Korea Technologies Co., Ltd. v. Hon. Alberto A.

Lerma and Pacific General

Steel Manufacturing Corporation,
G.R. No. 143581, Jan. 7, 2008.

Facts:

Korea Technologies Co., Ltd. [Korea Tech], a Korean corporation, entered into a contract with Pacific General Steel
Manufacturing Corporation [Pacific General], a domestic corporation, whereby Korea Tech undertook to ship and install in
Pacific General’s site in Carmona, Cavite the machinery and facilities necessary for manufacturing LPG cylinders, and to
initially operate the plant after it is installed.

The plant, after completion of installation, could not be operated by Pacific General due to its financial difficulties affecting
the supply of materials. The last payments made by Pacific General to Korea Tech consisted of postdated checks which
were dishonored upon presentment.

According to Pacific General, it stopped payment because Korea Tech had delivered a hydraulic press which was different
in kind and of lower quality than that agreed upon. Korea Tech also failed to deliver equipment parts already paid for by it.
It threatened to cancel the contract with Korea Tech and dismantle the Carmona plant.

Finally, Pacific General filed before the Office of the Prosecutor a Complaint-Affidavit for estafa against Mr. Dae Hyun Kang,
President of Korea Tech. Korea Tech informed PGSMC that it could not unilaterally rescind the contract. Of greater
importance to the present article, KOGIES also insisted that their dispute be settled by arbitration as provided by Article 15
of their contract — the arbitration clause.

Korea Tech initiated arbitration before the Korea Commercial Arbitration Board [KCAB] in Seoul, Korea and, at the same
time, commenced a civil action before the Regional Trial Court [the “trial court”] where it prayed that Pacific General be
restrained from dismantling the plant and equipment. Pacific General opposed the application and argued that the arbitration
clause was null and void, being contrary to public policy as it ousts the local court of jurisdiction.

The trial court denied the application for preliminary injunction and declared the arbitration agreement null and void. Korea
Tech moved to dismiss the counterclaims for damages.
Korea Tech filed a petition for certiorari before the Court of Appeals [CA]. The court dismissed the petition and held that an
arbitration clause which provided for a final determination of the legal rights of the parties to the contract by arbitration was
against public policy. Further appeal was made to the Supreme Court by way of a petition for review.

Ruling: The Supreme Court (the “Court”) held:

1. Re: The validity of the arbitration clause.
“The arbitration clause is valid. It has not been shown to be contrary to any law, or against morals, good customs, public
order or public policy. The arbitration clause stipulates that the arbitration must be done in Seoul, Korea in accordance with
the Commercial Arbitration Rules of the KCAB, and that the award is final and binding. This is not contrary to public policy.
We find no reason why the arbitration clause should not be respected and complied with by both parties.”

This ruling, the Court said, is consonant with the declared policy in Section 2 of the ADR Act that “the State (shall) actively
promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to
resolve their disputes.”

Citing Section 24 of the ADR Act, the Court said the trial court does not have jurisdiction over disputes that are properly the
subject of arbitration pursuant to an arbitration clause.
In the earlier case of BF Corporation v. Court of Appeals and Shangri-la Properties, Inc., where the trial court refused to
refer the parties to arbitration notwithstanding the existence of an arbitration agreement between them, the Supreme Court
said the trial court had prematurely exercised its jurisdiction over the case.

The Court further emphasized that a submission to arbitration is a contract. As a rule, contracts are respected as the law
between the contracting parties and produce effect between them, their assigns and heirs.8 Courts should liberally review
arbitration clauses. Any doubt should be resolved in favor of arbitration.

2. Re: Enforcement of award in a domestic or international arbitration

An arbitral award in a domestic or international arbitration is subject to enforcement by a court upon application of the
prevailing party for the confirmation or recognition and enforcement of an award.

Under Section 42 of the ADR Act, “The recognition and enforcement of such (foreign) arbitral awards shall be filed with the
Regional Trial Court in accordance with the rules of procedure to be promulgated by the Supreme Court.” An arbitral award
is immediately executory upon the lapse of the period provided by law.
For an award rendered in domestic or non-international arbitration, unless a petition to vacate the award is filed within thirty
(30) days from the date of serve upon the latter, the award is subject to confirmation by the court.

For an award rendered in a domestic, international arbitration, the period for filing an application to set it aside is not later
than three (3) months from the date the applicant received the award, otherwise the court shall recognize and enforce it.

3. Re: Enforcement of foreign arbitral award

In an attempt to allay the fear by Pacific General of submitting its dispute to arbitration in Seoul, South Korea under the
rules of the Korea Commercial Arbitration Board, the Supreme Court said in obiter dictum:

In case a foreign arbitral body is chosen by the parties, the arbitral rules of our domestic arbitration bodies would not be
applied. As signatory to the Arbitration Rules of the UNCITRAL Model Law on International Commercial Arbitration of the
United Nations Commission on International Trade Law [UNCITRAL] in the New York Convention on June 21, 1985, the
Philippine committed itself to be bound by the Model Law. We have even incorporated the Model Law in Republic Act No.
9285, otherwise known as the Alternative Dispute Resolution Act of 2004.”
xxxxxx
“Thus, while the RTC does not have jurisdiction over disputes governed by arbitration mutually agreed upon by the parties,
still the foreign arbitral award is subject to judicial review by the RTC which can set aside, reject or vacate it.”…. Chapter 7
of RA 9285 has made it clear that all arbitral awards, whether domestic or foreign, are subject to judicial review on specific
grounds provided for.”
The Supreme Court finally held:
“While it (Pacific General) may have misgivings on the foreign arbitration done in Korea by the KCAB, it has available
remedies under RA 9285. Its interests are duly protected by the law which requires that the arbitral award that may be
rendered by KCAB must be confirmed here by the RTC before it can be enforced.”

MCC INDUSTRIAL SALES CORPORATION, petitioner, vs.

SSANGYONG CORPORATION, respondents.

G.R. No. 170633; October 17, 2007

Facts:
Petitioner is engaged in the business of importing and wholesaling stainless steel products. One of its suppliers is the
responded, an international trading company with head office in Seoul, South Korea and regional headquarters in Makati
City, Philippines. The two corporations conducted business through telephone calls and facsimile or telecopy transmissions.
Respondent would send the pro forma invoices containing the details of the steel product order to petitioner; if the latter
conforms thereto, its representative affixes his signature on the faxed copy and sends it back to the respondent, again by
fax.

Respondent filed a civil action for damages due to breach of contract against petitioner before the Regional Trial Court of
Makati City. In its complaint, respondent alleged that defendants breached their contract when they refused to open the
letter of credit in the amount of US$170,000.00 for the remaining 100MT of steel under Pro Forma Invoice Nos. ST2-
POSTS0401-1 and ST2-POSTS0401-2.

After respondent rested its case, petitioner filed a Demurrer to Evidence alleging that respondent failed to present the
original copies of the pro forma invoices on which the civil action was based. Petitioner contends that the photocopies of
the pro forma invoices presented by respondent Ssangyong to prove the perfection of their supposed contract of sale are
inadmissible in evidence and do not fall within the ambit of R.A. No. 8792, because the law merely admits as the best
evidence the original fax transmittal. On the other hand, respondent posits that, from a reading of the law and the Rules on
Electronic Evidence, the original facsimile transmittal of the pro forma invoice is admissible in evidence since it is an
electronic document and, therefore, the best evidence under the law and the Rules. Respondent further claims that the
photocopies of these fax transmittals (specifically ST2-POSTS0401-1 and ST2-POSTS0401-2) are admissible under the
Rules on Evidence because the respondent sufficiently explained the non-production of the original fax transmittals.

Issue:

Whether the print-out and/or photocopies of facsimile transmissions are electronic evidence and admissible as such?

Held:

Electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule, as long as
it is a printout or output readable by sight or other means, showing to reflect the data accurately. Thus, to be admissible in
evidence as an electronic data message or to be considered as the functional equivalent of an original document under the
Best Evidence Rule, the writing must foremost be an “electronic data message” or an “electronic document.
The Implementing Rules and Regulations (IRR) of R.A. No. 8792 defines the “Electronic Data Message” refers to information
generated, sent, received or stored by electronic, optical or similar means, but not limited to, electronic data interchange
(EDI), electronic mail, telegram, telex or telecopy.

