it
Contract between TPI and LHC, to determine the primary
manifested that the International Chamber of Commerce
issue of whether the delays in the construction of the
(ICC) arbitral tribunal had issued its Final Award ordering
project were excused delays, which would consequently
LHC to pay TPI US$24,533,730.00 (including the
render valid TPI’s claims for extension of time to finish the
US$17,977,815.00 proceeds of the two standby letters of
project. Together with the primary issue to be settled in the
credit). TPI also submitted a copy thereof with a
10 arbitration case is the equally important question of
Supplemental Petition to the Regional Trial Court (RTC), 11 monetary awards to the aggrieved party.
seeking recognition and enforcement of the said award.
On the other hand, Civil Case No. 00-1312, the
The essence of forum shopping is the filing of multiple
precursor of the instant petition, was filed to enjoin LHC
suits involving the same parties for the same cause of
from calling on the securities and respondent banks from
action, either simultaneously or successively,12 for the
transferring or paying the securities in case LHC calls on
purpose of obtaining a favorable judgment. Forum
them. However, in view of the fact that LHC collected the
shopping has likewise been defined as the act of a party
proceeds, TPI, in its appeal and petition for review asked
against whom an adverse judgment has been rendered in
that the same be returned and placed in escrow pending
one forum, seeking and possibly getting a favorable opinion
the resolution of the disputes before the ICC arbitral
in another forum, other than by appeal or the special civil 15
tribunal.
action of certiorari, or the institution of two or more actions
While the ICC case thus calls for a thorough review of
or proceedings grounded on the same cause on the
the facts which led to the delay in the construction of the
supposition that one13 or the other court would make a
project, as well as the attendant responsibilities of the
favorable disposition.
parties therein, in contrast, the present petition puts in
Thus, for forum shopping to exist, there must be (a)
issue the propriety of drawing on the letters of credit
identity of parties, or at least such parties as represent the
during the pendency of the arbitral case, and of course,
same interests in both actions; (b) identity of rights
absent a final determination by the ICC Arbitral tribunal.
asserted and relief prayed for, the relief being founded on
Moreover, as pointed out by TPI, it
the same facts; and (c) the identity of the two preceding
particulars is such
_______________

_______________ 14 Korea Exchange Bank v. Hon. Rogelio C. Gonzales, et al., G.R. Nos.
142286-87, 15 April 2005, 456 SCRA 224, 243, citing Benedicto v. Court of
8 Opposition, Id., at pp. 1757-1760.
Appeals, G.R. No. 125359, 4 September 2001, 364 SCRA 334.
9 Id., at pp. 1763-1767.
15 Rollo, p. 1270.
10 Id., at pp. 1823-1829.
11 TPI also submitted a copy of the Award, Id., at pp. 1768-1818. 20
12 Mondragon Leisure and Resorts Corporation v. United Coconut
Planters Bank, G.R. No. 154187, 14 April 2004, 427 SCRA 585, 590.
20 SUPREME COURT REPORTS ANNOTATED
13 Roxas v. Court of Appeals, G.R. No. 139337, 15 August 2001, 363
SCRA 207, 217. Transfield Philippines, Inc. vs. Luzon Hydro Corporation

19
did not pray for the return of the proceeds of the letters of
credit. What it asked instead is that the said moneys be
VOL. 490, MAY 19, 2006 19 placed in escrow until the final resolution of the arbitral
case. Meanwhile, in Civil Case No. 04-332, TPI no longer
Transfield Philippines, Inc. vs. Luzon Hydro Corporation
seeks the issuance of a provisional relief, but rather the

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issuance of a writ of execution to enforce the Third Partial _______________

Award.
shall not affect the relevant powers reserved to the Arbitral tribunal.
Neither is there an identity of parties between and
Any such application and any measures taken by the judicial authority
among the three (3) cases. The ICC case only involves TPI
must be notified without delay to the Secretariat. The Secretariat shall
and LHC logically since they are the parties to the Turnkey
inform the Arbitral tribunal thereof. (emphasis supplied)
Contract. In comparison, the instant petition includes
18 Section 14. Subpoena and subpoena duces tecum.—Arbitrators shall
Security Bank and ANZ Bank, the banks sought to be
enjoined from releasing the funds of the letters of credit. have the power to require any person to attend a hearing as a witness.

