NNMDC et al vs. REDMONT CONSOLIDATED MINES CORP.

TOPIC: Control Test and Grandfather Rule

Narra Nickel Mining and Development Corp., Tesoro Mining and Development,
Inc., and McArthur Mining Inc., petitioners, vs. Redmont Consolidated Mines Corp.,
respondent.

G.R. No. 195580. April 21, 2014

Ponente: Velasco

Digested by: (Johren A. Ejan)

Facts:

Sometime in December 2006, respondent Redmont Consolidated Mines Corp

(Redmont), a domestic corporation organized and existing under Philippine laws, took
interest in mining and exploring certain areas of the province of Palawan. After inquiring
with the DENR, it learned that the areas were already covered by Mineral Production
Sharing Agreement (MPSA) application of herein petitioners Narra, Tesoro and
McArthur.

MPSA-AMA-IVB-153 covering an area of over 1,782 hectares in Barangay

Sumbiling, Municipality of Bataraza, Province of Palawan and EPA-IVB-44 which
includes an area of 3,720 hectares in Barangay Malatagao, Bataraza, Palawan was
applied by petitioner McArthur. Petitioner Narra applied MPSA-IV-1-12 covering an area
of 3,722 hectares in Barangay Calategas and San Isidro, Municipality of Narra,
Palawan. MPSA-AMA-IVB-154 over 3,402 hectares in Barangays Malinao and Princesa
Urduja, Municipality of Narra, Province of Palawan was applied by Tesoro.

On January 2, 2007, Redmont filed before the Panel of Arbitrators (POA) of the
DENR three separate petitions for the denial of petitioners applications for MPSAs. In
the petition, Redmont alleged that at least 60% of the capital stock of McArthur, Tesoro
and Narra are owned and controlled by MBMI Resources, Inc. (MBMI), a 100%
Canadian Corporation. Redmont reasoned that since MBMI is a considerable
stockholder of petitioners, it was the driving force behind petitioners filing of the MPSAs
over the areas covered since it knows that in can only participate in mining activities
through corporations which are deemed Filipino citizens. Redmont argued that given
that petitioners capital stocks were mostly owned by MBMI, they were likewise
disqualified from engaging in mining activities through MPSAs, which are reserved only
for Filipino citizens.

In their Answers, petitioners averred that they were qualified persons under
Section 3 of RA 7942 or the Philippine Mining Act of 1995. Additionally, they stated that
their nationality as applicants is immaterial because they also applied for Financial or
Technical Assistance (FTAA). They claimed that the issue on nationality should not be
raised since they are Philippine Nationals as 60% of their capital is owned by citizens of
the Philippines. They added that the best tool used in determining the nationality of a
corporation is the control test, embodied in Sec. 3 of RA 7042 or the Foreign
Investments Act of 1991. They also claimed that the POA of DENR did not have
jurisdiction over the issues and that Redmont has no personality to sue them because it
has no pending claim or application over the area applied for by the petitioners.

On December 14, 2007 the POA Issued a Resolution disqualifying petitioners

from gaining MPSAs. It held that respondents are not qualified applicants to engage in
mining activities. The POA considered petitioners as foreign corporations being
controlled by MBMI, a 100% Canadian company. Thereafter, POA denied the MR filed
by petitioners.

Aggrieved by the decision of POA, petitioners filed a Notice of Appeal and

Memorandum of Appeal with the Mines Adjudication Board (MAB). Petitioners
emphasized that they are qualified persons under the law. Also, through a letter they
informed MAB that they had their individual MPSAs converted to FTAAs.

Pending the resolution of the appeal filed by petitioners with the MAB, Redmont
filed a Complaint with the SEC seeking the revocation of the Certificates for registration
of petitioners on the ground that they are foreign-owned corporations engaged in mining
in violation of the Philippine laws. Thereafter, Redmont filed before the RTC of Quezon
City Branch 92 a Complaint for Injunction with application for issuance of a TRO and/or
writ of preliminary injunction. Redmont prayed for the deferral of the MAB proceedings
pending the resolution of the Complaint before the SEC.

But before the RTC can resolve Redmonts Complaint, on September 10, 2008,
MAB issued an Order to Reverse and Set Aside the previous decision of DENR-POA.
Motion for Reconsideration was filed by Redmont with MAB but was dismissed. On
September 16, 2008, the RTC issued an Order granting Redmonts application for a
TRO and on October 6, 2008, issued an Order granting the issuance of a writ of
preliminary injunction enjoining MAB. Hence, Redmont filed a petition for Review before
the CA assailing the Orders issued by the MAB. The Court of Appeals rendered a
decision that the Order of MAB is reversed and set aside and that the Order of the
DENR-POA is upheld, therefore rejection of their MPSAs. MR filed by petitioners was
also denied by CA.

