Don A. So Hiong

INTERESTING PROBLEMS IN THE PRESENTATION OF EVIDENCE

I. No direct provision on the withdrawal of evidence.

Conditions for withdrawal- Withdrawal shall be by leave of court- - Mistake in offering the evidence (favorable to adversary)The Arbitration Tribunal lacks jurisdiction over Global Minerals because of the following reasons:I. The Counterclaim is unconscionable and unreasonable; II. Global Minerals is a non-signatory to the Arbitration Contract;III. The Doctrine of Companies is inapplicable to the case; andIV. There is an absence of fraud and agency. 1. The Counterclaim is unconscionable and unreasonable.The request to join Global Minerals as a party to the Arbitration must fail since there are no grounds to support the counterclaim raised by the Respondent. At the outset, there was never a loss on the part of Global Minerals given that Coltan remains

under its ownership and possession. Neither has it deteriorated nor losts its marketability. The alleged entitlement to damages is in contrast to the well-settled elements of a valid claim for loss of profit under New York Law1. First, the indemnities claimed were not caused by the alleged breach of the purchase contract. (indicate mo dito yummy kung eto ba yung galing dun sa New York Law or application dun sa present arbitration case) The loss was due to a lawful order granted by the Arbitral Tribunal whom, as previously discussed, has valid authority to grant the Interim Relief. Second, the claim is was also not also proven with reasonable certainty as the alleged loss of profit wais merely anchored based on the supposed improvement in the marketability of Coltan. Even the effect of the developing situations in Xanadu, which, as claimed by Respondent, would result to the decrease of the marketable price of the Coltan, is purely speculative and self-serving2. Still Assuming Arguendo to be true (Even assuming said claim

1 International Commercial Arbitration in New York edited by James H. Carter, John Fellas citing Tom Doherty Assocs, Inc. v Saban Enter., 60 F 3.d 27,38 (2d Cir.1995) 306-3072 DamageClaim No. 38

to be true – kung same pa rin pa rin ng thought kung gamitin mo tong phrase na to, mas ok kung gamitin mo tong phrase na to ), the alleged development in Xanadu is beyond the control and fault of the Claimant, the parent company, as well as the Emergency Arbitrator. Lastly, there were no previous stipulations between the parties that damages forrom loss of profit may be claimed3. Consequently, the RESPONDENT cannot hold the CLAIMANT or Global Minerals liable for profit whichprofit was never realized. The amount asserted is unconscionable, speculative and without basis.Similarly, the joinder against Global Minerals wasis unnecessary for the reason that Vulcan LTD has sufficient credit to cover the Respondent’s claim in the event of a successful litigation. Vulcan has a line of credit ( o credit line?) amounting to USD 5 million inwith a bank in Equatoriana guaranteed by their parent company4. As defined, credit line is “an arrangement between a financial institution, usually a bank, and a customer that establishes a maximum loan balance that the bank will permit

3 Ibid. Page 4 Proclamation Order No. 2, No 9

the borrower to maintain”5. As a resultHence, the borrower, at any time, can draw the line of credit ( credit line? O interchangeable sila?) at any time for to whatever purpose as long as the debtor willdoes not exceed the maximum amount set in the agreement6. Therefore,hus the joinder is prematurely filed since the insolvency of the CLAIMANT which is sought to be prevented is nonexistent.2. Non-Signatory.As oppose to the Respondent’s claim, Global Minerals is beyond the jurisdiction of the Arbitral tribunal because it did not gave its consent consent to the Arbitration Contract between Vulcan LTD and Mediterraneo Mining SOE.Global Minerals is a non-signatory not a signatory or party to the Arbitration Contract, perfected on 28.03.2014 (March 28, 2014). The Contract expressly provided for only two parties, as mentioned in Article 1 therein;Article 1: Contracting Parties:;

5 http://www.investopedia.com/terms/l/lineofcredit.asp6 Ibid

Seller: Mediterraneo Mining SOE, 5-6 Mineral Street, Capital City, MediterraneoBuyer: Vulcan Coltan Ltd, 21 Magma Street, Oceanside , Equatoriana7

