CASE 2016-0044: DEPARTMENT OF FOREIGN AFFAIRS V.

BCA
INTERNATIONAL CORPORATION (G.R. 210858, 29 JUNE 2016,
CARPIO, J.) (SUBJECT/S: ARBITRATION; 9285, ITS IRR, AND THE
SPECIAL ADR RULES; RA 876; PRIVILEGED INFORMATION; RIGHT TO
INFORMATION; DELIBERATIVE PROCESS PRIVILEGE; CONFLICT OF
LAWS) (BRIEF TITLE: DFA VS BCA INTERNATIONAL)

DISPOSITIVE:

“WHEREFORE, we resolve to PARTIALLY GRANT the petition and REMAND this case to the
Regional Trial Court of Makati City, Branch 146, to determine whether the documents and
records sought to be subpoenaed are protected by the deliberative process privilege as
explained in this Decision. The Resolution dated 2 April 2014 issuing a Temporary
Restraining Order is superseded by this Decision.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

IN THIS JURISDICTION WHAT IS THE NATURE OF ARBITRATION AND WHAT GOVERNS IT?

ARBITRATION IS DEEMED A SPECIAL PROCEEDING AND GOVERNED BY THE SPECIAL

PROVISIONS OF RA 9285, ITS IRR, AND THE SPECIAL ADR RULES.

WHAT IS THE NATURE OF RA 9285.

RA 9285 IS THE GENERAL LAW APPLICABLE TO ALL MATTERS AND CONTROVERSIES TO

BE RESOLVED THROUGH ALTERNATIVE DISPUTE RESOLUTION METHODS.

RA 9285 WAS ENACTED IN 2004. CAN IT APPLY TO PENDING ARBITRATION

PROCEEDINGS?

YES BECAUSE IT IS A PROCEDURAL LAW AND THUS HAS RETROACTIVE EFFECT.

WELL SETTLED IS THE RULE THAT PROCEDURAL LAWS ARE CONSTRUED TO BE

APPLICABLE TO ACTIONS PENDING AND UNDETERMINED AT THE TIME OF THEIR
PASSAGE, AND ARE DEEMED RETROACTIVE IN THAT SENSE AND TO THAT EXTENT.

BUT DOES THE RETROACTIVE APPLICATION OF PROCEDURAL LAWS NOT VIOLATE

PERSONAL RIGHTS?

NO BECAUSE NO VESTED RIGHT HAS YET ATTACHED NOR ARISEN FROM THEM.

IN THIS INSTANT CASE DOES RA 9285 AND ITS IRR APPLY?

YES BECAUSE THE ARBITRATION BETWEEN THE DFA AND BCA IS STILL PENDING, SINCE
NO ARBITRAL AWARD HAS YET BEEN RENDERED.
MOREOVER, DFA DID NOT ALLEGE ANY VESTED RIGHTS IMPAIRED BY THE APPLICATION
OF THOSE PROCEDURAL RULES.

DFA CONTENDS THAT THE RTC CANNOT ISSUE SUBPOENAS BECAUSE RA 9285 AND THE
SPECIAL ADR RULES DO NOT APPLY TO THIS CASE AND WHAT APPLY ARE THE 1976
UNCITRAL ARBITRATION RULES. IS THIS CORRECT?

EVEN IF RA 9285 DOES NOT APPLY STILL RTC CAN ISSUE SUBPOENAS.

ESTABLISHED IN THIS JURISDICTION IS THE RULE THAT THE LAW OF THE PLACE WHERE
THE CONTRACT IS MADE GOVERNS, OR LEX LOCI CONTRACTUS.26 SINCE THERE IS NO
LAW DESIGNATED BY THE PARTIES AS APPLICABLE AND THE AGREEMENT WAS
PERFECTED IN THE PHILIPPINES, “THE ARBITRATION LAW,” OR REPUBLIC ACT NO. 876
(RA 876), APPLIES.

RA 876 EMPOWERED ARBITRATORS TO SUBPOENA WITNESSES AND DOCUMENTS WHEN

THE MATERIALITY OF THE TESTIMONY HAS BEEN DEMONSTRATED TO THEM.

DFA VIOLATED THE RA 9285, THE SPECIAL ADR RULES AND 1976 UNCITRAL
ARBITRATION RULES BY DIRECTLY BRINGING THE CASE TO SC. THE RULES PROVIDE
THAT THEY FIRST RESORT TO CA. IS IT PROPER FOR SC TO RESOLVE THE CASE ON THE
MERITS?