The phrase “but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy” in the IRR’s
definition of “electronic data message” is copied from the Model Law on Electronic Commerce adopted by the United Nations
Commission on International Trade Law (UNCITRAL), from which majority of the provisions of R.A. No. 8792 were taken.
While Congress deleted this phrase in the Electronic Commerce Act of 2000, the drafters of the IRR reinstated it. The
deletion by Congress of the said phrase is significant and pivotal.

Moreover, when Congress formulated the term “electronic data message,” it intended the same meaning as the term
“electronic record” in the Canada law. This construction of the term “electronic data message,” which excludes telexes or
faxes, except computer-generated faxes, is in harmony with the Electronic Commerce Law’s focus on “paperless”
communications and the “functional equivalent approach” that it espouses. Facsimile transmissions are not, in this sense,
“paperless,” but verily are paper-based.

[I]n an ordinary facsimile transmission, there exists an original paper-based information or data that is scanned, sent through
a phone line, and re-printed at the receiving end. … [I]n a virtual or paperless environment, technically, there is no original
copy to speak of, as all direct printouts of the virtual reality are the same, in all respects, and are considered as originals.
Ineluctably, the law’s definition of “electronic data message,” which, as aforesaid, is interchangeable with “electronic
document,” could not have included facsimile transmissions, which have an original paper-based copy as sent and a paper-
based facsimile copy as received. These two copies are distinct from each other, and have different legal effects. While
Congress anticipated future developments in communications and computer technology when it drafted the law, it excluded
the early forms of technology, like telegraph, telex and telecopy (except computer-generated faxes, which is a newer
development as compared to the ordinary fax machine to fax machine transmission), when it defined the term “electronic
data message.”

[T]he terms “electronic data message” and “electronic document,” as defined under the Electronic Commerce Act of 2000,
do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence.
It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence.
GONZALES VS CLIMAX MINING LTD 512 SCRA 148
Gonzales vs Climax Mining Ltd
512 SCRA 148 [GR No. 161957 January 22, 2007]

Facts: This is a consolidation of two petitions rooted in the same disputed Addendum Contract entered into by the parties.
In G.R. No. 161957, the Court in its Decision of 28 February 2005 denied the Rule 45 petition of petitioner Jorge Gonzales
(Gonzales). It held that the DENR Panel of Arbitrators had no jurisdiction over the complaint for the annulment of the
Addendum Contract on grounds of fraud and violation of the Constitution and that the action should have been brought
before the regular courts as it involved judicial issues. Both parties filed separate motions for reconsideration. Gonzales
avers in his Motion for Reconsideration that the Court erred in holding that the DENR Panel of Arbitrators was bereft of
jurisdiction, reiterating its argument that the case involves a mining dispute that properly falls within the ambit of the Panels
authority. Gonzales adds that the Court failed to rule on other issues he raised relating to the sufficiency of his complaint
before the DENR Panel of Arbitrators and the timeliness of its filing. Respondents Climax Mining Ltd., et al., (respondents)
filed their Motion for Partial Reconsideration and/or Clarification seeking reconsideration of that part of the Decision holding
that the case should not be brought for arbitration under Republic Act (R.A.) No. 876, also known as the Arbitration Law.
Respondents, citing American jurisprudence and the UNCITRAL Model Law, argue that the arbitration clause in the
Addendum Contract should be treated as an agreement independent of the other terms of the contract, and that a claimed
rescission of the main contract does not avoid the duty to arbitrate. Respondents add that Gonzales argument relating to
the alleged invalidity of the Addendum Contract still has to be proven and adjudicated on in a proper proceeding; that is, an
action separate from the motion to compel arbitration. Pending judgment in such separate action, the Addendum Contract
remains valid and binding and so does the arbitration clause therein. Respondents add that the holding in the Decision that
the case should not be brought under the ambit of the Arbitration Law appears to be premised on Gonzales having
impugn[ed] the existence or validity of the addendum contract. If so, it supposedly conveys the idea that Gonzales unilateral
repudiation of the contract or mere allegation of its invalidity is all it takes to avoid arbitration. Hence, respondents submit
that the courts holding that the case should not be brought under the ambit of the Arbitration Law be understood or clarified
as operative only where the challenge to the arbitration agreement has been sustained by final judgment.

