relation to his office and taking advantage of the same, in conspiracy with

accused, HENRY T. GO, Chairman and President of the Philippine

International Air Terminals, Co., Inc. (PIATCO), did then and there, willfully,
unlawfully and criminally enter into a Concession Agreement, after the project
for the construction of the Ninoy Aquino International Airport International
Passenger Terminal III (NAIA IPT III) was awarded to Paircargo
Consortium/PIATCO, which Concession Agreement substantially amended
the draft Concession Agreement covering the construction of the NAIA IPT III
under Republic Act 6957, as amended by Republic Act 7718 (BOT law),
specifically the provision on Public Utility Revenues, as well as the
assumption by the government of the liabilities of PIATCO in the event of the
latter's default under Article IV, Section 4.04 (b) and (c) in relation to Article
1.06 of the Concession Agreement, which terms are more beneficial to
PIATCO while manifestly and grossly disadvantageous to the government of
the Republic of the Philippines.4
The case was docketed as Criminal Case No. 28090.
On March 10, 2005, the SB issued an Order, to wit:
The prosecution is given a period of ten (10) days from today within which to
show cause why this case should not be dismissed for lack of jurisdiction over
the person of the accused considering that the accused is a private person
and the public official Arturo Enrile, his alleged co-conspirator, is already
deceased, and not an accused in this case.5
The prosecution complied with the above Order contending that the SB has
already acquired jurisdiction over the person of respondent by reason of his
voluntary appearance, when he filed a motion for consolidation and when he
posted bail. The prosecution also argued that the SB has exclusive jurisdiction
over respondent's case, even if he is a private person, because he was
alleged to have conspired with a public officer.6
On April 28, 2005, respondent filed a Motion to Quash 7 the Information filed
against him on the ground that the operative facts adduced therein do not
constitute an offense under Section 3(g) of R.A. 3019. Respondent, citing the
show cause order of the SB, also contended that, independently of the
deceased Secretary Enrile, the public officer with whom he was alleged to
have conspired, respondent, who is not a public officer nor was capacitated by
any official authority as a government agent, may not be prosecuted for
violation of Section 3(g) of R.A. 3019.
The prosecution filed its Opposition.8
On June 2, 2005, the SB issued its assailed Resolution, pertinent portions of
which read thus:

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 168539
March 25, 2014
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
HENRY T. GO, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari assailing the Resolution 1
of the Third Division2 of the Sandiganbayan (SB) dated June 2, 2005 which
quashed the Information filed against herein respondent for alleged violation
of Section 3 (g) of Republic Act No. 3019 (R.A. 3019), otherwise known as the
Anti-Graft and Corrupt Practices Act.
The Information filed against respondent is an offshoot of this Court's
Decision3 in Agan, Jr. v. Philippine International Air Terminals Co., Inc. which
nullified the various contracts awarded by the Government, through the
Department of Transportation and Communications (DOTC), to Philippine Air
Terminals, Co., Inc. (PIATCO) for the construction, operation and maintenance
of the Ninoy Aquino International Airport International Passenger Terminal III
(NAIA IPT III). Subsequent to the above Decision, a certain Ma. Cecilia L.
Pesayco filed a complaint with the Office of the Ombudsman against several
individuals for alleged violation of R.A. 3019. Among those charged was
herein respondent, who was then the Chairman and President of PIATCO, for
having supposedly conspired with then DOTC Secretary Arturo Enrile
(Secretary Enrile) in entering into a contract which is grossly and manifestly
disadvantageous to the government.
On September 16, 2004, the Office of the Deputy Ombudsman for Luzon
found probable cause to indict, among others, herein respondent for violation
of Section 3(g) of R.A. 3019. While there was likewise a finding of probable
cause against Secretary Enrile, he was no longer indicted because he died
prior to the issuance of the resolution finding probable cause.
Thus, in an Information dated January 13, 2005, respondent was charged
before the SB as follows:
On or about July 12, 1997, or sometime prior or subsequent thereto, in Pasay
City, Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the late ARTURO ENRILE, then Secretary of the Department of
Transportation and Communications (DOTC), committing the offense in

(2) that he entered into a contract or transaction on behalf of the government;

and
(3) that such contract or transaction is grossly and manifestly
disadvantageous to the government.11
At the outset, it bears to reiterate the settled rule that private persons, when
acting in conspiracy with public officers, may be indicted and, if found guilty,
held liable for the pertinent offenses under Section 3 of R.A. 3019, in
consonance with the avowed policy of the anti-graft law to repress certain acts
of public officers and private persons alike constituting graft or corrupt
practices act or which may lead thereto. 12 This is the controlling doctrine as
enunciated by this Court in previous cases, among which is a case involving
herein private respondent.13
The only question that needs to be settled in the present petition is whether
herein respondent, a private person, may be indicted for conspiracy in
violating Section 3(g) of R.A. 3019 even if the public officer, with whom he was
alleged to have conspired, has died prior to the filing of the Information.
Respondent contends that by reason of the death of Secretary Enrile, there is
no public officer who was charged in the Information and, as such,
prosecution against respondent may not prosper.
The Court is not persuaded.
It is true that by reason of Secretary Enrile's death, there is no longer any
public officer with whom respondent can be charged for violation of R.A. 3019.
It does not mean, however, that the allegation of conspiracy between them
can no longer be proved or that their alleged conspiracy is already expunged.
The only thing extinguished by the death of Secretary Enrile is his criminal
liability. His death did not extinguish the crime nor did it remove the basis of
the charge of conspiracy between him and private respondent. Stated
differently, the death of Secretary Enrile does not mean that there was no
public officer who allegedly violated Section 3 (g) of R.A. 3019. In fact, the
Office of the Deputy Ombudsman for Luzon found probable cause to indict
Secretary Enrile for infringement of Sections 3 (e) and (g) of R.A. 3019. 14
Were it not for his death, he should have been charged.
The requirement before a private person may be indicted for violation of
Section 3(g) of R.A. 3019, among others, is that such private person must be
alleged to have acted in conspiracy with a public officer. The law, however,
does not require that such person must, in all instances, be indicted together
with the public officer. If circumstances exist where the public officer may no
longer be charged in court, as in the present case where the public officer has
already died, the private person may be indicted alone.

Acting on the Motion to Quash filed by accused Henry T. Go dated April 22,
2005, and it appearing that Henry T. Go, the lone accused in this case is a
private person and his alleged co-conspirator-public official was already
deceased long before this case was filed in court, for lack of jurisdiction over
the person of the accused, the Court grants the Motion to Quash and the
Information filed in this case is hereby ordered quashed and dismissed. 9
Hence, the instant petition raising the following issues, to wit:
I
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED
A QUESTION OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW
OR APPLICABLE JURISPRUDENCE IN GRANTING THE DEMURRER TO
EVIDENCE AND IN DISMISSING CRIMINAL CASE NO. 28090 ON THE
GROUND THAT IT HAS NO JURISDICTION OVER THE PERSON OF
RESPONDENT GO.
II
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED
A QUESTION OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW
OR APPLICABLE JURISPRUDENCE, IN RULING THAT IT HAS NO
JURISDICTION OVER THE PERSON OF RESPONDENT GO DESPITE THE
IRREFUTABLE FACT THAT HE HAS ALREADY POSTED BAIL FOR HIS
PROVISIONAL LIBERTY
III
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED WHEN, IN
COMPLETE DISREGARD OF THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION, IT QUASHED THE INFORMATION AND DISMISSED
CRIMINAL CASE NO. 2809010
The Court finds the petition meritorious.
Section 3 (g) of R.A. 3019 provides:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
unlawful:
xxxx
(g) Entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the
public officer profited or will profit thereby.
The elements of the above provision are:
(1) that the accused is a public officer;

assumes pivotal importance in the determination of the liability of the

perpetrators. In stressing the significance of conspiracy in criminal law, this
Court in U.S. vs. Infante and Barreto opined that
While it is true that the penalties cannot be imposed for the mere act of
conspiring to commit a crime unless the statute specifically prescribes a
penalty therefor, nevertheless the existence of a conspiracy to commit a crime
is in many cases a fact of vital importance, when considered together with the
other evidence of record, in establishing the existence, of the consummated
crime and its commission by the conspirators.
Once an express or implied conspiracy is proved, all of the conspirators are
liable as co-principals regardless of the extent and character of their
respective active participation in the commission of the crime or crimes
perpetrated in furtherance of the conspiracy because in contemplation of law
the act of one is the act of all. The foregoing rule is anchored on the sound
principle that "when two or more persons unite to accomplish a criminal
object, whether through the physical volition of one, or all, proceeding
severally or collectively, each individual whose evil will actively contributes to
the wrong-doing is in law responsible for the whole, the same as though
performed by himself alone." Although it is axiomatic that no one is liable for
acts other than his own, "when two or more persons agree or conspire to
commit a crime, each is responsible for all the acts of the others, done in
furtherance of the agreement or conspiracy." The imposition of collective
liability upon the conspirators is clearly explained in one case where this Court
held that x x x it is impossible to graduate the separate liability of each
(conspirator) without taking into consideration the close and inseparable
relation of each of them with the criminal act, for the commission of which they
all acted by common agreement x x x. The crime must therefore in view of the
solidarity of the act and intent which existed between the x x x accused, be
regarded as the act of the band or party created by them, and they are all
equally responsible x x x
Verily, the moment it is established that the malefactors conspired and
confederated in the commission of the felony proved, collective liability of the
accused conspirators attaches by reason of the conspiracy, and the court
shall not speculate nor even investigate as to the actual degree of
participation of each of the perpetrators present at the scene of the crime. Of
course, as to any conspirator who was remote from the situs of aggression,
he could be drawn within the enveloping ambit of the conspiracy if it be
proved that through his moral ascendancy over the rest of the conspirators
the latter were moved or impelled to carry out the conspiracy.

Indeed, it is not necessary to join all alleged co-conspirators in an indictment

for conspiracy.15 If two or more persons enter into a conspiracy, any act done
by any of them pursuant to the agreement is, in contemplation of law, the act
of each of them and they are jointly responsible therefor.16 This means that
everything said, written or done by any of the conspirators in execution or
furtherance of the common purpose is deemed to have been said, done, or
written by each of them and it makes no difference whether the actual actor is
alive or dead, sane or insane at the time of trial. 17 The death of one of two or
more conspirators does not prevent the conviction of the survivor or
survivors.18 Thus, this Court held that:
x x x [a] conspiracy is in its nature a joint offense. One person cannot conspire
alone. The crime depends upon the joint act or intent of two or more persons.
Yet, it does not follow that one person cannot be convicted of conspiracy. So
long as the acquittal or death of a co-conspirator does not remove the bases
of a charge for conspiracy, one defendant may be found guilty of the offense. 19
The Court agrees with petitioner's contention that, as alleged in the
Information filed against respondent, which is deemed hypothetically admitted
in the latter's Motion to Quash, he (respondent) conspired with Secretary
Enrile in violating Section 3 (g) of R.A. 3019 and that in conspiracy, the act of
one is the act of all. Hence, the criminal liability incurred by a co-conspirator is
also incurred by the other co-conspirators.
Moreover, the Court agrees with petitioner that the avowed policy of the State
and the legislative intent to repress "acts of public officers and private persons
alike, which constitute graft or corrupt practices," 20 would be frustrated if the
death of a public officer would bar the prosecution of a private person who
conspired with such public officer in violating the Anti-Graft Law.
In this regard, this Court's disquisition in the early case of People v. Peralta 21
as to the nature of and the principles governing conspiracy, as construed
under Philippine jurisdiction, is instructive, to wit:
x x x A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Generally,
conspiracy is not a crime except when the law specifically provides a penalty
therefor as in treason, rebellion and sedition. The crime of conspiracy known
to the common law is not an indictable offense in the Philippines. An
agreement to commit a crime is a reprehensible act from the view-point of
morality, but as long as the conspirators do not perform overt acts in
furtherance of their malevolent design, the sovereignty of the State is not
outraged and the tranquility of the public remains undisturbed.
However, when in resolute execution of a common scheme, a felony is
committed by two or more malefactors, the existence of a conspiracy

