I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY
For more than 75 years, the Philippines has been without a comprehensive antitrust law. Instead, the adverse consequences of anticompetitive conduct have been addressed through isolated provisions scattered across various pieces of general legislation, including the Revised Penal Code of 1930.2 Indeed, despite the clear state policy against combinations in restraint of trade or unfair competition3 and the mandate to 'protect Filipino enterprises against unfair competition and trade practices'4 in the 1987 Philippine Constitution, more than 25 years lapsed before the Philippine Congress passed a special antitrust statute aimed at consolidating the state's competition legislation.
In June 2015, the Philippine Congress enacted the Philippine Competition Act. Citing the need to level the playing field for investors and driven by foreign and domestic business groups, the Competition Act was endorsed to the President as a priority bill and finally signed into law on 21 July 2015.5 Almost a year later, on 31 May 2016, the implementing rules and regulations (IRR) of the Competition Act were signed, adopted and promulgated by the Philippine Competition Commission (PCC). The Rules of Procedure of the PCC (PCC Rules of Procedure) were approved on 11 September 2017 and became effective on 30 September 2017.
Most recently, the Supreme Court issued the Rule on Administrative Search and Inspection under the Philippine Competition Act6 (the Dawn Raid Rules), which requires the PCC to apply for an inspection order from designated special commercial courts before it may exercise its inspection powers and provides for the manner in which it should implement such inspection order. The Dawn Raid Rules took effect on 16 November 2019.
Like other models of antitrust legislation, the Competition Act covers not only acts of any person or entity engaged in any trade, industry or commerce in the Philippines, but explicitly authorises its extraterritorial application. Thus, the Competition Act will be enforced even against acts in international trade provided the same have direct, substantial and reasonably foreseeable effects in trade, industry or commerce in the Philippines.
The new Philippine antitrust law identifies prohibited anticompetitive agreements.7 Proscribed as illegal are agreements, between and among competitors, restricting competition as to price or components thereof, or other terms of trade; and fixing prices at auctions or in any form of bidding.8 Moreover, agreements between and among competitors setting, limiting or controlling production, markets, technical development or investments, and through dividing or sharing the market, are deemed violative of the Competition Act if these 'have the object or effect of substantially preventing, restricting, or lessening competition'.9 All other agreements between or among competitors that have anticompetitive effects are also prohibited unless the same 'contribute to improving the production or distribution of goods and services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefits'.10
To implement this legislation, the Competition Act created the PCC, an independent quasi-judicial body attached to the Office of the President of the Philippines.13 Established in February 2016, the PCC will act as a central body to police anticompetitive practices. The PCC is conferred with original and primary jurisdiction over the enforcement and implementation of the Competition Act,14 and is thus empowered to investigate violations thereof and other existing competition laws motu proprio or upon receipt of a verified complaint.15 Significantly, included among its various powers is the authority of the PCC to conduct administrative proceedings16 as well as institute appropriate civil or criminal proceedings.17 To give teeth to the PCC's authority, the Competition Act expressly empowers the PCC:
- to issue subpoena duces tecum and subpoena ad testificandum requiring the production of books, records or other documents or data;
- to summon witnesses;
- to issue interim orders such as show cause and cease-and-desist orders; and
- to deputise any and all government enforcement agencies, or enlist the aid and support of any private institution, corporation, entity or association.
In addition, the Competition Act recognises the continued existence of the Office for Competition under the Department of Justice (DOJ-OFC),18 albeit with the limited power and jurisdiction of conducting preliminary investigations and undertaking the prosecution of all criminal offences arising under the Competition Act and other competition-related laws.19
In relation to its power to conduct administrative proceedings and institute civil or criminal suits arising from a violation of the Competition Act, the PCC is conferred with the sole and exclusive authority to initiate and conduct a fact-finding or preliminary inquiry into compliance with the provisions of the Competition Act.20 The inquiry may be initiated by the PCC at its own initiative, upon the filing of a verified complaint by an interested party or upon referral by a regulatory agency.21 After due notice and hearing, and on the basis of the facts and evidence presented, the PCC may issue a cease-and-desist order against the respondent entity.22
Ultimately, the PCC will conclude its inquiry by either issuing a resolution ordering the closure of the inquiry if no violation or infringement is found or proceeding, on the basis of reasonable grounds, to a full administrative investigation.23 Where warranted by the evidence, the PCC may also file a criminal complaint with the Department of Justice.24
The law requires the PCC to complete its preliminary inquiry, in all cases, within 90 days reckoned from the submission of the verified complaint, referral or date of initiation by the PCC.25 Although drafted in mandatory terms, the Competition Act itself does not prescribe the consequences for the PCC's failure to complete the preliminary inquiry stage within the stated period. The PCC Rules of Procedure, however, clarify that if the facts and information available at the end of the 90-day period are insufficient to proceed to the conduct of a full administrative investigation the PCC's Enforcement Office shall terminate the preliminary inquiry by issuing a resolution closing the preliminary inquiry without prejudice.26
The initiation, conduct and termination of the preliminary inquiry of the PCC are significant milestones in private enforcement litigation because by express provision of the Competition Act no independent civil action for violation of the Competition Act may be instituted in court by a private party until the PCC has completed its preliminary inquiry.27 The lack of sanctions for the PCC's failure to complete its preliminary inquiry within the prescribed 90-day period, and the absence of any clear suspensive or tolling effect of such inquiry on the statute of limitations to commence a civil suit, adversely impact on the private enforcement of the Competition Act. Significantly, the Competition Act authorises the PCC to institute civil suits.28 Unfortunately, the law does not prescribe the requirements for, as well as the procedure leading to, such civil action on the part of the PCC. Indeed, it fails to even state what relief the PCC would be entitled to demand in such civil suits.
In addition to administrative fines, the PCC may, upon finding that an entity has entered into an anticompetitive agreement or abused its dominant position, provide redress for such anticompetitive conduct by issuing injunctions; requiring adjustment, divestment or corporate reorganisation; and directing the disgorgement of excess profits under such reasonable parameters to be prescribed in the law's implementing rules and regulations.29
Violation of the Competition Act may also expose the erring persons to civil liability to private persons injured by reason thereof.30 On the issue of private rights and remedies, the Competition Act contains a singular provision – Section 45 – which authorises the filing of an independent civil action arising from violations of the Competition Act but only after the preliminary inquiry conducted by the PCC has been completed. Significantly, although Section 45 does not specifically recognise the continuing availability of other causes of action to private parties seeking redress for anticompetitive conduct, the entire Competition Act repeatedly refers to other existing competition laws31 and other competition-related laws,32 which phrases implicitly acknowledge that there are statutes, other than the Competition Act, from which legal rights may spring and under which redress in damages and other relief may be obtained.
