848 Phil. 514
LEONEN, J.:
8. Change OrderThe project was to be completed within 150 calendar days or by October 10, 1995, to be reckoned from Andrada Construction's posting of a Performance Bond to answer for liquidated damages, costs to complete the project, and third party claims. The Performance Bond was issued by Intra Strata Assurance Corporation (Intra Strata).[14]
- Without invalidating this Agreement, the OWNER may, at any time, order additions, deletions or revisions in the Work by means of a Change Order. The CONTRACTOR shall determine whether the Change Order causes a decrease or increase in the Purchase Price or shortening or extension of the Contract Period. Within three (3) days from receipt of the Change Order, CONTRACTOR shall give written notice to the OWNER of the value of the works required under the Change Order which will increase the Contract Price and of the extension in the Contract Period necessary to complete such works. On the other hand, if the Change Order involves deletions of some works required in the original Contract Documents, the value of the works deleted shall be deducted from the Contract Price and the Contract Period shortened accordingly.
In either case, any addition or reduction in the Contract Price or extension or shortening of the Contract Period shall be mutually agreed in writing by the OWNER and the CONTRACTOR prior to the execution of the works covered by the Change Order.[13]
WHEREFORE, premises considered we hold that:Metro Bottled Water filed before the Court of Appeals a Petition for Review[34] assailing the Arbitral Award.
A. Claimant's claims Unpaid work accomplishment - P4,607,523.40Interest on the unpaid work Accomplishment - 6% per annum on P4,607,523.40 reckoned from November 24, 2000 date of receipt of the letter dated October 24, 2000 by Respondent and 12% per annum from the time the judgment becomes final and executory until the entire sum including interest is fully paid.B. Respondent's Counterclaims Cost to complete and correct the projects - noneLiquidated damages - none
All other claims and counterclaims are dismissed for lack of merit.
The costs of arbitration shall be shared equally by the parties.
Accordingly, judgment is hereby rendered ordering Metro Bottled Water Corporation to pay Andrada Construction and Development Inc. the amount of P4,607,523.40 with interest at 6% per annum reckoned from November 24, 2000 date of receipt of the letter dated October 24, 2000 by Respondent and 12% per annum from the time this judgment becomes final and executory until the entire sum including interest is fully paid.
SO ORDERED, April 11, 2002.[33]
The jurisdiction of the CIAC may include but is not limited to violation of specifications for materials and workmanship; violation of the terms of agreement; interpretation and/or application of contractual time and delays; maintenance and defects; payment, default of employer or contractor and changes in contract cost.Considering that the law covers a specific field of industry and the arbitral tribunal's jurisdiction is well defined, several provisions of the law emphasize the technical nature of the proceedings before it, and provide for the particular expertise required of the arbitrators:
Excluded from the coverage of this law are disputes arising from employer-employee relationships which shall continue to be covered by the Labor Code of the Philippines.[69]
SECTION 14. Arbitrators. — A sole arbitrator or three arbitrators may settle a dispute.The Revised Rules of Procedure Governing Construction Arbitration provides more stringent qualifications for arbitrators and enumerate specific professions that they may hold, such as "engineers, architects, construction managers, engineering consultants, and businessmen familiar with the construction industry":[71]
. . . .