in posting bail or in filing motions seeking affirmative relief is tantamount to

submission of his person to the jurisdiction of the court. 27
Thus, it has been held that:
When a defendant in a criminal case is brought before a competent court by
virtue of a warrant of arrest or otherwise, in order to avoid the submission of
his body to the jurisdiction of the court he must raise the question of the
courts jurisdiction over his person at the very earliest opportunity. If he gives
bail, demurs to the complaint or files any dilatory plea or pleads to the merits,
he thereby gives the court jurisdiction over his person. (State ex rel. John
Brown vs. Fitzgerald, 51 Minn., 534)
xxxx
As ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:
"[L]ack of jurisdiction over the person of the defendant may be waived either
expressly or impliedly. When a defendant voluntarily appears, he is deemed to
have submitted himself to the jurisdiction of the court. If he so wishes not to
waive this defense, he must do so seasonably by motion for the purpose of
objecting to the jurisdiction of the court; otherwise, he shall be deemed to
have submitted himself to that jurisdiction."
Moreover, "[w]here the appearance is by motion for the purpose of objecting
to the jurisdiction of the court over the person, it must be for the sole and
separate purpose of objecting to said jurisdiction. If the appearance is for any
other purpose, the defendant is deemed to have submitted himself to the
jurisdiction of the court. Such an appearance gives the court jurisdiction over
the person."
Verily, petitioners participation in the proceedings before the Sandiganbayan
was not confined to his opposition to the issuance of a warrant of arrest but
also covered other matters which called for respondent courts exercise of its
jurisdiction. Petitioner may not be heard now to deny said courts jurisdiction
over him. x x x.28
In the instant case, respondent did not make any special appearance to
question the jurisdiction of the SB over his person prior to his posting of bail
and filing his Motion for Consolidation. In fact, his Motion to Quash the
Information in Criminal Case No. 28090 only came after the SB issued an
Order requiring the prosecution to show cause why the case should not be
dismissed for lack of jurisdiction over his person.
As a recapitulation, it would not be amiss to point out that the instant case
involves a contract entered into by public officers representing the
government. More importantly, the SB is a special criminal court which has
exclusive original jurisdiction in all cases involving violations of R.A. 3019

In fine, the convergence of the wills of the conspirators in the scheming and
execution of the crime amply justifies the imputation to all of them the act of
any one of them. It is in this light that conspiracy is generally viewed not as a
separate indictable offense, but a rule for collectivizing criminal liability.
xxxx
x x x A time-honored rule in the corpus of our jurisprudence is that once
conspiracy is proved, all of the conspirators who acted in furtherance of the
common design are liable as co-principals. This rule of collective criminal
liability emanates from the ensnaring nature of conspiracy. The concerted
action of the conspirators in consummating their common purpose is a patent
display of their evil partnership, and for the consequences of such criminal
enterprise they must be held solidarily liable.22
This is not to say, however, that private respondent should be found guilty of
conspiring with Secretary Enrile. It is settled that the absence or presence of
conspiracy is factual in nature and involves evidentiary matters. 23 Hence, the
allegation of conspiracy against respondent is better left ventilated before the
trial court during trial, where respondent can adduce evidence to prove or
disprove its presence.
Respondent claims in his Manifestation and Motion 24 as well as in his Urgent
Motion to Resolve25 that in a different case, he was likewise indicted before
the SB for conspiracy with the late Secretary Enrile in violating the same
Section 3 (g) of R.A. 3019 by allegedly entering into another agreement (Side
Agreement) which is separate from the Concession Agreement subject of the
present case. The case was docketed as Criminal Case No. 28091. Here, the
SB, through a Resolution, granted respondent's motion to quash the
Information on the ground that the SB has no jurisdiction over the person of
respondent. The prosecution questioned the said SB Resolution before this
Court via a petition for review on certiorari. The petition was docketed as G.R.
No. 168919. In a minute resolution dated August 31, 2005, this Court denied
the petition finding no reversible error on the part of the SB. This Resolution
became final and executory on January 11, 2006. Respondent now argues
that this Court's resolution in G.R. No. 168919 should be applied in the instant
case.
The Court does not agree. Respondent should be reminded that prior to this
Court's ruling in G.R. No. 168919, he already posted bail for his provisional
liberty. In fact, he even filed a Motion for Consolidation 26 in Criminal Case No.
28091. The Court agrees with petitioner's contention that private respondent's
act of posting bail and filing his Motion for Consolidation vests the SB with
jurisdiction over his person. The rule is well settled that the act of an accused

DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari under Rule 45 of the Revised
Rules of Court of the Decision 1 of the Court of Appeals (CA) in CA-G.R. SP
No. 76563. The CA decision reversed the Resolution of the National Labor
Relations Commission (NLRC) in NLRC NCR CA No. 029319-01, which, in
turn, affirmed the Decision of the Labor Arbiter in NLRC NCR Case No. 30-1204787-00 dismissing the complaint of respondent Klaus K. Schonfeld.
The antecedent facts are as follows:
Respondent is a Canadian citizen and was a resident of New Westminster,
British Columbia, Canada. He had been a consultant in the field of
environmental engineering and water supply and sanitation. Pacicon
Philippines, Inc. (PPI) is a corporation duly established and incorporated in
accordance with the laws of the Philippines. The primary purpose of PPI was
to engage in the business of providing specialty and technical services both in
and out of the Philippines. 2 It is a subsidiary of Pacific Consultants
International of Japan (PCIJ). The president of PPI, Jens Peter Henrichsen,
who was also the director of PCIJ, was based in Tokyo, Japan. Henrichsen
commuted from Japan to Manila and vice versa, as well as in other countries
where PCIJ had business.
In 1997, PCIJ decided to engage in consultancy services for water and
sanitation in the Philippines. In October 1997, respondent was employed by
PCIJ, through Henrichsen, as Sector Manager of PPI in its Water and
Sanitation Department. However, PCIJ assigned him as PPI sector manager
in the Philippines. His salary was to be paid partly by PPI and PCIJ.
On January 7, 1998, Henrichsen transmitted a letter of employment to
respondent in Canada, requesting him to accept the same and affix his
conformity thereto. Respondent made some revisions in the letter of
employment and signed the contract.3 He then sent a copy to Henrichsen. The
letter of employment reads:
Mr. Klaus K. Schonfeld
II-365 Ginger Drive
New Westminster, B.C.
Canada V3L 5L5
Tokyo 7
January 1998
Dear Mr. Schonfeld,
Letter of Employment
This Letter of Employment with the attached General Conditions of
Employment constitutes the agreement under which you will be engaged by

committed by certain public officers, as enumerated in P.D. 1606 as amended

by R.A. 8249. This includes private individuals who are charged as coprincipals, accomplices or accessories with the said public officers. In the
instant case, respondent is being charged for violation of Section 3(g) of R.A.
3019, in conspiracy with then Secretary Enrile. Ideally, under the law, both
respondent and Secretary Enrile should have been charged before and tried
jointly by the Sandiganbayan. However, by reason of the death of the latter,
this can no longer be done. Nonetheless, for reasons already discussed, it
does not follow that the SB is already divested of its jurisdiction over the
person of and the case involving herein respondent. To rule otherwise would
mean that the power of a court to decide a case would no longer be based on
the law defining its jurisdiction but on other factors, such as the death of one
of the alleged offenders.
Lastly, the issues raised in the present petition involve matters which are mere
incidents in the main case and the main case has already been pending for
over nine (9) years. Thus, a referral of the case to the Regional Trial Court
would further delay the resolution of the main case and it would, by no means,
promote respondent's right to a speedy trial and a speedy disposition of his
case.
WHEREFORE, the petition is GRANTED. The Resolution of the
Sandiganbayan dated June 2, 2005, granting respondent's Motion to Quash,
is hereby REVERSED and SET ASIDE. The Sandiganbayan is forthwith
DIRECTED to proceed with deliberate dispatch in the disposition of Criminal
Case No. 28090.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 166920
February 19, 2007
PACIFIC CONSULTANTS INTERNATIONAL ASIA, INC. and JENS PETER
HENRICHSEN, Petitioners,
vs.
KLAUS K. SCHONFELD, Respondent.

as annotated and initialed4

Section 21 of the General Conditions of Employment appended to the letter of
employment reads:
21 Arbitration
Any question of interpretation, understanding or fulfillment of the conditions of
employment, as well as any question arising between the Employee and the
Company which is in consequence of or connected with his employment with
the Company and which can not be settled amicably, is to be finally settled,
binding to both parties through written submissions, by the Court of Arbitration
in London.5
Respondent arrived in the Philippines and assumed his position as PPI Sector
Manager. He was accorded the status of a resident alien.
As required by Rule XIV (Employment of Aliens) of the Omnibus Rules
Implementing the Labor Code, PPI applied for an Alien Employment Permit
(Permit) for respondent before the Department of Labor and Employment
(DOLE). It appended respondents contract of employment to the
application.1awphi1.net
On February 26, 1999, the DOLE granted the application and issued the
Permit to respondent. It reads:
Republic of the Philippines
Department of Labor & Employment
National Capital Region
ALIEN EMPLOYMENT PERMIT
ISSUED TO: SCHONFELD, KLAUS KURT
DATE OF BIRTH: January 11, 1942 NATIONALITY: Canadian
POSITION: VP WATER & SANITATION
EMPLOYER: PACICON PHILIPPINES, INC.
ADDRESS: 27/F Rufino Pacific Towers Bldg., Ayala Ave., Makati City
PERMIT
ISSUED ON: February 26, 1999 SIGNATURE OF BEARER:
VALID UNTIL: January 7, 2000 (Sgd.)
APPROVED: BIENVENIDO S. LAGUESMA
By: MAXIMO B. ANITO
REGIONAL DIRECTOR
(Emphasis supplied)6
Respondent received his compensation from PPI for the following periods:
February to June 1998, November to December 1998, and January to August
1999. He was also reimbursed by PPI for the expenses he incurred in
connection with his work as sector manager. He reported for work in Manila

our Company on the terms and conditions defined hereunder. In case of any
discrepancies or contradictions between this Letter of Employment and the
General Conditions of Employment, this Letter of Employment will prevail.
You will, from the date of commencement, be ["seconded"] to our subsidiary
Pacicon Philippines, Inc. in Manila, hereinafter referred as Pacicon. Pacicon
will provide you with a separate contract, which will define that part of the
present terms and conditions for which Pacicon is responsible. In case of any
discrepancies or contradictions between the present Letter of Employment
and the contract with Pacicon Philippines, Inc. or in the case that Pacicon
should not live up to its obligations, this Letter of Employment will prevail.
1. Project Country: The Philippines with possible short-term assignments in
other countries.
2. Duty Station: Manila, the Philippines.
3. Family Status: Married.
4. Position: Sector Manager, Water and Sanitation.
5. Commencement: 1st October 1997.
6. Remuneration: US$7,000.00 per month. The amount will be paid partly as a
local salary (US$2,100.00 per month) by Pacicon and partly as an offshore
salary (US$4,900.00) by PCI to bank accounts to be nominated by you.
A performance related component corresponding to 17.6% of the total annual
remuneration, subject to satisfactory performance against agreed tasks and
targets, paid offshore.
7. Accommodation: The company will provide partly furnished accommodation
to a rent including association fees, taxes and VAT not exceeding the Pesos
equivalent of US$2,900.00 per month.
8. Transportation: Included for in the remuneration.
9. Leave Travels: You are entitled to two leave travels per year.
10. Shipment of Personal
Effects: The maximum allowance is US$4,000.00.
11. Mobilization
Travel: Mobilization travel will be from New Westminster, B.C., Canada.
This letter is send (sic) to you in duplicate; we kindly request you to sign and
return one copy to us.
Yours sincerely,
Pacific Consultants International
Jens Peter Henrichsen
Above terms and conditions accepted
Date: 2 March 1998
(Sgd.)
Klaus Schonfeld

