|Philbert E Varona|
The Philippine government sponsored the Infrastructure Philippines conference held on November 18 to 19 2010 as part of its efforts to drum up investor interest in Philippine infrastructure projects and public-private partnerships. The conference was generally met with optimism from both potential project sponsors and financiers.
This was due largely to the government's promise to insulate infrastructure projects from regulatory risk. In his keynote address delivered on November 18, President Benigno S Aquino III stated that:
"The government will provide investors with protection against regulatory risk. Infrastructure can only be paid for from user fees or taxes. When government commits to allow investors to earn their return from user fees, it is important that that commitment be reliable and enforceable.
"And if private investors are impeded from collecting contractually agreed fees by regulators, courts, or the legislature then our government will use its own resources to ensure that they are kept whole.
"Let me provide you an example of how regulatory risk protection may work. A contract between the government and a private entity building a road or a bridge may specify a formula for rate adjustments.
"If for some reason, a court decision threatens the adjustment, the government will compensate the private concessionaire for the difference between what the tariff should have been under the formula, and the tariff which it is actually able to collect."
President Aquino and the members of his Cabinet stressed, however, that the commercial or market risk of any infrastructure projects undertaken by the Aquino administration would be borne by the investors.
Significantly, just a month earlier, the Supreme Court had promulgated a decision in the case of Francisco v Toll Regulatory Board October 19 2010, which could very well give potential investors pause.
One of the issues involved in that case was whether a contractual stipulation between the government and the operator of a tollway, whereby the Toll Regulatory Board (TRB) agreed to pay the operator the difference between a pre-agreed amount of toll fees and the amount actually approved for collection from the public, was valid.
In other words, the TRB had agreed that if the toll rates approved by the regulatory body were less than the amount of toll fees set or as adjusted in accordance with the contract for example an approved toll rate of P30.00 ($0.68) versus a contractually-set toll rate of P50.00 then the TRB would pay the operator the P20.00 shortfall.)
According to the Supreme Court, this type of contractual stipulation is void, because:
(i) it amounts to a "guarantee [by the government] of a security in the financing of the toll operator," which is expressly prohibited by Section 3(e)(5) of Presidential Decree No 1112 (the charter of the TRB); and
(ii) it violates Article VI, Section 29 of the constitution, which provides that "[n]o money shall be paid out of the Treasury except in pursuance of an appropriation made by law," and Sections 84 and 85 of Presidential Decree No 1445 (which impose the same requirement as the constitution), and here, there was no such congressional appropriation.
In other words, the Supreme Court has recognised that there are constitutional and statutory hurdles that need to be overcome before project proponents may be insulated from regulatory risk.
Once the administration's PPP program actually gets off the ground, it will be interesting to see how the Aquino government will implement its undertaking to protect investors from regulatory risk.
Philbert E Varona