As the Competition Act has just recently been passed, there has been no occasion for Philippine courts to interpret the same. It is expected that the passage of the Competition Act and the recent coming into effect of its IRR33 will result in an increase in both public and private antitrust litigation. However, only when the provisions of the Competition Act are clarified through more specific and detailed implementing rules and regulations,34 and are interpreted by the courts, particularly the Supreme Court, will the parameters of private enforcement suits within the Competition Act be clearly delineated.
II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT
Even before the Competition Act, civil suits for damages arising from anticompetitive conduct, although infrequent, were commenced in the Philippines. These suits have mostly centred on the enforcement of non-compete clauses in contractual agreements. Jurisprudence shows that the validity and enforceability of non-compete provisions in employment and service contracts have been litigated in the Philippines since the early 1900s. In resolving against objections that such non-compete clauses constitute an undue restraint of trade, the Supreme Court has relied on general principles of Philippine contract law as provided in the Civil Code of the Philippines35 (including the freedom of parties to enter into contractual stipulations that are not contrary to law, morals, good customs, public order or public policy)36 and basic fairness.
In addition, civil actions for damages arising from unfair trade practices and other acts of unfair competition have been commenced and maintained on the basis of Article 28 of the Civil Code, which states: 'Unfair competition in agricultural, commercial or industrial enterprises or in labour through the use of force, intimidation, deceit, machination or any other unjust, oppressive or high-handed method shall give rise to a right of action by the person who thereby suffers damage.'
Explaining its appropriate application, the Supreme Court stated that what is prevented under Article 28 of the Civil Code is 'not competition per se but the use of unjust, oppressive or high-handed methods which may deprive others of a fair chance to engage in business or to earn a living. Plainly, what the law prohibits is unfair competition and not competition where the means used are fair and legitimate.'37 To be able to recover damages under Article 28 of the Civil Code, the following requirements must be met: 'it must involve an injury to a competitor or trade rival', and 'it must involve acts which are characterised as 'contrary to good conscience', or 'shocking to judicial sensibilities', or otherwise unlawful'.38 In 2014, the Supreme Court affirmed that the defendant engaged in unfair competition for which the plaintiff was entitled to recover damages and attorneys' fees when faced with the following conduct:
- the defendant suddenly shifting his or her business from manufacturing kitchenware to plastic-made automotive parts, the plaintiff's line of business;
- the defendant luring the plaintiff's employees to transfer to his or her employ;
- the defendant trying to discover the plaintiff's trade secrets;
- the defendant deliberately copying the plaintiff's products; and
- the defendant selling those products to the plaintiff's customers.39
As such, in the absence of an antitrust statute, Article 28 of the Civil Code has been the cornerstone of private antitrust enforcement litigation where the dispute is between competitors. Where the action is between parties who are not competitors or trade rivals and no other special law applies, a civil case may generally be brought under Articles 19,40 2041 and 2142 of the Civil Code. Together with Article 28, Articles 19, 20 and 21 of the Civil Code all form part of the 'Human Relations' chapter of the Civil Code.
Admittedly, the Competition Act was meant to consolidate, to the extent possible, all competition-related laws and, for that reason, expressly repealed an array of Philippine laws including Article 186 of the Revised Penal Code, which prohibits monopolies or combinations in restraint of trade.43 As a catch-all, the Competition Act repeals 'all other laws, decrees, executive orders and regulations, or part or parts thereof inconsistent with' any of its provisions.44
The Competition Act does not expressly repeal Article 28 of the Civil Code. Considering that Article 28 and the rest of the 'Human Relations' chapter of the Civil Code are not inconsistent with, much less repugnant to, the provisions of the new competition law, these provisions continue to exist and to be available as bases for redress, notwithstanding the Competition Act. Hence, one may take the view that an injured individual may still file a civil complaint for damages against a defendant under these general provisions of the Civil Code.
Indeed, it is possible that private damage actions premised on, among others, Article 28 of the Civil Code may continue to be instituted, despite the passage of the Competition Act, especially because of the express prohibition against commencing an independent civil action for violation of the Competition Act until the preliminary inquiry conducted by the PCC under Section 31 is terminated. Should the conduct complained about not be within the purview of the PCC, however, there appears to be nothing that legally bars private parties from instituting independent civil suits for damages arising from anticompetitive behaviour.
Any action arising from a violation of any penal provision of the Competition Act shall be barred unless commenced within five years from the time the criminal violation is discovered by the offended party, the authorities or their agents.45 With respect to administrative and civil actions, the five-year prescriptive period runs from the time the cause of action accrues,46 which is when the anticompetitive conduct that caused the alleged damage or injury occurred.
On the other hand, the separate civil action under Articles 19, 20, 21 or 28 of the Civil Code, which is akin to a tort under the Philippine legal system, prescribes within four years from the time the cause of action accrues.47
As mentioned earlier, the institution of an independent civil action arising from a violation of the provisions of the Competition Act is prohibited until the PCC has terminated its preliminary inquiry into the conduct of the allegedly erring person or entity. Significantly, the preclusive effect appears to be limited to civil actions founded on violations of the Competition Act, and thus seemingly excludes civil actions brought under other laws, including the Civil Code. However, there is basis to argue that the period to file any civil case for damages arising from anticompetitive conduct, even if premised under Article 28 of the Civil Code, is suspended when the PCC is already conducting a preliminary inquiry. In GMA Network, Inc v. ABS-CBN Broadcasting Corporation, et al.,48 the Supreme Court sustained the dismissal of a complaint for damages premised on unfair competition on the ground that it failed to state a cause of action. The complainant, GMA Network, Inc (GMA), alleged that the defendants took advantage of their common control and ownership, and thereby arbitrarily re-channelled GMA's cable television broadcast on 1 February 2003, caused distortions to its signal transmission, reduced the quality of its programmes and thereby caused business interruptions to, and injured the operations of, GMA.49 In sustaining the dismissal of the complaint, the Supreme Court ruled that the issues of whether the conduct of the defendant cable companies had been committed and were unfairly done were within the primary jurisdiction of the National Telecommunications Communication, before which a similar complaint, also filed by GMA, was pending.50 In applying the doctrine of primary jurisdiction to dismiss the damage suit, the Supreme Court held that the questions underlying an award of damages entail specialised knowledge in the fields of communications technology and engineering, which courts do not possess.51 Thus, although regular courts have jurisdiction over actions for damages, per the Supreme Court, it would nonetheless be proper for the courts to yield their jurisdiction in favour of an administrative body with specialised expertise.52
The doctrine laid down in GMA Network, Inc v. ABS-CBN Broadcasting Corporation, et al. may be applied to civil actions for damages grounded on the Civil Code, including Article 28 on unfair competition, and filed even before the preliminary inquiry of the PCC has been terminated. The PCC being the exclusive agency statutorily tasked to police anticompetitive conduct, the doctrine of primary jurisdiction may readily be invoked to dismiss such civil actions.