Other reliefs just and equitable under the premises are, likewise, prayed for. 12
1awphi1.net
Petitioners filed a Motion to Dismiss the complaint on the following grounds:
(1) the Labor Arbiter had no jurisdiction over the subject matter; and (2) venue
was improperly laid. It averred that respondent was a Canadian citizen, a
transient expatriate who had left the Philippines. He was employed and
dismissed by PCIJ, a foreign corporation with principal office in Tokyo, Japan.
Since respondents cause of action was based on his letter of employment
executed in Tokyo, Japan dated January 7, 1998, under the principle of lex
loci contractus, the complaint should have been filed in Tokyo, Japan.
Petitioners claimed that respondent did not offer any justification for filing his
complaint against PPI before the NLRC in the Philippines. Moreover, under
Section 12 of the General Conditions of Employment appended to the letter of
employment dated January 7, 1998, complainant and PCIJ had agreed that
any employment-related dispute should be brought before the London Court
of Arbitration. Since even the Supreme Court had already ruled that such an
agreement on venue is valid, Philippine courts have no jurisdiction. 13
Respondent opposed the Motion, contending that he was employed by PPI to
work in the Philippines under contract separate from his January 7, 1998
contract of employment with PCIJ. He insisted that his employer was PPI, a
Philippine-registered corporation; it is inconsequential that PPI is a whollyowned subsidiary of PCIJ because the two corporations have separate and
distinct personalities; and he received orders and instructions from
Henrichsen who was the president of PPI. He further insisted that the
principles of forum non conveniens and lex loci contractus do not apply, and
that although he is a Canadian citizen, Philippine Labor Laws apply in this
case.
Respondent adduced in evidence the following contract of employment dated
January 9, 1998 which he had entered into with Henrichsen:
Mr. Klaus K. Schonfeld
II-365 Ginger Drive
New Westminster, B.C.
Canada V3L 5L5
Manila 9 January, 1998
Dear Mr. Schonfeld,
Letter of Employment
This Letter of Employment with the attached General Conditions of
Employment constitutes the agreement, under which you will be engaged by
Pacicon Philippines, Inc. on the terms and conditions defined hereunder.

except for occasional assignments abroad, and received instructions from

Henrichsen.7
On May 5, 1999, respondent received a letter from Henrichsen informing him
that his employment had been terminated effective August 4, 1999 for the
reason that PCIJ and PPI had not been successful in the water and sanitation
sector in the Philippines.8 However, on July 24, 1999, Henrichsen, by
electronic mail,9 requested respondent to stay put in his job after August 5,
1999, until such time that he would be able to report on certain projects and
discuss all the opportunities he had developed. 10 Respondent continued his
work with PPI until the end of business hours on October 1, 1999.
Respondent filed with PPI several money claims, including unpaid salary,
leave pay, air fare from Manila to Canada, and cost of shipment of goods to
Canada. PPI partially settled some of his claims (US$5,635.99), but refused to
pay the rest.
On December 5, 2000, respondent filed a Complaint 11 for Illegal Dismissal
against petitioners PPI and Henrichsen with the Labor Arbiter. It was docketed
as NLRC-NCR Case No. 30-12-04787-00.
In his Complaint, respondent alleged that he was illegally dismissed; PPI had
not notified the DOLE of its decision to close one of its departments, which
resulted in his dismissal; and they failed to notify him that his employment was
terminated after August 4, 1999. Respondent also claimed for separation pay
and other unpaid benefits. He alleged that the company acted in bad faith and
disregarded his rights. He prayed for the following reliefs:
1. Judgment be rendered in his favor ordering the respondents to reinstate
complainant to his former position without loss of seniority and other privileges
and benefits, and to pay his full backwages from the time compensation was
with held (sic) from him up to the time of his actual reinstatement. In the
alternative, if reinstatement is no longer feasible, respondents must pay the
complainant full backwages, and separation pay equivalent to one month pay
for every year of service, or in the amount of US$16,400.00 as separation
pay;
2. Judgment be rendered ordering the respondents to pay the outstanding
monetary obligation to complainant in the amount of US$10,131.76
representing the balance of unpaid salaries, leave pay, cost of his air travel
and shipment of goods from Manila to Canada; and
3. Judgment be rendered ordering the respondent company to pay the
complainant damages in the amount of no less than US $10,000.00 and to
pay 10% of the total monetary award as attorneys fees, and costs.