Arbitrators shall be men of distinction in whom the business sector and the government can have confidence. They shall not be permanently employed with the CIAC. Instead, they shall render services only when called to arbitrate. For each dispute they settle, they shall be given fees.[70]
SECTION 8.1 General qualification of Arbitrators. — The Arbitrators shall be men of distinction in whom the business sector and the government can have confidence. They shall be technically qualified to resolve any construction dispute expeditiously and equitably. The Arbitrators shall come from different professions. They may include engineers, architects, construction managers, engineering consultants, and businessmen familiar with the construction industry and lawyers who are experienced in construction disputes.The Construction Industry Arbitration Law even allows the appointment of experts if requested by the parties or by the arbitral tribunal:
SECTION 15. Appointment of Experts. — The services of technical or legal experts may be utilized in the settlement of disputes if requested by any of the parties or by the Arbitral Tribunal. If the request for an expert is done by either or by both of the parties, it is necessary that the appointment of the expert be confirmed by the Arbitral Tribunal.Likewise, the law mandates that any resort to arbitration must be voluntary.[73]
Whenever the parties request for the services of an expert, they shall equally shoulder the expert's fees and expenses, half of which shall be deposited with the Secretariat before the expert renders service. When only one party makes the request, it shall deposit the whole amount required.[72]
Respondent's refusal to Answer the Complaint or the filing of a Motion to Dismiss for lack of jurisdiction shall be deemed a refusal to submit to arbitration. In either case, the Commission (CIAC) shall dismiss the Complaint without prejudice to its refiling upon a subsequent submission.[74] (Citation omitted)Due to the highly technical nature of proceedings before the Construction Industry Arbitration Commission, as well as its emphasis on the parties' willingness to submit to the proceedings, the Construction Industry Arbitration Law provides for a narrow ground by which the arbitral award can be questioned in a higher tribunal. Section 19 states:
SECTION 19. Finality of Awards. — The arbitral award shall be binding upon the parties. It shall be final and inappealable except on questions of law which shall be appealable to the Supreme Court.The Construction Industry Arbitration Commission has since been categorized as a quasi-judicial agency in Metro Construction, Inc. v. Chatham Properties, Inc.:[75]
[The Construction Industry Arbitration Commission] is a quasi-judicial agency. A quasi-judicial agency or body has been defined as an organ of government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule-making. The very definition of an administrative agency includes its being vested with quasi-judicial powers. The ever increasing variety of powers and functions given to administrative agencies recognizes the need for the active intervention of administrative agencies in matters calling for technical knowledge and speed in countless controversies which cannot possibly be handled by regular courts. The CIAC's primary function is that of a quasi-judicial agency, which is to adjudicate claims and/or determine rights in accordance with procedures set forth in E.O. No. 1008.[76]To standardize appeals from quasi-judicial agencies, Rule 43 of the 1997 Rules of Civil Procedure provides that appeals "may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law."[77] The Construction Industry Arbitration Commission is among the quasi-judicial agencies explicitly listed in the rule.
Voluntary Arbitrators resolve labor disputes and grievances arising from the interpretation of Collective Bargaining Agreements. These disputes were specifically excluded from the coverage of both the Arbitration Law and the ADR Law.In CE Construction v. Araneta Center,[85] however, this Court emphasized that Rule 43 must be read together with the Construction Industry Arbitration Law, which provides that appeals of arbitral awards must only raise questions of law. Thus, even if Rule 43 now provides that appeals may be brought before the Court of Appeals, these appeals must still be confined to questions of law:
Unlike purely commercial relationships, the relationship between capital and labor [is] heavily impressed with public interest. Because of this, Voluntary Arbitrators authorized to resolve labor disputes have been clothed with quasi-judicial authority.
On the other hand, commercial relationships covered by our commercial arbitration laws are purely private and contractual in nature. Unlike labor relationships, they do not possess the same competing state interest that would justify state interference into the autonomy of contracts. Hence, commercial arbitration is a purely private system of adjudication facilitated by private citizens instead of government instrumentalities wielding quasi-judicial powers.
Moreover, judicial or quasi-judicial jurisdiction cannot be conferred upon a tribunal by the parties alone. The Labor Code itself confers subject-matter jurisdiction to Voluntary Arbitrators.