After careful review, the CA found that there was doubt as to the nationality of
petitioners when it realized that petitioners had a common major investor, MBMI. The
CA used the grandfather rule to determine the nationality of petitioners.

This case then reached the Supreme Court to review the Decision of the CA.
Issue:

Whether the Court of Appeals erred in applying the grandfather rule and for
deciding that Narra, Tesoro and McArthur are foreign corporations.

Ruling:

No.

The main issue in this case is centered on the issue of petitioners nationality,
whether Filipino or foreign. Basically there are two acknowledged tests in determining
the nationality of a corporation: the control test and the grandfather rule. Paragraph 7 of
DOJ Opinion No. 020, Series of 2005, adopting the 1967 SEC Rules which
implemented the requirement of the Constitution and other laws pertaining to the
controlling interests in enterprises engaged in the exploitation of natural resources
owned by Filipino citizens, provides:

Shares belonging to corporations or partnerships at least 60% of the capital of

which is owned by Filipino citizens shall be considered as of Philippine
nationality, but if the percentage of Filipino ownership in the corporation or
partnership is less than 60%, only the number of shares corresponding to such
percentage shall be counted as of Philippine nationality. Thus, if 100,000 shares
are registered in the name of a corporation or partnership at least 60% of the
capital stock or capital, respectively, of which belong to Filipino citizens, all of the
shares shall be recorded as owned by Filipinos. But if less than 60%, or say,
50% of the capital stock or capital of the corporation or partnership, respectively,
belongs to Filipino citizens, only 50,000 shares shall be counted as owned by
Filipinos and the other 50,000 shall be recorded as belonging to aliens.

The first part of paragraph 7, DOJ Opinion No. 020, stating "shares belonging to
corporations or partnerships at least 60% of the capital of which is owned by Filipino
citizens shall be considered as of Philippine nationality," pertains to the control test or
the liberal rule. On the other hand, the second part of the DOJ Opinion which provides,
"if the percentage of the Filipino ownership in the corporation or partnership is less than
60%, only the number of shares corresponding to such percentage shall be counted as
Philippine nationality," pertains to the stricter, more stringent grandfather rule. Prior to
this recent change of events, petitioners were constant in advocating the application of
the "control test" under RA 7042, as amended by RA 8179, otherwise known as the
Foreign Investments Act (FIA), rather than using the stricter grandfather rule. The
pertinent provision under Sec. 3 of the FIA provides:

SECTION 3. Definitions. As used in this Act:

The term Philippine national shall mean a citizen of the Philippines; or a

domestic partnership or association wholly owned by the citizens of the
 Philippines; a corporation organized under the laws of the Philippines of which at
least sixty percent (60%) of the capital stock outstanding and entitled to vote is
wholly owned by Filipinos or a trustee of funds for pension or other employee
retirement or separation benefits, where the trustee is a Philippine national and
at least sixty percent (60%) of the fund will accrue to the benefit of Philippine
nationals: Provided, That were a corporation and its non-Filipino stockholders
own stocks in a Securities and Exchange Commission (SEC) registered
enterprise, at least sixty percent (60%) of the capital stock outstanding and
entitled to vote of each of both corporations must be owned and held by citizens
of the Philippines and at least sixty percent (60%) of the members of the Board
of Directors, in order that the corporation shall be considered a Philippine
national.

The grandfather rule, petitioners reasoned, has no leg to stand on in the instant
case since the definition of a "Philippine National" under Sec. 3 of the FIA does not
provide for it. They further claim that the grandfather rule "has been abandoned and is
no longer the applicable rule." They also opined that the last portion of Sec. 3 of the FIA
admits the application of a "corporate layering" scheme of corporations. Petitioners
claim that the clear and unambiguous wordings of the statute preclude the court from
construing it and prevent the court's use of discretion in applying the law. They said that
the plain, literal meaning of the statute meant the application of the control test is
obligatory. We disagree. "Corporate layering" is admittedly allowed by the FIA; but if it is
used to circumvent the Constitution and pertinent laws, then it becomes illegal. Further,
the pronouncement of petitioners that the grandfather rule has already been abandoned
must be discredited for lack of basis.

It is quite safe to say that petitioners McArthur, Tesoro and Narra are not Filipino
since MBMI, a 100% Canadian Corporation, owns 60% or more of their equity interests.
Whether looking at the capital structure or the underlying relationships between and
among the corporations, petitioners are NOT Filipino nationals and must be considered
foreign since 60% or more of their capital stocks or equity interests are owned by MBMI.

