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Implementing Rules and Regulations of the Office of
the Government Corporate Counsel
|
Republic of the Philippines
Department of Justice
OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL
Balara, Quezon City
RULES GOVERNING THE
EXERCISE BY THE OFFICE OF THE GOVERNMENT CORPORATE COUNSEL (OGCC) OF ITS
FUNCTIONS AND POWERS AS PRINCIPAL LAW OFFICE OF ALL GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS.
Pursuant to the provisions of Section 10, Chapter 3, Title
III, Book IV of the Administrative Code of 1987 and Presidential Decree No.
242, and the relevant provisions of Republic Act No. 9285, the Alternative
Dispute Resolution Act of 2004, the Government Corporate Counsel hereby
promulgates the following rules to efficiently discharge its functions and
powers as principal law office of all Government-Owned or Controlled
Corporations, their subsidiaries, other corporate offsprings and government
acquired asset corporations and to effectively exercise its power of control
and supervision over all legal departments maintained separately by them.
PART ONE
GENERAL
PROVISIONS
RULE 1
TITLE AND CONSTRUCTION
SECTION 1.1 Title of the Rules.- These Rules shall be
known and cited as the Implementing Rules and Regulations of the Office of
the Government Corporate Counsel or “IRR of OGCC.”
SEC. 1.2 Applicability.- These Rules shall apply to all matters/cases properly brought or referred to
the OGCC for advice or representation, as well as to disputes, claims and
controversies between or among government-owned or controlled corporations.
SEC. 1.3 Construction.- These Rules shall be
liberally construed in order that justice may be administered in an efficient,
effective, equitable, just, speedy and inexpensive manner.
RULE 2
DECLARATION OF POLICY
It is hereby declared the policy of the Office of the
Government Corporate Counsel (OGCC) to efficiently discharge its functions and
powers as principal law office of all Government
Owned or Controlled Corporations (GOCCs), their subsidiaries, other corporate
offsprings and government acquired asset corporations as well as to promote
and encourage the resolution and settlement of disputes, claims and
controversies between or among government offices, agencies and
instrumentalities, including GOCCs, through the appropriate mode such as
arbitration, negotiation and/or mediation/conciliation, even if there is a
private person or entity involved, always bearing in mind that in the ultimate
analysis, there is only one predominant real party-in-interest namely the
Government that is instituted to serve the welfare of
the Filipino people.
For purposes of these
Rules, the term “Government-Owned
or Controlled Corporations (GOCCs)” refers to a corporation organized as a stock
or non-stock corporation vested with functions relating to public needs,
whether governmental or proprietary in nature, and owned by the National
Government directly or through its instrumentalities either wholly or, where
applicable as in the case of stock corporations, to the extent of at least
fifty-one percent (51%) of its capital stock. This term shall also include
subsidiaries, offsprings, acquired asset corporations, and other government
entities of which the OGCC is the principal law office.
RULE 3
POWERS OF THE OGCC
SECTION
3.1 Powers.-
3.1.1. As principal law office
and as supervisor. - The OGCC, as principal law office exercising control and
supervision over the law departments separately maintained by the GOCCs, shall
have the following powers:
a) Represent GOCCs in the
litigation of appropriate cases brought before the courts or quasi-judicial
bodies in the Philippines or abroad in accordance with Rule 5 hereof;
b) Review, revise or
modify, as the case may be, all contracts referred by GOCCs, as required by
law, to make the same conform with existing laws and applicable government
rules and regulations, and/or to prepare such contracts when so requested in
appropriate cases in accordance with Rule 6 hereof;
c) Render legal opinions,
as required by law, on all important legal questions referred by GOCCs in
accordance with Rule 6 hereof;
d) Mediate or arbitrate
under P.D. 242, in relation to relevant provisions of R.A. 9285 and the
Administrative Code of 1987, appropriate disputes, claims and controversies
between or among GOCCs in appropriate cases in accordance with Part III
hereof;
e) Investigate and, in
appropriate cases, hear administrative disciplinary cases involving all
officials and employees of GOCCs upon the request of the latter in accordance
with Rule 7 hereof;
f) Conduct
periodic performance audit of the legal departments maintained by GOCCs;
g) Require the legal
departments of GOCCs to submit periodic reports of work performed and/or
accomplished;
h) Conduct fact-finding and
preliminary investigation on appropriate referred cases;
i) Enjoin
GOCCs from hiring private lawyers or law firms to represent them or to be their
legal retainers except upon the conditions stated in Rule 9 hereof;
j) Impose
or recommend appropriate administrative or disciplinary sanctions against
erring lawyers in the legal departments of GOCCs in accordance with Rule 7
hereof; and
k) Promulgate rules and
regulations and exercise such other powers as may be necessary or proper to
effectively implement its mandate.
In exercising its power
of administrative supervision over the legal departments of the GOCCs, the OGCC
shall:
a) ensure that the legal
positions adopted by the GOCCs are not in conflict with each other or the
national government position;
b) hold regular
consultations with the concerned GOCC on the referred case/s to ensure
satisfactory collaborative formulation of legal strategies and evidence
presentation and on relevant legal matters; and
c) formulate and conduct
capability-building programs.
3.1.2 Power
to enforce the Property Insurance Law. - The OGCC, upon its own initiative, shall
have the power to enforce the Property Insurance Law pursuant to Republic Act
No. 656, as amended by Presidential Decree No. 245, in domestic or
international transactions.
3.1.3 Power
to make assessments and to receive attorney’s fees. –
a) In addition to the
regular assessment mentioned in Sec. 4 of P.D. 1415, the Government Corporate
Counsel is authorized to make special assessments upon GOCCs serviced by its
office, to meet contingencies, obligations, and undertakings necessary to
maintain and promote the efficiency of the service.
b) The OGCC is authorized
to receive attorney’s fees adjudged in favor of client GOCCs in judicial
proceedings handled by the OGCC. These attorney’s fees shall accrue to a
special fund of the OGCC, and shall be deposited in an authorized government
depository as a trust liability and shall be made available for expenditure
without the need for a cash disbursement ceiling, for purposes of upgrading
facilities and equipment, granting of employees’ incentive pay, and other
benefits, and defraying such other incentive expenses not provided for in the
General Appropriations Act as may be determined by the Government Corporate
Counsel (Sec. 10, Chapter 3, Title 3, Book 4, Administrative Code of 1987).
SEC. 3.2 General guidelines for exercise of power. - The OGCC, in exercising
its powers, shall be guided by due considerations of the universal principles
of fairness, justice, the rule of law and the welfare of the Filipino people.
PART TWO
RULES OF THE
OGCC
RULE 4
ORGANIZATIONAL SET-UP
SECTION 4.1 Composition. - Unless otherwise provided by law, the Office of the
Government Corporate Counsel (OGCC) shall be composed of the Government
Corporate Counsel (GCC), One Deputy Government Corporate Counsel (DGCC), Ten
(10) Assistant Government Corporate Counsels (AGCCs), all of whom shall be
appointed by the President of the Philippines. All other members of the legal
staff of the OGCC shall be appointed by the Government Corporate Counsel, the
numbers and ranks of which shall be as follows: Ten (10) Government Corporate
Attorney IV (GCA-IV), Fourteen (14) Government Corporate Attorney III
(GCA-III), Seventeen (17) Government Corporate Attorney II (GCA II), Four (4)
Government Corporate Attorney I (GCA I), One (1) Associate Government Corporate
Attorney II, and One (1) Associate Government Corporate Attorney I.
SEC. 4.2 Administrative staff. -
The Office of the Government Corporate Counsel shall be supported by an
administrative staff all of whom shall be appointed by the Government Corporate
Counsel and shall consist of the following personnel: secretarial pool,
records management, messengerial, library, supply & property, utilities,
accounting & finance, human resources and management, paralegal and such
other personnel as the exigency of the service may require.
SEC. 4.3 Organization into teams. - Unless
otherwise determined by the Government Corporate Counsel, the Legal Staff shall
be divided into teams, each to be headed by an AGCC as team leader. The
classification of the teams shall include, but shall not be limited to: (1)
Gaming & Allied Services; (2) Ecozones; (3) Information & Energy; (4)
Environment & Water; (5) Banking & Finance; (6) Transportation,
Communication & Infrastructure; (7) Agriculture & Trade; and (8)
Housing & Urban Development.
4.3.1 Responsibility
of team leaders.- Each
team leader shall be designated by the Government Corporate Counsel and shall
be directly responsible for the supervision of the members of his/her team.
The Government Corporate Counsel, assisted by the Deputy Government Corporate
Counsel, shall have over-all direct supervision and control over all the
Teams.
4.3.2 Special
Project Teams. - These
teams may be created by the Government Corporate Counsel as the need arises.
SEC. 4.4 Arbitration and mediation
group. — A special group tasked to handle cases for arbitration or
mediation shall be formed or organized from among the members of the various
teams. Members of the legal staff who are duly accredited arbitrators and/or
mediators shall automatically become members of the Arbitration and/or Mediation
team.
SEC. 4.5 Special assignments. — When
the exigency of the service requires, any member of the OGCC legal staff may be
assigned or designated to the client GOCC as a corporate officer or to perform
additional or special tasks; provided, that the Government Corporate Counsel
approves the assignment or designation. In such cases, the designated legal
officer shall be entitled to receive such additional compensation and
privileges as may be granted him/her by the GOCC concerned.
RULE 5
PROCEDURES AND POLICIES IN HANDLING
CASES
SECTION 5.1 Policies in accepting referred
cases.