The Court agrees with TPI that it would be ineffectual to They shall have the power to subpoena witnesses and documents when

ask the ICC to issue writs of preliminary injunction against the relevancy of the testimony and the materiality thereof has been

Security Bank and ANZ Bank since these banks are not demonstrated to the arbitrators. Arbitrators may also require the

parties to the arbitration case, and that the ICC Arbitral retirement of any witness during the testimony of any other witness. All of

tribunal would not even be able to compel LHC to obey any the arbitrators appointed in any controversy must attend all the hearings
16
writ of preliminary injunction issued from its end. Civil in that matter and hear all the allegations and proofs of the parties; but

Case No. 04-322, on the other hand, logically involves TPI an award by the majority of them is valid unless the concurrence of all of

and LHC only, they being the parties to the arbitration them is expressly required in the submission or contract to arbitrate. The

agreement whose partial award is sought to be enforced. arbitrator or arbitrators shall have the power at any time, before

As a fundamental point, the pendency of arbitral rendering the award, without prejudice to the rights of any party to

proceedings does not foreclose resort to the courts for petition the court to take measures to safeguard and/or conserve any

provisional reliefs. The Rules of the ICC, which governs the matter which is the subject of the dispute in arbitration. (Emphasis

parties’ arbitral dispute, allows the application of a party to supplied).

17
a judicial authority for interim or conservatory measures.
19 Sec. 28, R.A. No. 9285. Grant of Interim Measure of Protection. (a) It

Likewise, is not incompatible with an arbitration agreement for a party to request,

before constitution of the tribunal, from a Court an interim measure of
protection and for the Court to grant such measure. After constitution of
_______________
the arbitral tribunal and during arbitral proceedings, a request for an
16 Id., at p. 1267. interim measure of protection, or modification thereof, may be made with
17 Art. 23 (2), Rules of Arbitration of the International Chamber of the arbitral tribunal or to the extent that the arbitral tribunal has no
Commerce provides: power to act or is unable to act effectively, the request may be made with
Before the file is transmitted to the Arbitral tribunal and in the Court. x x x. (Emphasis supplied).
appropriate circumstances even thereafter, the parties may apply to any
22
competent judicial authority for interim or conservatory measures. The
application of a party to a judicial authority for such measure or for the
implementation of any such measure ordered by an Arbitral tribunal shall 22 SUPREME COURT REPORTS ANNOTATED
not be deemed to be an Transfield Philippines, Inc. vs. Luzon Hydro Corporation
21
TPI’s verified petition in Civil Case No. 04-332, filed on 19
March 2004, was captioned as one “For: Confirmation,
VOL. 490, MAY 19, 2006 21 Recognition and Enforcement of Foreign Arbitral Award in
Transfield Philippines, Inc. vs. Luzon Hydro Corporation Case 11264 TE/MW, ICC International Court of
Arbitration, ‘Transfield Philippines, Inc. v. Luzon
20
Hydro
Section 14 of Republic Act (R.A.) No. 876 (The Arbitration Corporation’ (Place of arbitration: Singapore).” In the said
18
Law) recognizes the rights of any party to petition the petition, TPI prayed:
court to take measures to safeguard and/or conserve any
“1. That the THIRD PARTIAL AWARD dated
matter which is the subject of the dispute in arbitration. In
February 18, 2004 in Case No. 11264/TE/MW made
addition, R.A. 9285, otherwise known as the “Alternative
by the ICC International Court of Arbitration, the
Dispute Resolution Act of 2004,” allows the filing of
signed original copy of which is hereto attached as
provisional or interim measures with the regular courts
Annex “H” hereof, be confirmed, recognized and
whenever the arbitral tribunal has no power to act or to act
19
enforced in accordance with law.
effectively.

