9. IDENTIFICACIÓN Y EVALUACIÓN DE IMPACTOS AMBIENTALES
9.1 METODOLOGÍA
(b) Failure of the debtor to submit the rehabilitation plan;
(c) Disapproval of the rehabilitation plan by the court;
(d) Failure to achieve the desired targets or goals as set forth in the rehabilitation plan;
(e) Failure of the debtor to perform its obligations under the plan;
(f) Determination that the rehabilitation plan may no longer be implemented in accordance with its terms, conditions, restrictions or assumptions; or
(g) Successful implementation of the rehabilitation plan.
Debtor-Initiated Rehabilitation (Rule 4) Who may petition (Sec 1)
-Any debtor who foresees the impossibility of meeting its debts when they respectively fall due, may petition the proper regional trial court for rehabilitation.
- A group of companies may jointly file a petition for rehabilitation when one or more of its constituent corporations foresee the impossibility of meeting debts when they respectively fall due, and the financial distress would likely adversely affect the financial condition and/or operations of the other member companies of the group is essential under the terms and conditions of the proposed rehabilitation plan.
Opposition to or Comment on the Petition (Sec 4)
-Every creditor of the debtor or any interested party shall file his verified opposition to or comment on the petition not later than fifteen (15) days before the date of the initial hearing fixed in the stay order. -After such time, no creditor or interested party shall be allowed to file any comment thereon or opposition thereto without leave of court.
-If the Schedule of Debts and Liabilities omits a claim or liability, the creditor concerned shall attach to its comment or opposition a verified statement of the obligations allegedly due it.
Approval of Rehabilitation Plan By Court (Sec 7.b)
The court shall approve the new rehabilitation plan not later than ninety (90) days from the date of the last initial hearing.
By Creditors (Sec 7.b.1)
Approval or endorsement of creditors holding at least two-thirds (2/3) of the total liabilities of the debtor including secured creditors holding more than fifty percent (50%) of the total secured claims of the debtor and unsecured creditors holding more than fifty percent (50%) of the total unsecured claims of the debtor;
Cram Down (Sec 11)
The court may approve a rehabilitation plan even over the opposition of creditors of the debtor, if, in its judgment, the rehabilitation of the debtor is feasible and the opposition of the creditors is manifestly unreasonable if the following are present:
(a) The rehabilitation plan complies with the requirements specified in SEC 18 of Rule 3;
(b) The rehabilitation plan would provide the objecting class of creditors with payments whose present value projected in the plan would be greater than that which they would have received if the assets of the debtor were sold by a liquidator within a six (6)-month period from the date of filing of the petition; and
(c) The rehabilitation receiver has recommended approval of the plan.
In approving the rehabilitation plan, the court shall ensure that the rights of the secured creditors are not impaired.
Creditor-initiated rehabilitation (Rule 5) Who May Petition (Sec 1)
Any creditor or creditors holding at least twenty percent (20%) of the debtor's total
liabilities may file a petition with the proper regional trial court for rehabilitation of a debtor that cannot meet its debts as they respectively fall due.
Requirements (Sec 2)
The petition is accompanied by:
1. rehabilitation plan
2. list of at least three (3) nominees to the position of rehabilitation receiver and
3. verified by a sworn statement that the affiant has read the petition and that its contents are true and correct of his personal knowledge or based on authentic records and that the petition is being filed to protect the interests of the debtor, the stockholders, the investors and the creditors of the debtor.
Pre-negotiated rehabilitation (Rule 6) Requirements (Sec 1)
1. A debtor that foresees the impossibility of meeting its debts as they fall due may, by itself or jointly with any of its creditors,
2. file a verified petition for the approval of a pre-negotiated rehabilitation plan.
3. The petition shall comply with SEC 2 of Rule 4 and be supported by an affidavit showing the written approval or endorsement of creditors holding at least two-thirds (2/3) of the total liabilities of the debtor, including secured creditors holding more than fifty percent (50%) of the total secured claims of the debtor and unsecured creditors holding more than fifty percent (50%) of the total unsecured claims of the debtor.
Recognition of Foreign Proceedings (Rule 7)
Scope (Sec 1)
This Rule applies where:
(a) assistance is sought in a Philippine court by a foreign court or a foreign representative in connection with a foreign proceeding;
(b) assistance is sought in a foreign State in connection with a domestic proceeding governed by these Rules; or
(c) a foreign proceeding and a domestic proceeding are concurrently taking place.