The Respondent’s position is runs violative of the well-settled principle of privity of contracts, which maintains. Under this principle, “contracts give rights and imposes liabilities on the concerned parties. Only they are given the right to sue each other according to the contract terms”8. The truth of the matter is Global Minerals merely signed the purchase contract as an “endorser” whereto which it bound itself to guarantee the fulfillment of the Claimant’s obligation to pay. In fact, if Global Minerals intended to be bound by the contract it would have easily done so. It could have named itself as one of the contracting parties as mentioned.In the case of Amalgamated Clothing Workers of America v. Ironall Factories Co., it was ruledstated that “Arbitration is a matter of contract and, in spite of the strong policy in its favor, a party cannot be compelled to

7 Exhibit C 18 Black Law Dictionary http://thelawdictionary.org/privity-of-contract/

arbitrate any dispute which he has not agreed to submit”.9 Hence, “the cornerstone of the arbitration process”10 lies on the mutual consent of the parties therein who stipulated such agreement. Consequently, the Arbitration agreement cannot be extended to the parties of the principal contract who did not gave their consent to be bound by the arbitration. (Consequently, the Arbitration agreement cannot be extended to entities or personalities who did not consent to be bound therein.- check mo kung same thought to nung sayo mas appropriate ata pag ito ginamit mo )Consistent with this is the Principle of Separability whichSeparability wherein denotes that Arbitration clauses included in a contract are to be treated as independent or separate contracts11. According to the UNCITRAL Model Law on International Commercial Arbitration:;

9 Amalgamated Clothing Workers of America v. Ironall Factories Co. (C.A. 6, 1967), 386 F.2d 586,10 VARADY TIBOR ET AL., INTERNATIONAL COMMERCIAL ARBITRATION: A TRANSNATIONAL PERSPECTIVE, (Thomson/West 2006)11 UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration

“Article 16. Competence of arbitral tribunal to rule on its jurisdiction(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause12.” (alam ko may format yung pag quote ng ganito smaller font ata, di ko lang sure kung same yun sa moot court)According to Black’s Law dictionary, a contract of guarantee means “to undertake collaterally to answer for the payment of another's debtor the performance of another's duty, liability, or obligation”. It is an independent contract to the Arbitration Agreement13. (Check mo yung quotation mo dito? Kasi yung footnote mo after nung phrase na wala na sa quotation mark… kung di siya magkasunod, pwede mo lagyan

12 Official Records of the General Assembly, Fortieth Session, Supplement No. 17 (A/40/17), annex I; United Nations publication, Sales No. E.95.V.1813 http://thelawdictionary.org/guaranty/

ng ellipses if under same quote siya ) In Hanseat OLG Hamburg, (eto nay ung ful title?) the court ruled that “An arbitration agreement is effective only between the parties and their successors, however, does not bind a guarantor debt transferee and guarantors, as their guilt is independently beside the principal debt and private legal fate has 14”. Same A similar ruling was applied in Grundstad v. Ritt where , in which thatit was decided that a “non-signatory guarantor to an agreement containing the arbitration provision is not bound by that provision”15. As in this case, Global Minerals only intended to be abound itself as a mere guarantor and not a contracting party to the case. It was established , that even from the negotiations, Global Minerals was consistent in insisting its position that Vulcan would becomebe the sole party to the contract16. Nonetheless, as the parent company, Global Minerals undertook

14 Hanseatisches Oberlandesgericht Hamburg, Germany, 6 Sch 04/01, 8 November 2001, available on the Internet at http://www.dis-arb.de/de/47/datenbanken/rspr/hanseat-olg-hamburg-az-6-sch-04-01-datum-2001-11-08-id145. Zöller / Geimer, Code of Civil Procedure, 22 ed., § 1029 para. 6015 Grundstad v. Ritt, 106 F.3d 201 (7th Cir. 1997)16Proclamation Order No. 2, No 7

to facilitate the accomplishment of the Respondent’s demands. (what demands?) Accordingly (o as a result?), Global Minerals opted to secure the Claimant’s payment by arranging a letter of credit (credit line) with its standard bank, the RST Trade Bank Ltd17, as response to the Respondent’s request that Global Minerals guarantee the fulfillment of the payment obligations 18 . (Better ata na ganito: Nonetheless, as the parent company, Global Minerals undertook to facilitate the accomplishment of the Respondent’s demands that the former guarantee the fulfillment of the obligation. As a result, Global Minerals opted to secure the Claimant’s payment by arranging a letter of credit (credit line) with its standard bank, the RST Trade Bank Ltd19.) TThe RESPONDENT was well aware that Global Minerals, from its deeds and express declarations, only elected to act as a mere endorser or guarantor.Conversely, Global Minerals cannot be deemed to be directly involved in the negotiations and performance of the contract. From the details of the case, it was shown that, as the parent

