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Sultanate of Sulu asserts Philippine claim to Sabah

THE Sultanate of Sulu and North Borneo on Tuesday asserted the Philippine claim to Sabah after the nations’ top diplomats sparred on Twitter over ownership of the Malaysian state.

“The people of Sulu have lived on these islands for 600 years and will continue to do so in the centuries to come,” the Sultanate said in a statement.

It also said the 35th Sultan of Sulu and North Borneo is being recognized in Portugal, Serbia and Yugoslavia, Ethiopia and Poland, among other countries.

The Philippines and Malaysia last week revived a long-standing dispute after Malaysian Foreign Minister Hishamuddin Hussein summoned the Philippine ambassador over his Philippine counterpart’s statement that Sabah is not in Malaysia.

Foreign Affairs Secretary Teodoro L. Locsin, Jr. kept his position and moved to summon the Malaysian ambassador in Manila.

Malaysia has stopped paying cession money worth RM5,300 or about P61,300 a year since 2013,  Malaysian news agency Bermara said in a July 22 report.

The Sultanate appealed to the Malaysian government and the international community to settle the conflict  through diplomatic means.

“We hope the government of Malaysia understands the plight of the thousands of underprivileged and indigenous families of Sulu, who barely survive in Sabah especially during this pandemic,” according to the statement.

“We aspire for an amicable solution to the predicament that affects us all in this region.”

The oil-rich state of Sabah, a territory that is part of Malaysia’s northern Borneo, has been a thorny issue between the Philippines and Malaysia for decades.

About 200 armed followers of a self-proclaimed sultan of Sulu in southern Philippines invaded Sabah state in February 2013, leading to clashes that killed several dozens.

The Sulu Sultanate claims to have leased Sabah to the British North Borneo Company in 1878, a deal that Kuala Lumpur sees as an act of abandonment.

The sultans of Sulu once ruled over Sabah and the Sulu islands. Sabah fell under British control after World War II and joined Malaysia in 1963, shortly after the sultanate ceded sovereignty to the Philippines.

Sabah has abundant natural resources. Its primary exports include oil, gas, timber and palm oil and its other major industries are agriculture and ecotourism.

The Philippines will pursue friendly ties with Malaysia despite maintaining its claim over Sabah state, Presidential Spokesman Harry L. Roque said earlier.

He added that the territorial dispute won’t get resolved soon, and the Philippine government would continue its diplomatic relations with Malaysia.

President Rodrigo R. Duterte said during his election campaign in 2016 he would pursue the Philippines’ territorial claim over one of Malaysia’s 13 states.

In 2016, the Philippines, Malaysia and Indonesia signed a cooperation deal where their navies would work together in fighting Islamic militants in the Sulu Sea. Mr. Duterte and former Malaysian Prime Minister Najib Razak also agreed to set aside the Sabah dispute.

The Philippines has been transporting Filipinos from Sabah back to their home provinces as part of measures to help undocumented Filipinos affected by the global coronavirus pandemic. — Charmaine A. Tadalan

UN starts response plan vs coronavirus

THE United Nations (UN) and its local partners have launched a humanitarian response plan against the coronavirus that will benefit about 5.4 million poor Filipinos.

In a statement, the UN said the P6-billion Humanitarian Country Team COVID-19 Response Plan will provide critical health services to the poor.

The plan also prioritizes women and girls, and will provide health, food security, water and sanitation, protection, and risk communication services to its beneficiaries.

“The pandemic is challenging the capacity of response of any single country in the world,” UN resident coordinator Gustavo Gonzalez said in the statement. “Our role is to make best use of our global knowledge and resources to join government efforts to contribute to the safety and well-being of the Filipino people.”

UN said this is the largest international humanitarian response plan in the Philippines since Typhoon Yolanda in 2013.

The plan, about a fourth of which has been mobilized, will run until year-end but will be updated based on needs.

Around 50 country-based UN and nongovernmental partners contributed to the plan.

UN said this is a “stepping stone” to the support of the body to the recovery from the pandemic, which will be developed in the upcoming UN socioeconomic and peacebuilding framework.

The Philippines was also included in the $10.3-billion global humanitarian response plan covering 63 hardest hit and most vulnerable countries. — Vann Marlo M. Villegas

SSS approves over P15 billion in calamity loans in June, July

THE Social Security System (SSS) said it approved P15.63 billion worth of calamity assistance loans during the pandemic as well as P190.2 million in unemployment insurance benefits (UIBs) as of July.

