Dissecting PPP contracts #8: ADR
During the life of a public-private partnership (PPP) arrangement, which may last for 50 years, disputes and controversies may arise. These cases typically come about after the term of the officials who vetted and awarded the project. Philippine PPP history has seen the effects of such successor risk.
Cases have been lodged in connection with canceled contracts, changes in interpretation of contractual provisions and breach of material obligations. These happen unilaterally or without the knowledge, consent or participation of the other contracting party. Aggrieved parties may either seek redress and relief from courts, quasi-judicial bodies or “neutral third persons.”
Publicized arbitration cases. In at least three instances, the Philippine Government, through its implementing agencies, has been hailed to arbitration proceedings before international neutral third persons. The private sector proponents of Metropolitan Waterworks and Sewerage System, Ninoy Aquino International Airport Terminal 3 and Laguna Lake Rehabilitation and Dredging Project filed arbitration cases after unilateral adverse action by the successor administration.
Executive Order 78, series of 2012. Under this executive issuance, referral to “neutral third persons” is now the rule. Provisions on Alternative Dispute Resolution (ADR) mechanisms must be included in PPP, Build-Operate-and-Transfer Law-related and joint venture agreements, whether entered into by national government agencies, government corporations or local government units. This executive order is anchored on Republic Act 9285, or the ADR Act of 2004.