Visa processing for foreign investor
fasttracked from 14 to 3 days
A memorandum of agreement (MOA) had been signed by the Board of Investments (BOI) and the Bureau of Immigration designed to fasttrack processing of visa applications of foreign investors to three days from the original 14 days.
Trade and Industry Secretary and concurrent BOI Chairman Peter B. Favila said that the reduced application process aims to attract investors and enhance mobility of business people.
The landmark agreement whose signing was witnessed by the presidents of the various foreign chambers in the country will help insure that the gains achieved by the BOI in promoting the country as an investment destination will be sustained through the streamlined visa application process.
The visa will be valid for 30 days subject to extension for another one month. BI’s memorandum Circular (MC) No. AFF-06-016 allows the Bureau to issue Temporary Visitor’s Visa (TUV) to foreign businessman upon their arrival at the NAIA, Mactan, Cebu Int’l. Airport and Davao Int’l. Airport as requested by DTI-BOI upon endorsement by either the Philippine Chamber of Commerce and Industry or the Foreign Chamber of Commerce and Industry (FCCI).
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Doctrine of limited
liability is inapplicable
The issue before the Supreme Court is whether the limited liability doctrine [in Maritime Law] which limits respondent’s award of damages to its pro-rata share in the insurance proceeds applies in this case.
In the present case, petitioner [shipowner] has the burden of showing that it exercised extraordinary diligence in the transport of the goods it had on board in order to invoke the limited liability doctrine. Otherwise stated, to limit its liability to the insurance proceeds, the shipowner has the burden of proving that the unseaworthiness of its vessel was not due to its fault or negligence.
The shipowner initially attributed the sinking of the vessel to the typhoon and relied on the BMI findings that it was not at fault. But the evidence and attendant circumstances on the sinking of the vessel reveal that the sinking was not due to the typhoon but to the unseaworthiness of the vessel.
Since the shipowner failed to overcome the presumption of negligence, the doctrine of limited liability cannot be applied. Thus, the Court sustained the CA ruling that the shipowner is liable for the total value of the lost cargo (G.R. 156978, 5/2/06).
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Supreme Court sustains dismissal for loss of trust
Employers are allowed wide latitude of discretions in terminating managerial employees because they perform functions which by their nature require full trust and confidence. Management, said the SC, has a right to dismiss such erring employees as a measure of self-protection. Petitioner, being a managerial employee, may be dismissed by respondent company for grave misconduct and/or loss of confidence.
The Court, however, cautions that loss of trust and confidence must not be based on unsubstantiated suspicions, conjectures or surmises. Loss of trust and confidence as a just cause for dismissal must rest on a breach of duty committed by the employee and not on the caprices of the employer.
In an earlier case, the Court issued guidelines for the application of the doctrine of loss of confidence: (a) loss of confidence must not simulated; (b) it should not be used as a subterfuge for causes which are improper, illegal or unjustified; (c) it must not be used arbitrarily in the face of overwhelming evidence to the contrary; (d) it must be genuine, not a mere afterthought to justify an earlier action taken in bad faith (G.R. 160404, 6/8/05, citing China City Rest. vs. NLRC).
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Fine rather than imprisonment
When the act constituting imprudence or negligence resulted only in damage to property, the offender shall be punished by a fine rather than imprisonment (G.R. 152040), 3/31/06).
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Where closure is lawful there is no illegal dismissal
Just as no law forces anyone to go into business, no law can compel anybody to continue in it. Thus, where the employer’s cessation or closure is lawful, there is no illegal dismissal to speak of (414 SCRA 411).
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Mere absence does not constitute abandonment
Mere absence or failure to report for work does not constitute abandonment of work. There must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship (413 SCRA 162).
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Client’s death terminates attorney-client relationship
Petitioner paid the required docket fees on his petition for review on certiorari under Rule 45, but he died before he could file the petition within the prescribed 15-day period under the Rule. Thus, petitioner’s counsel has no longer any authority to represent his deceased client. The settled rule is that attorney-client relationship terminates upon the client’s death (G.R. 167234, 2/27/06).