In a statement Tuesday, SSS President and CEO Aurora Cruz Ignacio said 1.03 million applicants were approved for the Calamity Loan Assistance Package (CLAP) between June 15 and July 28, averaging P15,144 per claim.

She said the UIB program benefited around 14,186 applicants between July 1 and 27.

Since August 2019, UIB approvals have totaled P544.37 million, going to 43,347 applicants.

CLAP for COVID-19 runs until Sept. 14. It charges a fixed interest rate of 6%.

Eligible SSS members can avail of UIB equivalent to half of their average monthly salary for up to two months, if they are involuntarily separated from employment due to economic slowdown, redundancy, calamity, installation of labor-saving devices, retrenchment, business closure and illness rendering the member unable to work.

Application and filing of claims online has been made mandatory for such benefits, as well as funeral benefit claims, sickness benefit reimbursement for employers, and salary loans.

The state-run pension fund has also started releasing UIB and funeral benefits to its members using electronic payment channels.

Last year, Finance Secretary Carlos G. Dominguez III, who is also the chairman of the Social Security Commission, ordered the SSS to digitize its systems to fast-track the grant of loans and benefits. — Beatrice M. Laforga

Evidence mounting for remittance collapse as repatriations top 100,000

OVERSEAS-WORKER repatriations during the pandemic have hit 102,000 so far, with even more due to return after losing their jobs due to weak global economies or even falling ill from coronavirus, an economist said.

Ateneo Center for Economic Research and Development (ACERD) Director Alvin P. Ang said in an Asian Development Bank (ADB) webinar Tuesday that around 300,000-400,000 OFWs could lose their jobs as a result of the pandemic, based on April estimates issued by ACERD.

The government estimate for further repatriations is for about 100,000 more returning home.

He said cash sent home by Filipino migrant workers is mostly used for food and other household needs, but a “significant portion” also went to paying for education, debt and medical expenses.

The ADB released a policy brief Monday estimating a worst-case remittance decline of 20.2%, equivalent to $5.789 billion in lost remittances, assuming that global economies normalize after about a year of pandemic containment efforts.

The bank estimated that in event of the worst case, the impact will be felt by 8.4% of all households receiving remittances.

According to the Bangko Sentral ng Pilipinas, remittances totaled $28.9 billion in 2018 and $30.1 billion in 2019.

The central bank announced that overseas Filipino worker (OFW) remittances dropped 19% year on year to $2.106 billion in May, the largest drop since a 33.5% fall in January 2001.

OFWs, according to Mr. Ang, are largely concentrated in the Middle East where 55% or around 1.262 million OFWs are based. The leading deployment destinations are Saudi Arabia, Qatar and United Arab Emirates.

In Asia, where remittance inflows are expected to drop by about $31.356-$56.968 billion, ADB Economic Research and Regional Cooperation Department Senior Economist James P. Villafuerte said around 54% or $16.8 billion will come from the Middle East, while the US will account for some 30% or $8.8 billion.

The impact varies among migrant workers, depending on the sector in which they are employed and the overall economic conditions of host countries, said Aiko Kikkawa Takenaka, an economist at the ADB, during the same webinar.

Ms. Takenaka said workers employed in leisure and hospitality sectors will be the most affected, as well as those in retail, wholesale, manufacturing, accommodation and food services.

“Recruited migrants are another hidden victim. The deployment of a new batch of workers is being suspended in many countries due to travel restrictions, although some countries such as the Philippines continue to allow out-migration under some conditions. Travel restrictions have serious consequences for migration,” she added.

Mr. Ang said the Philippines has been “proactive” in helping OFWs through repatriation flights and by providing some income support, but these are still not enough as the pandemic continues to escalate.

“Our view is that the Philippine government cannot do it alone; they have to negotiate with the destination countries if there are still a lot of workers (in host countries), especially those that are recovering right now, if it’s possible (to ask them) not to send back the workers yet,” he said.

OFW skills can be “retooled” for other jobs to allow them to continue working in their host countries, he said.

“This is a huge bilateral initiative that has to be done by the Philippines with a lot of destination countries… Many things need to be done in an international coordinated manner in this because a lot of workers are going to be affected. If it is possible, a multilateral approach to this challenge must be initiated soon,” he said. — Beatrice M. Laforga

Tourism industry backs ‘bubble’ strategy of direct flights to destinations, bypassing NCR

THE tourism industry said it is backing a “tourism bubble” strategy to allow visitors to bypass high-risk areas like Metro Manila, after yet another lockdown cut off flight service from the capital.

“The main impact of Metro Manila’s reversion to MECQ (Modified Enhanced Community Quarantine) is as its status as the country’s main gateway,” Tourism Congress of the Philippines President Jose C. Clemente III said in a mobile message Tuesday.

He added that the return of the stricter form of lockdown indicates the country’s inability to effectively deal with the spread of the coronavirus disease 2019 (COVID-19).

Tourism businesses, he said, need to work with the government in developing areas that allow tourists to bypass high-risk areas.

The Department of Tourism has been proposing “travel bubbles” that will eventually allow tourists from countries with low to zero COVID-19 cases to travel directly to destinations like Boracay Island through nearby international airports.

Metro Manila, Laguna, Cavite, Rizal and Bulacan were placed under MECQ from Aug. 4 to 18, the President’s spokesman Herminio L. Roque said Sunday. The lockdowns were reintroduced after coronavirus infections topped 100,000.

The Tourism department has been prioritizing domestic tourism as it restarts the industry.

Dr. Andrew L. Tan Center for Tourism Research Executive Director Fernando Y. Roxas in an e-mail Friday said the domestic market is the industry’s best chance if the country is able to manage the spread of the disease.

“I don’t think there are many alternatives for the tourism value chain — other industries are also affected.  The local tourism industry can reboot the local economy, especially the rural areas,” he said. — Jenina P. Ibañez

NCR water supply adequate despite low Angat Dam levels

METRO MANILA’S water supply is deemed adequate even after Angat Dam’s supply hit minimum operating levels, according to the National Water Resources Board (NWRB).

As of Tuesday morning, the water elevation of Angat Dam fell 14 centimeters to 182.04 meters, according to the weather bureau, known as PAGASA.

The current level of Angat Dam is about 2 meters above its minimum operating level of 180 meters.

The dam’s normal operating elevation is 212 meters.

In a text message to BusinessWorld, NWRB Executive Director Sevillo D. David, Jr. said water supply for Metro Manila is still sufficient.

Citing projections by PAGASA, Mr. David said the country will have “near normal” rainfall for the rest of the year, adding that he expects the dam’s water level to improve within the month.

“At the current situation and climate projections, we have sufficient supply of water for Metro Manila,” Mr. David said.

“Water is critical in implementing preventive measures against the coronavirus disease 2019 (COVID19) pandemic such as hand washing and other hygiene and sanitation needs,” he added.

Mr. David said the NWRB will retain Metro Manila’s water allocation at 48 cubic meters per second (cms).

“We will retain the water allocation but we will closely monitor the level of Angat Dam for any significant deviations from the projections considering PAGASA’s rainfall forecast,” Mr. David said.

On May 14, the NWRB increased the raw water allocation of the Metropolitan Waterworks and Sewerage System to 48 cms against the previous 46 cms due to the intense heat at the time and in response to the pandemic. — Revin Mikhael D. Ochave

Lack of data, territorial dispute hampering resource exploration efforts — PNOC-EC

A STUDY of the country’s sedimentary basins is needed to spur exploration as current resources like Malampaya become depleted, according to the Philippine National Oil Company-Exploration Corp. (PNOC-EC).

PNOC-EC said more data needs to be collected on 16 sedimentary basins, while the maritime dispute in the West Philippine Sea poses a challenging environment for attracting investment.

“The Philippines has an unknown remaining potential for new oil and gas resources,” PNOC-EC President Rozzano D. Briguez said during a virtual briefing hosted by Samahang Plaridel Tuesday.

“But this is not due to the absence of a petroleum system. Rather, this is caused by the absence of modern 3D seismic data over large areas and the lack of exploration drilling activities since the late 1990s,” he added.

Since the company was established in 1975, it has dug only 46 petroleum wells or about one well per year.

With the projected tightening of electricity supply and demand conditions in the next few years, the Philippines needs to ramp up the development of other indigenous energy sources, Representative Godofredo N. Guya of Recoboda Party-list said at the briefing.