WHEREFORE, the assailed Court of Appeals Decision is hereby AFFIRMED.

Leo Y. Querobin et al vs. COMELEC

TOPIC: Control Test and Grandfather Rule

LEO Y. QUERUBIN, MARIA CORAZON M. AKOL, and AUGUSTO C. LAGMAN,

petitioners, vs. COMMISSION ON ELECTIONS EN BANC, represented by
Chairperson J. ANDRES D. BAUTISTA, and JOINT VENTURE OF SMARTMATIC-
TIM CORPORATION, TOTAL INFORMATION MANAGEMENT CORPORATION,
SMARTMATIC INTERNATIONAL HOLDING B.V. and JARLTECH INTERNATIONAL
CORPORATION, represented by partner with biggest equity share, SMARTMATIC-
TIM CORPORATION, its general manager ALASTAIR JOSEPH JAMES WELLS,
Smartmatic Chairman LORD MALLOCH-BROWN, Smartmatic-Asia Pacific
President CESAR FLORES, and any or all persons acting for and on behalf of the
Joint Venture, respondents.

G.R. No. 218787, December 8, 2015

Ponente: Velasco

Digested by: (Johren A. Ejan)

Facts:

On October 27, 2014, the COMELEC en banc, through its Resolution No. 14-
0715, released the bidding documents for the "Two-Stage Competitive Bidding for the
Lease of Election Management System (EMS) and Precinct-Based Optical Mark Reader
(OMR) or Optical Scan (OP-SCAN) System to be used in the 2016 National and Local
Elections. The COMELEC Bids and Awards Committee (BAC) set the deadline for the
submission by interested parties of their eligibility requirements and initial technical
proposal on December 4, 2014.

The joint venture of Smartmatic-TIM Corporation (SMTC), Smartmatic

International Holding B.V., and Jarltech International Corporation (collectively referred to
as "Smartmatic JV") responded to the call and submitted bid for the project on the
scheduled date. Indra Sistemas, S.A. (Indra) and MIRU Systems Co. Ltd. likewise
signified their interest in the project, but only Indra, aside from Smartmatic JV, submitted
its bid.

During the opening of the bids, Smartmatic JV, in a sworn certification, informed
the BAC that one of its partner corporations, SMTC, has a pending application with the
Securities and Exchange Commission (SEC) to amend its Articles of Incorporation
(AOI), attaching therein all pending documents. The amendments adopted as early as
November 12, 2014 were approved by the SEC on December 10, 2014. On even date,
Smartmatic JV and Indra participated in the end-to-end testing of their initial technical
proposals for the procurement project before the BAC.

Upon evaluation of the submittals, the BAC, through its Resolution No. 1 dated
December 15, 2014, declared Smartmatic JV and Indra eligible to participate in the
second stage of the bidding process. The BAC then issued a Notice requiring them to
submit their Final Revised Technical Tenders and Price proposals on February 25, 2015,
to which the eligible participants complied. Finding that the joint venture satisfied the
requirements in the published Invitation to Bid, Smartmatic JV, on March 26, 2015, was
declared to have tendered a complete and responsive Overall Summary of the Financial
Proposal. Meanwhile, Indra was disqualified for submitting a non-responsive bid.
Subsequently, for purposes of post-qualification evaluation, the BAC required
Smartmatic JV to submit additional documents and a prototype sample of its OMR. The
prototype was subjected to testing to gauge its compliance with the requirements
outlined in the project's Terms of Reference (TOR).

After the conduct of post-qualification, the BAC, through Resolution No. 9 dated
May 5, 2015, disqualified Smartmatic JV on two grounds, viz.:

1. Failure to submit valid AOI; and

2. The demo unit failed to meet the technical requirement that the system shall be
capable of writing all data/files, auditlog, statistics and ballot images
simultaneously in at least two (2) data storages.

The ruling prompted Smartmatic JV to move for reconsideration. In denying the

motion, the BAC, through Resolution No. 10 dated May 15, 2015, declared that
Smartmatic JV complied with the requirements of Sec. 23.1 (b) of the Revised
Implementing Rules and Regulations of RA 9184 (GPRA IRR), including the submission
of a valid AOI, but was nevertheless disqualified as it still failed to comply with the
technical requirements of the project.

Aggrieved, Smartmatic JV filed a Protest to the COMELEC seeking permission to

conduct another technical demonstration. Accordingly, on June 19, 2015, Smartmatic JV
was allowed to prove compliance with the technical specifications for the second time,
but this time before the electoral tribunal's Technical Evaluation Committee (TEC). This
was followed, on June 23, 2015, by another technical demonstration before the
Commission en banc at the Advanced Science and Technology Institute (ASTI) at the
University of the Philippines, Diliman, Quezon City.