5.1.1 Acceptance of
important cases. - The
OGCC shall accept only important cases that are referred by the GOCC and other
client entities. Importance may be inferred from issues that:
a) affect the GOCCs
charter/mandate or their operations;
b) involve
questions of law;
c) raise novel
questions that may involve new jurisprudence and legal policy; and
d) raise other
matters that the Government Corporate Counsel may deem important.
5.1.2 Policy
when GOCC has no legal department. - In cases where the GOCC has no legal department,
all legal matters/cases shall be referred to the OGCC for its appropriate
action, except in cases where the engagement of a private lawyer has been
authorized in accordance with Rule 9 hereof.
5.1.3 Official
endorsement needed for acceptance of cases. - The OGCC shall accept only cases
that have been officially endorsed by the GOCC through its duly authorized
representative.
5.1.4 Documentation
of cases. - The
OGCC shall act on referred civil and criminal cases only if the following are
forthwith submitted or complied with:
a) detailed
historical background of the case;
b) photocopies of
pertinent documents;
c) the names of
focal officials knowledgeable about the case; and
d) payment of the
pertinent legal fees and other costs or a written undertaking to pay the same.
5.1.5 Policy on
return of cases. - Any
referral of cases not in accordance with Section 5.1.4 may, at the discretion
of the Government Corporate Counsel, be returned to the concerned GOCC without
action.
5.1.6 Payment of
legal fees and other legal costs. - The OGCC may, in exceptional cases and for cases that do not
meet the standards of importance as indicated in Section 5.1.1 above, designate
the legal department of the client GOCC as its handling counsel, subject always
to its control and supervision. For this purpose, the GOCC’s legal department
shall submit periodic reports of said cases. No compromise agreement may be
entered upon by said handling counsel unless approved by the OGCC.[1]
SEC. 5.2 Assignment of cases. – A request for the handling of
cases from a client GOCC shall be coursed through the Government Corporate
Counsel who shall assign the case to the appropriate team or to any member of
the legal staff.
RULE 6
OPINIONS AND CONTRACT REVIEW
SECTION 6.1 Requests for legal opinion and
contract review. –
Requests for legal opinion and contract review shall be signed by the Head of
the GOCC or its duly authorized representative.
6.1.1 Requirements.
- Requests for
legal opinion shall, as far as practicable, state the position already taken by
the GOCC concerned on the issue/s posed for opinion. A proposed contract
transmitted for review shall be submitted in clear legible hard copy together
with a soft copy thereof. The transmittal letter shall contain background
information on all relevant circumstances and transactions that led to its
preparation.
6.1.2 Underlying
considerations. - In
reviewing the proposed contract or in drafting the opinion, the OGCC shall be guided by the
following considerations:
a) consistency
with the economic policies and priorities of the Government, particularly those
formulated by the National Economic and Development Authority (NEDA);
b) compliance
with GOCC’s charter or law of its creation and does not violate the
Constitution, any law, public order, public policy, morals, good customs, or is
not prejudicial to a third person with a right recognized by law; and
c) is
otherwise fair to all concerned.
6.1.3 Policy on
“fait accompli” contracts. - A signed contract shall not beacted upon unless there is a
provision therein which states that the same shall be subject to review by the
OGCC and any amendment or revision made by the OGCC shall be deemed
incorporated therein.
SEC. 6.2 Report on action taken. – The OGCC may require the legal
department or officer of the client GOCC to submit proof of compliance with or
any action taken in relation to the review or opinion.
SEC. 6.3 Requests for reconsideration. – Requests for reconsideration of
opinions and contract reviews shall be acted upon only if filed by the
requesting client GOCC within fifteen (15) days from receipt thereof. Such
request shall be signed by the Head of the GOCC or its duly authorized
representative and shall clearly state the grounds relied upon. As a general
rule, the request for reconsideration shall be assigned to the lawyer who
drafted the original opinion or contract review.
SEC. 6.4 Requests for copies of
opinions and contract reviews by non-client GOCCs or private persons or entities.
– In accordance with the provisions of Section 3, Rule IV of R.A. 6713,
otherwise known as the “Code of Conduct and Ethical Standards for Public
Officials and Employees,” the OGCC shall provide copies of its opinions,
contract reviews or other official information and records to any private
person or entity requesting the same, except if:
a) such opinion, contract review,
information or record must be kept secret in the interest of national defense
or security or to the conduct of foreign affairs;
b) such disclosure will put the life
and safety of an individual in imminent danger;
c) the opinion, contract review,
information or record sought falls within the concepts of established privilege
or recognized exceptions as provided by law or settled policy or jurisprudence;
d) such opinion, contract review,
information or record comprises of drafts only of such opinion, review,
information or record;
e) it would disclose information of a
personal nature where disclosure would constitute a clearly unwarranted
invasion of personal privacy; and
f) other instances
accepted by R.A. 6713.