17 Proclamation Order No. 2, No 1718 Stament of Facts, Respondent, No 719 Proclamation Order No. 2, No 17

company, Global Minerals merely introduced the Claimant to the market. Global Minerals assisted in the negotiations but did not engage itself as a direct party. This can be inferred from the separate and distinct obligations which that were tasked to the Subsidiary and Parent Company—- Vulcan, to pay the obligation and Global Minerals to secure its line of credit. In light of the newness of CLAIMANT to the market, it iss near impossible to enter into a contract without additional securities20. There wasis also no indication that the parent company is a third party beneficiary since the Claimant enjoys its autonomy in all of its transactions and dealings.

*soy, check mo footnotes mo. Di ko alam kasi kung may format kayo or what. In any case, pag nag cite ka ng website, ilagay mo kung kelan mo na retrieve yung info tapos check mo lang din yung pag quote mo di ko ginalaw quotations mo kasi alam ko namang tama… galing mo dude. mwah* tapos be consistent pala sa name nung mga parties kung Global lang or Global Minerals ba

20 Reply to Counterclaim, Statement of Facts, No 5.

Legal Basis

For Object or DocumentarySection 6. Power of the court to stop further evidence. — The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution. (6)

For TestimonySection 39. Striking out answer. — Should a witness answer the question before the adverse party had the opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court shall sustain the objection and order the answer given to be stricken off the record.

On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (n)

Section 12. Party may not impeach his own witness. — Except with

respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. (6a, 7a)

II. If a party introduced evidence of particular facts without objection, additional evidence on that particular fact may be permitted even objected. But failure to object to other evidence is not a waiver provided the evidence is incompetent.

III. Failure to object by a party does not preclude the judge, in his own initiative, to exclude evidence provided it be;

- Incompetent , Irrelevant, Unreliable- Misleading and Prejudicial- It is not valuable for any situation- He deems that exclusion is in the interest of justice

SOME PROBLEMS IN THE PRESENTATION OF EVIDENCE

1. POLYGRAPH

Fact: Polygraph is not a lie detector, it is simply an instrument used by the examiner in the process of lie detection. It measures and records the reactions of people being tested.- Nowadays this method is rejected by the courts because it has not attained scientific acceptance as a reliable and accurate mean of ascertaining the truth - There has been no scientific proof that lying ultimately produce physiological reactions

- Highly - dependent on the examiner- It may be in violation of the right against self-incrimination because the nature of the evidence being presented is testimonial in nature.

2. MEDICO LEGAL WITNESS

Medical diagnosis is not an exact science, and all of the limitations and biases of the examiner, together with the intrinsic lack of mathematical certainty and the great number of variables involved make most diagnosis at best opinions.

Because medical opinions may differ, the opposing counsel can often shift the conflict constructively from the medical arena to the client’s personal integrity and veracity, particularly when the client is highly credible.

Proof of the following facts establishes the qualification of a physician and surgeon as an expert witness in a specialized branch of medicine.a. License to practiceb. Date the license was obtained

c. Educational qualifications (internship, med. School, residency, advance degrees)d. Membership in groupse. Authorshipf. Teaching careerg. Years of experienceh. Familiarity in the field of patient’s condition

Provided in Civil Cases;Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient;

3. CHILD WITNESS

RULE ON EXAMINATION OF A CHILD WITNESS A.M. No. 004-07-SC

MEANING OF “CHILD WITNESS”o Any person who at the time of giving

testimony is less than 18 years;o In child abuse cases, a child includes

one over 18 years but is found by the court as

(a) Unable to fully take care of himself, or(b) Protect himself from abuse, neglect, cruelty, exploitation, or discrimination(c) Because of a physical or mental disability or condition.

APPLICABILITY OF THE RULEo Shall apply in all criminal proceedings

and noncriminal proceedings involving child witnesses. [Sec. 1]

o The ROC provisions on deposition, conditional examination of witnesses and evidence shall be applied suppletorily. [Sec. 32]

COMPETENCY OF A CHILD WITNESSEvery child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. [Sec. 6(b)]

Requisites of Competency of a Child as Witness[People v. Mendoza (1996)]:(1) Capacity of observation;(2) Capacity of recollection;(3) Capacity of communication.