The sole fact that a petition is filed pursuant to this Rule does not subject the foreign representative or the foreign assets and affairs of the debtor to the jurisdiction of the local courts for any purpose other than the petition.
Period for Recognition (Sec 5)
-Petition for recognition of a foreign proceeding shall be decided within thirty (30) days from the filing thereof.
Effect of recognition of foreign procedure (Sec 8)
Upon recognition of a foreign proceeding:
(a) Commencement or continuation of individual actions or individual proceedings concerning the debtor's assets, rights, obligations or liabilities is stayed;
provided, that such stay does not affect the right to commence individual actions or proceedings to the extent necessary to preserve a claim against the debtor.
(b) Execution against the debtor's assets is stayed; and
(c) The right to transfer, encumber or otherwise dispose of any assets of the debtor is suspended.
Procedural remedies (Rule 8) Motion for recognition (Sec 1)
a. Prior to the approval of the rehabilitation plan.
-No relief can be extended to the party aggrieved by the court's order on the motion through a special civil action for certiorari under Rule 65 of the rules of Court. Such order can only be elevated to the Court of Appeals as an assigned error in the petition for review of the decision or order approving or disapproving the rehabilitation plan.
b. After the approval of rehabilitation plan.
-An order issued after the approval of the rehabilitation plan can be reviewed only through a special civil action for certiorari under Rule 65 of the Rules of Court.
Review of decision or order on rehabilitation plan (Sec 2)
-an order approving or disapproving a rehabilitation plan can only be reviewed through a petition for review to the Court of Appeals under Rule 43 of the Rules of Court within fifteen (15) days from notice of the decision or order.
Concept of debtor-in-place
-The rehabilitation receiver does not take over the management and control of the debtor but simply oversees and monitors closely the operations of the debtor during the pendency of the proceedings
Appointment of management committee (Rule 9, Sec 1, SC Interim Rules of Procedure for Intra-corporate Controversies)
The appointment of a management committee for a corporation, partnership or association may be applied for as incident to any of the cases that may be filed under the Rules or the Interim Rules on Corporate Rehabilitation when there is imminent danger of:
a. dissipation, loss, wastage or destruction of assets or other properties; and
b. paralyzation of its business operations which may be prejudicial to the interest of the minority stockholders, parties-litigants or the general public.
Cases:
“Equality is Equity”
Alemar’s Sibal & Sons, Inc. vs. Elbinias, et.al.,
During rehabilitation, assets are held in trust for the equal benefit of all creditors. As between creditors, equality is equity. All creditors should stand on equal footing.
Suspension of money claim
PAL vs. Spouses Kurangkang, et.al.,
The stay order is effective from the date of its issuance until the dismissal of the petition or the termination of the rehabilitation proceedings. The interim rules must likewise be read and applied along with SEC 6(c) of P.D. 902-A, as so amended, directing that upon the appointment of a management committee, rehabilitation receiver, board or body pursuant to the decree, “all actions” for claims against the distressed corporation “pending before any court, tribunal, board or body shall be suspended accordingly.” A “claim” is said to be “a right to payment, whether or not It is reduced to judgment, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, legal or equitable, and secured or unsecured.” In Finasia Investments and Finance Corporation this Court has defined the word “claim,” contemplated in SEC 6(c) of P.D. 902-A, as referring to debts or demands of a pecuniary nature and the assertion of a right to have money paid as well.
Verily, the claim of private respondents against petitioner PAL is a money claim for the missing luggages, a financial demand, that the law requires to be suspended pending the rehabilitation proceedings.
Non-suspension of claims against guarantors and sureties solidarily liable with debtor
MWSS vs. Hon. Daway
Except when a letter of credit specifically stipulates otherwise, the obligation of the banks issuing letters of credit are solidary with that of the person or entity requesting for its issuance, the same being a direct, primary, absolute and definite undertaking to pay the beneficiary upon the presentation of the set of documents required therein. Being a solidary obligation, the letter of credit here is excluded from the jurisdiction of the rehabilitation court.
Purpose of Suspension of actions for claims against the corporation
Sobrejuanite, et.al., vs. ASB Development Corp
The purpose for the suspension of the proceedings is to prevent a creditor from obtaining an advantage or preference over another and to protect and preserve the rights of party litigants as well as the interest of the investing public or creditors. Such suspension is intended to give enough breathing space for the management committee or rehabilitation receiver to make the business viable again, without having to divert attention and resources to litigations in various fora. The suspension would enable the management committee or rehabilitation receiver to effectively exercise its/his powers free from any judicial or extra-judicial interference that might unduly hinder or prevent the “rescue” of the debtor company.