Unless officially endorsed by the
client GOCC concerned or otherwise approved by the Government Corporate
Counsel, requests for copies of opinions and contract reviews by parties other
than the client-GOCC concerned and private persons or entities shall be granted
subject to the provisions of R.A. 6713 and its IRR.
RULE 7
PROCEDURE ON
ADMINISTRATIVE DISCIPLINARY CASES
SECTION 7.1 Disciplinary cases involving
GOCC employees. - The Office of the Government Corporate Counsel may, upon
request by the head of the GOCC, handle administrative cases referred by client
corporations.
7.1.1 Application
of Rules. - The
internal rules of the client GOCC, if available, shall apply in the conduct of
administrative cases referred to the OGCC. Otherwise, the Civil Service Rules
on administrative cases shall govern the procedure for client GOCCs with
original charters.
7.1.2 Assignment. –
a) As
Prosecutor. - Upon
request of the GOCC for a lawyer from the OGCC to prosecute an administrative
case, the Government Corporate Counsel may assign a Government Corporate
Attorney (GCA) who is a member of the team assigned to the GOCC concerned. The
Government Corporate Counsel may delegate the assignment of a lawyer to the DGCC
or to the team leader.
b) As Hearing
Officer. - Upon the
request of the GOCC, the Government Corporate Counsel may assign a Hearing
Officer to investigate the administrative case. However, the assignment may be
made to a lawyer who is not a member of the team assigned to the particular
requesting GOCC in order to ensure impartiality, unless the composition of the
hearing panel has been specifically agreed upon between the OGCC and the GOCC
concerned. The assignment of a hearing officer may be delegated by the
Government Corporate Counsel to the DGCC.
7.1.3 Period to
conduct administrative cases. –
a) As
Prosecutor. - The
GCA assigned as prosecutor shall endeavor to terminate presentation of his/her
evidence within a reasonable time.
b) As Hearing
Officer. - The GCA
assigned as hearing officer shall terminate the proceedings within thirty (30)
days from receipt of the complete records of the case. He shall have fifteen
(15) days from termination of proceedings to submit the formal investigation
report and his recommendations to the referring GOCC through the Government
Corporate Counsel. Said periods may be extended for justifiable reason.
7.1.4 Venue of Administrative Cases. –
a) The venue for
every hearing and conferences of all administrative cases shall, as far as
practicable, be held at the OGCC offices.
b) Out-of-town
hearings and conferences shall be allowed only upon agreement of the parties
concerned as to expenses and disbursements involved taking into consideration
cost-benefit or other justifiable reasons.
c) Transmittal
of report. - The
formal investigation report prepared by the hearing officer shall be endorsed
by the Government Corporate Counsel for transmittal to the proper disciplining
authority of the requesting GOCC.
SEC.
7.2 Disciplinary cases involving OGCC
employees. –
7.2.1 Application
of Rules. - The
Civil Service Rules on administrative cases shall govern the conduct of cases
involving disciplinary action filed against erring personnel of the OGCC.
7.2.2 Assignment of hearing officer/panel. - The Government
Corporate Counsel shall in his/her discretion, designate a hearing officer or
constitute a hearing panel which will be tasked to hear the disciplinary action
against an erring OGCC personnel. The Government Corporate Counsel shall
further designate a prosecuting officer from among the members of the Legal
staff for said purpose.
RULE 8
RULE ON
CRIMINAL CASES
SECTION 8.1 Limited representation. - Upon due request, the OGCC shall
handle only criminal
cases filed by the complaining GOCCs against any party[2].
SEC. 8.2 Extent of legal assistance.
- The OGCC shall
represent the complaining GOCC in all stages of the criminal proceedings. The
legal assistance extended is not limited to the preparation of appropriate
sworn statements but shall include all aspects of an effective private
prosecution including recovery of civil liability arising from the crime,
subject to the control and supervision of the public prosecutor.
RULE 9
PROHIBITION FROM HIRING
PRIVATE LAWYERS
SECTION 9.1 General rule prohibiting
the hiring of private lawyers.- All GOCCs are enjoined from hiring private
lawyers or law firms to handle their cases and legal matters for the reason
that the OGCC is expressly mandated by law to be the principal law office of
all GOCCs.
SEC. 9.2 Exception to general
prohibition.- Notwithstanding the foregoing prohibition stated in Section
9.1.above, the GOCC may engage private counsel in exceptional cases upon
prior approval of the OGCC and with the written concurrence of the Commission
on Audit (COA).[3]
9.2.1 Considerations
in hiring private lawyers. - In determining whether or not to approve such
hiring, the Government Corporate Counsel may consider the following
circumstances, in addition to the nature of the case, among others:
a) the
absence of a legal department or legal officer when the exigencies of service
so requires;
b) the
venue is in a distant province and the hiring of a local lawyer in that
province would entail less expenses than in sending an OGCC lawyer to handle
the case;
c) the
nature of the case requires immediate attention;
d) the
expertise or capability of the proposed private counsel in a particular field
is well known or respected, and the hiring of the same will facilitate the
completion of the negotiation or termination of proceedings thereof; and
e) in highly
exceptional cases as may be determined by the Government Corporate Counsel.
