Atty. Manuel J. Laserna Jr. - lcmlaw@gmail.com

Wednesday, January 8, 2020

May third parties fund litigation and appeals?

See - https://www.lexology.com/library/detail.aspx?g=85c5c061-1c88-4086-90e8-93b02fec4f76&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-01-02&utm_term=

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Costs, settlement and funding of appeals in Philippines

By SyCip Salazar Hernandez & Gatmaitanwww.lexology.com

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What are the rules regarding attorneys’ fees and costs on appeal?

There are two commonly accepted concepts of attorneys’ fees: ordinary and extraordinary. In its ordinary concept, an attorney’s fee is the reasonable compensation paid to a lawyer by his or her client for the legal services he or she has rendered to the latter; while in its extraordinary concept, attorneys’ fees are deemed indemnity for damages ordered by the court to be paid by the losing party in litigation. The instances where these may be awarded are those enumerated in article 2208 of the Civil Code (Alva v High Capacity Security Force, Inc, G R No. 203328, 8 November 2017). An appellate court may affirm, modify or set aside a trial court’s award of extraordinary attorneys’ fees in the process of appellate review.

Meanwhile, costs shall be awarded in favour of the prevailing party as a matter of course, but the court has the power, for special reasons, to adjudge that either party shall pay the costs of an action or that the same be divided, as may be equitable. Likewise, where an action or appeal is found to be frivolous, double or treble cost may be imposed on the plaintiff or appellant, which shall be paid by his or her attorney, if so ordered by the court. Again, this imposition may be affirmed, modified or set aside on appeal.

Settlement of first instance judgment after appeal lodged

Can parties enter into a settlement agreement to vacate the trial court judgment after an appeal has been taken?

Yes. Parties are allowed to enter into compromise or settlement agreements that cover cases pending trial, on appeal or even those that have already been finally decided. There is no time limitation as to when a compromise or settlement agreement may be entered into (Magbanua v Uy, G R No. 161003. 6 May 2005).

Limits on settlement after commencement of appeal

Are there any limits on settlement once an appeal has been taken?

The filing of an appeal does not limit the parties’ ability to enter into compromise or settlement agreements as long as such agreements are not contrary to law, morals, good customs or public policy. Article 2935 of the Civil Code of the Philippines, however, provides that no compromise upon the following questions shall be valid:

the civil status of persons;
validity of a marriage or a legal separation;
any ground for legal separation;
future support;
jurisdiction of courts; or
future legitime.

Third-party funding

May third parties fund appeals?

There are no specific rules in this jurisdiction that govern third-party litigation funders, and a litigant would ordinarily be free to source his or her litigation funds. However, an agreement whereby an attorney agrees to pay the expenses of proceedings to enforce the client’s rights is champertous (Roxas v Republic Real Estate Corp, G R No. 208205, 1 June 2016). A champertous contract is considered against public policy as it violates the fiduciary relations between the lawyer and his or her client, whose weakness or disadvantage may be exploited by the former (Nocom v Camerino, G R No. 182984, 10 February 2009).
Disclosure of litigation funding

If litigation funding is permitted in an appeal, must funding sources be disclosed to the court or other parties to the litigation?

There are no express rules covering third-party litigation funders in this jurisdiction (see question 25).

SyCip Salazar Hernandez & Gatmaitan - Jewelle Ann Lou P Santos and Ramon G Songco.

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"...The PCGG needs to clarify to the SBN and to our disgruntled people, perhaps in a motion for reconsideration, which of the litigated assets are still outstanding, after subtracting those already recovered."

See - https://opinion.inquirer.net/126410/p200-b-ill-gotten-wealth-case-not-lost

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P200-B ill-gotten wealth case not lost

By: Artemio V. Panganiban
- @inquirerdotnet
Philippine Daily Inquirer
/ 04:40 AM January 05, 2020

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It lamented that “the bulk of the documentary evidence offered by the plaintiff are mere photocopies, most of which are barely readable. Thus, even if the (SBN) were to defy the best evidence rule, it still could not fully ascertain the contents of these documents and make an intelligent evaluation therefrom.” (p 52)His ponencia was co-signed by Justices Maria Theresa V. Mendoza-Arcega and Maryann E. Corpus-Mañalac, who concurred only “in the result.” Why?

In her separate opinion, Justice Mañalac pointed out, correctly in my humble opinion, that the “bulk of the assets sought to be recovered in the case had been received by the State, either by compromise agreement or favorable judgment obtained in other related cases, showing that [the] Republic had proven its case by more than [a] preponderance of evidence.” (p.16)

Indeed, the Supreme Court has issued final decisions (some during my term) awarding much of these assets to the government, like:

1) Republic v. Sandiganbayan (July 15, 2003) forfeited in the nation’s favor Swiss deposits totaling over US$658 million, as of Jan 31, 2002;

2) Yuchengco v. Sandiganbayan (Jan. 20, 2006 and Aug. 6, 2006) reconveyed to the Republic 111,415 controlling shares in the Philippine Telecommunications Investment Corporation, the biggest shareholder of PLDT;

3) Marcos Jr. v. Republic (April 25, 2012) forfeited over $3 million plus accrued interests deposited in the name of Arelma, Inc. in New York; and

4) Estate of Marcos v. Republic (Jan. 18, 2017) forfeited the “Malacañang collection of jewelry.”