Issue: Whether or not it was proper for the RTC, in the proceeding to compel arbitration under R.A. No. 876, to order the
parties to arbitrate even though the defendant therein has raised the twin issues of validity and nullity of the Addendum
Contract and, consequently, of the arbitration clause therein as well
Held: Yes. Disputes do not go to arbitration unless and until the parties have agreed to abide by the arbitrators decision.
Necessarily, a contract is required for arbitration to take place and to be binding. R.A. No. 876 recognizes the contractual
nature of the arbitration agreement.

The doctrine of separability, or severability as other writers call it, enunciates that an arbitration agreement is independent
of the main contract. The arbitration agreement is to be treated as a separate agreement and the arbitration agreement
does not automatically terminate when the contract of which it is part comes to an end.

The separability of the arbitration agreement is especially significant to the determination of whether the invalidity of the
main contract also nullifies the arbitration clause. Indeed, the doctrine denotes that the invalidity of the main contract, also
referred to as the container contract, does not affect the validity of the arbitration agreement. Irrespective of the fact that the
main contract is invalid, the arbitration clause/agreement still remains valid and enforceable.

The separability of the arbitration clause is confirmed in Art. 16(1) of the UNCITRAL Model Law and Art. 21(2) of the
UNCITRAL Arbitration Rules.

The proceeding in a petition for arbitration under R.A. No. 876 is limited only to the resolution of the question of whether the
arbitration agreement exists. Second, the separability of the arbitration clause from the Addendum Contract means that
validity or invalidity of the Addendum Contract will not affect the enforceability of the agreement to arbitrate. Thus, Gonzales
petition for certiorari should be dismissed.

This brings us back to G.R. No. 161957. The adjudication of the petition in G.R. No. 167994 effectively modifies part of the
Decision dated 28 February 2005 in G.R. No. 161957. Hence, we now hold that the validity of the contract containing the
agreement to submit to arbitration does not affect the applicability of the arbitration clause itself. A contrary ruling would
suggest that a parties mere repudiation of the main contract is sufficient to avoid arbitration. That is exactly the situation
that the separability doctrine, as well as jurisprudence applying it, seeks to avoid. We add that when it was declared in G.R.
No. 161957 that the case should not be brought for arbitration, it should be clarified that the case referred to is the case
actually filed by Gonzales before the DENR Panel of Arbitrators, which was for the nullification of the main contract on the
ground of fraud, as it had already been determined that the case should have been brought before the regular courts
involving as it did judicial issues.
TRANSFIELD PHILIPPINES v. LUZON HYDRO CORPORATION, GR No. 146717, 2004-11-22

Facts:

On 26 March 1997, petitioner and respondent Luzon Hydro Corporation (hereinafter, LHC) entered into a Turnkey
Contract[3] whereby petitioner, as Turnkey Contractor, undertook to construct, on a turnkey basis, a seventy (70)-Megawatt
hydro-electric power... station at the Bakun River in the provinces of Benguet and Ilocos Sur (hereinafter, the Project).
Petitioner was given the sole responsibility for the design, construction, commissioning, testing and completion of the
Project.[

In the course of the construction of the project, petitioner sought various EOT to complete the Project.

on 27 June 2000, LHC sent notice to petitioner that pursuant to Clause 8.2[14] of the Turnkey Contract, it failed to comply
with its obligation to complete the Project.

On 5 November 2000, petitioner as plaintiff filed a Complaint for Injunction, with prayer for temporary restraining order and
writ of preliminary injunction, against herein respondents as defendants before the Regional Trial Court (RTC) of Makati.[

The RTC, in its Order[19] dated 24 November 2000, denied petitioner's application for a writ of preliminary injunction.

On 2 February 2001, the appellate court dismissed the petition for certiorari.

Issues:

WHETHER THE "INDEPENDENCE PRINCIPLE" ON LETTERS OF CREDIT MAY BE INVOKED BY A BENEFICIARY

THEREOF WHERE THE BENEFICIARY'S CALL THEREON IS WRONGFUL OR FRAUDULENT.

WHETHER LHC HAS THE RIGHT TO CALL AND DRAW ON THE SECURITIES BEFORE THE RESOLUTION OF
PETITIONER'S AND LHC'S DISPUTES BY THE APPROPRIATE TRIBUNAL.