PART THREE
RULES ON ALTERNATIVE
DISPUTE RESOLUTION (ADR)
RULE 10
GENERAL PROVISIONS
SECTION 10.1 Definition of terms.
–
10.1.1 Alternative Dispute Resolution (ADR) means any process for resolving a
dispute or controversy other than by judicial adjudication. These include
Mediation, Arbitration, or Early Neutral Evaluation.
10.1.2 Arbitration is a process by which a neutral
third party resolves a dispute by rendering an award.
10.1.3 Mediation is a voluntary process by which a
neutral third party facilitates communication and negotiation, and assists the
parties in reaching a voluntary agreement in resolving their dispute.
10.1.4 Early Neutral Evaluation is a process of assessing on a
non-binding basis the strengths and weaknesses of each party’s case for the
purpose of serving as basis for a compromise agreement.
10.1.5 Arbitral tribunal means a sole arbitrator or a panel
of three (3) arbitrators.
SEC. 10.2 Authority to
conduct ADR. – Pursuant to Presidential Decree No. 242 in relation to
Section 66-71, Chapter 14, Book IV of Executive Order (E.O.) No. 292, the
Administrative Code of 1987, in conjunction with Sections 10, Chapter 2, Book
IV of said Code, the OGCC shall, in the public interest, encourage settlement
through early neutral evaluation, mediation and/or arbitration to resolve
disputes, and is accordingly vested with authority to settle claims, disputes,
and controversies involving GOCCs, the legal departments of which are under its
control and supervision.
SEC. 10.3 Choice of appropriate
mode. –
Consistent with the declared policy under Rule 2 above, the Government
Corporate Counsel shall choose the most appropriate mode of dispute resolution
according to the nature of the interests involved.
SEC. 10.4 Selection
criteria. - Disputes involving constitutional issues, public order, public
policy, morals, principles of public exemplarity or other matters of public
interest shall be resolved through adjudication. All others may be the subject
of a compromise agreement secured through negotiation, mediation/conciliation
or other alternative mode of dispute resolution, except those that by law
cannot be the subject of a compromise.
SEC. 10.5 Application and interpretation. -
In applying and construing the provisions of these ADR Rules, consideration
must be given to the state policy “to actively promote party autonomy in the
resolution of disputes”[4] and the
need “to promote candor of parties and mediators through confidentiality of the
mediation process, the policy of fostering prompt, economical and amicable
resolution of disputes in accordance with principles of integrity of
determination by the parties, and the policy that the decision-making authority
in the mediation process rests with the parties.”[5]
RULE 11
PROCEDURE IN MEDIATION
SECTION 11.1 Coverage. – The
rules on mediation shall apply to all disputes, claims, and controversies,
including incipient ones and those ongoing or pending cases with the OGCC,
between or among GOCCs that do not involve constitutional issues, public order,
public policy, morals, principles of public exemplarity or other matters of
public interest, which cases are better resolved by adjudication, provided that
the involvement of a private third party, which is indispensable to the final
resolution of the dispute, will not preclude the application of these Rules.
SEC. 11.2 Preliminary determination. – The Government Corporate Counsel
shall, after evaluating the nature of the dispute, determine whether it is
mediatable under the criteria set forth in Section 11.1.
SEC. 11.3 Preliminary mediation conference. - Following such determination, the
Government Corporate Counsel, or his/her duly designated Deputy or Assistant,
shall direct the parties, through their duly authorized representative, to
appear before the assigned AGCC, for a preliminary mediation conference
specifying the date, time and place.
The representatives of the parties
appearing before the OGCC panel in mediation proceedings must be fully
authorized to appear, negotiate and enter into 1) a stipulation of facts; and
2) a compromise agreement. For this purpose, an appropriate Board Resolution
and/or Special Power of Attorney issued by each of the parties shall be submitted
to the Mediator during the preliminary mediation conference.
During such conference, the process
and benefits of mediation shall be explained to the parties, together with an
assessment of the risks and costs of pursuing litigation. An agreement to submit
the dispute to mediation shall be signed by the parties through their duly
authorized representatives.
SEC. 11.4 Selection of mediator. – After agreeing to mediation, the
parties shall, assisted by the assigned AGCC, select from among the list of accredited
OGCC lawyer-mediators, who will be the Mediator of their dispute. If the
parties cannot agree on a common choice, the assigned AGCC shall proceed to
assign the Mediator.