On the other hand, a major portion of the litigated assets were turned over to the country voluntarily by Jose Y. Campos (a fact affirmed in Republic v. Sandiganbayan, Sept. 7, 2005), and by separate compromise agreements executed between the PCGG and Antonio O. Floirendo (on March 5, 1987 and Nov. 2, 1989), Rodolfo M. Cuenca (March 4, 1990) and Roberto S. Benedicto (Nov. 3, 1990).

Significantly, Justice Mañalac also carefully exhumed a little known SBN resolution dated Dec. 6, 2005, “finding prima facie presumption that the assets and properties in this case are ill-gotten for being manifestly and grossly disproportionate to the legitimate income of the Marcoses… In Republic v. Marcos-Manotoc [Feb. 8, 2012], the Supreme Court did not in any way reverse or modify this Court’s finding of prima facie presumption.” (p 32)Though she prudently catalogued the recovered assets, she nonetheless noted that the PCGG’s memorandum in this case “did not bother to address” which of the litigated assets were still remaining given the cited final judgments, voluntary turnover, compromises and the Dec. 6, 2005 SBN resolution.

I think the PCGG needs to clarify to the SBN and to our disgruntled people, perhaps in a motion for reconsideration, which of the litigated assets are still outstanding, after subtracting those already recovered.

This should not be difficult to do given the PCGG’s boast, in its 2018 Year End Accomplishment Report, that it already recovered over P172 billion “[s]ince its inception in 1986 up to 31 December 2018.”

This will also prove that, contrary to public perception, the PCGG is after all not that inutile, and that this monumental P200 billion ill-gotten wealth case filed during its early hallelujah days was not dismally and sloppily lost.

[Comments to chiefjusticepanganiban@hotmail.com]

"...The eagerness of Duterte to continue to kowtow to China despite Beijing’s continued acts of aggression in Philippine EEZs which has so far precluded the level of cooperation with its neighbors that they would like..."

See - https://www.asiasentinel.com/politics/new-challenge-china-nine-dash-line/#.XhRZMJTUm34.gmail

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Potent New Challenge to Beijing’s Nine-Dash Line,
Malaysia joins legal battle against China’s South China Sea grab

By: Philip Bowring
January 6, 2020

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There is now also a possibility that the Philippines could join in a pact with Malaysia and Vietnam to establish overall claims which, while overlapping, exclude China and enable the three (plus possibly Brunei) and provide a platform for overall sea boundary settlements between them. That will not be easy. Vietnam and Malaysia use different systems for calculating their Continental Shelf claims and the Philippines, which otherwise uses the archipelagic principle for claims, has so far only reserved the right to make a submission. It has been urged to make a submission for an Extended Continental Shelf, notably by now-retired former Justice Antonio Carpio, who was the legal power behind the Philippines’ decision to bring its successful case against China to the Court of Arbitration.

If the Philippines could agree on a similar cooperative claim with Malaysia and Vietnam as those two already have done over Extended Continental Shelves, they could effectively shut China out. The Court has ruled that none of Spratly islets justify EEZs. Even if Extended Continental Shelf claims were not approved it would only leave a small area between the three EEZs over which no one had a claim under the UN Law of the Sea.

However, the eagerness of Duterte to continue to kowtow to China despite Beijing’s continued acts of aggression in Philippine EEZs which has so far precluded the level of cooperation with its neighbors that they would like. On its other coast, in 2012 the Philippines succeeded in its claim for the Benham Rise off eastern Luzon to be part of its continental shelf via a neck of land bridging the deep Philippine trench. But Duterte cravenly accepted Beijing’s naming of the features in Chinese and allowed a Chinese exploration vessel to study it for mineral potential.

It remains to be seen whether Vietnam can use its ASEAN position to form a more united front and at least strengthen the wording of a Code of Conduct to be agreed with China – which has a long history of ignoring ASEAN efforts to at least avoid confrontations or upsets to the status quo.

Indonesia has been becoming more active in defense of its fishing interests in particular and rejects out of hand Chinese claims in the vicinity of the Natuna islands. A Chinese coast guard vessel has been accompanying Chinese fishing boats. On Monday, according to a Reuters dispatch, the government announced it would mobilize fishermen to join warships to help defend against Chinese vessels, as the biggest standoff with China for years escalated.

In an usually strong statement, President Joko Widodo told reporters there would be “no negotiation when it comes to our sovereignty.”

Indeed, often forgotten is that Indonesia has agreements with both Malaysia (in 1969) and Vietnam (2003) covering the area to the north of the Natuna island, themselves a key point of Indonesia’s archipelagic baseline. As a result, Indonesia has no need to claim an extended continental shelf in this region – though it has done for the region northwest of Sumatra, where it abuts India’s claim derived from the Nicobar islands.

The stand-off since last month in the northern Natuna islands, where a Chinese coastguard vessel has accompanied Chinese fishing vessels, has soured the generally friendly relationship between Jakarta and Beijing.

The littoral states of the South China Sea thus already have a good base on which to build in cooperating for their common good against a vastly larger neighbor with military imperialist ambitions. However, whether ASEAN is much of a forum for them remains open to doubt given China’s overwhelming influence on the mainland states, Cambodia, Laos and to a lesser degree Myanmar.

Thailand and Singapore, though sympathetic to the maritime states and in freedom of navigation, try to avoid displeasing China. As for China’s weight of money, the shine may have gone off the Belt and Road project and China trade and investment in the region is now growing more slowly but it remains a powerful lever, especially given the Trump administration’s antipathy to multilateral trade deals and a US foreign policy which lacking discernible purpose.

Philip Bowring is a co-founder and editor of Asia Sentinel and the author of the prize-winning Empire of the Winds, published in 2019, a history of the seafaring peoples of Southeast Asia

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