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THE
opening of the mothballed Ninoy Aquino International
Airport Terminal 3 (Naia 3) would be hastened in the
wake of the International Center for Settlement of
Investment Disputes’ (Icsid) decision to junk the
complaint filed by German port operator Fraport AG
against the government, a senior airport official said.
“With
this victory, we assure local and international
investors that those who wish to partner with the Miaa
[Manila International Airport Authority] in the
operation and economic activities related to Naia 3, as
well as with Naia 1 and 2 and the Diosdado Macapagal
International Airport, that we will get the full
protection of the law regarding their investments,” Miaa
general manager Alfonso Cusi said.
 Cusi
said that the Washington-based arbitration body has
ruled that the Philippines has not violated any
international trade treaty, paving the way for the Miaa
to continue current work leading to the possible opening
of Naia 3 next year.
The Miaa,
Cusi added, rejoices with President Arroyo during her
announcement that the Icsid has dismissed the complaint
of Fraport AG against the Philippine government.
Fraport
AG, one of the foreign partners of the local consortium
that built Naia 3, filed the case in September 2003
before the Icsid in an attempt to recover its
investments, said to amount to $425 million.
Cusi
emphasized that the government cannot grant investors
the kind of treatment Fraport was demanding from
it—guarantee the full return of its investments
regardless of Fraport’s “deliberate and knowing
violation of the law.”
He said
the decision gives his office a renewed spirit in
opening the terminal as “promptly and expeditiously as
possible within the parameters that the law allows us.”
“We wish
to remind everybody that the law will not allow us to
open a terminal that is structurally defective. Neither
do we want to provide you a terminal that is incomplete.
Those two activities are being fully attended to by Miaa,”
he said.
Constructed in 1997 by the Philippine International
Airport Transport Co. (Piatco), a consortium that
included Pair Cargo, Fraport AG and Japanese contractor
Takenaka, Naia 3 had been undergoing fine-tuning and is
almost 98-percent complete as of last year, with the
government hoping to open it to the public next year.
The
Supreme Court found the build-operate-transfer (BOT)
contract of Piatco for Naia 3 “null and void” after the
President declared it “onerous” and offered to buy out
the project’s proponents, including Fraport.
The
Court found that the original contract was revised to
include a government’s guarantee to pay Piatco’s
obligations to its creditors, contractors and suppliers.
Being an unsolicited project, the BOT disallows the
granting of such sovereign guarantees, which in several
instances were one inserted in the original contract by
Piatco.
The
government expropriated the terminal project on December
2004 through an order of the Regional Trial Court in
Pasay City that required the government to pay Piatco P3
billion.
A law
firm, meanwhile, said the Icsid decision dismissing the
case filed by Fraport AG against the Republic of the
Philippines is a vindication for all Filipinos,
including its members, “who have been deliberately
maligned by malicious allegations made by Fraport in
that case.”
The
Villaraza and Angangco law firm in a statement said: “A
vicious smear campaign against our firm was launched on
the basis of a concocted story of an alleged extortion
attempt against Fraport before the filing of the Icisid
case, Fraport immediately apologized to our firm for any
‘misunderstanding’ and ‘unintended concern and
grievance’ that may have been caused by its failed
attempt to engage our Firm to represent Fraport in the
Philippines.
“Fraport
assured our firm then that ‘neither Fraport nor its
representatives did intend to discredit’ the firm or any
of its members. Despite issuing a public apology,
Fraport made the same fake and malicious allegations of
an alleged extortion claim in its submissions in the
Icsid case.”
Libel
cases against Fraport officials Wilhelm Bender and
Manfred Scholch, and their Philippine lawyers, Cesar
Manalaysay and Edgardo Balois, as well as columnists
Ninez Cacho-Olivares and Herman Tiu Laurel and others
are now pending in various courts. Civil cases for
damages against Fraport and their lawyers are also
pending before the courts.
“From
the beginning, we fought against this attempt to
blackmail our country before the international community
at the expense of the reputation of innocent Filipinos.”
At the
same time, Fraport said it is still scrutinizing the
Icsid decision.
Regarding the Icsid decision about Fraport AG’s claim
for compensation against the Republic of the
Philippines,
a Fraport AG spokesman said:
“This
decision over Fraport’s arbitration case concerning
compensation for the expropriation of its investment in
the
Manila terminal project requires in-depth legal examination.
Subsequently, Fraport will then be able to decide on its
further course of action.
“Icsid
declared that it does not have jurisdiction. The
decision of the arbitration tribunal does not mean that
Fraport no longer has any claim for compensation. In
fact, other legal proceedings are still pending in
Manila and Singapore, where the project company—in which
Fraport holds a 30-percent share—among other reliefs,
also seeks just compensation,” he said.
“This is
further underscored by the fact that the cost of the
arbitration proceeding will not solely be the burden of
the losing party but rather will be shared by both
parties.” |