From a criminal law perspective, the Philippines adheres to the territoriality principle,53 such that its penal laws are generally enforced only within its territory.54 From a civil law perspective, it is possible for a person found in the Philippines to file a case against another entity or person outside the country, even for acts committed abroad. The plaintiff is only required to prove that he or she has a right, such right was violated by the defendant, and he or she incurred damage by reason of the violation, the place of the commission of the violation being a non-issue. Acquiring jurisdiction over a defendant abroad or enforcing a Philippine judgment against him or her may pose certain challenges.
The Competition Act expressly prescribes the extraterritorial effect of its provisions. Thus, the Competition Act is made applicable (and enforceable) to international trade, including acts done outside the country provided they have 'direct, substantial, and reasonably foreseeable effects in trade, industry or commerce in the Philippines'.55 Accordingly, wrongful acts done outside the Philippines would be considered violations of the Competition Act, and thus actionable, whether criminally or civilly, if the effects of such acts are manifested or experienced within the Philippines.
As the Competition Act was only signed into law in July 2015, the parameters of the extraterritorial application of the Competition Act and the practical implementation of such extraterritoriality have not yet been clarified. And while the IRR reaffirmed the extraterritorial application of the law,56 they do not provide the much-needed elaboration on the extraterritorial scope of the Competition Act, a concept that deviates from the general territorial concept of Philippine penal laws. Nonetheless, the PCC Rules of Procedure expressly state that foreign corporations, partnerships, associations or other entities – regardless of whether registered in the Philippines, resident of the Philippines or not found in the Philippines – may be served with summonses in the specific manner provided therein.57
For private enforcement actions under the Competition Act, any person who suffers direct injury by reason of any violation of said law may institute a separate and independent civil action.58 Similarly, the provisions of the Civil Code, including Article 28 thereof, vest the right of action on the person who suffers damage by reason of the act complained about. The statutory requirement that the plaintiff be the party directly injured is consistent with the provisions of the Rules of Court, which require that a civil action be prosecuted in the name of a real party in interest.59 A real party in interest is defined as 'the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit'.60 Per the Supreme Court, the interest contemplated by the Rules of Court is 'material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved'.61 A case that is not prosecuted by a real party in interest is dismissible.62
The requirement of locus standi of a party plaintiff has been relaxed by the Supreme Court63 in exceptional cases, such as where the case raises an issue of transcendental significance or paramount importance to the people; where it advances constitutional issues that deserve the attention of the High Court in view of their seriousness, novelty and weight as precedents; or where to do so would achieve substantial justice.
Although the prohibition on anticompetitive conduct and the consequent promotion of free and fair competition are significant state policies, it is doubtful that a plaintiff's lack of legal standing in a civil case for damages would be excused as an exception to the general rule.
V THE PROCESS OF DISCOVERY
The Rules of Court set out rules on discovery, which are available in any civil proceeding. The recognised discovery modes include the following.
i Deposition pending action64
Provided there is leave of court after jurisdiction has been obtained over any defendant or over property that is the subject of an action, or even without such leave as long as an answer has already been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories.65 The attendance of such witnesses at the deposition may be compelled by the use of a subpoena.66 As to the scope of examination, the deponent may be examined regarding any matter, as long as not privileged, which is relevant to the subject of the pending action.67
ii Interrogatories to parties68
Under the same conditions as the foregoing, a party desiring to elicit material and relevant facts from any adverse party may do so by filing in court and serving upon the adverse party written interrogatories to be answered by the party served.69 The scope of written interrogatories is the same as depositions pending action.70
iii Written request for admission71
At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request, or the truth of any material and relevant matter of fact set forth in the request.72 Unless otherwise allowed by the court, 'a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts'.73
iv Production or inspection of documents or things74
Upon motion of any party showing good cause therefor, the court in which an action is pending may:
- order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his or her possession, custody or control; or
- order any party to permit entry upon designated land or other property in his or her possession or control for the purpose of inspecting, measuring, surveying or photographing the property or any designated relevant object or operation thereon.75
v Deposition before action76
Even before a court case is commenced, a person who wishes to perpetuate his or her own testimony or that of another person regarding any matter that may be cognisable in any court of the Philippines may file a verified petition in the court for such purpose.77 In such petition, which shall be served on all identified potential adverse parties, the petitioning party must state, among others, the facts that he or she desires to establish by the proposed testimony and his or her reasons for desiring to perpetuate it.78
The foregoing modes of discovery are devices to narrow and clarify the basic issues between the parties, and for ascertaining the facts relative to those issues,79 including those known to one's adversaries. According to jurisprudence, the main purposes of discovery are to enable the parties to obtain the fullest possible knowledge of the issues and facts and thus prevent trials from being carried on in the dark (subject, of course, to recognised privileges),80 and to enable a party to discover the evidence of the adverse party and thus facilitate an amicable settlement or expedite the trial of the case.81 Accordingly, it is well settled that an objection that the discovery motion is a fishing expedition is no longer a reason to prevent a party from inquiring into the facts underlying the opposing party's case through the discovery procedure.82
VI USE OF EXPERTS
There is a dearth of jurisprudence on the use of experts and economists to establish the existence of anticompetitive conduct or to prove the existence, and extent, of damage. In acknowledgment of the need for experts in resolving antitrust issues, the Competition Act expressly authorises the PCC to commission consultants or experts in connection with an investigation.83 Of note, the PCC established a component Economics Office that is tasked to, among other things, 'provide economic analysis to support the detection and investigation of anticompetitive behaviour'.84
The Rules of Court authorise the admission of expert opinions – that is, opinions of a witness on a matter requiring special knowledge, skills, experience or training, which he or she is shown to possess.85 Courts have also relied on testimony of actuaries as proof, for example, of the actual loss of a deceased's person earning capacity.
Jurisprudence on Article 28 of the Civil Code, however, does not involve testimonies of experts and economists. Rather, the commission of acts amounting to unfair competition has been attested to by fact witnesses, and persons with personal knowledge of the plaintiff's business and the defendant's unlawful conduct. For private enforcement under the Competition Act, it is highly likely that experts and economists will have to be engaged to provide, inter alia, evidence on what is the relevant market, whether a particular player has a dominant position in such market and the impact of the alleged conduct on such market.