WHEREFORE, finding merit in respondents Motion to Dismiss, the same is

hereby granted. The instant complaint filed by the complainant is dismissed
for lack of merit.
SO ORDERED.17
The Labor Arbiter found, among others, that the January 7, 1998 contract of
employment between respondent and PCIJ was controlling; the Philippines
was only the "duty station" where Schonfeld was required to work under the
General Conditions of Employment. PCIJ remained respondents employer
despite his having been sent to the Philippines. Since the parties had agreed
that any differences regarding employer-employee relationship should be
submitted to the jurisdiction of the court of arbitration in London, this
agreement is controlling.
On appeal, the NLRC agreed with the disquisitions of the Labor Arbiter and
affirmed the latters decision in toto.18
Respondent then filed a petition for certiorari under Rule 65 with the CA where
he raised the following arguments:
I
WITH ALL DUE RESPECT, THE HONORABLE NATIONAL LABOR
RELATIONS COMMISSION GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
AFFIRMED THE LABOR ARBITERS DECISION CONSIDERING THAT:
A. PETITIONERS TRUE EMPLOYER IS NOT PACIFIC CONSULTANTS
INTERNATIONAL OF JAPAN BUT RESPONDENT COMPANY, AND
THEREFORE, THE LABOR ARBITER HAS JURISDICTION OVER THE
INSTANT CASE; AND
B. THE PROPER VENUE FOR THE PRESENT COMPLAINT IS THE
ARBITRATION BRANCH OF THE NLRC AND NOT THE COURT OF
ARBITRATION IN LONDON.
II
WITH ALL DUE RESPECT, THE HONORABLE NATIONAL LABOR
RELATIONS COMMISSION GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
AFFIRMED THE DISMISSAL OF THE COMPLAINT CONSIDERING THAT
PETITIONERS TERMINATION FROM EMPLOYMENT IS ILLEGAL:
A. THE CLOSURE OF RESPONDENT COMPANYS WATER AND
SANITATION SECTOR WAS NOT BONA FIDE.
B. ASSUMING ARGUENDO THAT THE CLOSURE OF RESPONDENT
COMPANYS WATER AND SANITATION SECTOR WAS JUSTIFIABLE,

1. Project Country: The Philippines with possible assignments in other

countries.
2. Duty Station: Manila, the Philippines.
3. Family Status: Married.
4. Position: Sector Manager Water and Sanitation Sector.
5. Commencement: 1 January, 1998.
6. Remuneration: US$3,100.00 per month payable to a bank account to be
nominated by you.
7. Accommodation: The company will provide partly furnished accommodation
to a rent including association fees, taxes and VAT not exceeding the Pesos
equivalent of US$2300.00 per month.
8. Transportation: Included for in the remuneration.
9. Shipment of Personal The maximum allowance is US$2500.00 in Effects:
connection with initial shipment of personal effects from Canada.
10. Mobilization Travel: Mobilization travel will be from New Westminster,
B.C., Canada.
This letter is send (sic) to you in duplicate; we kindly request you to sign and
return one copy to us.
Yours sincerely,
Pacicon Philippines, Inc.
Jens Peter Henrichsen
President14
According to respondent, the material allegations of the complaint, not
petitioners defenses, determine which quasi-judicial body has jurisdiction.
Section 21 of the Arbitration Clause in the General Conditions of Employment
does not provide for an exclusive venue where the complaint against PPI for
violation of the Philippine Labor Laws may be filed. Respondent pointed out
that PPI had adopted two inconsistent positions: it was first alleged that he
should have filed his complaint in Tokyo, Japan; and it later insisted that the
complaint should have been filed in the London Court of Arbitration. 15
In their reply, petitioners claimed that respondents employer was PCIJ, which
had exercised supervision and control over him, and not PPI. Respondent
was dismissed by PPI via a letter of Henrichsen under the letterhead of PCIJ
in Japan.16 The letter of employment dated January 9, 1998 which respondent
relies upon did not bear his (respondents) signature nor that of Henrichsen.
On August 2, 2001, the Labor Arbiter rendered a decision granting petitioners
Motion to Dismiss. The dispositive portion reads:

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT AN

EMPLOYMENT RELATIONSHIP EXISTED BETWEEN PETITIONERS AND
RESPONDENT DESPITE THE UNDISPUTED FACT THAT RESPONDENT, A
FOREIGN NATIONAL, WAS HIRED ABROAD BY A FOREIGN
CORPORATION, EXECUTED HIS EMPLOYMENT CONTRACT ABROAD,
AND WAS MERELY "SECONDED" TO PETITIONERS SINCE HIS WORK
ASSIGNMENT WAS IN MANILA.
II
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE
LABOR ARBITER A QUO HAS JURISDICTION OVER RESPONDENTS
CLAIM DESPITE THE UNDISPUTED FACT THAT RESPONDENT, A
FOREIGN NATIONAL, WAS HIRED ABROAD BY A FOREIGN
CORPORATION, EXECUTED HIS EMPLOYMENT CONTRACT ABROAD,
AND HAD AGREED THAT ANY DISPUTE BETWEEN THEM "SHALL BE
FINALLY SETTLED BY THE COURT OF ARBITRATION IN LONDON."24
Petitioners fault the CA for reversing the findings of the Labor Arbiter and the
NLRC. Petitioners aver that the findings of the Labor Arbiter, as affirmed by
the NLRC, are conclusive on the CA. They maintain that it is not within the
province of the appellate court in a petition for certiorari to review the facts
and evidence on record since there was no conflict in the factual findings and
conclusions of the lower tribunals. Petitioners assert that such findings and
conclusions, having been made by agencies with expertise on the subject
matter, should be deemed binding and conclusive. They contend that it was
the PCIJ which employed respondent as an employee; it merely seconded
him to petitioner PPI in the Philippines, and assigned him to work in Manila as
Sector Manager. Petitioner PPI, being a wholly-owned subsidiary of PCIJ, was
never the employer of respondent.
Petitioners assert that the January 9, 1998 letter of employment which
respondent presented to prove his employment with petitioner PPI is of
doubtful authenticity since it was unsigned by the purported parties. They
insist that PCIJ paid respondents salaries and only coursed the same through
petitioner PPI. PPI, being its subsidiary, had supervision and control over
respondents work, and had the responsibilities of monitoring the "daily
administration" of respondent. Respondent cannot rely on the pay slips,
expenses claim forms, and reimbursement memoranda to prove that he was
an employee of petitioner PPI because these documents are of doubtful
authenticity.
Petitioners further contend that, although Henrichsen was both a director of
PCIJ and president of PPI, it was he who signed the termination letter of

