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NINOY AQUINO INTERNATIONAL AIRPORT TERMINAL 3 (PIATCO CASE) BACKGROUND The original proposal for the construction of

NINOY AQUINO INTERNATIONAL AIRPORT TERMINAL 3 (PIATCO CASE)

BACKGROUND

The original proposal for the construction of a third terminal was proposed by Asia's Emerging Dragon Corporation (AEDP). AEDP eventually lost the bid to PairCargo and its partner Fraport AG of Germany, who went on to begin construction of the terminal under the administration of Joseph Estrada.

Terminal 3 was approved for construction in 1997 and the structure was mostly completed several years ago and was originally scheduled to open in 2002. The ultra- modern US$640 million, 189,000 square meter facility was designed by Skidmore, Owings and Merrill (SOM) to have a capacity of 13 million passengers per year. However, a legal dispute between the government of the Philippines and the project's main contractor, Philippine International Air Terminals Co. Inc. (PIATCO), over the Build-Operate-Transfer (BOT) contract, delayed the final completion and opening of the terminal.

While the original agreement was one in which PairCargo and Fraport AG would operate the airport for several years after its construction, followed by a handing over of the terminal to the Philippine Government, the government offered to buy out Fraport AG for $400 million, to which Fraport agreed. However, before the terminal could be fully completed, President Gloria Macapagal-Arroyo, called the contract "onerous," formed a committee to evaluate the agreement to buy out Fraport AG. It is this action that has sparked the most controversy. The Philippine Supreme Court eventually found the PIATCO contract "null and void" citing a variety of anomalies.

The current administration of President Gloria Macapagal-Arroyo eventually abrogated PIATCO's BOT Contract for allegedly having been anomalous in certain important respects. In a subsequent decision, the Philippine Supreme Court upheld the Philippine Government's position on the matter and declared the BOT contract "null and void" for, among other things, having violated certain provisions of the BOT law. More specifically, the Court found that the original contract was revised to allow for a Philippine Government guarantee of PIATCO's obligations to its creditors, contractors and suppliers. The BOT law disallows the granting of such sovereign guarantees. PIATCO begs to differ and continues to maintain that the provisions cited by the Supreme Court do not amount to a prohibited sovereign guarantee by the Philippine Government.

On December 2004, the Philippine Government expropriated the terminal project from PIATCO through an order of the Pasay City Regional Trial Court (RTC). However,

the court only allowed the Philippine Government to take over the terminal upon payment of an initial amount of PHP3 billion (approx. USD64 million) to PIATCO. The Philippine Government formally paid PIATCO the said amount on the second week of September 2006.

According to the Philippine Government, NAIA-3 was 98% complete (prior in 2006) and required at least an additional USD6 million to complete. The government was then in the process of negotiating a contract with the builder of the terminal, Takenaka of Japan, because another factor that delayed the terminal's opening was the ongoing investigation into the collapse of a 100 sq m. area of the terminal's ceiling.

PIATCO (and its German partner Fraport) have instituted arbitration proceedings before different international bodies (Piatco in Singapore before the ICC and Fraport in Washington D.C. before the ICSID) to recover a fair settlement. The case filed in Washington was decided in favor of the Philippine Government while the case in Singapore continues to be under litigation. PIATCO, speaking through its lawyers, has stated in the local Philippine press that it remains open to reaching an amicable settlement with the Philippine Government.

By Executive Order No. 732, the NAIA Terminal 3 Task Force was made and Michael Defensor was appointed on June 19, 2008 as head, creating the Presidential Task Force on the NAIA-3 that was "mandated to ensure the immediate opening and operation of Terminal III." The order provides for the NAIA-3 opening based on decisions of the Supreme Court and applicable laws. NAIA-3 initially opened for domestic flights of Cebu Pacific on July 22, 2008. And inaugurated its first international flight with Cebu Pacific’s aircraft bound for Hong Kong on August 1, 2008

TIMELINE

Under the Reign of President Fidel V. Ramos (1993 – 1998)

1993 – Asia’s Emerging Dragon Corporation or AEDC, consisting of the six taipans namely: John Gokongwei, Andrew Gotianun, Henry Sy, Lucio Tan, George Ty, and Alfonso Yuchengco, offer to construct the Ninoy Aquino International Airport (NAIA) Terminal 3 under a build-operate-transfer (BOT) scheme.

October 5, 1994 – A year later, an unsolicited proposal was submitted by AEDC to the Department of Transportation and Communication (DOTC) to undertake the NAIA 3 project.

March 1995 – DOTC endorsed the proposal to Investment Coordinating Council (ICC)

November 1995 – A meeting was requested by AEDC and the approval of the 10 million passenger new terminal was made by President Fidel V. Ramos.

February 13, 1996 – The NEDA Board granted the first pass approval of the project.

