Airports figure prominently in the Philippine public-private partnership (PPP) scene. Following the award of the Mactan-Cebu International Airport project in 2014, and its implementation, various airport projects have entered the PPP pipeline: the planned rehabilitation and/or expansion of the Ninoy Aquino International Airport (NAIA); unsolicited proposals for design, financing and construction of international airports in Bulacan and Clark, Pampanga; and regional airports projects involving airports in Bohol, Laguindingan, Davao, Bacolod, and Iloilo.
A major concern for participants in these projects is airport design and operations – in particular, which set of standards should private proponents or their contractors comply with in the design and operation of airports?
Republic Act No. 9497, otherwise known as the Civil Aviation Authority Act of 2008, provides that the Civil Aviation Authority of the Philippines (CAAP) may promulgate rules and regulations in the interest of safety in air commerce pertaining to aerodromes, both public and private-owned. An aerodrome is defined as “an airport, a defined area on land or water (including any building, installation and equipment) intended to be used either wholly or in part for the arrival, departure and surface movement of aircraft”. In this regard, the CAAP issued the Civil Aviation Regulation Governing Aerodromes (CAR-Aerodromes) and the Manual of Standards for Aerodromes (MOS).
The Philippines, along with 190 other states, is a signatory to the Convention on International Civil Aviation (7 December 1944; the Chicago Convention), which sets out principles and arrangements for the safe and orderly development of international civil aviation. Article 28 of the Chicago Convention requires contracting states to provide in their territory airports “in accordance with the standards and practices recommended or established from time to time”. Through the Chicago Convention, the International Civil Aviation Organization (ICAO) was established to adopt and amend international standards and recommended practices on aviation, including characteristics of airports. The ICAO issues international standards and recommended practices (SARPs) which are annexed to the Chicago Convention.
The Philippines, however, does not incorporate the SARPs in all respects. The CAR-Aerodromes provides that any reference to aerodrome standards and practices is a reference to the national standards set out in the MOS. While the MOS specifies that it contains the ICAO SARPs on aerodrome design and operations (annex 14 of the Chicago Convention), it also provides that “where there is a difference between a standard prescribed in the ICAO annexes to the Chicago Convention and one prescribed in this MOS, the MOS standard shall prevail”.
The differences from ICAO SARPs are published in the Aeronautical Information Publication (AIP) Philippines. Some differences between the MOS and the SARPs are: aerodrome dimensions; dimensions of clearways, stopways and taxiways; specifications for taxiway shoulders, aprons, markings and lights; and indicators and signalling devices. The latest amendment to the AIP is amendment 62, which takes effect on 25 May 2017.
The concession agreements of airport PPP projects typically provide that all work necessary for design, construction and completion of the concessionaire O&M facilities must meet the standards as may be prescribed by the ICAO SARPs. Similarly, the concessionaire is required to comply with all applicable civil aviation industry standards specified by the Philippines, and where not specified as such, specified by the ICAO, which may come into force and be binding on a party.
These contractual provisions create confusion among potential bidders, who are left in a quandary over whether the reference to the ICAO SARPs refers to any and all SARPs.
It should be noted that international standards are not necessarily operative in the Philippines unless the same are: (1) imposed through a self-executing treaty ratified by the Philippines; (2) transformed into domestic rules by the legislative or executive department; or (3) recognized as part of customary international law by the Supreme Court. Consequently, reference to the ICAO standards in PPP documents should be interpreted to refer only to those adopted by the Philippines, otherwise the provisions would go against the reservations made by the Philippines to SARPs.
This is the more reasonable interpretation because it is consistent with the provisions of the Chicago Convention, which recognizes that states may find it impracticable to comply in all respects with international standards, or may deem it necessary to adopt regulations that differ in any respect from international standards.
We believe that the grantors of Philippine airport projects should endeavour to clarify in concession agreements that reference to the ICAO SARPs refers only to those adopted by the Philippines to enable prospective bidders to submit more intelligent and realistic bids.
AILEEN SANGUIR is a junior associate at the firm. She can be reached at +632 960 2845 (loc. 205) or by email at email@example.com