CyberBay stockholder may bring case for int’l arbitration

Prime Orion Philippines Inc. (POPI) said it will take its case to international arbitration should the Supreme Court refuse to reverse its final ruling nullifying the joint venture agreement forged between the Public Estates Authority and the Amari Coastal Bay Development Corp. for the development of reclaimed land in Manila Bay.

POPI owns 25 percent of Amari, now known as Central Bay Development Corp. (CyberBay).

CyberBay legal counsel Ronaldo Ventura of the Romulo Mabanta Buenaventura Sayoc & De Los Angeles law office said the company would seek arbitration from the International Chamber of Commerce if the SC rejects its motion for reconsideration as provided for under the contract.

"There is an arbitration clause. The ICC will come in if Amari and PEA fail to resolve their dispute," Ventura said.

Ventura, however, said the company is optimistic that the SC will still hear its arguments. "What we’re asking for is due process. We want to be given the opportunity to orally argue the case. We still believe that the SC is still capable of doing that. We would just like to see the contract upheld," he said.

The SC declared as null and void the amended joint venture agreement (AJVA) of PEA and Amari for alleged violation of the constitutional provision prohibiting private corporations to own land of public domain without going through a public bidding.

In an earlier statement to the Philippine Stock Exchange, POPI said it has a strong case and given the opportunity to appeal again and be accorded the opportunity to orally argue its case, the remaining justices will be convinced that the AJVA is legal and is good for the economy and the country.

POPI said seven of the 14 SC justices found merit in its position and reversed their original decision despite the SC’s continuous denial of the company’s motion for oral argument.

POPI, formerly Guoco Holdings Inc., said the nullification of the agreement would cause irreparable losses to its shareholders and foreign partners who have invested their funds in the project, relying in the good faith on the review and approvals by the government. POPI shareholders had invested P9 billion to the project.

POPI president Yuen Po Seng said the ruling, which puts into question the very sanctity of the contracts entered into by the Philippine government, would erode investor confidence.

"What is being assailed here is the sanctity of written contracts, a value or principle that is closely guarded. A written contract is founded on trust and integrity. If not considered carefully, this may cause permanent impairment to the investment climate in the Philippines. We believe that this decision of the Supreme Court is anti-business. Let’s not bring politics into the picture," Yuen said.

Yuen said the AJVA gives sufficient leeway for both Amari and the government to make the necessary adjustments or amendments to remove so-called invalid provisions while maintaining the other provisions so that business can carry on.

The ruling stemmed from a Dec. 1998 petition by former Solicitor General Francisco Chavez seeking to nullify PEA’s sale to Amari of 77.34 hectares of still submerged areas of Manila Bay.

The SC ruled that the submerged areas "remain inalienable natural resources of the public domain" and their sale to Amari violated the constitutional injunction on selling the country’s natural resources, like public land, to foreigners. Amari is an Italian-Thai consortium.

Due to the SC ruling, PEA has to figure out how to raise money to compensate its joint venture development partners, complete the development of reclaimed lands as well as projects that were halted.

If the ruling were to be applied to all other reclamation projects undertaken up to the Marcos administration, PEA estimated it would cost the government up to P200 billion to compensate developers and investors, who were likewise paid with reclaimed land.

The government stands to lose P1.8 billion in real estate taxes yearly if the lands were taken back, PEA argued.

Government agencies and local governments that paid private contractors, investors and developers with reclaimed land would also be adversely affected by the ruling, PEA added.