Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 230
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leases required for project development and
implementation in the name of the DOE.
In such case, the DOE (as representative of
the Republic of the Philippines) should be
considered eligible or qualified to obtain the
relevant agreements with other government
agencies and the resulting structure is one
where the DOE holds the rights for nonpower components of a project involving
natural resources while the RE developer, if
it is a foreign corporation, owns the power
components of a project or those that do
not have nationality restrictions.
3.2 Offshore Infrastructure
OSW projects may involve various offshore
infrastructure such as floating foundations,
mooring or anchors, array cables, floating
hulls, offshore substations, and offshore
export cables. 31 By virtue of Republic Act
No. 9295, Maritime Industry Authority
(MARINA), an attached agency of the
Department of Transportation, has the responsibility over regulations on commercial,
recreational, and technical maritime vessels
within the Philippine territorial waters. An
offshore infrastructure might require a Special Permit from the MARINA to operate as a
highly specialized ship or vessel.
The Domestic Shipping Act of 2004 (Do-
Republic of the Philippines
mestic Shipping Act) defines a ship or vessel
as any kind, class or type of craft or artificial
contrivance capable of floating in water, designed to be used, or capable of being used,
as a means of floating in water transport in
the domestic trade for the carriage of passengers or cargo, or both, utilizing its own
motive power or that of another. 32 It further
provides that no franchise, certificate or any
other form authorization for the carriage of
cargo or passenger, or both in the domestic
trade, shall be granted except of domestic
ship owners or operators. 33 It also prohibits
foreign vessels from engaging in trade and
commerce in Philippine territorial waters,
except upon the grant of Special Permit by
the MARINA when no domestic vessel is
available or suitable to provide the needed
shipping service, and when public interest
warrants the same. 34
Under the MARINA Circular No. 2017-02,
foreign registered35 highly specialized ships36
may be issued Special Permits, so as not
to prejudice efficient trade and commerce,
delivery of critical services/commodities,
and infrastructure and development projects. It is unclear if offshore infrastructure
contemplated for use in relation to offshore
RE projects should be considered a "ship"
or a "vessel" since these are not used for the
31 See World Bank Group, Offshore Wind Roadmap for the Philippines, available at https://www.doe.gov.ph/sites/default/files/pdf/announcements/
Philippine-Offshore-Wind-Roadmap.pdf?withshield=1 (last accessed February 28, 2023).
32 Domestic Shipping Act, Section 3 (f).
33 Domestic Shipping Act, Section 5.
34 Domestic Shipping Act, Section 6.
35 A foreign-registered ship is a ship owned and/or operated by a foreign national or company, registered under foreign flag.
36 Highly specialized ships are those used in petroleum exploration and operation such as seismic survey vessels, drilling rigs, construction support
vessels, platform support vessels, platform supply vessels, floating production storage and offloading vessels, vessels for condensate lifting and delivery;
floating storage and regasification units used to receive liquefied natural gas (LNG) for offshore regasification; and floating storage units used to receive
LNG for onshore regasification, and LNG carriers. Other ships that have onboard machinery and equipment specifically designed for a special purpose may
also be considered as highly specialized ships, as determined by the MARINA.