PETITIONERS DISMISSAL WAS INEFFECTUAL AS THE DEPARTMENT OF

LABOR AND EMPLOYMENT (DOLE) AND PETITIONER WAS NOT
NOTIFIED THIRTY (30) DAYS BEFORE THE ALLEGED CLOSURE.19
Respondent averred that the absence or existence of a written contract of
employment is not decisive of whether he is an employee of PPI. He
maintained that PPI, through its president Henrichsen, directed his
work/duties as Sector Manager of PPI; proof of this was his letter-proposal to
the Development Bank of the Philippines for PPI to provide consultancy
services for the Construction Supervision of the Water Supply and Sanitation
component of the World Bank-Assisted LGU Urban Water and Sanitation
Project.20 He emphasized that as gleaned from Alien Employment Permit
(AEP) No. M-029908-5017 issued to him by DOLE on February 26, 1999, he
is an employee of PPI. It was PPI president Henrichsen who terminated his
employment; PPI also paid his salary and reimbursed his expenses related to
transactions abroad. That PPI is a wholly-owned subsidiary of PCIJ is of no
moment because the two corporations have separate and distinct
personalities.
The CA found the petition meritorious. Applying the four-fold test 21 of
determining an employer-employee relationship, the CA declared that
respondent was an employee of PPI. On the issue of venue, the appellate
court declared that, even under the January 7, 1998 contract of employment,
the parties were not precluded from bringing a case related thereto in other
venues. While there was, indeed, an agreement that issues between the
parties were to be resolved in the London Court of Arbitration, the venue is not
exclusive, since there is no stipulation that the complaint cannot be filed in
any other forum other than in the Philippines.
On November 25, 2004, the CA rendered its decision granting the petition, the
decretal portion of which reads:
WHEREFORE, the petition is GRANTED in that the assailed Resolutions of
the NLRC are hereby REVERSED and SET ASIDE. Let this case be
REMANDED to the Labor Arbiter a quo for disposition of the case on the
merits.
SO ORDERED.22
A motion for the reconsideration of the above decision was filed by PPI and
Henrichsen, which the appellate court denied for lack of merit. 23
In the present recourse, PPI and Henrichsen, as petitioners, raise the
following issues:
I

Pambansa Blg. 129, as amended by R.A. No. 7902, the CA is empowered to

pass upon the evidence, if and when necessary, to resolve factual issues. 27 If
it appears that the Labor Arbiter and the NLRC misappreciated the evidence
to such an extent as to compel a contrary conclusion if such evidence had
been properly appreciated, the factual findings of such tribunals cannot be
given great respect and finality.28
Inexplicably, the Labor Arbiter and the NLRC ignored the documentary
evidence which respondent appended to his pleadings showing that he was
an employee of petitioner PPI; they merely focused on the January 7, 1998
letter of employment and Section 21 of the General Conditions of
Employment.
Petitioner PPI applied for the issuance of an AEP to respondent before the
DOLE. In said application, PPI averred that respondent is its employee. To
show that this was the case, PPI appended a copy of respondents
employment contract. The DOLE then granted the application of PPI and
issued the permit.
It bears stressing that under the Omnibus Rules Implementing the Labor
Code, one of the requirements for the issuance of an employment permit is
the employment contract. Section 5, Rule XIV (Employment of Aliens) of the
Omnibus Rules provides:
SECTION 1. Coverage. This rule shall apply to all aliens employed or
seeking employment in the Philippines and the present or prospective
employers.
SECTION 2. Submission of list. All employers employing foreign nationals,
whether resident or non-resident, shall submit a list of nationals to the Bureau
indicating their names, citizenship, foreign and local address, nature of
employment and status of stay in the Philippines.
SECTION 3. Registration of resident aliens. All employed resident aliens
shall register with the Bureau under such guidelines as may be issued by it.
SECTION 4. Employment permit required for entry. No alien seeking
employment, whether as a resident or non-resident, may enter the Philippines
without first securing an employment permit from the Ministry. If an alien
enters the country under a non-working visa and wishes to be employed
thereafter, he may only be allowed to be employed upon presentation of a
duly approved employment permit.
SECTION 5. Requirements for employment permit applicants. The
application for an employment permit shall be accompanied by the following:

respondent upon instructions of PCIJ. This is buttressed by the fact that

PCIJs letterhead was used to inform him that his employment was
terminated. Petitioners further assert that all work instructions came from PCIJ
and that petitioner PPI only served as a "conduit." Respondents Alien
Employment Permit stating that petitioner PPI was his employer is but a
necessary consequence of his being "seconded" thereto. It is not sufficient
proof that petitioner PPI is respondents employer. The entry was only made
to comply with the DOLE requirements.
There being no evidence that petitioner PPI is the employer of respondent,
the Labor Arbiter has no jurisdiction over respondents complaint.
Petitioners aver that since respondent is a Canadian citizen, the CA erred in
ignoring their claim that the principlesof forum non conveniens and lex loci
contractus are applicable. They also point out that the principal office, officers
and staff of PCIJ are stationed in Tokyo, Japan; and the contract of
employment of respondent was executed in Tokyo, Japan.
Moreover, under Section 21 of the General Conditions for Employment
incorporated in respondents January 7, 1998 letter of employment, the
dispute between respondent and PCIJ should be settled by the court of
arbitration of London. Petitioners claim that the words used therein are
sufficient to show the exclusive and restrictive nature of the stipulation on
venue.
Petitioners insist that the U.S. Labor-Management Act applies only to U.S.
workers and employers, while the Labor Code of the Philippines applies only
to Filipino employers and Philippine-based employers and their employees,
not to PCIJ. In fine, the jurisdictions of the NLRC and Labor Arbiter do not
extend to foreign workers who executed employment agreements with foreign
employers abroad, although "seconded" to the Philippines. 25
In his Comment,26 respondent maintains that petitioners raised factual issues
in their petition which are proscribed under Section 1, Rule 45 of the Rules of
Court. The finding of the CA that he had been an employee of petitioner PPI
and not of PCIJ is buttressed by his documentary evidence which both the
Labor Arbiter and the NLRC ignored; they erroneously opted to dismiss his
complaint on the basis of the letter of employment and Section 21 of the
General Conditions of Employment. In contrast, the CA took into account the
evidence on record and applied case law correctly.
The petition is denied for lack of merit.
It must be stressed that in resolving a petition for certiorari, the CA is not
proscribed from reviewing the evidence on record. Under Section 9 of Batas