“Serious Situation Test”
Pryce Corporation vs. CA.
Receivers will be appointed whenever:
1. necessary in order to preserve the rights of the litigants; and/or
2. necessary in order to protect the interest of the public
- clear and imminent danger of losing corporation assets if a receiver is not appointed.
XV. SEC REORGANIZATION DECREE PD 902-A AS AMENDED
Organization Sec 4, RA 8799
Administrative Agency.
4.1.
- This Code is administered by SEC as collegial body composed of Chairperson and 4 Commissioners
- appointed by Pres for term of 7y ea
- who serve as such until successor is appointed
& qualified
- Commissioner appointed to fill vacancy prior to expiration of term for w/c his / her predecessor was appointed, serves only for unexpired portion of term.
- Unless context indicates otherwise,
“Commissioner” incl Chairperson.
4.2.
- Commissioners must be - natural-born citizens
- at least 40y for Chairperson and at least 35y for Commissioners
- of good moral character - of unquestionable integrity - of known probity & patriotism
- w/ recognized competence in social &
economic disciplines
- Majority of Commissioners, incl Chairperson, shall be members of Phil Bar.
4.3.
- Chairperson is CEO of the Commission.
- Chairperson shall
- execute & administer policies, decisions, orders, resolutions approved by Commission AND
- have gen executive direction & supervision of work & operation of Commission and its members, bodies, boards, offices, personnel, and all admin biz
4.4.
- Salary of Chairperson & Commissioners shall be
- fixed by Pres
- based on objective classification system
- at a sum comparable to members of Monetary Board and commensurate to importance attached to position
4.5.
- Commission holds mtgs at least once a wk OR as often as necessary upon call of Chairperson or upon request of 3 Commissioners.
- Notice of mtg is given to all Commissioners and presence of 3 Commissioners constitutes quorum. In absence of Chairperson, the most senior Commissioner acts as presiding officer.
4.6.
- Commission may delegate any of its fcns to any dept / ofc of the Commission, an individual Commissioner or staff member of Commission except its
- rvw / appellate authority AND
- power to adopt, alter, supplement any rule - Commission may rvw upon own initiative or upon petition of party any action of dept / ofc,
individual Commissioner, or staff member of Commission.
Sec 6, RA 8799
Indemnification and Responsibilities of Commissioners.
6.1.
- Commission shall indemnify ea Commissioner and officials of Commission, incl personnel performing supervision & exam fcns for all costs
& expenses reasonably incurred in connection w/ any civil / criminal actions, suits, proceedings to w/c they may be or made party by reason of their fcns / duties, unless they’re finally adjudged to be liable for gross negligence / misconduct.
- In settlement / compromise, indemnification is provided only in connection w/ such matters covered by settlement as to w/c Commission is advised by external counsel that persons to be indemnified didn’t commit any gross negligence / misconduct.
- Costs & expenses in defending action, suit, proceeding may be pd by Commission in advance of final disposition upon receipt of undertaking by or on behalf of Commissioner, officer, employee to repay amt advanced shld it be determined by Commission that he / she isn’t entitled.
6.2.
- Commissioners, officers, employees of Commission who willfully violate this Code OR are guilty of negligence, abuse, malfeasance or fail to exercise extraordinary diligence in performance of duties shall be held liable.
- Similar responsibility applies to Commissioners, officers, employees of Commission for
1. disclosure of info, discussion, resolution of Commission of confidential nature OR abt confidential operations of Commission, unless disclosure is
- in connection w/ official fcns w/ Commission OR
- w/ prior authorization of Commissioners
2. use of such info for personal gain or to detriment of gov’t, the Commission, 3rd parties - Data / info required to be submitted to Pres and / or Congress or its committee OR to be published shall not be confidential.
Sec 7, RA 8799 Reorganization.
7.1.
- Commission is authorized to provide for its reorganization, to streamline structure &
operations, upgrade HR component and enable it to more efficiently & effectively perform fcns
& exercise powers.
7.2.
- All positions of Commission are governed by compensation & position classification systems
& qualification standards approved by Commission based on comprehensive job analysis & audit of actual duties &
responsibilities.
- Compensation plan shall be
- comparable w/ prevailing plan in Bangko Sentral and other gov’t financial institutions AND
- subject to periodic rvw by Commission no more than once every 2y w/o prejudice to yearly merit rvws / increases based on productivity & efficiency.
- Commission shall be exempt fr laws, rules, regulations on compensation, position classification, qualification standards.