Notably, the other arbitration body listed in Rule 43 — the Construction Industry Arbitration Commission (CIAC) — is also a government agency attached to the Department of Trade and Industry. Its jurisdiction is likewise conferred by statute. By contrast, the subject-matter jurisdiction of commercial arbitrators is stipulated by the parties.[84] (Citation omitted)
This is not to say that factual findings of CIAC arbitral tribunals may now be assailed before the Court of Appeals. Section 3's statement "whether the appeal involves questions of fact, of law, or mixed questions of fact and law" merely recognizes variances in the disparate modes of appeal that Rule 43 standardizes: there were those that enabled questions of fact; there were those that enabled questions of law, and there were those that enabled mixed questions [of] fact and law. Rule 43 emphasizes that though there may have been variances, all appeals under its scope are to be brought before the Court of Appeals. However, in keeping with the Construction Industry Arbitration Law, any appeal from CIAC arbitral tribunals must remain limited to questions of law.[86] (Emphasis supplied)The rationale for this limitation has already been thoroughly explained in Hi-Precision Steel Center, Inc. v. Lim Kim Steel Builders, Inc.:[87]
Section 19 [of Executive Order No. 1008] makes it crystal clear that questions of fact cannot be raised in proceedings before the Supreme Court — which is not a trier of facts — in respect of an arbitral award rendered under the aegis of the CIAC. Consideration of the animating purpose of voluntary arbitration in general, and arbitration under the aegis of the CIAC in particular, requires us to apply rigorously the above principle embodied in Section 19 that the Arbitral Tribunal's findings of fact shall be final and unappealable.CE Construction further provides that even exceptions that may be allowed in the review of Rule 45 petitions,[89] such as the lower court's misapprehension of facts or a conflict in the factual findings, will not apply to reviews of the arbitral tribunal's decisions. Hi-Precision Steel Center, Inc. sufficiently explains the rationale of why courts are duty bound to uphold the factual findings of the tribunal:
Voluntary arbitration involves the reference of a dispute to an impartial body, the members of which are chosen by the parties themselves, which parties freely consent in advance to abide by the arbitral award issued after proceedings where both parties had the opportunity to be heard. The basic objective is to provide a speedy and inexpensive method of settling disputes by allowing the parties to avoid the formalities, delay, expense and aggravation which commonly accompany ordinary litigation, especially litigation which goes through the entire hierarchy of courts. Executive Order No. 1008 created an arbitration facility to which the construction industry in the Philippines can have recourse. The Executive Order was enacted to encourage the early and expeditious settlement of disputes in the construction industry, a public policy the implementation of which is necessary and important for the realization of national development goals.[88]
Aware of the objective of voluntary arbitration in the labor field, in the construction industry, and in any other area for that matter, the Court will not assist one or the other or even both parties in any effort to subvert or defeat that objective for their private purposes. The Court will not review the factual findings of an arbitral tribunal upon the artful allegation that such body had "misapprehended the facts" and will not pass upon issues which are, at bottom, issues of fact, no matter how cleverly disguised they might be as "legal questions." The parties here had recourse to arbitration and chose the arbitrators themselves; they must have had confidence in such arbitrators. The Court will not, therefore, permit the parties to relitigate before it the issues of facts previously presented and argued before the Arbitral Tribunal, save only where a very clear showing is made that, in reaching its factual conclusions, the Arbitral Tribunal committed an error so egregious and hurtful to one party as to constitute a grave abuse of discretion resulting in lack or loss of jurisdiction. Prototypical examples would be factual conclusions of the Tribunal which resulted in deprivation of one or the other party of a fair opportunity to present its position before the Arbitral Tribunal, and an award obtained through fraud or the corruption of arbitrators. Any other, more relaxed, rule would result in setting at naught the basic objective of a voluntary arbitration and would reduce arbitration to a largely inutile institution.[90]Thus, the general rule is that appeals of arbitral awards by the Construction Industry Arbitration Commission may only be allowed on pure questions of law. Even the Construction Industry Arbitration Law does not provide for any instance when an arbitral award may be vacated. Spouses David v. Construction Industry and Arbitration Commission[91] recognized this gap, and thus, applied the provisions of Republic Act No. 876, or the Arbitration Law:[92]
[F]actual findings of construction arbitrators are final and conclusive and not reviewable by this Court on appeal, except when the petitioner proves affirmatively that: (1) the award was procured by corruption, fraud or other undue means; (2) there was evident partiality or corruption of the arbitrators or of any of them; (3) the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; (4) one or more of the arbitrators were disqualified to act as such under section nine of Republic Act No. 876 and willfully refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced; or (5) the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted to them was not made.[93]Notably, these exceptions refer to the conduct of the arbitral tribunal and the qualifications of the arbitrator.[94] They do not refer to the arbitral tribunal's errors of fact and law, misappreciation of evidence, or conflicting findings of fact. Hence, CE Construction, in recognizing the nature of these exceptions, held that questions of law may be allowed "only in instances when the integrity of the arbitral tribunal itself has been put in jeopardy."[95] This Court further mandated that "factual findings may be reviewed only in cases where the CIAC arbitral tribunals conducted their affairs in a haphazard, immodest manner that the most basic integrity of the arbitral process was imperiled."[96]