VII CLASS ACTIONS
In the Philippines, when the subject matter of a controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all.86 In class actions, any party in interest shall have the right to intervene to protect his or her individual interest.
A class action is beneficial as it creates an impression that the effects of a defendant's anticompetitive conduct are pervasive, impacting more than just one individual, which may influence a quasi-judicial officer or a judge hearing a case to rule against the defendant. Moreover, this may give the plaintiffs the opportunity to claim a substantial (if not the maximum) amount of actual damages, including exemplary damages as a matter of public good. Finally, prosecuting a damages case as a class action spreads the potentially substantial costs and expenses (especially where experts are engaged) across all said plaintiffs, and thus affords litigants without resources an opportunity to recover damages when they would not have had the capacity to initiate the suit.
The downside to class actions is that they are difficult to commence and maintain due to the strict requirements for their propriety: community of interest, substantially numerous class membership and adequacy of representation.
In one case, the Supreme Court affirmed the dismissal of a class action brought by several stockholders arising from an alleged violation of their pre-emptive rights because the damage suffered by the complaining stockholders is limited to their respective proportion of the unsubscribed shares and not to that portion corresponding to the shares of the other stockholders. Thus, the wrong suffered by each of them would constitute a wrong separate from those suffered by the other stockholders, and hence would not create the required common or general interest in the subject matter.87 Following the foregoing, it is possible that the courts would opine that, in certain instances, class actions are not permissible insofar as anticompetitive conduct is concerned because an injury suffered by some consumers or competitors may not necessarily be the same as the injury sustained or to be sustained by the others in the same class. In addition, a class action suit may be dismissed more easily as all it takes is one disagreeable member of that class. The Supreme Court has ruled that a class action will not prosper if there is a conflict of interest or opinion between those represented and those who filed the action.88
VIII CALCULATING DAMAGES
A violation of the Competition Act or an act of unfair competition under Article 28 of the Civil Code renders the defendant liable for 'all damages which are the natural and probable consequences of the act or omission complained of', whether such damages have been foreseen or could have reasonably been foreseen by the defendant.89 As to what types of damages are recoverable, neither the Competition Act nor Article 28 of the Civil Code specifies. Thus, the general provisions of the Civil Code, which enumerates the types of damages that may be awarded by a court given a set of facts, and which specifies instances when court fees, legal costs and other litigation expenses may be recovered, are applicable.
Under the Civil Code, if proven by sufficient evidence, among the damages recoverable are actual, moral, nominal, temperate or moderate, or exemplary or corrective. Actual damages, which are awarded only when duly proved,90 comprehend not only the value of the pecuniary loss suffered but also the profits that the plaintiff failed to obtain.91 Attorneys' fees and litigation expenses are recoverable as actual damages and may be awarded in reasonable amounts92 under certain circumstances, including when the case is a separate civil action to recover civil liability arising from a crime.93
On the other hand, no proof of pecuniary loss is necessary for moral, nominal, temperate or exemplary damages to be awarded. The assessment of such damages is left to the discretion of the court, according to the circumstances of each case.94
Moral damages compensate the injured party for physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury95 that are the proximate result of the defendant's wrongful act or omission.96 Moral damages are expressly recoverable in Article 28 regarding unfair competition litigation.
Nominal damages are awarded to vindicate or recognise a right of the injured party that has been violated, and not to indemnify him or her for any loss suffered.97 In one Article 28 unfair competition case that was resolved by the Supreme Court in 2014, an award of nominal damages (in the amount of around US$4,400) was granted in recognition and vindication of the violation of the plaintiff's rights and in view of its failure to quantify its losses arising from the defendant's acts of unfair competition (initially alleged as around US$44,000).98 Temperate damages may be granted when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty.99 An award of nominal damages precludes the recovery of temperate damages.100
The Civil Code also authorises courts to award exemplary damages, which are imposed in addition to moral, temperate, liquidated or compensatory damages, by way of example or correction for the public good.101 Exemplary damages are not a matter of right but are left to the discretion of the court.102
Significantly, in 1917, the Philippine legislature enacted Act No. 3247, 'An Act to Prohibit Monopolies and Combinations in Restraint of Trade', which authorises an award of treble damages and reasonable attorneys' fees as civil liability103 arising from the prohibited anticompetitive behaviour therein penalised (such as entering into price-fixing agreements or employing monopolies to restrain free competition). Sections 1, 2, 3 and 5 of Act No. 3247, which defined the prohibited acts thereunder, were expressly repealed by the Revised Penal Code.104 The acts prohibited by Act No. 3247 were, however, restated in Article 186 of the Revised Penal Code. The Competition Act expressly repeals Article 186 of the Revised Penal Code, but essentially restates the prohibited anticompetitive acts thereunder.105 Section 6 of Act No. 3247, on the availability of treble damages, has never been expressly repealed and does not appear to be inconsistent with any of the provisions of the Revised Penal Code or the Competition Act. Thus, unless clarified by the Supreme Court or the legislature to the contrary, a private litigant may arguably assert a right, under Act No. 3247, to treble damages and reasonable attorneys' fees for a violation of the provisions of the Competition Act.
Section 6 of Act No. 3247, however, has not been interpreted by the courts to date.
IX PASS-ON DEFENCES
The concept of pass-on defences has not been recognised by the Competition Act. Moreover, there is no law, rule or jurisprudence in the Philippines which provides that damage suffered by a purchaser, and thereby the damages he or she is entitled to claim, by reason of an overprice of a cartelised product, are reduced or mitigated if he or she passes on some of the overcharge to his or her own customers. Notably, however, an award of actual damages is intended to compensate the plaintiff for pecuniary loss actually suffered by him or her as he or she has duly proved,106 and covers any profits that he or she had failed to obtain.107 Thus, it is theoretically possible for any defendant to raise the pass-on defence to disprove the actual amount of losses that the plaintiff has suffered. Significantly, however, every plaintiff under Philippine law is duty-bound to exercise the diligence of a good father of a family to minimise the damages resulting from the act complained of.108 Hence, any passing on of the overcharge may be asserted as legally justified. Whether courts should take such passing on into account and thereby reduce the damages recoverable by the plaintiff is an undecided issue.