- Commission shall endeavor to make its system conform as closely as possible w/ Compensation
& Position Classification Act of 1989.
Sec 76, RA 8799 Repealing Clause.
- Revised Securities Act (BP 178) in its entirety AND Sec 2, 4, 8 of PD 902A as amended, are repealed.
- All other laws, orders, rules, regulations, or parts thereof, inconsistent w/ this Code are repealed or modified.
Powers and Functions Sec 3.
- Commission has absolute jurisdiction, supervision, control over all corps, partnerships, assns, who are grantees of primary franchise and / or license or permit issued by gov’t to operate in Phils
- It has power to enlist aid of any and all enforcement agencies of gov’t, civil or military.
Sec 6.
- Commission has ff powers:
a. issue prelim / permanent injunctions, prohibitory / mandatory, where it has
jurisdiction (RoC shall apply)
b. punish for contempt of Commission, direct &
indirect, in accordance w/ RoC c. compel officers of corp / assn registered by it to call mtgs of stockholders / members under its supervision
d. pass upon validity of issuance & use of proxies & voting trust agreements for absent
stockholders / members
e. issue subpoena duces tecum and summon witnesses to appear in proceedings of Commission; in appropriate cases order search
& seizure or cause search & seizure of docs, papers, files, records, books of accts of entity
under investigation
f. impose fines and / or penalties for violation of this Decree, laws implemented by Commission,
rules, etc
g. authorize establishment of stock exchanges,
commodity exchanges, other similar orgs AND supervise & regulate the same; incl authority to determine their number, size, location h. pass upon, refuse, deny, after consultation w/ BoI, Dept of Industry, NEDA or other gov’t agency, the application for registration of corp, partnership, assn, org w/in its jurisdiction, if not consistent w/ nat’l economic policies i. suspend, revoke, after notice & hearing, the franchise / cert of registration of corp, partnership, assn, upon any of grounds provided by law, incl:
1. fraud in procuring cert of registration 2. serious misrepresentation as to what corp
can do or is doing
3. refusal to comply / defiance of lawful order of Commission restraining commission of acts w/c would amt to grave violation of franchise 4. continuous inoperation for at least 5y
5. failure to file by-laws w/in required period 6. failure to file reports in forms determined by Commission w/in period
j. exercise other powers as implied, necessary, incidental to express powers
- Hearings are conducted by Commission OR by Commissioner OR other bodies, boards, committees and / or officer created / designated by Commission for the purpose. Decision, ruling, order may be appealed to Commission en banc w/in 30d after receipt by appellant of notice of decision, ruling, order.
- Commission shall promulgate rules of procedures to govern proceedings, hearings, appeals.
- Aggrieved party may appeal order, decision, ruling of Commission en banc to SC by petition for rvw.
Sec 5, RA 8799
Powers and Functions of the Commission.
5.1.
- Commission shall act w/ transparency and have powers & fcns provided by this Code, PD 902A, Corp Code, Investment Houses Law, Financing Company Act, other laws.
- Commission, powers & fcns:
a. have jurisdiction & supervision over corp, partnership, assn who are grantees of primary franchises and / or license / permit issued by gov’t
b. formulate policies & recommendations on issues re securities market, advise Congress &
gov’t agencies on securities market, propose legislation and amendments
c. approve, reject, suspend, revoke, require amendments to registration statements, registration & licensing applications
d. regulate, investigate, supervise activities of persons to ensure compliance
e. supervise, monitor, suspend, take over activities of exchanges, clearing agencies, other SROs
f. impose sanctions
g. prepare, approve, amend, repeal rules, regulations, orders; issue opinions, provide guidance on and supervise compliance w/ such rules
h. enlist aid of and / or deputize enforcement agencies of gov’t, civil or military as well as pvt institution, corp, firm, assn or person in implementation
i. issue cease & desist orders
j. punish for contempt of Commission, direct &
indirect, in accordance w/ RoC
k. compel officers of corp or assn to call mtgs of stockholders / members under its supervision l. issue subpoena duces tecum, summon witnesses to appear in proceedings of Commission, order exam, search, seizure of docs, papers, files, records, tax returns, books of accts of entity under investigation
m. suspend, revoke, after notice & hearing the franchise / cert of registration of corp, partnership, assn, upon grounds provided by law
n. exercise other powers provided by law as well as those implied fr, or w/c are necessary / incidental to express powers
XXX
Jurisdiction Sec 5, RA 8799
Jurisdiction Sec 5, RA 8799