2023 Commercial Law, Q15

China Telecommunication Company (CTC), a Chinese state-owned enterprise, sought to acquire 40% equity in Duon Telecommunication Corporation (DTC), a telecommunications company in the Philippines. When questioned by the two major telecommunication companies in the Philippines, Cheng, the president of DTC, defended the proposed acquisition by saying that CTC is allowed to own 40% equity pursuant to the nationality requirement under the 1987 Constitution. Is the argument of Cheng correct? Discuss your answer.

Quick check

Under Republic Act Number 11659, how is telecommunications classified in Philippine public service law?

What is the statutory restriction on foreign state-owned enterprises regarding critical infrastructure capital?

Does the forty percent foreign equity limit under the Constitution permit a foreign state-owned company to invest in telecommunications?

Which law amended Commonwealth Act Number 146 regarding public services and critical infrastructure?

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What is the underlying policy behind prohibiting foreign state-owned enterprises from owning telecommunication entities?

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1. Critical Infrastructure Classification
Under Section 2(e) of the Public Service Act (Commonwealth Act Number 146), as amended by Republic Act Number 11659, telecommunications is explicitly defined and classified as critical infrastructure. Critical infrastructure refers to public service systems or assets so vital to the Philippines that their incapacity or destruction would have a debilitating impact on national security, economic security, or public health and safety. Consequently, telecommunications entities operating within the national territory are subject to heightened statutory security restrictions and ownership limitations governing critical national assets.

2. Foreign State Enterprise
Under Section 24 of Republic Act Number 11659, foreign state-owned enterprises or sovereign entities acting on behalf of a foreign government are strictly prohibited from owning capital or equity in any public service entity classified as a public utility or critical infrastructure. This statutory prohibition applies regardless of whether the proposed foreign equity ownership falls within the general constitutional forty percent ceiling. The prohibition safeguards vital national communication networks and critical infrastructure from direct control, influence, or ownership by foreign sovereign states.

3. Public Service Amendments
Republic Act Number 11659 amended the Public Service Act by distinguishing public utilities from other public services and critical infrastructure. While the amendment relaxed foreign equity restrictions for certain public services, it simultaneously introduced robust national security safeguards over critical infrastructure. Foreign state-owned corporations are completely barred from holding capital in critical infrastructure enterprises like telecommunications, overriding general rules on foreign investment participation to protect national sovereignty and national security interest.

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