X FOLLOW-ON LITIGATION
Because the Competition Act was only signed into law in 2015 and its IRR only took effect in June 2016, follow-on antitrust litigation has yet to materialise in the Philippines. Instead, to date private damage suits arising from anticompetitive conduct have been stand-alone civil litigation, wherein the parties solely rely, and the courts review and decide based on, the parties' respective evidence and the applicable law. Given that an independent civil action for violation of the Competition Act may not be instituted by a private injured party until the PCC has terminated its preliminary inquiry,109 it is highly likely that there will be a surge in follow-on litigation, and especially where the PCC has, after the termination of a preliminary inquiry or the completion of an administrative proceeding, determined that there is substantial evidence to conclude that a defendant has engaged in prohibited, if not criminal, anticompetitive conduct that violates the Competition Act. Significantly, the competition law does not expressly bar the filing of a private damages suit in cases where the PCC has determined that the defendant has not engaged in any anticompetitive conduct. However, in view of the specialised know-how of the PCC, it is likely that the findings of the PCC, whether adverse to the defendant or otherwise, will be given great weight by the courts.
The Competition Act fails to provide for the tolling of the five-year prescriptive period during the PCC's preliminary inquiry, which is supposed to be completed within 90 days. Because of the silence of the Competition Act, private injured parties must guard against prescription from barring any cause of action. As an Article 28 unfair competition case must be filed within four years from the time the cause of action accrues, should the PCC not yet have terminated its preliminary inquiry, a plaintiff would have to decide whether to file an Article 28 unfair competition case in court, or wait for the PCC to close its preliminary inquiry and be limited to a civil case founded on the Competition Act.
Note also Section 35 of the Competition Act, which mandates the PCC to develop a leniency programme to extend leniency to participants in an anticompetitive agreement that voluntarily disclose information to the PCC. The leniency that may be extended, subject to compliance with certain requirements, ranges from 'immunity from any suit or charge of affected parties and third parties, exemption, waiver, or gradation of fines and/or penalties'.110 Such immunity may be granted prior to or during PCC fact-finding or preliminary inquiry proceedings. The DOJ-OFC may likewise grant immunity or leniency in the event that there is already a preliminary investigation for a criminal offence pending before it. Note, however, that under the PCC Rules of the Leniency Program, the immunity from civil suit that may be granted under the Program relates only to 'civil actions initiated by the PCC on behalf of affected parties and third parties.'111 It remains to be seen whether an entity granted immunity under the Leniency Program may still be subject to independent civil actions by injured third parties.
The Philippines strictly enforces the attorney–client privilege, particularly a lawyer's duty to maintain inviolate client confidences, which is mandated in the Code of Professional Responsibility.112 Recognising this duty, the Rules of Court provide that an attorney cannot, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of, or with a view to, professional employment; nor can an attorney's secretary, stenographer or clerk be examined, without the consent of the client and his or her employer, concerning any fact the knowledge of which has been acquired in such capacity.113 An attorney who divulges the secrets of his or her clients may be subject to disciplinary sanctions and possibly criminal penalties. The attorney–client privilege extends to any work product that the lawyer has provided his or her client that the client and lawyer intended to remain confidential. The privilege, however, applies only to communication between the client and his or her counsel concerning a crime already committed, and not one that the client intends to commit in the future.114 This privilege may be raised to oppose a compulsory process issued by the PCC in the course of its preliminary inquiry as well as discovery measures in private enforcement litigation.
The Code of Professional Responsibility and the Rules of Court fail to distinguish between private practitioners and in-house lawyers. Moreover, the Supreme Court has not had occasion to rule on the extent that an in-house lawyer may invoke the attorney–client privilege to prevent disclosure or discovery. Nevertheless, the Supreme Court has acknowledged that being a corporate lawyer (or an in-house counsel) constitutes the practice of law.115 Thus, it should necessarily follow that the ethical obligations in the Code of Professional Responsibility are similarly imposed on in-house lawyers.
Regarding confidential documents and business information submitted by an entity to the PCC in the course of a preliminary inquiry or an investigation, the Competition Act states that the same shall not in any manner be directly or indirectly disclosed, published, transferred, copied or disseminated, unless the entity consents to the disclosure, or the document or information is mandatorily required to be disclosed by law or by a valid order of a court or a government or a regulatory agency.116 Thus, should a court in a private antitrust suit order the production of the submitted documents, it appears that the PCC may disclose the same, whether or not the same was privileged in nature before its submission. Moreover, the PCC Rules of Procedure provide that disclosure of confidential business information to government agencies outside of the Philippines shall be made only upon waiver of the entity claiming confidentiality or pursuant to a cooperation or information sharing arrangement between the government agencies concerned.117 In stark contrast, the PCC Merger Rules expressly provide that such disclosure to government agencies outside of the Philippines shall be made only upon waiver of the entity claiming confidentiality.118 Significantly, facts, data and information supplied in connection with a binding ruling, show cause order or consent order, as well as all admissions made, documents filed and evidence presented, shall not be admissible as evidence in any criminal proceeding arising from the same act subject of the binding ruling, show cause order or consent order.119 A plea of nolo contendere cannot be used against the defendant entity to prove liability in a civil suit arising from the criminal action, nor in another cause of action.120
Rule 4, Section 13 of the IRR of the Competition Act specifically provides for the treatment of confidential information submitted in the course of the notification and review process of a covered merger or acquisition. The Rule requires the party or entity submitting the information to clearly identify any material that it considers to be confidential, provide a justification for the request of confidential treatment of the information supplied and the time period within which confidentiality is requested, as well as to provide a separate non-confidential version thereof. In the event the PCC deems that the justification for confidential treatment provided by the entity or party is insufficient or not grounded, it may decide to make the information accessible. These rules are reiterated in the PCC Merger Rules.121 Similar rules on confidentiality are provided in the PCC's Rules of Procedure with respect to all proceedings other than M&As.122 Considering the wording of Section 34 of the Competition Act (i.e., confidential treatment of confidential business information), the PCC may insist that, in all proceedings before it, it has the authority to determine whether or not particular information is confidential in nature. In this regard, note that the Competition Act imposes a fine for any violation of the confidentiality rule,123 and the officers of the PCC – including the chairperson, commissioners or any of its staff – may be penalised thereunder if the violation of the confidentiality rule results from any act or omission done in evident bad faith or gross negligence.124
XII SETTLEMENT PROCEDURES
Private actions for damages, whether for antitrust claims or otherwise, are generally allowed to be settled.125 In addition, civil liability arising from an offence may also be compromised, but the same shall not extinguish the public action for the imposition of a legal penalty.126 The Competition Act itself does not prevent private parties from entering into any settlement of their antitrust dispute. The Supreme Court has adopted a policy encouraging private settlements and, towards this end, mandates that all civil cases (except those that cannot be compromised) be referred to the Philippine Mediation Center for court-annexed mediation (CAM) as part of the pretrial process.127 Should mediation fail, the parties would be required to go through what is called judicial dispute resolution (JDR), which effectively serves as a secondary tier of mediation conducted by the trial judge.128 Should a settlement be reached, whether in mediation or JDR, the compromise agreement may be submitted to the court for approval and for issuance of a decision based thereon. The decision based on the compromise agreement is immediately final and executory129 and, if not performed, may be enforced like a court judgment.130 Under the provisions of Republic Act No. 9285 (ADR Act)131 and Supreme Court issuances, mediation proceedings are considered strictly confidential; thus, information or evidence obtained through mediation proceedings shall not be subject to discovery and shall be inadmissible in any adversarial proceeding (unless such evidence or information was otherwise admissible or discoverable prior to being submitted in the mediation).132
While settlements under CAM and JDR are pursuant to processes mandated by the Supreme Court, parties are free to explore, and conclude, a settlement outside court proceedings (and even before an actual case is filed). In doing so, parties may agree to mediate their dispute. If a settlement is reached before a court case is filed, the agreement may be deposited by the parties with the appropriate trial court. In the event of a breach, a petition may be filed with the court where the agreement was deposited, which court shall summarily hear the petition and, where warranted, enforce the mediated settlement agreement.133
Settlement of claims of third parties may likewise occur without private suits being instituted in a consent order proceeding. The consent order is a non-adversarial remedy whereby an entity under inquiry may, at any time prior to the conclusion of the PCC's inquiry and without in any manner admitting a violation of competition laws, submit to the PCC a written proposal for the entry of a consent order. The law expressly provides that the proposal shall include, among others, 'payment of damages to any private party/parties who may have suffered injury'.134 Thus, consent order proceedings may be a venue for entities under inquiry and prospective private litigants to settle civil claims.