YES. THE ENDS OF JUSTICE ARE BETTER SERVED WHEN

CASES ARE DETERMINED ON THE MERITS AFTER ALL PARTIES ARE GIVEN FULL
OPPORTUNITY TO VENTILATE THEIR CAUSES AND DEFENSES RATHER THAN ON
TECHNICALITY OR SOME PROCEDURAL IMPERFECTIONS.

THE RTC RULED THAT BASED ON CHAVEZ VS PUBLIC ESTATES AUTHORITY ACTS,
TRANSACTIONS OR DECISIONS ARE PRIVILEGED ONLY BEFORE A DEFINITE
PROPOSITION IS REACHED BY THE AGENCY. SINCE, IN THIS CASE, DFA NOT ONLY MADE
“A DEFINITE PROPOSITION” BY AWARDING THE BID BUT ALREADY ENTERED INTO A
CONTRACT THEN THE EVIDENCE SOUGHT TO BE PRODUCED IS NO LONGER PRIVILEGED.
IS RTC CORRECT?

NO.

THERE ARE EVIDENCES WHICH ARE PRIVILEGED INFORMATION AND PERSONS CANNOT
BE COMPELLED BY SUBPOENA TO TESTIFY ON THEM. CHAVEZ VS PUBLIC ESTATES
AUTHORITY RECOGNIZE THIS. RTC MIS-APPLIED SAID CASE. THE RIGHT TO
INFORMATION DOES NOT COVER THESE PRIVILEGED INFORMATION.

WHAT ARE THESE PRIVILEGED INFORMATION?

EXAMPLE ARE MATTERS RECOGNIZED AS PRIVILEGED INFORMATION UNDER THE

SEPARATION OF POWERS SUCH AS PRESIDENTIAL CONVERSATIONS,
CORRESPONDENCES, OR DISCUSSIONS DURING CLOSED-DOOR CABINET MEETINGS,
INTERNAL DELIBERATIONS OF THE SUPREME COURT AND OTHER COLLEGIATE COURTS,
OR EXECUTIVE SESSIONS OF EITHER HOUSE OF CONGRESS. THESE ARE RECOGNIZED
AS CONFIDENTIAL.
ALSO, MILITARY AND DIPLOMATIC SECRETS, INFORMATION AFFECTING NATIONAL
SECURITY, AND INFORMATION ON INVESTIGATIONS OF CRIMES BY LAW ENFORCEMENT
AGENCIES BEFORE THE PROSECUTION OF THE ACCUSED, WHICH COURTS HAVE LONG
RECOGNIZED AS CONFIDENTIAL.

THE RIGHT MAY ALSO BE SUBJECT TO OTHER LIMITATIONS THAT CONGRESS MAY
IMPOSE BY LAW.

WHY ARE PRESIDENTIAL CONVERSATIONS, CORRESPONDENCES, OR DISCUSSIONS

DURING CLOSED-DOOR CABINET MEETINGS WHICH, LIKE INTERNAL DELIBERATIONS OF
THE SUPREME COURT AND OTHER COLLEGIATE COURTS, OR EXECUTIVE SESSIONS OF
EITHER HOUSE OF CONGRESS, CONSIDERED AS PRIVILEGED INFORMATION AND THUS
CONFIDENTIAL>

TO PROTECT THE INDEPENDENCE OF DECISION-MAKING BY THE GOVERNMENT.

WHAT IS MEANT BY DELIVERATIVE PROCESS PRIVILEGE?

IT IS THE PRIVILEGE AGAINST DISCLOSURE OF INFORMATION ON DELIBERATIONS OF

GOVERNMENT BODIES WHICH INVOLVE THE DELIBERATIVE PROCESS OF REACHING A
DECISION. IN THIS CASE DELIBERATIONS DURING THE EVALUATION OF THE BIDS
CONDUCTED BY DFA.

WHAT IS THE PURPOSE?

A FRANK EXCHANGE OF EXPLORATORY IDEAS AND ASSESSMENTS, FREE FROM THE

GLARE OF PUBLICITY AND PRESSURE BY INTERESTED PARTIES, IS ESSENTIAL TO
PROTECT THE INDEPENDENCE OF DECISION-MAKING OF THOSE TASKED TO EXERCISE
PRESIDENTIAL, LEGISLATIVE AND JUDICIAL POWER.

