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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