There is a question of law when the doubt or difference in a given case arises as to what the law is on a certain set of facts, and there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. Thus, for a question to be one of law, it must not involve an examination of the probative value of the evidence presented by the parties and there must be no doubt as to the veracity or falsehood of the facts alleged.[97]Petitioner alleges that it is not liable to respondent for the costs incurred in Change Order Nos. 39 to 109 since the Construction Agreement clearly required a written agreement by both parties of the change orders, which petitioner alleges it did not provide. At first glance, petitioner appears to be raising a question of law, i.e., whether respondent complied with the provisions of the Construction Agreement as to be entitled to compensation, which, in turn, would require the proper interpretation of the contract between the parties. This would be a question of law since it requires the courts to determine the parties' rights under the contract. The Construction Agreement provided:
8. Change OrderTo resolve this issue, however, this Court would have to accept the factual premise alleged by petitioner: that Change Order Nos. 39 to 109 were not authorized by petitioner. This runs counter to the factual finding established by the Construction Industry Arbitration Commission that petitioner did indeed agree to the change orders, thus:
- Without invalidating this Agreement, the OWNER may, at any time, order additions, deletions or revisions in the Work by means of a Change Order. The CONTRACTOR shall determine whether the Change Order causes a decrease or increase in the Purchase Price or shortening or extension of the Contract Period. Within three (3) days from receipt of the Change Order, CONTRACTOR shall give written notice to the OWNER of the value of the works required under the Change Order which will increase the Contract Price and of the extension in the Contract Period necessary to complete such works. On the other hand, if the Change Order involves deletions of some works required in the original Contract Documents, the value of the works deleted shall be deducted from the Contract Price and the Contract Period shortened accordingly.
In either case, any addition or reduction in the Contract Price or extension or shortening of the Contract Period shall be mutually agreed in writing by the OWNER and the CONTRACTOR prior to the execution of the works covered by the Change Order.[98]
We are not convinced by Respondent's argument that Claimant is not entitled to its claim for change orders for not following the procedure prescribed by the contract for change orders because it did not strictly enforce the same procedure in approving Change Order 1-38 and impliedly allowed Change Orders 39-109 by funding the payrolls and some materials. . . . Claimant was able to present sketches plans and cost estimates and receipts supporting them (sic). . . . Upon the other hand respondent was not able to produce contrary evidence that they were not additional and extra works to the original plans and specifications or that they spent for them.[99]Petitioner further argues that even if it waived its right to strictly enforce the provisions of the Construction Agreement on Change Order Nos. 1 to 38, it should not have been considered to have waived the same right with regard to Change Order Nos. 38 to 109, citing Item No. 14 of the Construction Agreement:
14. WaiverAgain, at first glance, this appears to be a legal issue, since it requires a recognition of whether the waiver of petitioner's rights in Change Order Nos. 1 to 38 carried with it a waiver of its rights in Change Order Nos. 39 to 109. However, to fully discuss the extent of the waiver under the contract, this Court would be required to accept the factual premise that petitioner did not waive its rights with regard to Change Order Nos. 39 to 109. This clearly runs counter to the factual finding of the Construction Industry Arbitration Commission that petitioner did waive its right to strictly enforce the provisions of the contract with regard to Change Order Nos. 39 to 109. Even the Court of Appeals was inclined to affirm the arbitral tribunal's finding on this matter, summarizing the latter's findings as follows:
Any forebearance or extension that the OWNER may grant to the CONTRACTOR or any non-exercise or non-enforcement by the OWNER of its rights or remedies under this Agreement shall not in any manner be construed as a waiver of such right or remedies of the OWNER.[100]
1. Change Order Nos. 39 to 64 — Within the period from October 30 to November 30, 1995, respondent was still working on the project. During this period petitioner provided respondent financial assistance by paying the payroll. This financial assistance was deducted from the billing of respondent;Petitioner further argues that the Court of Appeals erred in not finding that it was entitled to liquidated damages since respondent allegedly committed delay in completing the project.
2. Change Order Nos. 65 to 86 — petitioner confirms that the work is "completed and can be seen at site", and it was not able to disprove the claim. The respondent is therefore entitled to its claim.