Mr. Briguez said new oil and gas discoveries will help augment and replace Malampaya’s reserves, which are seen to run out by 2027, based on projections by the Department of Energy (DoE).

PNOC-EC is currently working with the University of the Philippines and the DoE in conducting geophysical and geologic studies.

Attracting investment will help reduce dependence on imported crude oil and petroleum products, it said.

PNOC-EC is hoping for a “better” situation in the contested waters in order to resume petroleum operations in Service Contracts 58, 59, and 75.

According to Mr. Guya, investors are deterred by the risk associated with exploration in the area. “It is high time to zoom our focus on national security,” he said.

Five legislators belonging to the so-called power bloc filed House Resolution No. 1063 which called for an inquiry into the security situation and policies affecting energy security.

A joint hearing by the defense and energy committees is set for next week, according to Philreca Party-list Rep. Presley de Jesus.

“Unless the government quickly addresses all these energy issues and rising demands, the Philippines may face an acute power shortage,” Ako Padayon Party-list Rep. Adriano A. Ebcas said. — Adam J. Ang

NGCP calls for more power plants in Zamboanga

THE National Grid Corp. of the Philippines (NGCP) said more power plants are needed on the Zamboanga Peninsula while calling for the resolution of transmission line access issues in the area which are causing unstable supply there.

Between January and May, the region suffered from low voltage and power fluctuations on both the generation and distribution sides, the NGCP said.

It said in a statement Tuesday that it has “exhausted all short and mid-term remedial measures” to resolve these issues which were experienced by customers of Zamboanga City Electric Cooperative, Inc. (ZAMCELCO) and Western Mindanao Power Corporation (WMPC).

“We appeal to the government authorities in charge of long-term planning to adopt a more holistic approach to power development, so that the needs of the grid as a whole will be better coordinated, and power plant locations will be more strategic,” it said.

Among the stop-gap measures it implemented were the installation of capacitor banks at its Pitogo substation which serves ZAMCELCO and WMPC. It also conducted a transposition activity for the Aurora-Nagamin and Nagamin-Zamboanga 138-kilovolt lines to help mitigate unbalanced voltage in the area.

The NGCP also asked the National Power Corp. and the National Transmission Corp. to address the unresolved and unpaid right-of-way issues in the power lines which they previously operated.

Among these is the 350-kilometer Aurora-Naga Min-Zamboanga line, one of the longest radial lines in Mindanao.

“NGCP’s limited ability to access the old and long lines in the area contributes to line trippings and worse, causes power interruptions,” it said.

The company said it is not responsible for right-of-way concerns over power lines built prior to its takeover of the government’s transmission operations in 2009. — Adam J. Ang

No to death penalty

Early in his presidency, Rodrigo Roa Duterte threatened to “kill” Peter Lim of Cebu whom he identified as a drug lord. Many months later, the PNP in Cebu, then headed by Diebold Sinas of “Mañanita” fame, announced that they were going to arrest Peter Lim. This announcement was made for several days until one day the PNP admitted that Peter Lim had left the country, or at least had disappeared. I considered this an outright insult to our intelligence. What, publicly announcing their plans for days, then failing to nail him?

This case is just one of myriad reasons why a death penalty will not be a deterrent to heinous crimes, in particular, drug trafficking. The justice system is just such a mess in our country, starting with inconsistent enforcement of the laws by the police. When Diebold Sinas was found openly enjoying his birthday party with many of his officers, clearly not observing physical distancing which they were supposed to enforce, his superiors and colleagues made excuses for his carelessness. Worse, the president himself, no less, just dismissed the violation of his own government’s regulations by one of his favorite police officers by saying “sa akin na lang ito” (Let this be on me). The current PNP chief has publicly asked the citizenry to “move on” from this case.

We clearly now have a government of men, and not of laws. The justice system has been politicized under this presidency; and for a long time now, has been commercialized. Lawyers know that you can buy evidence or pay to suppress it on behalf of your clients. A lawyer friend of mine tells me that his son is happily practicing law in New Zealand where, he says, he can really be a lawyer, and not in the business of corrupting policemen, prosecutors, and judges.