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2. That the corresponding writ of execution to enforce amounts which will be included in the Final Award and
Question 31 of the said Third Partial Award, be will be taken into account in determining
25
the actual
issued, also in accordance with law. amount payable to the prevailing party. R.A. No. 9825
3. That TPI be granted such other relief as may be provides that international commercial arbitrations shall
deemed just and equitable, and allowed, in be governed shall be governed by the Model Law on
21
accordance with law.” International Commercial Arbitration (“Model Law”)
adopted by the United Nations 26 Commission on
22
The pertinent portion of the Third Partial Award relied International Trade Law (UNCITRAL). The UNCITRAL
upon by TPI were the answers to Questions 10 to 26, to wit: Model Law provides:

“Question Did TPI [LHC] wrongfully draw upon the ARTICLE 35. Recognition and enforcement
30 security?
(1) An arbitral award, irrespective of the country in which it
      Yes was made, shall be recognized as binding and, upon
“Question Is TPI entitled to have returned to it any sum application in writing to the competent court, shall be
31 wrongfully taken by LHC for liquidated enforced subject to the provisions of this article and of
damages? article 36.
  Yes (2) The party relying on an award or applying for its
enforcement shall supply the duly authenticated original
“Question Is TPI entitled to any acceleration costs? TPI is
award or a duly certified copy thereof, and the original
32 entitled to the reasonable costs TPI incurred
arbitration agreement
after Typhoon Zeb as a result of LHC’s
23
5
February 1999 Notice to Correct.
_______________

_______________ 24 Id., at pp. 1685-1743.

25 Id., at pp. 1665-66.
20 Rollo, p. 672.
26 Rep. Act No. 9285, Sec. 19.
21 Id., at p. 680.
22 Id., at p. 661. 24
23 Third Partial Award, id., at pp. 114-664.

23 24 SUPREME COURT REPORTS ANNOTATED

Transfield Philippines, Inc. vs. Luzon Hydro Corporation
VOL. 490, MAY 19, 2006 23
referred to in article 7 or a duly certified copy thereof. If the
Transfield Philippines, Inc. vs. Luzon Hydro Corporation
award or agreement is not made in an official language of this
State, the party shall supply a duly certified translation thereof
According to LHC, the filing of the above case constitutes into such language.
forum shopping since it is the same claim for the return of 27
US$17.9 Million which TPI made before the ICC Arbitral Moreover, the New York Convention, to which the
Tribunal and before this Court. LHC adds that while Civil Philippines is a signatory, governs the recognition and
Case No. 04-332 is styled as an action for money, the Third enforcement of foreign arbitral awards. The applicability of
Partial Award used as basis of the suit does not authorize the New York Convention in the Philippines was confirmed
TPI to seek a writ of execution for the sums drawn on the in Section 42 of R.A. 9285. Said law also provides that the
letters of credit. Said award does not even contain an order application for the recognition and enforcement of such
for the payment of money, but instead has reserved the awards shall be filed with the proper RTC. While TPI’s
quantification of the amounts for a subsequent resort to the RTC for recognition and enforcement of the
determination,
24
LHC argues. In fact, even the Fifth Partial Third Partial Award is sanctioned by both the New York
Award, dated 30 March 2005, does not contain such Convention and R.A. 9285, its application for enforcement,
orders. LHC insists that the declarations or the partial however, was premature, to say the least. True, the ICC
awards issued by the ICC Arbitral Tribunal do not Arbitral Tribunal had indeed ruled that LHC wrongfully
constitute orders for the payment of money and are not drew upon the securities, yet there is no order for the
intended to be enforceable as such, but merely constitute payment or return of the proceeds of the said securities. In
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fact, Paragraph 2142, which is the final paragraph of the 6.2 Declarations
Third Partial Award, reads: 168. The Tribunal makes the following declarations:
xxx
2142. All other issues, including any 28
issues as to quantum and 3. LHC is liable to repay TPI the face value of the securities
costs, are reserved to a future award. drawn down by it, namely, $17,977,815. It is not liable for any
29 further damages claimed by TPI in respect of the drawdown of the
Meanwhile, the tribunal issued its Fifth Partial Award on
securities.
30 March 2005. It contains, among others, a declaration 32
x x x.
that while LHC wrongfully drew on the securities, the
drawing was made in good faith, under the mistaken Finally, on 9 August 2005, the ICC Arbitral tribunal issued
assumption that the contractor, TPI, was in default. Thus, its Final Award, in essence awarding US$24,533,730.00,
the tribunal ruled that while the amount drawn must be
returned, TPI is not entitled to any damages or interests
_______________
due to LHC’s drawing on
30 Id., at pp. 1703-1705.
_______________ 31 Id., at p. 1741.
32 Id., at pp. 1741-1742.
27 Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, signed at New York on 10 June 1958, and ratified by the 26
Philippines under Senate Resolution No. 71.
28 Rollo, p. 663.
26 SUPREME COURT REPORTS ANNOTATED
29 Id., at pp. 1685-1703.
Transfield Philippines, Inc. vs. Luzon Hydro Corporation
.