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Contract cannot be novated by only one party
Respondent F. Guerrero was hired by petitioner manning agency OSM as Master Mariner for a contract period of ten (10) months to board the MN ‘Princess Hoa, a foreign-registered vessel owned by an American company.
Guerrero claimed that from the start of his work aboard MN ‘Princess Hoa’, he was not paid any compensation at all and had to disembarked as he cannot even buy his basic personal necessities. Hence, his complaint for illegal dismissal, non-payment of salaries and fringe benefits covering almost seven (7) months of service.
Petitioner OSM alleged that the initial plan of the shipowner was to use the vessel in the overseas trade but changed its plan. Instead of using it for overseas trade, the owner decided to use it in the coastwise trade and thus, the crew members hired never left the Philippines and were merely used in the coastwise trade. But since MN ‘Princess Hoa’ is a foreign registered vessel, the owner had to convert the vessel to Philippine registry by way of bareboat chartering it to a local shipping line.
Because of the bareboat charter, the charterer became the disponent owner/employer and is now responsible for the payment of complainant’s wages. The Labor Arbiter ruled that there was constructive dismissal since Guerrero was not paid his salary for seven (7) months, and ordered petitioner and its principal to jointly and severally pay the respondent his unpaid salaries and fringe benefits. The ruling likewise dismissed petitioner’s contention that there was a novation of the employment contract. The Arbiter’s decision was affirmed by the NLRC.
Acting on the petition by petitioner, the Supreme Court ruled that unilateral decisions to alter the use of the vessel from overseas service to coastwise shipping will not affect the validity of an existing employment contract validly executed. The decision to use the vessel for coastwise shipping was made by petitioner only and did not bear the written conformity of the respondent. A contract cannot be novated by the will of only one party (398 SCRA 606).
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Laches cannot prevail over justice
LACHES is an equitable doctrine and as such its application is controlled by equitable considerations. Laches cannot be involved to defeat justice or to perpetrate fraud. Since claimant filed a claim well within the 3-year prescriptive period for filing of money claims set forth in Article 291 of the Labor Code, the doctrine of laches is inapplicable to her (G.R. 109808, 3/1/95).
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Filipino seamen governed by POEA Rules
Employment in ocean-going vessels is governed by the Rules and Regulations Governing Overseas Employment as embodied in the POEA standard employment contract for Filipino seafarers. The said Rules does not provide for separation or termination pay (G.R. 113658, 3/31/95).
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Immigration extends validity of I-CARDS of permanent residents
In response to the request of various foreign chambers, the Bureau of Immigration (B1) extended from one year to five years the validity of ACR I-CARDS issued to foreigners with permanent resident visas.
The BI has also announced that the validity of I-CARDS issued to non-permanent residents are now co-terminus with the validity period of their visas.
Permanent residents refer to foreigners who were issued visas under Sec. 13 of the Immigration Act, the Alien Legalization Act, the Alien Social Integration Act, the “Note Verbale” between the Philippines and India, and native-born aliens.
Foreigners whose I-CARDS are now co-terminus with their visas are those who were issued pre-arranged employment visa, temporary resident visa, student visa, treaty traders visa, and tourist visa.
Previously, I-CARDS were valid only for one year, renewable every year, with each applicant paying a fee of US$50.00. Under the new rules, the validity of I-CARDS issued to permanent residents and their dependents are automatically extended to five years, and in the case of temporary residents, made co-terminus with their visas.
A tamper-proof, credit-card-size document, the I-CARD replaced the paper-based alien certificate of registration (ACR) which the BI previously issued to foreigners registered with the bureau. Any alien with an I-CARD is entitled to multiple entry privileges and does not need to secure a reentry or exit permit every time he leaves the country (Memo Order RMA 2007-001).
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Jurisdiction distinguished from exercise of jurisdiction
Jurisdiction, the SC explained, is not the same as the exercise of jurisdiction. Jurisdiction is the authority conferred by law to decide a cause, and not the decision rendered in the case. Where the court has jurisdiction over the person and the subject matter, the decision on all other questions arising in the case is but an exercise of the jurisdiction.