How do we determine who is guilty? The police have to investigate and produce evidence. Then, this has to be brought to court by prosecutors and presented to a judge who will conduct hearings, review evidence and testimony before deciding on a verdict. It is public knowledge among lawyers that an honest and fair judge is a rarity in this country. Bong Revilla was acquitted for the crime of plunder for which his senate chief of staff was found guilty! To make the insult even keener, news reports reveal that Bong Revilla was told to return the money (Not peanuts. Hundreds of millions of pesos of taxpayer money)! I wonder if he ever did. He is back in the Senate, thanks to our poorly informed voters.

There is supposed to be no bail for the crime of plunder. But former Senator Juan Ponce Enrile was released from detention by no less than the Supreme Court for “benevolent” reasons being very much a senior. Upon release however, Ponce Enrile displayed mental and physical energy that belied his alleged frailty. Meanwhile, Ponce Enrile’s chief of staff is detained for the same crime of plunder.

Meanwhile too, during the pandemic, a jobless man was jailed for the crime of stealing two cans of Spam so his family could eat. I do not know if he was even allowed due process.

Duly elected Senator Leila de Lima is in her fourth year in detention. She has not been convicted but is not even allowed to participate in online deliberations of the Senate. The witnesses who were to testify in her trial — long term convicts mainly for drug trafficking — are alleged to have died from COVID-19 and immediately cremated. There are all sorts of speculation on exactly where they are and what happened; but the head of the Bilibid prisons has refused to divulge details due, he says, to confidentiality of the information. Meanwhile, no hearings have been conducted on De Lima’s case. Perhaps because there are no witnesses other than the convicts, most of whom had been convicted for being drug lords. Following the Congressional hearings in which they had testified against Senator de Lima, it is said that they were transferred from the congested Bilibid prisons to more cushy quarters at military Camp Bonifacio. If it is true that the detained drug lords died from the COVID-19 virus, then, that perhaps was their death penalty. Nature does provide.

The inequities go all the way to the Supreme Court. With the help of influential lawyer Estelito Mendoza, the late Eduardo Danding Cojuangco won contested shares in San Miguel Corp. that he had acquired using money borrowed from government-owned UCPB of which he was CEO: a clear violation of conflict of interest laws. The ponente, Lucas Bersamin (who later became Chief Justice) stated as rationale for their favorable decision that Cojuangco was not Marcos crony. This led then Justice Conchita Carpio Morales to state in her dissenting opinion that this was “the biggest joke of the century.” Cojuangco, after all, had gone with the Marcoses on the plane to Hawaii during the EDSA Revolution. Estelito Mendoza has also lawyered for PAL’s Lucio Tan. Mendoza was able to reverse a Supreme Court decision in favor of the FASAP (Flight Attendants and Stewards Association of the Philippines) unfair labor practice case against Philippine Airlines with just a letter to the Supreme Court’s secretariat. Mendoza also lawyered for Juan Ponce Enrile and obtained for him an exemption to the law disallowing bail for cases of plunder.

President Duterte vowed during his campaign that he would end the drug problem in the country within six months. We are in the fifth year of his presidency and the drug problem is still with us.

During the early phase of the “drug war” thousands were killed. And it is well known that the victims were mainly young and poor addicts or suspected small drug retailers. They were clearly not given due process under the laws of the land.

Given these pathetic and dire circumstances, do we really think that the death penalty will be a deterrent to the business of drug lords? Drug lords have plenty of money. They can pay for the most influential lawyers who know how to deal with these problems. Should we allow our legislators to enable the government to decide who should live or die?

 

Teresa S. Abesamis is a former professor at the Asian Institute of Management and Fellow of the Development Academy of the Philippines.

tsabesamis0114@yahoo.com

Telco threats

In last week’s State of the Nation Address, the President started with a rambling, vaguely coherent rant, complaining about the poor level of service of the two leading telcos and urging them to improve their services by December so he can “call Jesus Christ to Bethlehem.”

As usual, the President ended his tirade on telcos with a threat — that he will order the closure and expropriation of the leading telcos if services are not improved.

In fact, in a meeting with Globe President and Chief Executive Officer Ernest Cu after the SONA, the President joked that he would hang Mr. Cu on one of the Globe’s towers if the level of service remains poor. But Mr. Cu retorted that this will not happen because there1 are no towers on which to do it, lamenting that government red tape has been the main cause of delay in building new towers.

