The report of the Senate committee on revision of codes and laws differs from that of the Blue Ribbon Committee headed by Sen. Joker Arroyo, which declared the contract void.
The Supreme Court will hear at 10 a.m. today the arguments of the Office of the Solicitor General and other anti-Piatco proponents on whether NAIA 3 should be opened.
Piatco has asked the high tribunal to stop the government from taking over the new airport terminal after President Arroyo invalidated the firm’s contract on grounds that it was onerous and disadvantageous to the government.
Angara’s committee found close to 30 provisions of the Piatco contract "burdensome and onerous."
Angara said the following provision of the contract should be renegotiated:
• Limitations imposed on the operations of the Diosdado Macapagal International Airport at Clark.
• The fixing of terminal fees.
• The exclusion from determining the appraised value of some facilities at the concession area.
"Essentially, this is a build-operate-transfer contract," Angara said. ""This was funded not by government but by the private sector, and if the government will cancel it even on the most justifiable reason that some provisions are onerous, then there is no safety and stability on the BOT contracts," he said.
Angara said the government committed during the confirmation hearings of then transportation and communications secretary Pantaleon Alvarez that it would honor the Piatco contract and that it should abide by that commitment.
"We agree that some of the provisions are onerous, but the solution is to renegotiate, not to revoke, annul," he said. "It is obligatory for government to honor agreements validly entered into with private parties."
Angara said no foreign investor would ever come to the country if a BOT contract is annulled because of onerous provisions, as in the case of the contracts with 27 independent power producers.
"With this position on Piatco, does this mean the government will annul all those 27 contracts worth $12 billion?" he said.
Piatco’s lawyers said Mrs. Arroyo’s unilateral action had violated the company’s rights under the law and that it had already advanced the government a total of P780 million.
The lawyers said a court order was necessary to prove with certainty that Piatco’s contract with the government is void.
"It is a basic maxim under contract law that no party to a contract can renounce it unilaterally or without the consent of the other," said lawyers from Romulo Mabanta Buenaventura Sayoc and Delos Angeles Law Office.
"Only an arbitration body or the courts in their exercise of judicial power can make such a finding and declaration. No party may be permitted to repudiate an agreement validly entered into without any ground or reason in law or in fact, to the prejudice of the other party," the law firm said.
Piatco’s lawyers have asked the Supreme Court not to allow Justice Antonio Carpio to take part in the deliberations on the case because he belonged to the law firm that "vigorously opposed" the awarding of the NAIA 3 project to Piatco.
Eduardo de los Angeles, Piatco counsel, said the Carpio Villaraza and Cruz Law Office, now renamed Villaraza and Angangco, had represented Asia’s Emerging Dragons Corp. (AEDC) when it sued Piatco in a court in Pasig City.
"Even if AEDC is not a party to the consolidated cases, it will stand to benefit from a declaration of the nullity of the (1997) concession agreement, amended and restated concession agreement and supplements," the lawyers said in a 10-page motion.
"Certainly, the professional association of Justice Carpio with AEDC may cast a cloud of impartiality in ruling on the consolidated cases pending with this Honorable Court. – With Delon Porcalla, Rey Arquiza