Now that no less than President Rodrigo Roa Duterte has expressed his disgust, dismay and righteous anger over the two concession agreements between the Philippine Government and Manila Water and Maynilad and has threatened to file economic sabotage and other cases against those who negotiated and approved the concession agreements, Malacañang should make public the names and positions of Philippine Government officials in the Ramos, Arroyo and Aquino administrations who negotiated and approved the original, amended or supplemental concession agreements.
And since Justice Secretary Meynardo Guavarra has publicly stated that a review by the DOJ disclosed several provisions that are onerous, criminal cases for violation of the Anti-Graft and Corrupt Practices Act should be filed against those officials for entering into contracts grossly disadvantageous to the Philippine Government.
Determination of probable cause by the Ombudsman and trial before the Sandiganbayan will not involve complicated factual and legal issues. All that is needed is to examine the onerous provisions and determine whether they are really disadvantageous to the Philippine Government. Of course, those indicted will avail of, and invoke all technicalities—like prescription—to delay early resolution of the cases against them, hoping against hope for a political environment favorable to them in 2022.
On the arbitral awards issued by a three-man Singapore-based arbitral panel, Malacañang should also make public: (a) who the nominee of the Philippine Government in the arbitral panel was, his qualifications and who chose and nominated him and why; (b) who the counsel for the Philippine Government in the arbitral proceedings was, his qualifications and who choose and nominated him and why. Also, what defenses did he invoke against the claims of Maynilad and Manila Water?
These are necessary because the Philippine Government has to shoulder part of the arbitration fee in accordance with the schedule of fees under the arbitration rules used in the proceedings. The Philippine Government has also to pay the professional fee of its counsel in the arbitral proceedings in accordance with their professional fee agreement, or if none, the schedule of professional fee under the arbitral rules used. In the RP-PROC arbitration case the Philippines paid the gargantuan fee of its American lawyers and the whole amount of the arbitration fee because PROC did not participate. But, at least the Philippines won even if the award cannot be enforced.
Although the Philippines lost in the Singapore arbitral proceedings, Maynilad and Manila Water cannot automatically enforce the awards in the Philippines. They still have to file with the proper regional trial court a petition for recognition and enforcement of said rulings. Under the 1985 UNCITRAL Model Law which was incorporated by reference in the Alternative Dispute Resolution Act of 2004 and the 1957 New York Convention to which the Philippines is a signatory, there are available grounds for the Philippine Government to oppose any petition for recognition and enforcement of the arbitral awards.
In view of the strong and adamant stand of President Duterte and in the context of present-day political realities, I doubt whether Manila Water and Maynilad will try to have the arbitral rulings in their favor recognized and enforced against the Philippine Government. Already, Manila Water has publicly issued a statement that can only be described as reconciliatory.
Jose Oliveros is a member of the Philippine Bar.