In fact, at least 25 permits at the national and local governments are needed to build a single cell tower. This current level of government interference allows leading telcos to build only 3,000 towers per year. But the current tower backlog stands at 30,000, such that it will take at least 10 years for the country to keep with the current tower demand. Most certainly, no new towers can be built from today until the President’s December deadline.

The case of the third telco, Dito Telecommunity, serves as a good example on the difficulties of building towers during the coronavirus pandemic. Due to the three-month lockdown, Dito has only been able to build 300 operational towers out of 1,300 towers needed to meet its commitment for its technical launch in July.

As a result, the National Telecommunications Commission allowed Dito a six-month extension to comply with its commitment to cover 37% of the population, with a minimum average internet speed of 27 megabits per second. While an extension due to the lockdown is understandable, the extended period of six-months is surprising, because this extension is not counted as among the two six-month remediation or grace periods allowed in the third telco’s Terms of Reference. Nonetheless, Dito’s tower difficulties should serve as a cautionary tale on the vacuous deadline set by the President to the leading telcos.

Inasmuch as this is an infrastructure concern, this is foremost a governance concern. Even after meeting with the Globe chief executive, there remains to be no policy clarity on what the President expects by December.

As such, the leading telcos continue to find themselves in a very vulnerable situation. If a playbook similar to the ABS-CBN shutdown is undertaken, Globe and Smart should expect the President’s congressional allies to file numerous bills calling for franchise revocation and resolutions inquiring on compliance with labor and tax laws, and service regulations. Regulatory and prosecutorial agencies in the executive branch can also be expected to initiate similar action on the leading telcos.

If the President is indeed serious in raising the level of telco services by December, the first step is to stop making threats, sit down with all stakeholders, and agree on actionable, deliverable objectives by December. Failing to do this will set the stage for telcos to fail, and raise suspicions on the true objectives of the President’s directives.

With uncertain reform objectives, the leading telcos will be sitting ducks for illicit transactions, contrary to the President’s call to identify and report officials delaying cell site construction.

This situation impinges on economic growth, undermines confidence in the economy, and violates the sanctity of contracts.

If the President forces the expropriation of the leading telcos, no less than 25,000 employees will be out of work during a still unresolved pandemic, more than double the jobs lost in the ABS-CBN shutdown.

More importantly, current public funds are certainly better spent for a credible coronavirus response than paying the fair market value of the two telcos, which currently stands at P553 billion or 13% of the 2020 national budget, or 3.3% of our Gross Domestic Product.

The President can brag about the country’s credit rating all he wants, but these indices on governance and infrastructure do not inspire investor confidence. Sooner than later, credit agencies and lenders will have to contend with these serious governance issues.

In the SONA, the President said he is a casualty of the Lopezes. But the real casualty in the fight with his perceived oligarchs was not him. He remains President and the Lopezes still have their businesses. The real casualties are the 11,000 workers who will be out of jobs by the end of August.

With the President’s new battle with his perceived telco oligarchs, the resulting disruption will be a greater disaster for all of us.

 

Terry Ridon is a Non-Resident Fellow of the Stratbase ADR Institute and a Convenor of InfraWatch PH.

Financial rehabilitation as an alternative loss mitigating strategy amidst the COVID-19 pandemic

In light of the implementation of various community quarantine measures brought about by the COVID-19 pandemic, many business establishments were either prevented from operating or permitted with limited operational capacity. As a result, many entrepreneurs incurred significant financial losses. Due to the uncertainty of the resolution of the pandemic, and to thwart further losses, many businesses were constrained to cease their operation and finally close.

However, it is worthy to note that the law provides for a remedy other than business closure.

Republic Act No. 10142, otherwise known as the Financial Rehabilitation and Insolvency Act of 2010 (FRIA) aims to encourage distressed business enterprises, including sole proprietorships, partnerships and corporations, as well as individual debtors, to undergo rehabilitation. The FRIA, however, is not applicable to banks or quasi-banks, insurance companies, and pre-need companies, which are governed by different laws and regulations.

Rehabilitation contemplates a continuance of corporate life and activities in an effort to restore and reinstate the corporation to its former position of successful operation and solvency (Wonder Book Corporation v. Philippine Bank of Communication, G.R. No. 187316, 2012) Rehabilitation may be: a.) court-supervised, which may either be voluntary, if initiated by the debtor, or involuntary, if initiated by the creditor, b.) by way of a pre-negotiated rehabilitation plan, or c.) through out-of-court or informal proceedings.