SEC. 11.5 Presence of lawyers. –
Lawyers of the parties may attend the mediation proceedings and shall cooperate
with the Mediator towards securing a settlement of the dispute. The Supreme
Court Guidelines on the Role of Lawyers during Mediation Proceedings shall be
observed.[6]
SEC. 11.6 Initial joint conference. – During the initial joint
conference, the Mediator shall make an opening statement introducing
himself/herself and informing the parties of the process flow, including the
manner by which the proceedings will be conducted, and shall stress the
confidentiality thereof as provided in Section 11.7 hereunder.
The parties shall each make an
opening statement of how the controversy arose and their respective positions
therein.
After the statements
made by the parties, the Mediator shall:
a. draw out the parties’ underlying
interests behind the legal issues and explore common ground for settlement; and
b. suggest options for parties to
consider, and if practical or necessary seek the assistance of a co-mediator or
a technical expert, to help resolve the dispute.
The parties, with the
assistance of the Mediator, shall endeavor to resolve their dispute.
If no settlement is reached at this
conference, the Mediator may, with the consent of both parties, hold separate
caucuses with each party to enable the Mediator to determine their respective
real interests in the dispute. Thereafter, another joint conference may be held
to consider various options, including assessment (on a non-binding basis) of
the strengths and weaknesses of each party’s case, proposed by the Mediator to
resolve the dispute.
The Mediator shall not record the
proceedings in any manner, although he may take down personal notes to guide
him.
The OGCC shall not keep a file of
mediation proceedings, except the report of the Mediator. All other records or documents
that may have been submitted by the parties during the mediation shall be
returned to them.
Thirty (30) working days after the
initial mediation conference with no settlement having been reached, the
mediation proceedings shall be terminated, unless the parties agree to further
continue the mediation, in which case an extension of another thirty (30)
working days may be granted by the Mediator, with the written approval of the
Government Corporate Counsel.
SEC. 11.7 Confidentiality. – The Mediation proceedings and
all incidents thereto shall be kept strictly confidential, unless otherwise
specifically provided by law, and all admissions or statements made therein
shall be inadmissible for any purpose in any proceeding.
Communications by one party to the
Mediator during the separate caucuses that are not intended to be known by the
other party or parties, including documents, reports, position papers, and
affidavits, shall not be communicated or shown to the latter, unless permitted
in writing by such party. However, evidence or information that is otherwise
admissible or subject to discovery does not become inadmissible or protected
from discovery solely by reason of its use in mediation.
The parties shall not rely on or
introduce as evidence in any other proceeding, the following matters:
a. views expressed or
suggestions made by the other party in respect of a possible settlement of the
dispute;
b. admissions made by
either party in the course of the mediation proceedings;
c. proposals for settlement suggested
by the Mediator; and
d. the fact that the other party had
indicated willingness to accept any particular proposal for settlement
expressed to the Mediator.
No transcript or minutes of the
mediation proceedings shall be taken, and the personal notes of the Mediator,
if any, shall not be furnished any court, tribunal or body for whatever
purpose. Any such transcript, minutes and notes shall be inadmissible as
evidence in any other proceeding.
SEC. 11.8 Successful settlement;
compromise agreement. – Where parties agreed to a full or partial
compromise, the Mediator shall see to it that the written terms be immediately
drafted with the concurrence of the parties or counsel. And for this purpose,
the OGCC shall provide legal assistance to their clients in the drafting of the
compromise agreement.
The final compromise agreement shall
be signed by the parties through their duly authorized representatives together
with their respective counsels.
The approved compromise agreement
may be converted into an arbitral award under R.A. 9285 which shall be
submitted to the Secretary of Justice under Section 70, Chapter 14, E.O. 292
for his final approval.
SEC. 11.9 Enforcement of mediated settlement
agreements. – The
rules for the deposit and enforcement of mediated settlement agreements
provided by R.A. 9285, together with such implementing rules as may be
promulgated by the Supreme Court, are hereby adopted.
SEC. 11.10 Costs of mediation. – The costs of mediation shall be
imposed by way of special assessment in accordance with the schedule hereto
attached, as may be modified from time to time.
RULE 12
PROCEDURE IN ARBITRATION
SECTION 12.1 Parties. – GOCCs
which have claims, disputes or controversies with other GOCCs, including
private individuals/entities that are indispensable to the final resolution of
the dispute, may be parties to the arbitration proceedings.
SEC. 12.2 Coverage. – The following cases between or
among GOCCs, which were not earlier selected by the Government Corporate Counsel
as appropriate for mediation, shall be submitted to the OGCC for adjudication
through Arbitration:
a) cases of first instance, where a
petition for arbitration is filed;
b) cases forwarded or transmitted after
a failed mediation; and
c) matters referred by the Secretary of
Justice.