THE RULES ON CONFIDENTIALITY WILL ENABLE THE MEMBERS OF THE COURT TO

“FREELY DISCUSS THE ISSUES WITHOUT FEAR OF CRITICISM FOR HOLDING UNPOPULAR
POSITIONS” OR FEAR OF HUMILIATION FOR ONE’S COMMENTS.

THE PRIVILEGE IS INTENDED “TO PREVENT THE ‘CHILLING’ OF DELIBERATIVE

COMMUNICATIONS.”39

IN THIS INSTANT CASE WHAT IS COVERED BY THE DELIBERATIVE PROCESS

PRIVIDEDGE?

THE DELIBERATIONS BEFORE AWARD WAS MADE IN BIDDING.

IS DELIBERATIVE PROCESS PRIVILEGE CONSIDERED PRIVILEGED INFORMATION?

YES.

IT IS WITHIN THE EXCEPTIONS OF THE CONSTITUTIONAL RIGHT TO INFORMATION.

DOES THE PRIVILEGED CHARACTER OF THE INFORMATION END WHEN AN AGENCY HAS
ADOPTED A DEFINITE PROPOSITION (MEANING THE AGENCY HAS DECIDED TO AWARD
THE CONTRACT) OR WHEN A CONTRACT HAS BEEN PERFECTED OR CONSUMMATED
NO.

OTHERWISE, THE PURPOSE OF THE PRIVILEGE WILL BE DEFEATED.

WHEN DOES THE DELIBERATIVE PROCESS PRIVILEGE APPLIES?

IF ITS PURPOSE IS SERVED, THAT IS, “TO PROTECT THE FRANK EXCHANGE OF IDEAS
AND OPINIONS CRITICAL TO THE GOVERNMENT’S DECISION[-]MAKING PROCESS WHERE
DISCLOSURE WOULD DISCOURAGE SUCH DISCUSSION IN THE FUTURE.”

WHAT DOES THE DELIBERATIVE PROCESS PRIVILEGE TYPICALLY COVERS?

RECOMMENDATIONS, ADVISORY OPINIONS, DRAFT DOCUMENTS, PROPOSALS,

SUGGESTIONS, AND OTHER SUBJECTIVE DOCUMENTS THAT REFLECT THE PERSONAL
OPINIONS OF THE WRITER RATHER THAN THE POLICY OF THE AGENCY.

WHAT DOES THE DELIBERATIVE PROCESS PRIVILEGE EXEMPTS?

MATERIALS THAT ARE ‘PREDECISIONAL’ AND ‘DELIBERATIVE,’

WHAT DOES THE DELIBERATIVE PROCESS PRIVILDEGE EXCLUDE?

DISCLOSURE OF POLICY STATEMENTS AND FINAL OPINIONS ‘THAT HAVE THE FORCE OF
LAW OR EXPLAIN ACTIONS THAT AN AGENCY HAS ALREADY TAKEN.

CAN THE DELIBERATIVE PROCESS PRIVILEGE BE INVOKED IN ARBITRATION

PROCEEDINGS UNDER RA 9285.

YES.

WHAT ARE THE POLICY BASES OF THE DELIBERATIVE PROCESS PRIVILEGE?

FIRST, THE PRIVILEGE PROTECTS CANDID DISCUSSIONS WITHIN AN AGENCY;

SECOND, IT PREVENTS PUBLIC CONFUSION FROM PREMATURE DISCLOSURE OF

AGENCY OPINIONS BEFORE THE AGENCY ESTABLISHES FINAL POLICY;

AND THIRD, IT PROTECTS THE INTEGRITY OF AN AGENCY’S DECISION; THE PUBLIC

SHOULD NOT JUDGE OFFICIALS BASED ON INFORMATION THEY CONSIDERED PRIOR TO
ISSUING THEIR FINAL DECISIONS.”52

STATED DIFFERENTLY, THE PRIVILEGE SERVES:

“TO ASSURE THAT SUBORDINATES WITHIN AN AGENCY WILL FEEL FREE TO PROVIDE
THE DECISION[-]MAKER WITH THEIR UNINHIBITED OPINIONS AND RECOMMENDATIONS
WITHOUT FEAR OF LATER BEING SUBJECT TO PUBLIC RIDICULE OR CRITICISM;

TO PROTECT AGAINST PREMATURE DISCLOSURE OF PROPOSED POLICIES BEFORE

THEY HAVE BEEN FINALLY FORMULATED OR ADOPTED;
AND TO PROTECT AGAINST CONFUSING THE ISSUES AND MISLEADING THE PUBLIC BY
DISSEMINATION OF DOCUMENTS SUGGESTING REASONS AND RATIONALES FOR A
COURSE OF ACTION WHICH WERE NOT IN FACT THE ULTIMATE REASONS FOR THE
AGENCY’S ACTION.”53

CAN THE RIGHT TO DELIBERATIVE PROCESS PREVILEGE BE WAIVED?