3. Change Order Nos. 87 to 89 — it was verified during the ocular inspection that they had been completed. Petitioner was not able to disprove the claim. Respondent is therefore entitled to its claim.
4. Change Order No. 90 — petitioner confirms that the work is "completed and can be seen at site", and it was not able to disprove the claim. The respondent is therefore entitled to its claim.
5. Change Order No. 91 — it was verified during the ocular inspection that they had been completed. Petitioner was not able to disprove the claims. Respondent is therefore entitled to its claim.
6. Change Order No. 92 — was inspected during the ocular inspection and found to have been completed. Petitioner was not able to disprove the claim. Respondent is therefore entitled to its claim.
7. Change Order Nos. 93 to 99 — it was verified during the ocular inspection that they had been completed. Petitioner was not able to disprove the claim. Respondent is therefore entitled to its claim.
8. Change Order Nos. 100 to 101 — petitioner confirms that the work is "completed and can be seen at site", and it was not able to disprove the claim. The respondent is therefore entitled to its claim.
9. Change Order Nos. 102 to 104 — it was verified during the ocular inspection that they had been completed. Petitioner was not able to disprove the claim. Respondent is therefore entitled to it[s] claim.
10. Change Order Nos. 105 to 106 — petitioner confirms that the work is "completed and can be seen at site", and it was not able to disprove the claim. The respondent is therefore entitled to its claim.
11. Change Order No. 107 — it was verified during the ocular inspection that they had been completed. Petitioner was not able to disprove the claim. Respondent is therefore entitled to its claim.
12. Change Order Nos. 108 to 109 — petitioner confirms that the work is "completed and can be seen at site", and it was not able to disprove the claim. The respondent is therefore entitled to its claim.[101]
10. / TerminationUnder the contract, respondent must first be found ki default, after which it was only required to pay if the enforcement of petitioner's rights exceeded the unpaid balance of the purchase price. No specific provision holds respondent liable for liquidated damages in case of delay.
The OWNER shall have the right to terminate this Agreement, without prejudice to any other remedies it may have, in case the CONTRACTOR defaults in the performance of any of its obligations herein and fails to remedy such default within ten (10) days from receipt of written notice of default given by the OWNER.
Upon such termination, the OWNER shall have the right to exclude the CONTRACTOR from the Work Site, take possession of what has so far been completed and all materials, equipment and tools at the Work Site, and finish the Work in whatever manner the OWNER deems expedient including the engagement of another contractor. The CONTRACTOR shall lose its right to be paid the unpaid balance of the Contract Price and if the costs and expenses for completing the works and enforcing OWNER'S aforementioned right exceed the unpaid balance of the Purchase Price, the CONTRACTOR shall pay the OWNER the difference upon the written demand of the OWNER.[104]
There was no failure on the part of Claimant to complete the project within the contractual period because Respondent extended the period up to November 30, 1995 on valid grounds which are the (1) change orders (Change Order Nos. 1-109) (2) error in the building set back (Exh. II, Annex A) and rainy weather condition (Exh. M39C-1). The value of Change Order Nos. 39-109 (Evaluation of Change Orders by Tribunal) of P4,607,523.40 would justify the extension of the contract to even beyond November 30, 1995 while the error in the building set back and rainy weather would require an extension of more than twenty five days. And Claimant completed the original contract and the change orders within the extension period.[105]Even the arbitral tribunal could not be swayed by petitioner's argument that it did not grant an "extension" but merely provided for a "new schedule of completion":
The attempt by Respondent [petitioner here] to distinguish between a "time extension" and "new schedule of completion" in order to consider the letter of ESCA dated October 10, 1995 as not a notice of extension does not convince the tribunal because the two phrases have the same meaning and effect of extending the period of work from the original or prior period of work in order to complete the construction.[106]This Court cannot pass upon petitioner's arguments that it terminated the Construction Agreement and took over the project on November 15, 1995. These are questions of fact already resolved by the arbitral tribunal. It found that since no notice of termination was served on respondent, there was no contract termination.[107] Consequently, there was no takeover. Any costs for labor and materials advanced to respondent during the extension period were actually deducted by petitioner from respondent's 10% retention. Thus, no new costs for the alleged project takeover were actually incurred.[108]
Article 1724. The contractor who undertakes to build a structure or any other work for a stipulated price, in conformity with plans and specifications agreed upon with the land-owner, can neither withdraw from the contract nor demand an increase in the price on account of the higher cost of labor or materials, save when there has been a change in the plans and specifications, provided:Petitioner contends that the arbitral tribunal should first apply Article 1724 when resolving the issue of whether respondent should be compensated for costs incurred in Change Order Nos. 39 to 109.