SEC. 12.3 How commenced. – A petition shall be filed by the
aggrieved party with the OGCC in the form required under the following Section.
SEC. 12.4 Form of petition. – The petition shall be verified
and shall contain the following:
a) names and addresses of the parties;
b) the ultimate facts upon which the
cause of action rests;
c) signature of the head of the GOCC;
and
d) disclosure on whether the matter is
pending before another forum.
SEC. 12.5 Order to file an answer. - The Government Corporate Counsel
shall issue an Order for the respondent/s to answer the petition within a
period of ten (10) days from receipt thereof, attaching thereto all pertinent
documents, and furnishing the claimant with a copy of the answer. Said answer shall
contain interposed.
In the event of failure of the
respondent to answer, the dispute may be resolved on the basis of the complaint
and documents submitted.
SEC. 12.6 Extension. – Except for the most serious
reasons, no extension of time bars shall be allowed and if so allowed, the
period of extension shall not exceed the original period.
SEC. 12.7 Claim or defense based on
documents. – Whenever a claim or defense is based upon a written instrument
or document, the substance thereof shall be set forth in the petition or
answer, and the original or a copy thereof shall be attached as an annex
thereto.
SEC. 12.8 Selection of an arbitral tribunal. – The Government Corporate Counsel
shall assign from among the list of accredited OGCC lawyer-Arbitrators, those
who will arbitrate the dispute.
SEC. 12.9 Arbitration proceedings of record;
Arbitration and Mediation Division (AMD) Secretariat. – All arbitration proceedings
under this Rule shall be of record. The AMD Secretariat shall perform all the
duties of a clerk of court and act as custodian of all records relative to such
proceedings.
SEC. 12.10 Authority of AMD
Secretariat. – The AMD Secretariat shall exercise the same authority
conferred by law upon an administrative or non-judicial officer authorized to
take testimony or evidence. Persons who, without lawful excuse, fail or refuse
to obey orders issued in arbitration proceedings shall be dealt with in
accordance with the law.
SEC. 12.11 Preliminary conference.– After all issues have been joined,
the arbitral tribunal shall send a notice to the parties setting the date, time
and place of the preliminary conference to discuss, among others, the
simplification of issues, necessity or possibility of obtaining stipulations of
facts and of documents to avoid unnecessary proof, the limitation of the number
of witnesses, the propriety of submitting the case for decision without trial,
and such other matters as may aid in the prompt disposition of the dispute.
In the event of failure of the
petitioner to attend such conference, the petition may be dismissed.
In the event of failure of the
respondent to attend such conference, despite having filed an answer, the case
may be deemed submitted for decision taking into consideration both the
petition and the answer, and after reception of the evidence of the petitioner
and such other evidence as may be necessary for the arbitral tribunal to render
a just and equitable resolution.
SEC. 12.12 Arbitrator’s disclosure. – During the preliminary conference,
the arbitrator/s shall make disclosures to the parties of such facts and
circumstances that may be perceived by them as affecting his/her impartiality
and independence.
SEC. 12.13 Place of arbitration. - The place of arbitration shall
initially be held at the OGCC office. Subsequent sessions or proceedings shall
be held at the venue mutually agreed upon by the parties and the arbitral
tribunal.
SEC. 12.14 Subpoena and subpoena duces tecum. – The arbitral tribunal shall have
the power to require any person to attend a hearing as a witness. It shall
have the power to subpoena witnesses and documents when the relevancy of the
testimony and the materiality thereof has been demonstrated.
SEC. 12.15 Hearing by arbitral tribunal. – The order of trial in judicial
proceedings shall be followed subject to such modification thereof as may be
determined by the arbitral tribunal.
Upon agreement of the parties or
upon the initiative of the arbitral tribunal, a site inspection of the premises
may be held. The expenses to be incurred by such inspection shall be as agreed
upon by the parties as to amount and sharing thereof or as directed by the
arbitral tribunal. The absence of a party after an agreement or despite due
notice shall not be a ground to suspend the inspection.
SEC. 12.16 Testimony of witnesses. – The direct testimony of witnesses
shall be reduced to writing in affidavit form in sequentially numbered question
and answer and shall be divided into as many parts as there are issues that
have been formulated by the parties. The affidavit of the respective parties
shall be exchanged simultaneously not less than five (5) days before the
hearing, furnishing copies thereof to the arbitrator.
Cross-examination of witnesses for
the petitioner shall immediately be commenced on the day of hearing. No
additional direct examination questions shall be allowed. Thereafter,
cross-examination of witnesses for the respondent shall follow.
Re-direct and re-cross examination
of a witness may be allowed upon the discretion of the arbitral tribunal.
Clarificatory questions
may be asked at any stage of the hearing by the arbitral tribunal.