WHETHER ANZ BANK AND SECURITY BANK ARE JUSTIFIED IN RELEASING THE AMOUNTS DUE UNDER THE
SECURITIES DESPITE BEING NOTIFIED THAT LHC'S CALL THEREON IS WRONGFUL.
WHETHER OR NOT PETITIONER WILL SUFFER GRAVE AND IRREPARABLE DAMAGE

Ruling:

Given the nature of letters of credit, petitioner's argument that it is only the issuing bank that may invoke the independence
principle on letters of credit does not impress this Court.

Letters of credit are employed by the parties desiring to enter into commercial transactions, not for the benefit of the issuing
bank but mainly for the benefit of the parties to the original transactions.

Petitioner's argument that any dispute must first be resolved by the parties, whether through negotiations or arbitration,
before the beneficiary is entitled to call on the letter of credit in essence would convert the letter of credit into a mere
guarantee.

A contract once perfected, binds the parties not only to the fulfillment of what has been expressly stipulated but also to all
the consequences which according to their nature, may be in keeping with good faith, usage, and law.

Forum-shopping is a very serious charge. It exists when a party repetitively avails of several judicial remedies in different
courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and
circumstances, and all... raising substantially the same issues either pending in, or already resolved adversely, by some
other court.

Considering the seriousness of the charge of forum-shopping and the severity of the sanctions for its violation, the Court
will refrain from making any definitive ruling on this issue until after petitioner has been given ample opportunity to respond
to the charge.

WHEREFORE, the instant petition is DENIED, with costs against petitioner.

Petitioner is hereby required to answer the charge of forum-shopping within fifteen (15) days from notice.
G.R. No. 196171 January 15, 2014

RCBC CAPITAL CORPORATION, Petitioner,

vs.
BANCO DE ORO UNIBANK, INC. (now BDO UNIBANK, INC.), Respondent.

x-----------------------x

G.R. No. 199238

BANCO DE ORO UNIBANK, INC., Petitioner,

vs.
COURT OF APPEALS and RCBC CAPITAL CORPORATION, Respondents.

x-----------------------x

G.R. No. 200213

BANCO DE ORO UNIBANK, INC., Petitioner,

vs.
RCBC CAPITAL CORPORATION and THE ARBITRAL TRIBUNAL IN ICC ARBITRATION REF. NO. 13290/MS/JEM AND/OR
RICHARD IAN BARKER, NEIL KAPLAN AND SANTIAGO KAPUNAN, in their official capacity as Members of THE
ARBITRATION TRIBUNAL, Respondents.

FACTS:

All three petitions emanated from arbitration proceedings commenced by RCBC Capital pursuant to the
arbitration clause under its Share Purchase Agreement (SPA) with EPCIB involving the latter’s shares in Bankard,
Inc. In the course of arbitration conducted by the Tribunal constituted and administered by the International
Chamber of Commerce-International Commercial Arbitration (ICC-ICA), EPCIB was merged with BDO which
assumed all its liabilities and obligations.
RCBC entered into a Share Purchase Agreement (SPA) with Equitable-PCI Bank, Inc. (EPCIB), George L. Go and
the individual shareholders of Bankard, Inc. (Bankard) for the sale to RCBC of 226,460,000 shares (Subject Shares)
of Bankard.
RCBC informed EPCIB and the other selling shareholders of an overpayment of the subject shares, claiming there
was an overstatement of valuation of accounts amounting to P478 million and that the sellers violated their
warranty.

RCBC commenced arbitration proceedings with the ICC-ICA in accordance with Section 10 of the SPA.

ICC asked them to advance cost of $350K. RCBC paid. But respondent did not pay assailing disproportionate
share because RCBC has way greater claim. RCBC paid the share of BDO in the cost.

RCBC filed an Application for Reimbursement of Advance on Costs Paid, praying for the issuance of a partial
award directing the Respondents to reimburse its payment in the amount of US$290,000 representing
Respondents’ share in the Advance on Costs and to consider Respondents’ counterclaim for actual damages in
the amount of US$300,000, and moral and exemplary damages as withdrawn for their failure to pay their equal
share in the advance on costs.