25 which included TPI’s claim of US$17,977,815.00

33
for the
return of the securities from LHC.
The fact that the ICC Arbitral tribunal included the
VOL. 490, MAY 19, 2006 25 proceeds of the securities shows that it intended to make a
Transfield Philippines, Inc. vs. Luzon Hydro Corporation final determination/award as to the said issue only in the
Final Award and not in the previous partial awards. This
the securities.
30
In the Fifth Partial Award, the tribunal supports LHC’s position that when the Third Partial
ordered: Award was released and Civil Case No. 04-332 was filed,
TPI was not yet authorized to seek the issuance of a writ of
“6. Order execution since the quantification of the amounts due to
6.1. General TPI had not yet been settled by the ICC Arbitral tribunal.
166. This Fifth Partial Award deals with many issues of Notwithstanding the fact that the amount of proceeds
quantum. However, it does not resolve them all. The outstanding drawn on the securities was not disputed the application
quantum issues will be determined in a future award. It will for the enforcement of the Third Partial Award was
contain a reconciliation of the amounts awarded to each party and precipitately filed. To repeat, the declarations made in the
a determination of the net amount payable to Claimant or Third Partial Award do not constitute orders for the
Respondent, as the case may be. payment of money.
167. In view of this the Tribunal will make no orders for Anent the claim of TPI that it was LHC which
payment in this Fifth Partial Award. The Tribunal will make a committed forum shopping, suffice it to say that its bare
number of declarations concerning the quantum issues it has allegations are not sufficient to sustain the charge.
resolved in this Award together with the outstanding liability WHEREFORE, the Court RESOLVES to DISMISS the
issues. The declarations do not constitute orders for the payment charges of forum shopping filed by both parties against
of money and are not intended to be enforceable as such. They each other.
merely constitute amounts which will be included in the Final No pronouncement as to costs.
Award and will be 31
taken into account in determining the actual SO ORDERED.
amount payable.” (Emphasis Supplied.)
          Puno (Chairperson), Austria-Martinez, Callejo, Sr.
Further, in the Declarations part of the award, the tribunal and Chico-Nazario, JJ., concur.
held:
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Charges of forum shopping dismissed.

Note.—Forum shopping is present when there is

identity of parties, rights or causes of action and reliefs
sought in two or more pending cases. (R & E Transport,
Inc. vs. Latag, 422 SCRA 698 [2004])

——o0o——

_______________

33 Final Award, Id., at pp. 1768-1815.

27

VOL. 490, MAY 31, 2006 27

Re: Dishonesty and/or Falsification of Official Document of
Mr. Rogelio M. Valdezco, Jr.

© Copyright 2020 Central Book Supply, Inc. All rights reserved.

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