When the court finds that substantial doubt exists regarding the ability of the child toperceive/remember/ communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, a competency exam shall beconducted.The age of the child by itself is not a sufficient basis for a competency examination. [Sec. 6(a)]

The court has the duty of continuously assessing the competence of the child throughout his testimony.[Sec. 6(f)]

EXAMINATION OF A CHILD WITNESSo In open court [Sec. 11]o Alternative Modes

(a) Live-Link TV Testimony, in Criminal Caseswhere Child is a Victim or a Witness [Sec. 25]

(i) If there is a substantial likelihood that thechild would suffer trauma from testifying inthe presence of the accused, his counsel orthe prosecutor.(ii) Trauma must be of a kind which wouldimpair the completeness or truthfulness ofthe child’s testimony.

(b) Videotaped Deposition of a Child Witness

[Sec. 27](i) If the court finds that the child will not beable to testify in open court at trial, it shallissue an order that the deposition of thechild be taken and preserved by videotape.(ii) The rights of the accused during trial,especially the right to counsel and toconfront and cross-examine the child, shallnot be violated during the deposition.

LIVE-LINK TV TESTIMONY OF A CHILD WITNESS [SEC. 25]Live-link television testimony, in criminal cases where the child is a victim or a witness The court may order that the testimony of the child be taken by live-link television if there is a substantiallikelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor.The trauma must be of a kind which would impair the completeness/truthfulness of the child’s testimony.

If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.

VIDEOTAPED DEPOSITION OF A CHILD WITNESS [SEC. 27]If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape.

The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

4. PARAFFIN

Paraffin has been considered as inconclusive by the Court because scientific expert concur in the view that paraffin test have prove extremely unreliable in use (Riano)

The presence of Nitrates should be taken only as an indication of a possibility or even probability but not infalliability that a person has fired a gun.

A negative paraffin result is not conclusive proof that a person has not fired a gun. It is possible to fire a gun and yet be negative for nitrates, as when the culprit is wearing gloves or he washes his hands afterwards. Here, since Ron submitted himself for paraffin testing only two days after the shooting, it was likely he had already washed his hands thoroughly, thus removing all traces of nitrates therefrom (People v. Brecinio, G.R. No. 138534, Mar. 17, 2004).

5. BALLISTICS

The study of the motion and projectileInterior: within firearmExterior: after leaving the muzzle

-Expert testimony is required, Thus credibilty of an expert is open to challenge.

Points to assail: Circumstances of the discovery

of the firearm Circumstances of the discovery

of the bullet Methods of handling Chain of custody Integrity of the Laboratory

6. WIRE- TAPPING

Any communication obtained by a person, not being authorized by all the parties to any private communication, by tapping any wire/cable or using any otherdevice/arrangement to secretlyoverhear/intercept/record such information by using any device, shall not be admissible in evidence inany judicial/quasijudicial/ legislative/

administrative hearing or investigation. [Secs. 1 and 4, R.A. 4200 (Wire- Tapping Act)]

7. EPHEMERAL ELECTRONIC COMMUNICATIONS

Refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.

[Sec. 1(k), Rule 2, Rules on Electronic Evidence]

How proven:(1) By the testimony of a person who was a party to the same;(2) By the testimony of a person who has personal knowledge thereof; or(3) In the absence or unavailability of such witnesses, by other competent evidence [Sec. 2, Rule 11, Rules on Electronic Evidence]

When recorded, the communication ceases to be ephemeral and shall be proven in the same manner as proving audio, photographic and video evidence [Sec. 2, Rule 11, Rules on Electronic Evidence].

8. DEMONSTRATIVE EVIDENCE

Not the actual thing, rather it represents or “demonstrates” the real thing, e.g., photographs, motion pictures and recordings [Riano]

Audio, photographic and video evidence of events, acts or transactions shall be admissible provided they shall be:

(1) Shown, presented or displayed to the court; and(2) Identified, explained or authenticated:

(a) By the person who made the recording, (b) By some other person competent to testify on the accuracy thereof [Sec. 1, Rule 11, Rules on Electronic Evidence]

Photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. The value of this kind of evidence lies in its being a correct representation or reproduction of the original, and its

admissibility is determined by its accuracy in portraying the scene at the time of the crime.