BDO Opposed on the ground that the Arbitration Tribunal has lost its objectivity in an unnecessary litigation over
the payment of Respondents’ share in the advance costs. They pointed out that RCBC’s letter merely asked that
Respondents be declared as in default for their failure to pay advance costs as that RCBC had no intention of
litigating for the advance costs.

Respondents reiterated their position that Article 30(3) envisions a situation whereby a party would refuse to pay
its share on the advance on costs and provides a remedy therefor – the other party "shall be free to pay the
whole of the advance on costs." Such party’s reimbursement for payments of the defaulting party’s share
depends on the final arbitral award where the party liable for costs would be determined. This is the only remedy
provided by the ICC Rules

Arbitration Tribunal rendered the Second Partial Award

EPCIB filed a Motion to Vacate Second Partial Award and RCBC filed in the same court a Motion to Confirm
Second Partial Award. Makati City RTC confirmed the Second Partial Award and denied EPCIB’s motion to
vacate the same. EPCIB appealed to CA.

Acting on a petition for certiorari, the Court of Appeals reversed the order of the lower court and set aside the
second partial award.

ISSUE:

WHETHER THERE IS LEGAL GROUND TO VACATE THE SECOND PARTIAL AWARD?

RULING:

YES.

The Supreme Court upheld the Court of Appeals' ruling that in treating the letter of the claimant as an application
for a partial award and in furnishing the parties with a copy of Secomb's article1 - which favoured the claimant
by advancing its cause - the chairman acted with partiality.

“SEC. 41. Vacation Award. – A party to a domestic arbitration may question the arbitral award with the
appropriate regional trial court in accordance with the rules of procedure to be promulgated by the Supreme
Court only on those grounds enumerated in Section 25 of Republic Act No. 876. Any other ground raised against
a domestic arbitral award shall be disregarded by the regional trial court.”

Rule 11.4 of the Special ADR Rules sets forth the grounds for vacating an arbitral award:

1 Secomb's article, "Awards and Orders Dealing with the Advance on Costs in ICC Arbitration: Theoretical Questions and Practical Problems", states:
"As we can see, the Rules have certain mechanisms to deal with defaulting parties. Occasionally, however, parties have sought to use other methods to tackle the problem of a party refusing
to pay its part of the advance on costs. These have included seeking an order or award from the arbitral tribunal condemning the defaulting party to pay its share of the advance on costs.
Such applications are the subject of this article."
Rule 11.4. Grounds.—(A) To vacate an arbitral award. – The arbitral award may be vacated on the following
grounds:

a. The arbitral award was procured through corruption, fraud or other undue means;
b. There was evident partiality or corruption in the arbitral tribunal or any of its members;
c. The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the
rights of any party such as refusing to postpone a hearing upon sufficient cause shown or to hear evidence
pertinent and material to the controversy;
d. One or more of the arbitrators was disqualified to act as such under the law and willfully refrained from
disclosing such disqualification; or
e. The arbitral tribunal exceeded its powers, or so imperfectly executed them, such that a complete, final and
definite award upon the subject matter submitted to them was not made.

The award may also be vacated on any or all of the following grounds:
a. The arbitration agreement did not exist, or is invalid for any ground for the revocation of a contract or is
otherwise unenforceable; or
b. A party to arbitration is a minor or a person judicially declared to be incompetent.
In deciding the petition to vacate the arbitral award, the court shall disregard any other ground than those
enumerated above. (Emphasis supplied)

Evident partiality in its common definition thus implies "the existence of signs and indications that must lead to an
identification or inference" of partiality

Although RCBC had repeatedly asked for reimbursement and the withdrawal of BDO’s counterclaims prior to
Chairman Barker’s December 18, 2007 letter, it is baffling why it is only in the said letter that RCBC’s prayer was
given a complexion of being an application for a partial award. To the Court, the said letter signaled a
preconceived course of action that the relief prayed for by RCBC will be granted.

That there was an action to be taken beforehand is confirmed by Chairman Barker’s furnishing the parties with a
copy of the Secomb article. This article ultimately favored RCBC by advancing its cause. Chairman Barker makes
it appear that he intended good to be done in doing so but due process dictates the cold neutrality of impartiality.