The ADR Act does not include private antitrust claims among those disputes that may not be resolved through the various alternative dispute mechanisms.135 Subject to the requirement of consent, therefore, such claims may be resolved through binding arbitration, mediation, conciliation, early neutral evaluation or mini-trial, or through any combination thereof.136
Private antitrust suits with a seat in the Philippines may be subject to domestic or international commercial arbitration. International commercial arbitration is governed by Chapter 4 of the ADR Act, which expressly adopts the UNCITRAL Model Law. Domestic arbitration is governed by Chapter 5 of the ADR Act, Republic Act No. 876 and certain identified provisions of the UNICTRAL Model Law. One difference between domestic and international commercial arbitration is found in the grounds upon which the award may be vacated. Following the UNCITRAL Model Law, the grounds to vacate an international commercial award rendered in the Philippines are limited, but include the public policy exception.137 Although domestic awards may be vacated on more grounds, the same does not specifically include a public policy exception.138 This is significant, because awards in antitrust suits may impact the state policy against anticompetitive conduct.
To date, the Supreme Court has not had occasion to decide on arbitral awards relating to private damage suits involving competition issues.
XIV INDEMNIFICATION AND CONTRIBUTION
The Civil Code specifically provides that the responsibility of two or more joint tortfeasors is solidary.139 Thus, the injured party may proceed against any one or all of said tortfeasors simultaneously in seeking civil damages for unfair competition under Article 28 of the Civil Code. The Competition Act does not have an analogous provision.
Under the Rules of Court, third-party complaints and cross-claims against a co-defendant are allowed in civil actions. A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein.140 Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.141 A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, calling the third (fourth, etc.) party defendant for a contribution, indemnity, subrogation or any other relief, in respect of his or her opponent's claim.142
Per the Supreme Court, a defendant may implead a third-party defendant on an allegation of liability of the latter to the defendant for contribution, indemnity, subrogation or any other relief; on the ground of direct liability of the third-party defendant to the plaintiff; or on the ground of the liability of the third-party defendant to both the plaintiff and the defendant.143 In all cases, there must be a causal connection between the claim of the plaintiff in his or her complaint and a claim for contribution, indemnity or other relief of the defendant against the third-party defendant.144 Thus, the Supreme Court prescribed the following tests to determine the propriety of a third-party complaint:
- whether it arises out of the same transaction on which the plaintiff's claim is based, or whether the third-party claim, although arising out of another or different contract or transaction, is connected with the plaintiff's claim;
- whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff's claim against the original defendant, although the third-party defendant's liability arises out of another transaction; and
- whether the third-party defendant may assert any defences that the third-party plaintiff has or may have to the plaintiff's claim.145
Where there is no connection between the third-party claim and the plaintiff's claim (such as where the plaintiff's claim is the defendant's non-payment of rentals for equipment leased under a contract and the defendant's third-party claim is the third-party defendant's non-payment of its billings for construction work rendered using leased equipment), the third-party complaint may be dismissed.146
XV FUTURE DEVELOPMENTS AND OUTLOOK
In view of the relatively recent enactment of the Competition Act, developments anticipated in the area of antitrust will be related to the effective and expeditious implementation thereof. In this regard it should be noted that, while the Competition Act took effect on 15 August 2015, the PCC was only formally organised on 1 February 2016, and the IRR only became effective in June 2016. Moreover, the PCC Rules of Procedure, which govern all proceedings before the PCC other than M&As, only became effective on 30 September 2017, and the PCC Merger Rules only on 8 December 2017. While these PCC administrative issuances provide much-needed procedural guidance, nonetheless, much remains to be done in terms of establishing standards and parameters for the proper implementation, interpretation and application of the statute, especially in terms of private enforcement.
The apparent emphasis on transactional review should not be equated with a lack of enforcement activity. In its 2018 Annual Report, the PCC reported that it received 11 informal complaints, commenced five preliminary inquiries (four of which were motu proprio while one was based on a verified complaint), and commenced five full administrative investigations.147 In its 2017 Annual Report, it reported having acted on 11 stakeholder complaints, four preliminary inquiries, two recommendations for motu proprio investigation, one full administrative investigation, and 45 queries and requests from the public.148 In its 2016 Annual Report, it stated that it had acted on six complaints or queries, three preliminary inquiries, and one full administrative investigation.149
On 30 September 2019, the PCC rendered its first decision involving abuse of dominant position. The case, PCC Enforcement Office v. Urban Deca Homes,150 was initiated by 'numerous unit owners and tenants' of Urban Deca Homes Manila (UDHM), a condominium corporation, claiming that they were prevented from engaging other internet service providers (ISP), and were limited to the in-house ISP whose service was slow, expensive and unreliable. After the full administrative investigation, UDHM submitted a proposal for settlement whereby it admitted to having abused its dominant position and offered to undertake several commitments. The PCC subsequently issued a decision approving the settlement. The PCC ordered UDHM and its ultimate parent entity to cease and desist from its abuse of dominant position, to pay administrative fines of more than 21 million Philippine pesos, and to comply with the terms and conditions of the settlement such as actively inviting other ISPs to offer their services to the unit owners and tenants not only of UDHM but of eight other condominiums owned by UDHM's ultimate parent entity. Significantly, the PCC's decision did not order the disgorgement of UDHM's profits in favour of its tenants who suffered injury from UDHM's abuse of dominant position.151 No follow-on litigation has been initiated to date.
