Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 246
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Republic of the Philippines
For private lands, NGCP has the power of
eminent domain as provided in Section
4 of Republic Act No. 9511 (the NGCP
Franchise). It may exercise said power
to "acquire such private property as is
actually necessary for the realization of
the purposes for which this franchise is
granted,"133 which is to operate, manage and maintain, and in connection
therewith, to engage in the business of
conveying or transmitting electricity in
the Philippines.134 This includes other
activities necessary to support the safe
and reliable operation of the transmission system and to construct, install,
finance, manage, improve, expand,
operate, maintain, rehabilitate repair and
refurbish the present nationwide transmission system.135
Lastly, Transco (and NGCP, as its concessionaire) has the power to enter into
contracts, leases, and execute any instrument necessary or convenient for the
purpose for which it was created.137 Therefore, NGCP should be able to procure
the rights-of-way necessary for the grid
connection of an OSW plant. The use of
the word "lease" should be sufficient to
cover FLA, MLA, FLAg, SAPA, and lease
agreements with local landowners.
For public lands, NGCP has the power of
ingress and egress, specifically to make
excavations or lay conduits in any of the
public places, highways, streets, lanes,
alleys, avenues, sidewalks, or bridges within the Philippines, provided the relevant
national and local government agencies
approve.136 However, there is currently no
interpretation of the term "public places"
and whether it includes protected areas,
forest land, foreshore land, and other
lands of the public domain.
As discussed above, NGCP may enter
into a TSA with the RE developer where
NGCP will procure the rights-of-way and
construct/operate the grid connection
for the RE developer. In turn, the RE developer will fund the NGCP’s procurement
of the rights-of-way, construction, and
operation of the grid connection. Under
the Rules and Regulations Implementing
the EPIRA, a transmission customer or
prospective transmission customer may
contribute to aid the construction of
Notably, NGCP is required to maintain
its status as a Philippine national during
the period of its franchise.138 Thus, NGCP
should have the capacity to be the party
to leases over areas of public domain
which can only be leased by Philippine
nationals.
133 An Act Granting the National Grid Corporation of the Philippines a Franchise to Engage in the Business of Conveying or Transmitting Electricity Through
High Voltage Back-bone System of Interconnected Transmission Lines, Substations and Related Facilities, and for Other Purposes [hereinafter referred to as
"NGCP Franchise"], Republic Act No. 9511, Section 4.
134 NGCP Franchise, Section 1.
135 Id.
136 NGCP Franchise, Section 12.
137 Rules and Regulations to Implement Republic Act No. 9316, Entitled "Electric Power Industry Reform Act of 2001," Rule 22, Section 3(d).
138 NGCP Franchise, Section 2.