The photographer, however, is not the only witness who can identify the pictures he has taken. The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses who can testify to its exactness and accuracy, after which the court can admit it subject to impeachment as to its accuracy. (Sison v. People, G.R. Nos. 108280-83, Nov. 16, 1995).

8. HANDWRITTING

Experts are not necessary Handwriting experts are usually helpful in the examination of forged documents because of the technical procedure involved in analyzing them, but resort to these experts is not mandatory or indispensable.A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an examination of the questioned signature in order to arrive at a reasonable conclusion as to

its authenticity. The opinions of handwriting experts are not binding upon courts, especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned signatures with those of the currently existing ones (Pontaoe v. Pontaoe, G.R. No. 15958, Apr. 22, 2008).

Section 50. Opinion of ordinary witnesses. — The opinion of a witness for which proper basis is given, may be received in evidence regarding —

(b) A handwriting with which he has sufficient familiarity; and

9. FINGERPRINT

Strong inculopatory evidence. Reliable and dependable means of idenfifying persons.

-Expert testimony is required, Thus credibilty of an expert is open to challenge.

Elements of proof Similarity of the prints Integrity of the photograph

demonstrating the print

Credibility of the examiner Integrity of the laboratory

10. DNA

RULE ON DNA EVIDENCE [A.M. No. 06-11-5 SC]MEANING OF DNAThe totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. [Sec. 3c]APPLICATION FOR DNA TESTING ORDERWith prior court order(1) The appropriate court may, at any time, either (i) motu proprio or (ii) on application of any person who has a legal interest in the matter in litigation, order a DNA testing.(2) Such order shall issue after due hearing and notice to the parties upon a showing of the following:(a) A biological sample exists that is relevant to the case;(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. [Sec. 4]

Without prior court orderThis Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party. [Sec. 4]

POST-CONVICTION DNA TESTINGHow obtained:(1) Without need of prior court order(2) Available to the prosecution or any person convicted by final and executory judgment

Requisites:(1) A biological sample exists(2) Such sample is relevant to the case(3) The testing would probably result in the reversal or modification of the judgment of conviction.[Sec. 6]

Remedy if Results Favorable to the Convict Convict or the prosecution may file a petition for a writ of habeas

corpus in the court of origin, CA or SC or any member of said courts. [Sec. 10]

General Rule: If the court, after due hearing, finds the petition meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict. [Sec. 10]Exception: If continued detention is justified for a lawful cause. [Sec. 10]

ASSESSMENT AND PROBATIVE VALUE OF DNA EVIDENCE AND ADMISSIBILITYFactors in assessing the probative value of DNA evidence

(1) Chain of custody(a) How the biological samples were collected(b) How they were handled(c) Possibility of contamination

(2) DNA testing methodology(a) Procedure followed in analyzing the samples(b) Advantages and disadvantages of the procedure(c) Compliance with scientifically valid standards in conducting the tests

(3) Forensic DNA laboratory(a) Accreditation by any reputable standardssetting institution

(b) Qualification of the analyst who conducted the tests(c) If not accredited, relevant experience of the laboratory in forensic work and its credibility(4) Reliability of the testing result [Sec. 7]

Vallejo StandardIn assessing the probative value of DNA evidence, courts should consider the following:

(a) How the samples were collected(b) How they were handled(c) The possibility of contamination of the samples(d) The procedure followed in analyzing the samples, whether the proper standards and procedures were followed(e) Qualification of the analyst who conducted the tests [People v. Vallejo (2002)]

RULES ON EVALUATION OF RELIABILITY OF THE DNA TESTING METHODOLOGYFactors that determine the reliability of the DNA

Testing Methodology

(1) Falsifiability of the principles or methods used(2) Subject to peer review and publication of the principles or methods(3) General acceptance of the principles or methods by the scientific community(4) Existence and maintenance of standards and controls to ensure the correctness of data generated(5) Existence of an appropriate reference population database(6) General degree of confidence attributed to mathematical calculations used in comparing DNA profiles(7) Significance and limitation of statistical calculations used in comparing DNA profiles

Sources:

HANDBOOK ON TRIAL PRACTICERULES ON EVIDENCE (RIANO) UST GOLDEN NOTESUP SIKLAB NOTESRULES ON EVIDENCERULE ON DNA EVIDENCE [A.M. NO. 06-11-5 SC]RULE ON EXAMINATION OF A CHILD WITNESS A.M. NO. 004-07-SCWIRE TAPPING ACT