the power of dismissal; and (d) the employers power to control the
employees conduct. It is the so-called "control test" which constitutes the
most important index of the existence of the employer-employee relationship
that is, whether the employer controls or has reserved the right to control the
employee not only as to the result of the work to be done but also as to the
means and methods by which the same is to be accomplished. Stated
otherwise, an employer-employee relationship exists where the person for
whom the services are performed reserves the right to control not only the
end to be achieved but also the means to be used in reaching such end. 29 We
quote with approval the following ruling of the CA:
[T]here is, indeed, substantial evidence on record which would erase any
doubt that the respondent company is the true employer of petitioner. In the
case at bar, the power to control and supervise petitioners work performance
devolved upon the respondent company. Likewise, the power to terminate the
employment relationship was exercised by the President of the respondent
company. It is not the letterhead used by the company in the termination letter
which controls, but the person who exercised the power to terminate the
employee. It is also inconsequential if the second letter of employment
executed in the Philippines was not signed by the petitioner. An employeremployee relationship may indeed exist even in the absence of a written
contract, so long as the four elements mentioned in the Mafinco case are all
present.30
The settled rule on stipulations regarding venue, as held by this Court in the
vintage case of Philippine Banking Corporation v. Tensuan, 31 is that while they
are considered valid and enforceable, venue stipulations in a contract do not,
as a rule, supersede the general rule set forth in Rule 4 of the Revised Rules
of Court in the absence of qualifying or restrictive words. They should be
considered merely as an agreement or additional forum, not as limiting venue
to the specified place. They are not exclusive but, rather permissive. If the
intention of the parties were to restrict venue, there must be accompanying
language clearly and categorically expressing their purpose and design that
actions between them be litigated only at the place named by them. 32
In the instant case, no restrictive words like "only," "solely," "exclusively in this
court," "in no other court save ," "particularly," "nowhere else but/except ,"
or words of equal import were stated in the contract. 33 It cannot be said that
the court of arbitration in London is an exclusive venue to bring forth any
complaint arising out of the employment contract.

(a) Curriculum vitae duly signed by the applicant indicating his educational
background, his work experience and other data showing that he possesses
technical skills in his trade or profession.
(b) Contract of employment between the employer and the principal which
shall embody the following, among others:
1. That the non-resident alien worker shall comply with all applicable laws and
rules and regulations of the Philippines;
2. That the non-resident alien worker and the employer shall bind themselves
to train at least two (2) Filipino understudies for a period to be determined by
the Minister; and
3. That he shall not engage in any gainful employment other than that for
which he was issued a permit.
(c) A designation by the employer of at least two (2) understudies for every
alien worker. Such understudies must be the most ranking regular employees
in the section or department for which the expatriates are being hired to insure
the actual transfer of technology.
Under Section 6 of the Rule, the DOLE may issue an alien employment permit
based only on the following:
(a) Compliance by the applicant and his employer with the requirements of
Section 2 hereof;
(b) Report of the Bureau Director as to the availability or non-availability of
any person in the Philippines who is competent and willing to do the job for
which the services of the applicant are desired;
(c) His assessment as to whether or not the employment of the applicant will
redound to the national interest;
(d) Admissibility of the alien as certified by the Commission on Immigration
and Deportation;
(e) The recommendation of the Board of Investments or other appropriate
government agencies if the applicant will be employed in preferred areas of
investments or in accordance with the imperative of economic development.
Thus, as claimed by respondent, he had an employment contract with
petitioner PPI; otherwise, petitioner PPI would not have filed an application for
a Permit with the DOLE. Petitioners are thus estopped from alleging that the
PCIJ, not petitioner PPI, had been the employer of respondent all along.
We agree with the conclusion of the CA that there was an employer-employee
relationship between petitioner PPI and respondent using the four-fold test.
Jurisprudence is firmly settled that whenever the existence of an employment
relationship is in dispute, four elements constitute the reliable yardstick: (a)
the selection and engagement of the employee; (b) the payment of wages; (c)

Third. In Bank of America, NT&SA, Bank of America International, Ltd. v.

Court of Appeals,36 this Court held that:
x x x [a] Philippine Court may assume jurisdiction over the case if it chooses
to do so; provided, that the following requisites are met: (1) that the Philippine
Court is one to which the parties may conveniently resort to; (2) that the
Philippine Court is in a position to make an intelligent decision as to the law
and the facts; and, (3) that the Philippine Court has or is likely to have power
to enforce its decision. x x x
Admittedly, all the foregoing requisites are present in this case.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals
in CA-G.R. SP No. 76563 is AFFIRMED. This case is REMANDED to the
Labor Arbiter for disposition of the case on the merits. Cost against
petitioners.
SO ORDERED.

Petitioners contend that respondent should have filed his Complaint in his
place of permanent residence, or where the PCIJ holds its principal office, at
the place where the contract of employment was signed, in London as stated
in their contract. By enumerating possible venues where respondent could
have filed his complaint, however, petitioners themselves admitted that the
provision on venue in the employment contract is indeed merely permissive.
Petitioners insistence on the application of the principle of forum non
conveniens must be rejected. The bare fact that respondent is a Canadian
citizen and was a repatriate does not warrant the application of the principle
for the following reasons:
First. The Labor Code of the Philippines does not include forum non
conveniens as a ground for the dismissal of the complaint. 34
Second. The propriety of dismissing a case based on this principle requires a
factual determination; hence, it is properly considered as defense. 35