COMELEC en banc then ruled that the instant Protest is hereby GRANTED and to
RETURN to prospective bidders their respective payments made for the purchase of
Bidding Documents pertaining to the Second Round of Bidding.
 Petitioners contend that SMTC misrepresented itself by leading the BAC to believe
that it may carry out the project despite its limited corporate purpose, and by claiming
that it is a Philippine corporation when it is, allegedly, 100% foreign owned. They add
that misrepresentation is a ground for the procuring agency to consider a bidder
ineligible and disqualify it from obtaining an award or contract. They further contend that
SMTC is the biggest shareholder in the bidding joint venture at 46.5%, making the joint
venture less than 60% Filipino-owned.

Issue:

Whether Smartmatic JV misrepresented itself by leading the BAC to believe that

it is a Philippine corporation when it is 100% foreign owned.

Ruling:

No. The Argument is specious.

Clause 5 of the Instruction to Bidders provides that the following may participate
in the bidding process:

5.1. Unless otherwise provided in the BDS, the following persons shall be eligible
to participate in the bidding:

xxx xxx xxx

(e) Unless otherwise provided in the BDS, persons/entities forming themselves

into a JV, i.e., group of two (2) or more persons/entities that intend to be jointly
and severally responsible or liable for a peculiar contract: Provided, however,
that Filipino ownership or interest of the joint venture concerned shall be at least
sixty percent (60%).

While petitioners are correct in asserting that Smartmatic JV ought to be at least

60% Filipino-owned to qualify, they did not adduce sufficient evidence to prove that the
joint venture did not meet the requirement. Petitioners, having alleged noncompliance,
have the correlative burden of proving that Smartmatic JV did not meet the requirement,
but aside from their bare allegation that SMTC is 100% foreign-owned, they did not offer
any relevant evidence to substantiate their claim. Aside from the sheer weakness of
petitioners' claim, SMTC satisfactorily refuted the challenge to its nationality and
established that it is, indeed, a Filipino corporation as defined under our laws. As
provided in Republic Act No. 7042 (RA 7042), otherwise known as the Foreign
Investments Act, a Philippine corporation is defined in the following wise:

Section 3. Definitions. As used in this Act:

 a) The term "Philippine national" shall mean a citizen of the Philippines or a
domestic partnership or association wholly owned by citizens of the Philippines;
or a corporation organized under the laws of the Philippines of which at least
sixty percent (60%) of the capital stock outstanding and entitled to vote is owned
and held by citizens of the Philippines; or a trustee of funds for pension or other
employee retirement or separation benefits, where the trustee is a Philippine
national and at least sixty (60%) of the fund will accrue to the benefit of the
Philippine nationals: Provided, That where a corporation and its non-Filipino
stockholders own stocks in a Securities and Exchange Commission (SEC)
registered enterprise, at least sixty percent (60%) of the capital stocks
outstanding and entitled to vote of both corporations must be owned and held by
citizens of the Philippines and at least sixty percent (60%) of the members of the
Board of Directors of both corporations must be citizens of the Philippines, in
order that the corporations shall be considered a Philippine national.

Perusing SMTC's GIS proves useful in applying the control test. Upon
examination, SMTC's GIS reveals that it has an authorized capital stock of
P226,000,000.00, comprised of 226,000,000 common stocks 116 at P1.00 par value, of
which 100% is subscribed and paid. Applying the control test, 60% of SMTC's
226,000,000 shares, that is 135,600,000 shares, must be Filipino-owned. Based on the
GIS, it is clear that SMTC reached this threshold amount to qualify as a Filipino-owned
corporation.

Indeed, the application of the control test would yield the result that SMTC is a
Filipino corporation. There is then no truth to petitioners' claim that SMTC is 100%
foreign-owned. Consequently, it becomes unnecessary to confirm this finding through
the grandfather rule since the test is only employed when the 60% Filipino ownership in
the corporation is in doubt. Anent the nationality of the other joint venture partners, the
Court defers to the findings of the COMELEC and the BAC, and finds sufficient their
declaration that Smartmatic JV is, indeed, eligible to participate in the bidding process,
and is in fact the bidder with the lowest calculated responsive bid. Hence, there is no
other alternative for this Court other than to adopt the findings of the COMELEC and the
BAC upholding Smartmatic JV's eligibility to participate in the bidding process,
subsumed in which is the joint venture and its individual partners' compliance with the
nationality requirement.

WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED for

lack of merit. The Decision of the COMELEC en banc is hereby AFFIRMED.