SEC. 12.17 Offer of documentary evidence. – The parties shall submit together
with the affidavits required above, a formal offer of documentary evidence in
appropriate matrix form divided into markings, description, and purpose.
SEC. 12.18 Postponement. – Except for the most serious
reasons, no postponement of hearing shall be allowed.
SEC. 12.19 Draft decisions. – After termination of presentation
of evidence, the arbitral tribunal shall require the simultaneous submission of
the parties’
memorandum of arguments in the form of draft decisions in
their respective favors within ten (10) days therefrom. Said draft decisions
shall be divided into as many parts as there are issues.
SEC. 12.20 Reopening of hearing. – The hearing may be reopened by the
arbitral tribunal upon the request of any party, upon good cause shown, for the
purpose of receiving newly-discovered evidence, at any time before an arbitral
award is made.
SEC. 12.21 Submission for decision without
hearing. – After
considering the stipulation of facts that have been made and the documentary
evidence submitted, the parties may agree to submit their dispute for decision,
without need of formal presentation of further evidence, on the basis of their
pleadings and upon submission of draft decisions in their respective favor.
SEC. 12.22 Award. – The arbitral tribunal, after
evaluating the evidence presented and the draft decisions submitted by the
parties, shall, within thirty (30) days from submission of the parties’ draft
decisions, render a decision in the form of an award stating clearly and
distinctly the facts and the law on which it is based. The arbitral tribunal
shall sign the award and file it with the AMD Secretariat.
SEC. 12.23 Prohibited pleading.- A motion for reconsideration or for
new trial shall be considered a prohibited pleading.
SEC. 12.24 Motion for correction. – A motion for correction may be
allowed on the following grounds:
a) evident
miscalculation of figures or evident mistake in the description of a person,
thing or property referred to in the award; and
b) where the
arbitral tribunal made an award upon an issue not submitted for resolution by
the parties.[7]
SEC. 12.25 Transmittal to the Secretary of
Justice. – After
ten (10) days from notice to the parties, the award shall be transmitted to the
Secretary of Justice for final action, approving, disapproving or modifying the
award made.
SEC. 12.26 When award becomes final and
binding. – The
award, as approved or modified by the Secretary of Justice, shall become final
and binding upon the parties.
SEC. 12.27 Appeal to the Office of the
President. – An
appeal may be taken to the Office of the President by filing a notice of appeal
and serving the same upon all parties within a period of fifteen (15) days from
receipt of a copy of the final action taken by the Secretary of Justice. In
such event, the award shall become final only upon affirmation/approval by the
Office of the President. If no appeal is taken to the Office of the President
within the said period, the action taken by the Secretary of Justice shall
become final upon the expiration of the said period.
SEC. 12.28 Costs of arbitration. –
The costs of arbitration shall be imposed by way of special assessment in
accordance with the schedule hereto attached, as may be modified from time to
time.
RULE 13
PROCEDURE FOR AMENDMENT OF RULES
SECTION 13.1 Creation of a committee
to study proposed amendment. - Any amendment or revision of any provision
of these Rules shall be made by the Government Corporate Counsel, who shall
create a committee to carefully study and analyze whether there are
sufficiently weighty reasons to amend the same. Report thereon by said
committee containing its recommendation shall be submitted to the Government
Corporate Counsel within thirty (30) days from assignment.
SEC. 13.2 Action on the committee report. - Upon receipt of the report, the
Government Corporate Counsel may, at his/her discretion, approve or amend,
alter and modify said report.
SEC. 13.3 Prospective application. - Any
provision/s of the Rules that have been amended, altered or modified shall only
have prospective application.
SEC. 13.4 Effectivity of amendment. – The amended Rules duly approved by
the Government Corporate Counsel shall take effect fifteen (15) days after its
publication in a newspaper of general circulation.
RULE 14
FINAL PROVISIONS
SECTION 14.1 Application of Rules of
Court. – The Rules of Court shall not apply to proceedings under these
Rules, except by analogy or in a suppletory character, whenever practicable and
convenient and to make effective the authority vested in the OGCC.
SEC. 14.2 Supplemental
rules. – Supplemental rules shall be issued from time to time as may be
necessary to ensure the fair and expeditious disposition of cases.
SEC. 14.3 Repealing clause. – All rules, circulars,
memoranda or other issuances or any part thereof inconsistent with the
provisions of these Rules are hereby repealed, amended or modified accordingly.
SEC. 14.4 Separability clause. – If for any reason or reasons, any
portion or provision of these Rules shall be held unconstitutional or invalid,
all other parts or provisions not affected shall thereby continue to remain in
full force and effect.
SEC. 14.5 Effectivity clause. – These Rules shall take effect
fifteen (15) days after publication in a newspaper of general circulation.
Approved
by:
(sgd.) AGNES VST DEVANADERA
Government
Corporate Counsel
28
February 2006
