The Government of the Republic of the Philippines (GRP), represented by White & Case LLP working together with the Office of the Solicitor General and Justice Florentino P. Feliciano, won its third consecutive international arbitration in the decade-long dispute concerning the international airport terminal in Manila. The GRP secured a complete dismissal on jurisdictional grounds of the US$510 million claims of Fraport AG Frankfurt Airport Services Worldwide (Fraport) in proceedings before the International Centre for Settlement of Investment Disputes (ICSID), and also obtained an award of US$5 million in costs for the Philippines.
In its award, the three-member ICSID tribunal of Piero Bernardini, Stanimir Alexandrov and Albert Jan van den Berg unanimously determined that Fraport, a German company, had concluded agreements to ensure its control of a Philippine public utility, in violation of the Philippine Anti-Dummy Law. The tribunal found that Fraport's violation of the Anti-Dummy Law–and its "full awareness" of its illegality–were "satisfied beyond any possible doubt," based on "the unequivocal evidence provided by Respondent." The tribunal concluded that Fraport thus had not made a protected investment under the bilateral investment treaty between Germany and the Philippines, and, therefore, the Philippines had not consented to arbitration, resulting in a lack of jurisdiction.
A prior ICSID tribunal also found that it lacked jurisdiction as a result of Fraport's knowing and intentional violation of the Anti-Dummy Law, although that award was annulled. Related claims brought against the Philippines by the local project company likewise were rejected as inadmissible in an arbitration before the International Chamber of Commerce in Singapore. This latest victory thus marks the third time that an arbitral tribunal has dismissed claims against the Philippines as a result of violations of the Anti-Dummy Law.
"We are gratified that a third distinguished tribunal has rendered a strong award dismissing the claims on the basis of violations of law–a result that the Singapore High Court also previously affirmed," said Carolyn Lamm, who served as lead counsel in all of the related international arbitration proceedings. "This is a tremendous–and justified–victory for our longtime client, the Filipino people, the entire White & Case team and the rule of law. After a decade of disputes, justice has been done."
In addition to Ms. Lamm, the White & Case team was led by partners Abby Cohen Smutny, Francis A. Vasquez, Jr., and Hansel T. Pham, together with Anne D. Smith, Frank Panopoulos, Eckhard Hellbeck, Lee Steven, Brody K. Greenwald, Jonathan Ulrich, Michael Daly, Robert Williams, Karthik Nagarajan, Leah Witters, Amara Levy-Moore and Ziad Haider. The Philippines also was represented by retired Supreme Court Justice Florentino P. Feliciano, as well as representatives of the Office of the Solicitor General, including Hon. Florin T. Hilbay, Bernard G. Hernandez, Eric Remegio O. Panga, Ellaine Sanchez-Corro, Myrna N. Agno-Canuto, Jane E. Yu, Rebecca E. Khan, Josephine D. Arias, Charisse Olalia, Lucy Butler, Manelyn Caturla, Rex Bernardo L. Pascual, Danilo D. Leyva, Marsha Recon, Alberto Talampas, Karla Monica Manabat and Kristan Carlos Cristobal.
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