PHILIPPINES Trends and Developments Contributed by: Alexander J. Poblador, Dino Vivencio A. A. Tamayo, Anzen P. Dy and Justin Christopher C. Mendoza, Poblador Bautista & Reyes Law Offices
clause contained in it? The Supreme Court addressed this issue, in the context of construction arbitration, in The Consortium of Hyundai Engineering Co ., Ltd . vs . National Grid Corporation of the Philippines , G.R. No. 214743, 4 December 2023 (“Consortium of Hyundai”). In Consortium of Hyundai , Hyundai Engineering Co., Ltd. (Hyundai) entered into a Construction Contract with the National Transmission Corporation (TransCo) which contained an arbitration clause (the “Construc- tion Contract”). For its part, TransCo had entered into a concession agreement and a construction man- agement agreement (CMA) with the National Grid Corporation of the Philippines (NGCP), pursuant to which NGCP undertook to operate TransCo’s regu- lated transmission business, including its construction projects. Hyundai began dealing and transacting with NGCP in the implementation of the Construction Contract (although NGCP had not signed the Construction Contract or the arbitration clause contained in it). Fol- lowing disputes concerning construction delays under the Construction Contract, Hyundai sought to com- pel NGCP to submit to arbitration, by authority of the arbitration clause in the Construction Contract. NGCP resisted this and argued that it was not a signatory to the Construction Contract and thus not bound by the arbitration clause in that contract. In ruling that NGCP, a non-signatory to the Construc- tion Contract and its arbitration clause, was neverthe- less bound to submit to arbitration under that clause, the Supreme Court held that, under prevailing case law, “a non-party to a construction contract contain- ing an arbitration clause can be bound by such arbi- tration clause depending on such party’s ties to the construction contract subject of the dispute”. The Court stressed that it would be necessary to deter- mine whether there was “‘substantial and significant connection’ between the party sought to be implead- ed and the construction contract subject of the arbi- tration”. In Consortium of Hyundai , the Supreme Court “rule(d) that (the Concession Agreement and the CMA between NGCP and TransCo which paved the way for NGCP to be involved in the implementation of the
Construction Contract), while not incorporated into the Construction Contract nor referenced in its pro- visions, are nevertheless significantly and substan- tially linked to the Construction Contract because they determine the precise contours of NGCP’s role in the (Project) as well as the extent by which NGCP assumed TransCo’s duties and obligations under the Construction Contract”. The Court also pointed out that “(t)he Concession Agreement and the CMA are the very reason why the NGCP could participate in the implementation of the Construction Contract and transacted with Hyundai”. Trends and Developments in Evidence “Duplicates” and the “Original Document Rule” Typical commercial litigation usually involves volumi- nous contracts, contract annexes, correspondence, letter exchanges, email trails, reports, charts, sched- ules, maps, illustrations, and the like. Trial lawyers thus spend significant time, energy, and resources, making sure that documents material to their cases, are admitted in evidence. Courts and litigants in the Philippines apply the “Best Evidence Rule”, now known as the “Original Docu- ment Rule” or the rule which says that only the “origi- nal” of a document is admissible in evidence when the subject of the inquiry is the contents of a document. Photocopies – among the documents referred to as “secondary evidence” – would be admitted only under exceptional circumstances, such as when the original was proven to be lost or destroyed, when the oppo- nent kept the original and refused to produce it despite reasonable notice, or when the original consists of voluminous records which would require significant time to examine and “the fact sought to be estab- lished from them (would) only (be) the general result of the whole”. At first, an “original” was simply defined, in the alternative, as a document “the contents of which are the subject of inquiry”, a document “executed at or about the same time, with identical contents” as the original, or an “entry” which is “repeated in the regular course of business, one being copied from another at or near the time of the transaction”. In October 2019, the Supreme Court revamped the definition of an “original” and incorporated in that definition the novel concept of a “duplicate”, which
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