(1) Such change has been authorized by the proprietor in writing; and
(2) The additional price to be paid to the contractor has been determined in writing by both parties.
8. Change OrderIt is settled that the contract is the law between the parties.[112] Without any ambiguity in Item No. 8 of the Construction Agreement, there was no need to resort to other aids in interpretation, such as Article 1724 of the Civil Code, to resolve the issue.In either case, any addition or reduction in the Contract Price or extension or shortening of the Contract Period shall be mutually agreed in writing by the OWNER and the CONTRACTOR prior to the execution of the works covered by the Change Order.[111]
- Without invalidating this Agreement, the OWNER may, at any time, order additions, deletions or revisions in the Work by means of a Change Order. The CONTRACTOR shall determine whether the Change Order causes a decrease or increase in the Purchase Price or shortening or extension of the Contract Period. Within three (3) days from receipt of the Change Order, CONTRACTOR shall give written notice to the OWNER of the value of the works required under the Change Order which will increase the Contract Price and of the extension in the Contract Period necessary to complete such works. On the other hand, if the Change Order involves deletions of some works required in the original Contract Documents, the value of the works deleted shall be deducted from the Contract Price and the Contract Period shortened accordingly.
SECTION 1.1 Statement of Policy and Objectives. — It is the policy and objective of these Rules to provide a fair and expeditious resolution of construction disputes as an alternative to judicial proceedings, which may restore the disrupted harmonious and friendly relationships between or among the parties.Here, services were rendered for which compensation was demanded. The contract between the parties, however, inadequately provides for the mechanism by which compensation may be due. The fair and expeditious resolution of the issue requires the arbitral tribunal to instead apply equitable principles to arrive at a just conclusion. In CE Construction:[115]
Jurisprudence has settled that even in cases where parties enter into contracts which do not strictly conform to standard formalities or to the typifying provisions of nominate contracts, when one renders services to another, the latter must compensate the former for the reasonable value of the services rendered. This amount shall be fixed by a court. This is a matter so basic, this Court has once characterized it as one that "springs from the fountain of good conscience":Here, the arbitral tribunal computed the entire cost of Change Order Nos. 1 to 109 at P5,242,697.76.[117] This includes that of Change Order Nos. 1 to 38, which petitioner categorically admitted were authorized changes. Upon subtracting the contract price and other costs chargeable to respondent, the arbitral tribunal found that there was still an unpaid amount of P4,607,523.40,[118] resulting from the costs of the change orders, which petitioner refuses to pay. There was, therefore, no error in the arbitral tribunal's finding and the Court of Appeals' affirmation that petitioner is still liable to respondent for that amount.As early as 1903, in Perez v. Pomar, this Court ruled that where one has rendered services to another, and these services are accepted by the latter, in the absence of proof that the service was rendered gratuitously, it is but just that he should pay a reasonable remuneration therefore because "it is a well-known principle of law, that no one should be permitted to enrich himself to the damage of another." Similarly in 1914, this Court declared that in this jurisdiction, even in the absence of statute, ". . . under the general principle that one person may not enrich himself at the expense of another, a judgment creditor would not be permitted to retain the purchase price of land sold as the property of the judgment debtor after it has been made to appear that the judgment debtor had no title to the land and that the purchaser had failed to secure title thereto . . ." The foregoing equitable principle which springs from the fountain of good conscience are applicable to the case at bar.[116]
(a) | The award was procured by corruption, fraud, or other undue means; or |
(b) | That there was evident partiality or corruption in the arbitrators or any of them; or |
(c) | That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon, sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; that one or more of the arbitrators was disqualified to act as such under section nine hereof, and wilfully refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced; or |
(d) | That the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted to them was not made. |