In this case the petitioners contend that the trial court judge lacked jurisdiction which should justify the annulment of his decision in the civil case subject of the petition. Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defendant or over the subject matter. The trial court clearly has jurisdiction over the person of the defendant (the petitioners) when the latter received the summons from the court.
Jurisdiction over the subject matter of the claim is conferred by law and is determined by the allegations in the complaint (in this case, for specific performance and damages) which is within the jurisdiction of RTC where the complaint was filed. Hence, the trial court clearly has jurisdiction contrary to petitioners’ submission (G.R. 156118, 11/19/04)
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Briefly Noted
Elements of employment relationship
The elements to determine the existence of an employment relationship are: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee’s conduct (399 SCRA 301)
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Two-notice requirement
Procedural due process requires the employer to give the employee two notices -- the first, to apprise him of the particular acts or omissions charged, and second, to inform him of the decision to dismiss him (399 SCRA 72).
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Shipowner’s liability limited to declared value
PThe shipowner should not be held liable for more than what was declared by the shippers/consignees as the value of the goods in the bill of lading (404 SCRA 706).
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Job title should reflect
Job description
Designation should be reconciled with the actual job description of the employee (395 SCRA 699).
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US Supreme Court sets new standards for challenges to patents
Two recent rulings of the US Supreme Court might have attracted the attention and interest of local patent holders, patent applicants and the Intellectual Property Office (IPO) of the Philippines.
The rulings set new standards for challenges to patents in the face of some calls to curb litigation from so-called “patent trolls” or firms whose sole existence is based on extracting royalty payments.
Legal analysts in the US say the court’s decisions may limit “junk patent” lawsuits that have affected the high-tech industry but may also have some unintended effects of hurting patent protection for other sectors like pharmaceuticals.
In one key ruling, the nine US justices tossed out a patent for an adjustable accelerator pedal for motorists as “obvious.” The case involved a suit by auto parts makers KSR International against Teleflex, which developed a system that combines sensor technology with a mechanism to automatically set the height of vehicle control pedals for drivers of different sizes.
By ruling the patent as “obvious” the justices held that a company cannot hold a valid patent for device that anyone could have invented such as a wheel or a door.
“Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may deprive prior inventions of their value” wrote Justice Anthony Kenned.
In a separate case the same day the High Court ruled that AT&T could not collect damages from Microsoft for patented software sold in other countries.
Some analysts in the technology sector say the court has given a boost to innovation by limiting frivolous litigation.
“We are encouraged by the Court’s efforts to clamp down on obvious patents” said an official at the Computer & Communications Industry Association. “It reaffirms what we have always said: The patent system’s purpose is to promote innovation, not patent’s” (Standard Today/AFP).
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Requisites of a valid redundancy program
Redundancy exists when the service capability of the work force is in excess of what is reasonably needed to meet the demands of the enterprise. A redundant position is one rendered superfluous by any number of factors such as business, dropping of a particular product line, or phasing out of a service activity previously undertaken by the business.
A valid redundancy program must comply with these requisites: (1) written notice served to both the employees and the Department of Labor at least one month prior to the intended date of redundancy; (2) payment of separation pay of at least one-month pay for every year of service; (3) good faith in abolishing the redundant positions; (4) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished (G.R. 168719, 2/22/06, supra).
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Certiorari and prohibition Differ as to purpose
As restated by the Supreme Court appeal as a remedy is available only in cases where there is an error of judgment on the part of a court, tribunal or quasi-judicial agency. An error of judgment is one where a court having jurisdiction on the subject matter of the case renders what a party perceives as an erroneous decision.
In this ejectment case the respondents do not impute any error of judgment in the part of the MTC in ordering them to vacate the premises in question. Respondents merely prayed in their petition to the CA that a writ of prohibition be issues commanding the sheriff to cease and desist from further enforcing the writ of demolition because the properties on which their houses stand are not among the parcels of land subject of the ejectment suits filed against them by the petitioner. Appeal, therefore, is not the proper remedy they ought to have availed of. Thus, petitioner’s contention that respondents’ should have filed with the CA a petition for certiorari rather than prohibition is not correct (G.R. 133033, 6/15/2005).