NO BECAUSE SUCH WAIVER IS AGAINST PUBLIC POLICY.

RIGHTS CANNOT BE WAIVED IF IT IS CONTRARY TO LAW, PUBLIC ORDER, PUBLIC

POLICY, MORALS, OR GOOD CUSTOMS, OR PREJUDICIAL TO A THIRD PERSON WITH A
RIGHT RECOGNIZED BY LAW.

THERE IS A PUBLIC POLICY INVOLVED IN A CLAIM OF DELIBERATIVE PROCESS

PRIVILEGE -“THE POLICY OF OPEN, FRANK DISCUSSION BETWEEN SUBORDINATE AND
CHIEF CONCERNING ADMINISTRATIVE ACTION.”57

WHO HAS THE BURDEN TO PROVE THE APPROPRIATENESS OF INVOKING THE

DELIVERATIVE PROCESS PRIVILEGE?

THE GOVERNMENT.

AS A QUALIFIED PRIVILEGE, THE BURDEN FALLS UPON THE GOVERNMENT AGENCY

ASSERTING THE DELIBERATIVE PROCESS PRIVILEGE TO PROVE THAT THE
INFORMATION IN QUESTION SATISFIES BOTH REQUIREMENTS -PREDECISIONAL AND
DELIBERATIVE. 59

“THE AGENCY BEARS THE BURDEN OF ESTABLISHING THE CHARACTER OF THE

DECISION, THE DELIBERATIVE PROCESS INVOLVED, AND THE ROLE PLAYED BY THE
DOCUMENTS IN THE COURSE OF THAT PROCESS.”60

HOW CAN THIS BURDEN BE OVERCOME?

UPON A SHOWING THAT THE DISCOVERANT’S INTERESTS IN DISCLOSURE OF THE

MATERIALS OUTWEIGH THE GOVERNMENT’S INTERESTS IN THEIR CONFIDENTIALITY.61

THE DETERMINATION OF NEED MUST BE MADE FLEXIBLY ON A CASE-BY-CASE, AD HOC

BASIS,” AND THE “FACTORS RELEVANT TO THIS BALANCING INCLUDE: THE RELEVANCE
OF THE EVIDENCE, WHETHER THERE IS REASON TO BELIEVE THE DOCUMENTS MAY
SHED LIGHT ON GOVERNMENT MISCONDUCT, WHETHER THE INFORMATION SOUGHT IS
AVAILABLE FROM OTHER SOURCES AND CAN BE OBTAINED WITHOUT COMPROMISING
THE GOVERNMENT’S DELIBERATIVE PROCESSES, AND THE IMPORTANCE OF THE
MATERIAL TO THE DISCOVERANT’S CASE.”62

IN THIS INSTANT CASE IS THE EVIDENCE SOUGHT TO BE PRODUCED COVERED BY THE

DELIBERATIVE PROCESS PRIVILEGE?

IT IS NOT CLEAR BECAUSE BOTH BCA’S AND DFA’S ASSERTIONS OF SUBPOENA OF

EVIDENCE AND THE DELIBERATIVE PROCESS PRIVILEGE ARE BROAD AND LACK
SPECIFICITY.

THUS, THE PARTIES ARE DIRECTED TO SPECIFY THEIR CLAIMS BEFORE THE RTC AND,
THEREAFTER, THE RTC SHALL DETERMINE WHICH EVIDENCE IS COVERED BY THE
DELIBERATIVE PROCESS PRIVILEGE, IF THERE IS ANY, BASED ON THE STANDARDS
PROVIDED IN THIS DECISION.

WHAT GUIDELINE TO BE OBSERVED?

IT IS NECESSARY TO CONSIDER THE CIRCUMSTANCES SURROUNDING THE DEMAND FOR

THE EVIDENCE TO DETERMINE WHETHER OR NOT ITS PRODUCTION IS INJURIOUS TO
THE CONSULTATIVE FUNCTIONS OF GOVERNMENT THAT THE PRIVILEGE OF NON-
DISCLOSURE PROTECTS.

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