Other developments also indicate that the PCC is gearing up for more enforcement activities. In its enforcement strategy and prioritisation guidelines issued on 29 August 2018, the PCC declared that it shall prioritise potential anticompetitive practices for enforcement action based on considerations of:
- public interest;
- resource allocation;
- likelihood of a successful outcome; and
- other reasonable grounds to conduct enforcement action.152
The PCC also identified priority sectors for 2018: manufacturing, rice, poultry and livestock, pharmaceuticals, land transportation, air transportation, rural finance, e-commerce, retail, telecommunications, bakery products, milk products and fertilisers.153 For 2019, the PCC's priority sectors were:
- the logistics supply chain;
- corn milling and trading;
- refined petroleum manufacturing and trading;
- sugar; and
Recently, the PCC publicly announced that for 2020 its competition analysis and enforcement will focus on the telecommunications, retail, energy and electricity, transportation, construction, health and pharmaceuticals, and food sectors. It remains to be seen if there would be any public or private enforcement in these priority sectors soon.
In any event, the field of Philippine antitrust litigation, both private and public, is expected to grow exponentially. The first case to be tried under the Competition Act is the much-publicised 69.1 billion peso joint acquisition of a telecommunications entity by the Philippines' first and second-largest telecommunications entities. The case is now ripe for a decision by the Philippine Supreme Court. While the issue in that case is largely procedural in nature (i.e., whether the PCC is correct in subjecting the joint acquisition to its review process notwithstanding that it was executed prior to the coming into effect of the IRR of the Competition Act), it is highly likely that the Supreme Court will make pronouncements as to the nature, extent and scope of the powers of the PCC. Following such pronouncements in a landmark case, the PCC may well be more active in exercising the full breadth of its regulatory functions, which in turn could spur private competition enforcement actions.
Moreover, the much-publicised 2018 case of the acquisition by Grab Holdings, Inc and MyTaxi.PH Inc of Uber BV and Uber Systems, Inc155 in the Philippines (as well as in South East Asia) has brought to fore the potential of competition law and the power of the PCC to protect the interests of the consuming public. When reports of the acquisition surfaced, the consumers of the ride-hailing mobile applications invariably expressed concerns that the transaction would lead to monopolistic behaviour by Grab to the detriment of the consuming public. The PCC reacted by subjecting the transaction to motu proprio review.156 It also ordered interim measures, requiring Grab and Uber to maintain the independence of their business operations and other prevailing conditions ex ante, pending the review.157 When the parties implemented their transaction despite the PCC's interim measures, the PCC imposed monetary penalties on Grab and Uber.158 Ultimately, the PCC issued a commitment decision, clearing the transaction but binding Grab and Uber to their voluntary undertakings of service quality and price conditions, among others.159 On 12 November 2019, more than a year after its commitment decision, the PCC issued a new decision extending most of Grab's commitments to at least another year. It also imposed new monetary penalties on Grab for breaching its original pricing undertaking, and ordered the disgorgement of Grab's excess profits and the refund thereof to the customers.160 The significant public attention generated by this case has brought awareness of the remedies under competition law that are available to general consumers.
The PCC also worked with the Supreme Court towards the issuance of the Dawn Raid Rules, which took effect recently. While the information collected pursuant to dawn raids may only be used in administrative proceedings before the PCC,161 the discovery of such information will certainly help prospective private litigants to prove their claims before the courts.
Further, non-governmental organisations (NGOs) have been active in the promotion of consumers' rights and, in a case before the Supreme Court involving the increase in electricity distribution rates, NGOs have alleged collusion among the distributor and suppliers in the wholesale electricity spot market aimed at artificially increasing the spot prices to the disadvantage of consumers. Although tainted with procedural defects, the Supreme Court has taken cognisance of the case, and the DOJ-OFC was reported to have commenced an investigation into the collusion allegations. With the Competition Act as law, NGOs will likely initiate more suits for the protection of consumers, even before any PCC inquiry can be commenced. In addition, since the PCC is required to proactively conduct a consumer information programme, consumers may become more aware of their rights and may initiate complaints with the PCC.
Finally, it is also possible that court actions will be filed to assail certain provisions of the Competition Act. These cases would provide an opportunity for the courts to interpret the meaning of the provisions of the law and thereby contribute to the body of knowledge of Philippine competition laws and policies.
1 Patricia-Ann T Prodigalidad is a senior partner and Christopher Louie D Ocampo is a senior associate at Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
2 Act No. 3815, Article 185 (penalised 'Machinations in Public Auctions') and Article 186 (penalised 'Monopolies and Combinations in Restraint of Trade').
3 1987 Philippine Constitution, Article XII, Section 19.
4 ibid., Article XII, Section 1.
5 Republic Act No. 10667.
6 AM No. 19-08-06-SC.
7 Competition Act, Section 14.
8 ibid., at Section 14(a).
9 id., at Section 14(b).
10 id., at Section 14(c).
11 id., at Section 15.
12 id., at Section 20.
13 id., at Section 5.
14 id., at Section 12.
15 id., at Section 12(a).
16 id., at Section 12(e).
17 id., at Section 12(a).
18 Established under Executive Order No. 45, series of 2011.
19 Competition Act, Section 13.
20 ibid., at Section 31.
26 PCC Rules of Procedure, Rule II, Art. 1, Section 2.6 (b).
27 Competition Act, Section 45.
28 ibid., at Section 12(a).
29 id., at Section 12(d) in relation to Section 12(h).
30 id., at Section 45.
31 id., at Section 12(a).
32 id., at Sections 13 and 44.
33 The IRR of the Competition Act took effect on 18 June 2016.
34 Competition Act, Section 50.
35 Act No. 386 (1950).
36 Civil Code, Article 1306.
37 Willaware Products Corporation v. Jesichris Manufacturing Corporation, GR No. 195549, 3 September 2014.
40 Civil Code, Article 19, which provides: 'Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.'
41 id., at Article 20, which provides: 'Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.'
42 id., at Article 21, which provides: 'Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.'