COURT-SUPERVISED REHABILITATION
If the business is insolvent and is unable to pay its obligations as they become due, an insolvent debtor may voluntarily initiate a court-supervised rehabilitation proceeding by filing a petition with the court.

Who the persons who can initiate the petition are depends on the type of business organization — it shall be the owner in case of a sole proprietorship, a majority of the partners in case of a partnership, or a majority vote of the board of directors or trustees and authorized by at least two-thirds vote of the outstanding capital stock, in stock corporations, or of the members, in case of non-stock corporation.

On the other hand, involuntary court-supervised rehabilitation may be initiated by any creditor or group of creditors with a claim of, or the aggregate of whose claims is, at least P1 million or at least 25% of the subscribed capital stock or partners’ contributions, whichever is higher, by filing a petition with the court.

Involuntary court-supervised rehabilitation may be initiated if: a.) there is no genuine issue of fact or law on the claims of the petitioner, and that the due and demandable payments thereon have not been made for at least 60 days or that the debtor has failed generally to meet its liabilities as they fall due; or b.) a creditor, other than the petitioner, has initiated foreclosure proceedings against the debtor that will prevent the debtor from paying its debts as they become due or will render it insolvent.

In both instances, a Rehabilitation Plan must be attached to the petition. This refers to a plan by which the financial well-being and viability of an insolvent debtor can be restored through various means, including, but not limited to, debt forgiveness, debt rescheduling, reorganization or quasi-reorganization, dacion en pago, debt-equity conversion and sale of the business (or parts of it) as a going concern, or setting-up of new business entity, or other similar arrangements as may be approved by the court or creditors.

PRE-NEGOTIATED REHABILITATION
In pre-negotiated rehabilitation, an insolvent debtor by itself, or jointly with any of its creditors, may file a verified petition with the court for the approval of the pre-negotiated Rehabilitation Plan.

The pre-negotiated rehabilitation plan must have been endorsed or approved by creditors holding at least two-thirds of the total liabilities of the debtor, including secured creditors holding more than 50% of the total secured claims of the debtor and unsecured creditors holding more than 50% of the total unsecured claims of the debtor.

INFORMAL RESTRUCTURING AGREEMENT
Lastly, an out-of-court or informal restructuring agreement and rehabilitation plan must meet the following minimum requirements to qualify: a.) the debtor must agree to it; b.) it must be approved by creditors representing at 67% of the secured obligations of the debtor; c.) it must be approved by creditors representing at least 75% of the unsecured obligations of the debtor; and, d.) it must be approved by creditors holding at least 85% of the total liabilities, secured and unsecured, of the debtor.

Only when rehabilitation is no longer feasible, despite the appointment of a rehabilitation receiver and a rehabilitation committee, can liquidation of the debtor’s assets and the settlement of its obligations ensue as a matter of course.

Given the foregoing remedies for rehabilitation, distressed enterprises need not immediately resort to closure. Through rehabilitation, there might be a possibility for a losing business to gain a new lease on life.

This article is for informational and educational purposes only. It is not offered as and does not constitute legal advice or legal opinion.

 

Zyra G. Montefolca is an Associate of the Davao Branch of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).

zgmontefolca@accralaw.com

Learning business continuity the hard way

By Enrique Victor D. Pampolina

THE IMPOSITION of the Luzon-wide Enhanced Community Quarantine (ECQ) on March 16 took almost all businesses by surprise, particularly those enterprises that never seriously pursued or developed some form of emergency response plan or a business continuity plan. While on lockdown, most businesses ended up learning about “business continuity” the hard way while others were just unprepared, without any idea of how to even partially resume business.

Business continuity is the capability of an organization to bounce back and continue at least its most essential or critical activities after a disruptive event. This capability is typically prepared and documented by management in advance in a written plan, which is then cascaded, tested, and rehearsed within the organization.

The core of any Business Continuity Plan (BCP) is the identification of what constitutes an organization’s most essential and critical activities, referred to technically as “mission critical activities.” Mission critical activities are the most important business activities of the organization that need to be restored immediately and continued even partially, as it would impact the very survival, brand, and reputation of the company.

Some businesses instinctively found out in the first few weeks of ECQ that activating their sales function is a mission critical activity to ensure some steady cash inflow that would allow them to pay for their regular expenses, including workers’ wages. Payroll was also deemed another mission critical function for companies, as it is essential to ensure continued distribution of pay amongst workers and employees who will support the limited sales function.