October 13, 1996 – The DOTC/ Manila International Airport Authority (MIAA) Prequalification, Bids and Awards Committee (PBAC) for the NAIA 3 opened the third

envelope submitted by another bidder, Paircargo and associates, and by AEDC which contained their respective financial proposals to the government.

December 3, 1996 – AEDC failed to match the challenger’s offer of P 300 million for the two years of construction and P 510 million annually for the next two years, P 610

million for the next

two years and finally P 710 million thereafter

up

to

the

end of

concession agreement against their offer of

P

5 million

a year

for

the duration of

agreement.

February 27, 1997 – The Securities and Exchange Commission issued the Certificate of Registration of Philippine International Air Terminals Co. (PIATCO) to PairCargo and its partner Fraport of Germany.

Under the Reign of President Joseph Estrada (1998 – 2001)

August 19, 1999 – The NEDA Board granted the second pass approval of the project.

March 7, 2000 – Committee on Transportation and Communications of the House of

Representatives found PIATCO’s contract regular and aboveboard. 2000 – The construction of the NAIA terminal 3 began.

Under the Reign of President Gloria Macapagal Arroyo (2001 – present)

November 29, 2002 – President Gloria Macapagal Arroyo decided to nullify the contract with Fraport, who led the consortium with PIATCO, because of its perceived onerous and burdensome provisions.

May 5, 2003 – The Supreme Court nullified PIATCO’s concession agreement and contracts to build the NAIA 3.

2003 – PIATCO filed a claim against the government with the International Chamber of Commerce of the International Court of Arbitration in Singapore.

Late 2003 – PIATCO wants the government to pay just compensation for costs in constructing the airport.

2004 – The government filed an expropriation case against PIATCO.

2005 – Mr. Emilio Yap, owner of the Manila Hotel and the Manila Bulletin, made a bid to control NAIA 3 has been disputed by Mr. Lucio Tan of AEDC. Using Manila Hotel as Mr. Yap’s bidder, he threw in $ 200 million to buy 40% share of Fraport in PIATCO to build and manage NAIA 3.

September 8, 2005 - Later on, Mr. Tan offered $ 300 million directly to the government.

December 19, 2005 – The Supreme Court affirmed the decision of slain Pasay City

Judge Henrick Gingoyon ordering the government to pay an initial P 3 billion to the PIATCO for expenses incurred in the construction of NAIA 3. Late 2005 – The AEDC filed a petition asking the Supreme Court to force the

government, through DOTC and MIAA to award to it the contract for the operation of NAIA 3. AEDC’s lawyer Perfecto Yasay Jr. asked the Supreme Court to issue a temporary restraining order (TRO) that would stop the DOTC and the MIAA from negotiating, bidding, or awarding the contract over NAIA 3. AEDC also claimed that with the nullification of PIATCO’s contract, they have the status as the unchallenged original proponent of the project under the R.A. 6957 as amended by R.A. 771 (BOT law). Although the Supreme Court did not issue a TRO, they required DOTC and MIAA to comment on AEDC’s petition. March 27, 2006 – Part of NAIA 3, a 100 square meter portion of the ceiling collapsed.

July 4, 2006 – Three members of the congress, Representatives Jacinto V. Paras, Eduardo K. Veloso, and Eduardo C. Zialcita told the Supreme Court that the nullification of PIATCO’s contract did not automatically entitle AEDC to the award of the project as in Section 5 of the BOT law. In this case, there has to be a winning bidder first to meet the standard set under the BOT law.

August 23, 2006 – The International Chamber of Commerce (ICC) Court of Arbitration in Singapore issued on order to MIAA to give up NAIA-3 to PIATCO or pay the P3 Billion.

September 2006 - The Philippine Government formally paid an initial amount of PHP3 billion (approx. USD64 million) to PIATCO.

August 2007 – The International Center for the Settlement of Investment Disputes (ICSID), a World Bank-affiliated international court, issues a 194-page decision dismissing the $425-million arbitration case filed by Fraport AG against the Philippines. In the decision, the ICSID in Washington DC claimed no jurisdiction over the Fraport case because the German airport builder was found to have violated Philippine laws. The decision in the Washington tribunal will help us even further to facilitate the remediation work to be done for Terminal 3 as well as the completion work.

June 9, 2008 – President Arroyo signed Executive Order No. 732 creating the Presidential Task Force on the NAIA-3 that was “mandated to ensure the immediate opening and operation of Terminal III.”

June 19, 2008 – The President has appointed former presidential chief of staff Michael Defensor as the head of the new powerful task force.

July 22, 2008 – NAIA-3 initially opened for domestic flights as Cebu Pacific began operating in the country’s newest airport. The inaugural flight is bound for Caticlan.

August 1, 2008 – NAIA-3 inaugurated its first international flight with Cebu Pacific’s aircraft bound for Hong Kong.