43 Competition Act, Section 55.
45 id., at Section 46(a).
46 id., at Section 46(b).
47 Civil Code, Article 1146.
48 GR No. 160703, 23 September 2005.
53 Act No. 3815 (1930), otherwise known as the Revised Penal Code, Article 2, provides:
Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number;
4. While being public officers or employees, should commit an offense in the exercise of their functions; or
5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.
54 Civil Code, Article 14, which states: 'Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations.'
55 Competition Act, Section 3.
56 IRR, Rule 1, Section 2(a).
57 PCC Rules of Procedure, Rule IV, Article 3, Section 4.18 (c), (f), (g).
58 Competition Act, at Section 45.
59 Rules of Court, Rule 3, Section 2.
61 Goco, et al. v. Court of Appeals, et al., GR No. 157449, 6 April 2010.
63 Velarde v. Social Justice Society, GR No. 159357, 28 April 2004.
64 Rules of Court, Rule 23.
65 ibid., at Section 1.
67 id., at Section 2.
68 id., at Rule 25.
69 id., at Rule 25, Section 1.
70 id., at Section 5.
71 id., at Rule 26.
72 id., at Section 1.
73 id., at Section 5.
74 id., at Rule 27.
75 id., at Section 1.
76 id., at Rule 24.
77 id., at Section 1.
78 id., at Section 2.
79 Security Bank Corporation v. Court of Appeals, GR No. 135874, 25 January 2000.
81 Ong v. Mazo, et al., GR No. 145542, 4 June 2004.
83 Competition Act, Section 33.
85 Rules of Court, Rule 130, Section 49.
86 ibid., at Rule 3, Section 12.
87 Mathay, et al. v. The Consolidated Bank and Trust Company, et al., GR No. L-23136, 26 August 1974.
88 Banda, et al. v. Ermita, et al., GR No. 166620, April 2010.
89 Civil Code, Article 2202.
90 ibid., at Article 2199.
91 id., at Article 2200.
92 id., at Article 2208.
93 id., at Article 2208(9).
94 id., at Article 2216.
95 id., at Article 2217.
96 Yutuk v. Manila Electric Co, GR No. L-13016, 31 May 1961.
97 Civil Code, Article 2221.
98 Willaware Products Corporation v. Jesichris Manufacturing Corporation, GR No. 195549, 3 September 2014.
99 Civil Code, Article 2224.
100 Ventanilla v. Centeno, GR No. L-14333, 28 January 1961.
101 Civil Code, Article 2229.
102 ibid., at Article 2233.
103 Act No. 3247, Section 6, which states: 'Any person who shall be injured in his business or property by any other person by reason of anything forbidden or declared to be unlawful by this Act shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.'
104 Revised Penal Code, Article 367.
105 See Competition Act, Sections 14 and 15.
106 Civil Code, Article 2199.
107 ibid., at Article 2200.
108 id., at Article 2203.
109 Competition Act, Section 45.
110 ibid., at Section 35.
111 PCC Rules of the Leniency Program, Section 1.
112 Canon 21.
113 Rules of Court, Rule 130, Section 24(b).
114 People of the Philippines v. Hon Sandiganbayan, et al., GR Nos. 115439-41, 16 July 1997.
115 Cayetano v. Monsod, et al., GR No. 100113, 3 September 1991.
116 Competition Act, Section 34.
117 PCC Rules of Procedure, Rule XI, Section 11.9.
118 PCC Merger Rules, Clause 9.15.
119 Competition Act, at Section 37.
120 ibid., at Section 36.
121 See PCC Merger Rules, Clauses 9.1 to 9.16.
122 See PCC Rules of Procedure, Article XI.
123 Competition Act, at Section 34.
124 ibid., at Section 42.
125 Civil Code, Article 2035 provides:
No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
126 ibid., Article 2034.
127 Supreme Court Resolution in A.M. No. 01-10-5-SC-PHILJA dated 16 October 2001.
128 Supreme Court Resolution in A.M. No. 04-1-12-SC dated 20 January 2004.
129 Pasco, et al. v. Heirs of Filomena de Guzman, et al., GR No. 165554, 26 July 2010.
130 Civil Code, Article 2037.
131 ADR Act, Chapter 2 (Mediation), Section 9.
132 ibid., at Section 9(c). Note, however, exceptions to the confidentiality rule are found in Section 11 of the ADR Act.
133 id., at Section 17.
134 Competition Act, Section 37 (c); see also PCC Rules of Procedure, Section 3.18.
135 id., at Section 6 provides:
The provisions of this Act shall not apply to the resolution or settlement of the following: (a) labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor Code of the Philippines, as amended, and its Implementing Rules and Regulations; (b) the civil status of persons; (c) the validity of a marriage; (d) any ground for legal separation; (e) the jurisdiction of courts; (f) future legitime; (g) criminal liability; and (h) those which by law cannot be compromised.
136 id., at Section 18.
137 id., at Section 19 in relation to UNCITRAL Model Law, Article 34(2)(b)(ii). See also ADR Act Implementing Rules and Regulations, Article 4.34(b)(ii)(bb).
138 id., at Sections 32 and 41 in relation to Republic Act No. 876, Section 24.
139 Civil Code, Article 2194.
140 Rules of Court, Rule 6, Section 8.
142 id., at Section 11.
143 Asian Construction and Development Corporation v. Court of Appeals, et al., GR No. 160242, 17 May 2005.
147 PCC, '2018 Annual Report' (2019) 6.
148 PCC, '2017 Annual Report' (2018) 12, 23.
149 PCC, '2016 Annual Report' (2017) 15.
150 PCC Case No. E-2019-001.
151 PCC Case No. E-2019-001. Commission Decision No. 01-E-001/2019.
152 PCC Commission Resolution No. 20-2018, Paragraph 6.
153 ibid., Paragraph 8 (a).
154 id., Paragraph 8 (b).
155 PCC Case No. M-2018-001.
156 PCC Commission Resolution No. 08-2018 dated 3 April 2018.
157 PCC Case No. M-2018-001, Order dated 6 April 2018.
158 PCC Case No. M-2018-001, Resolution dated 11 October 2018. The PCC imposed administrative penalties of 8 million pesos on Grab, 4 million pesos on Uber, and 4 million pesos jointly on Grab and Uber.
159 PCC Case No. M-2018-001. Commission Decision No. 26-M-12/2018. The PCC imposed administrative penalties on Grab in the total amount of 23.45 million pesos.
160 PCC Case M-2018-001. Commission Decision No. 33-M-012/2019.
161 Rule on Administrative Search and Inspection under the Philippine Competition Act, Section 17.