Unfortunately, a number of businesses were still unable to operate for weeks and even months after the ECQ because they were unprepared as to how to restore or identify which part of their operations needed to be prioritized. While a number of these businesses did resume some of their operations after months of lockdown, some weren’t able to pivot well and ended up closing shop permanently weeks thereafter.

The COVID-19 pandemic is a unique, challenging, and evolving crisis. But truth be told, this pandemic is a unique disruptive event, so much so that even seasoned business continuity and crisis management practitioners have had a hard time coping. Add to that, this will remain an evolving crisis until an effective vaccine is developed and distributed.

In a Deloitte global survey conducted last April amongst C-suite executives, particularly those with responsibility for crisis management and business continuity planning, it was noted that only 16% of the respondents felt that their response plans worked well.

And the following were the three main drivers why these senior executives felt their plans were poor responses to the pandemic:

1. The extreme lockdown or quarantine scenario where all employees were ordered to stay home, shifting to home-based work which took weeks or months for some companies to implement, was just unprecedented.

2. Few plans anticipated a pandemic scenario with a lot of health safety unknowns and uncertainty, raising heightened fear even for the most seasoned crisis management proponents. Some companies were likewise unclear if they needed to apply their emergency response plan, crisis management, or business continuity plans.

3. Unprepared technology capacity and flexibility, with firms struggling to supply well-secured home-based network access to their employees.

How then do we learn, cope, and build a Business Continuity Management (BCM) system and plan amidst an ongoing crisis?

It is never too late to institute a BCM system and mentality even in the middle of an evolving health crisis. Companies without any emergency response or business continuity plan should still reassess and draft a document that would cover the organization’s key mission-critical functions or activities, focusing on three to four functions only. Once these activities are identified, an assessment of the recovery of company assets (equipment or employees) related to the functions must commence.

This crisis is also a time for companies with established BCM plans to revisit the applicability and practicality of these plans and adjust the same given what they’ve already learned during the ongoing pandemic.

The shift from a scenario-based to asset-based BCM methodology in drafting business continuity plans is one of the key lessons of this ongoing crisis. Companies had a hard time activating their BCP because a pandemic was a scenario they never expected or anticipated in their plans. Most Philippine companies have prepared for the Big One earthquake, strong typhoons, or cyber-attack scenarios, so when the pandemic hit, they were unsure if they should even activate their existing plans.

Asset-based planning looks at a company’s assets using the BETH3 concept: i.e., the company’s Building, Equipment, Technology, Human Resources, and 3rd parties. Using this methodology, a company will be prepared to recover its assets regardless of the disruptive event or scenario.

In the context of the coronavirus pandemic, the Building was surely affected because work shifted from typical office buildings to employees’ homes. Equipment and Technology were also impacted given that equipment needed to be distributed so that mission critical employees could work and secure network connections could be established to allow for the new work-from-home setup. Moreover, Human Resources had to be deployed differently since most Filipinos were on lockdown. A team splitting or skeletal force arrangement had to be adopted.

So with asset-based planning, while activating the BCP is triggered by a specific crisis scenario, the recovery measures are not specific to the said scenario but on the company’s assets that are greatly impacted by the event.

While we are still in this evolving crisis, companies and organizations are better off re-instituting their BCM systems even with the shifting situation on the ground. More than just documenting these essential plans, it is the readiness mentality that BCM systems inspire in organizations that is most valuable, not to mention crucial in such an unpredictable landscape.

 

Enrique Victor ‘Jet’ D. Pampolina is a Risk Advisory Partner, specializing in enterprise-wide risk management and business continuity planning, at Navarro Amper & Co., a member of the Deloitte Asia Pacific Network. Deloitte Asia Pacific Limited is a company limited by guarantee and a member firm of Deloitte Touche Tohmatsu Limited. Members of Deloitte Asia Pacific Limited and their related entities, each of which are separate and independent legal entities, provide services from more than 100 cities across the region, including Auckland, Bangkok, Beijing, Hanoi, Ho Chi Minh City, Hong Kong, Jakarta, Kuala Lumpur, Manila, Melbourne, Osaka, Shanghai, Singapore, Sydney, Taipei, Tokyo, and Yangon.

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