DOJ Opinion No. 165, s. 1981

DOJ OPINION NO. 165 , s. 1981 November 11, 1981 Minister of Finance Republic of the Philippines Dear Sir : In my official capacity as Minister of Justice of the Republic of the Philippines, I am rendering the opinion pursuant to the Ministerial Ordinance Concerning Notification, etc., of Offering for Subscription or for Sale of Foreign Bonds, etc., (Hereinafter called the "MOF Ordinance No. 26") of Japan, and in connection with the offering and sale of the bonds of the Republic of the Philippines (hereinafter called the "Philippines"), known as the Republic of the Philippines Japanese Yen Bonds of 1981 Series No. 4 (hereinafter called the 'Bonds"). In that connection, I have examined such documents and instruments as I have deemed necessary to render this opinion, including the following: (a) All relevant constitutional provisions, laws, decrees and rules under which the issue of the Bonds has been authorized (hereinafter collectively called the "authorizing law"). (b) The English translation of the Draft Securities Registration Statement relating to the Bonds to be filed with the Minister of Finance of Japan in accordance with the Securities and Exchange Law of Japan (hereinafter called the "Securities Registration Statement"). LexLib (c) The English translation of the draft form of the Bonds, including the Conditions of Bonds (hereinafter called the "Conditions") to be endorsed thereon, and of coupons appertaining there to. (d) The English version of the draft "Underwriting Agreement" to be entered into by the Philippines, as the issuer of the Bonds, and the Central Bank of the Philippines (hereinafter called the "Central Bank"), as statutory fiscal agent of the Philippines, and The Nikko Securities Co., Ltd., The Nomura Securities Co., Ltd., Daiwa Securities Co., Ltd. and Yamaichi Securities Company, Limited, as the Managers of the Underwriters. (e) The English version of the draft "Agreement with Commissioned Companies" to be entered into by the Philippines, as the issuer of the Bonds, and the Central Bank, as statutory fiscal agent of the Philippines, and The Bank of Tokyo, Ltd. and the other Japanese banks named therein, as Commissioned Companies. (f) The English version of the draft "Paying Agents Agreement" to be entered into by the Central Bank, as statutory fiscal agent of the Philippines, and the Bank of Tokyo, Ltd., as Representative of the Paying Agents. (g) English version of the draft "Recording Agency Agreement" to be entered into by the Central Bank, as statutory fiscal agent of the Philippines, and The Bank of Tokyo, Ltd., as Recording Agency. (h) Power of Attorney dated October 30, 1981 of the President of the Philippines to the Minister of Finance or, in his absence, Ambassador Carlos J. Valdes, Ambassador Extraordinary and Plenipotentiary of the Republic of the Philippines to Japan (Annex "A"). (i) Certificate of the Minister of Finance of the Philippines as required under Article 7, paragraph 1, subparagraph 9 of the MOF Ordinance No. 26 (Annex "B") (j) Power of Attorney of the Minister of Finance of the Philippines to the officials named therein authorizing each of them, inter alia , to execute and file the Securities Registration Statement (Annex "C"). (k) The provisions of the laws of the Philippines applicable to the enforcement of a foreign judgment relating to the Bonds, the coupons and the Conditions (Annexes "D" and "E"). The text of the relevant excerpts of the respective applicable provisions of the authorizing law (Annexes "F" "G" and "H") and copies of the documents referred to in (h) through (k) above are attached hereto. Legal Opinion (1) The proposed issue of the Bonds in the aggregate amount not exceeding Y20 Billion Japanese Yen will have been duly and validly authorized in accordance with the authorizing law following the determination of the form of the Bonds and the coupons, including the Conditions, by the Minister of Finance of the Philippines, with the approval of the President of the Philippines, after consultation with the Monetary Board of the Central Bank. When such determination shall have been made, the Underwriting Agreement as well as the Agreement with Commissioned Companies shall have been executed by a duly authorized representative of the Philippines and the Underwriting Agreement, the Agreement Commissioned Companies, the Paying Agents Agreement and the Recording Agency Agreement shall have been executed by a duly authorized representative of the Central Bank on behalf of the Central Bank, as statutory fiscal of the Philippines, then, assuming their validity under Japanese Law, the abovementioned Agreements and the Bonds, once paid for and issued, will be valid and binding upon the Philippines in accordance with their respective terms; in particular, foregoing applies to the Conditions, particularly that as to Japanese Law being the governing law. LexLib (2) The Securities Registration Statement and its filing with the Minister of Finance of Japan have been duly authorized by and on behalf of the Philippines; and all the statements in the Securities Registration Statement, in the form examined by me, which refer to or involve legal matters including the taxation treatment and the foreign exchange control of the Philippines are true and correct. (3) Under the Laws of the Philippines, the choice of the laws of Japan to govern the Bonds, the form and substance of the Bond certificates and interest coupons and all the rights and obligations of all the parties concerned arising thereunder is valid and binding, and the submission by the Philippines to the jurisdiction of the Tokyo District Court and any Japanese court competent to hear appeals from such court is a valid a submission to the jurisdiction of such courts. A final judgment obtained against the Philippines from any such Japanese court by a holder of Bonds in an action based thereon shall be enforceable in the Philippines upon the prior approval of any court of appropriate jurisdiction, the Commission on Audit or any other legal authority of the Philippines which may be required in accordance with the laws of the Philippines. Such approval would be given except if there is evidence of want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact. After the execution of the Agreement set forth in paragraph (1), this opinion will be supplemented forthwith to the extent deemed necessary and appropriate. I understand that you will furnish signed copies of this opinion to the Minister of Finance of Japan and that he will be entitled to rely on this opinion. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice