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ABS-CBN Broadcasting Corporation v.
World Interactive Network Systems [WINS]
Japan Co., Ltd., G.R. No. 169332,
February 11, 2008

In 1999, ABS-CBN Broadcasting Corporation [“ABS-CBN”] granted World Interactive Network Systems Japan Co., Ltd. [“WINS”], an exclusive license to distribute and sublicense the distribution of a television service known as “The Filipino Channel” [“TFC”] in Japan [the Licensing Agreement”]. In 2002, ABS-CBN, alleging breach, notified WINS of its intention to terminate the Licensing Agreement.     WINS commenced arbitration pursuant to the arbitration clause in the Licensing Agreement alleging that ABS-CBN wanted to renegotiate the terms thereof to allow it to demand higher fees. The sole arbitrator thereafter appointed, after hearing, found in favor of WINS and ordered ABS-CBN to pay damages.

ABS-CBN filed in the Court of Appeals [“CA”] a petition for review under Rule 43 [the “Petition for Review”] or, in the alternative, a petition for certiorari under Rule 65 [the “Petition for Certiorari”], collectively the “ABS-CBN Petition”]. It alleged serious errors of fact and law and/ or grave abuse of discretion on the part of the arbitrator. WINS meanwhile filed a petition in the Regional Trial Court [“RTC”] for confirmation of the arbitral award [the “Petition for Confirmation”]. ABS-CBN sought to enjoin the RTC from further proceeding on the Petition for Confirmation in a supplemental petition filed in the CA. After this supplemental petition was admitted, the RTC issued an order holding in abeyance any further action on the Petition for Confirmation.

The CA dismissed the ABS-CBN Petition for lack of jurisdiction as the Terms of Reference¹ provided that the arbitrator’s decision shall be final and not subject to appeal and that no motion for reconsideration shall be filed. It held that only the RTC had jurisdiction over the questions raised by ABS-CBN and that its jurisdiction may be invoked only in an appeal from the RTC’s decision confirming, vacating or modifying the award. And that a petition for certiorari is proper only if the RTC refused or neglected to inquire into the facts of an award.

ABS-CBN, unsuccessful in obtaining a reconsideration of the CA decision, filed a Rule 45 petition in the Supreme Court. The issue before it, the Supreme Court said, is whether or not an party, aggrieved by an arbitral award, may file in the CA a petition for review under Rule 43 or certiorari under Rule 65, instead of filing a petition to vacate the award when the grounds invoked in the petition are the grounds for vacating an award under Republic Act No. 876 [“RA 876”]

The Supreme Court said that Section 24 of RA 876 explicitly states that an award may be vacated only in any one of the case enumerated in Section 24. Under the rule in statutory construction, expressio unius est exclusio alterius, the explicit mention of one thing in a statute means the elimination of others not specifically mentioned. Errors of fact and/or law and grave abuse of discretion are not included as grounds of a petition to vacate an award in the RTC. It necessarily follows that in the RTC a party may not seek to overturn an award upon any of these grounds. In Adamson v. Court of Appeals², the Court held that a petition to vacate an award in the RTC which is not based on the grounds enumerated in Section 24 of RA 876 should be dismissed.

Outside of the enumerated grounds in Section 24 of RA 876, the aggrieved party may file either a petition for review under Rule 43 or a petition for certiorari under Rule 65³. If errors of fact and/or law are raised, a Rule 43 petition is proper⁴. If grave abuse of discretion or lack of jurisdiction is alleged, a Rule 65 petition may be filed. Any agreement stipulating that the decision of the arbitrator is final and not subject to appeal or that there shall be no further judicial recourse if either party disagrees with the whole or part of the award cannot be held to preclude in proper cases the power of judicial review which is inherent in courts⁵.

The remedies available to an aggrieved party to an arbitral award are: (a) a petition to vacate the award on any of the grounds provided in Section 24 of RA 876; ( b) a petition for review under Rule 43 on the ground of errors of fact, of law or mixed errors of law or fact; and (c) a petition for certiorari under Rule 65 on the ground that the arbitrator acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction⁶.

The judicial remedies on appeal are, however, mutually exclusive and not cumulative or successive. The issues that may be raised in a petition for review are errors of fact, law or mixed questions of fact and law. Those that may raised in a petition for certiorari are errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. Certiorari cannot be availed of where appeal is the proper remedy. It cannot be used as a substitute for a lapsed appeal⁷. Moreover, the alleged grave abuse of discretion of the arbitrator pertained more to the latter’s appreciation of the issues and the evidence of the parties. Therefore, the issues clearly fall under the classification of errors of fact and law.

This article was prepared by Custodio O. Parlade, of-counsel of the Parlade Hildawa Parlade Eco & Panga and president emeritus of the Philippine Dispute Resolution Center, Inc. For further information on this topic, please contact Custodio O. Parlade at (632) 687 5362; by mail at 26th Floor, The Orient Square, F. Ortigas, Jr., Ortigas Center, Pasig City 1605 Philippines, or by e-mail at: coparlade@phpeplaw.com or gingparlade@yahoo.com

____________________

1    It seems that in the course of arbitration, the parties signed a “terms of reference”.

2    G.R. No. 106879, May 27, 1994; 232 SCRA 602

3    See Asset Privatization Trust v.. Court of Appeals, G.R. No. 121171, December 21,1998; 300 SCRA 579

4    Citing: Sevilla Trading Company v. Semana, G.R. NO. 152456, April 28, 2004; 428 SCRA 239; Manila Midtown Hotel v. Borromeo, G.R. No. 138395, September 22, 2004; 438 SCRA 653; and Nippon Paint Employees Union-Olalia v. Court of Appeals, G.R. No. 159010, November 19, 2004; 443 SCRA 286

5    Citing Chung Fu Industries (Phils.) v. Court of Appeals, G.R. No. 96283,February 28, 1992; 206 SCRA 545

6    Insular Savings Bank v. Far East Bank and Trust Company, G.R. No. 141818, June 22, 2006; 492 SCRA 145

7    Citing Oriental Media, Inc. v. Court of Appeals, G.R. No., 80127, December 6, 1995; 250 SCRA 647; Hipolito v. Court of Appeals, G.R. Nos. 108478-79, February 21, 1994; 230 SCRA 647; Federation of Free Workers v. Inciong, G.R. No. 49983, April 20, 1992; Manila Electric Company v. Court of Appeals, G.R. No.88396, July 4, 1990; 187 SCRA 200.

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