The Philippine government sponsored the Infrastructure Philippines conference held on November 18-19, 2010 as part of its efforts to drum up investor interest in Philippine infrastructure projects and public-private partnerships. The conference was generally met with optimism from both potential project sponsors and financiers.
This was due at least in part to the government’s promise to insulate infrastructure projects from regulatory risk. In his keynote address delivered on November 18 (copy available for viewing here), President Benigno S. Aquino III stated that:
The government will provide investors with protection against regulatory risk. Infrastructure can only be paid for from user fees or taxes. When government commits to allow investors to earn their return from user fees, it is important that that commitment be reliable and enforceable. And if private investors are impeded from collecting contractually agreed fees – by regulators, courts, or the legislature – then our government will use its own resources to ensure that they are kept whole. …
Let me provide you an example of how regulatory risk protection may work: A contract between the government and a private entity building a road or a bridge may specify a formula for rate adjustments. If for some reason, a court decision threatens the adjustment, the government will compensate the private concessionaire for the difference between what the tariff should have been under the formula, and the tariff which it is actually able to collect. (Emphasis supplied.)
President Aquino and the members of his Cabinet stressed, however, that the commercial or market risk of any infrastructure projects undertaken by the Aquino administration would be borne by the investors.
Significantly, just a month earlier, the Supreme Court had promulgated a decision in the case of Francisco v. Toll Regulatory Board (G.R. Nos. 166910, 169917, 173630 and 183599; October 19, 2010) (copy available for viewing here), which could very well give potential investors pause. One of the issues involved in that case was whether a contractual stipulation between the government and the operator of a tollway, whereby the Toll Regulatory Board (TRB) agreed to pay the operator the difference between a pre-agreed amount of toll fees and the amount actually approved for collection from the public, was valid. (In other words, the TRB had agreed that if the toll rates approved by the regulatory body were less than the amount of toll fees set or as adjusted in accordance with the contract – say, for the sake of discussion, an approved toll rate of P30.00 versus a contractually-set toll rate of P50.00 – then the TRB would pay the operator the P20.00 shortfall.)