PFRDigest – Philippine Export & Foreign Loan Guarantee Corp. Vs.

Eusebio
Construction, Inc., G.R. No. 140047, July 13, 2004

Facts:
On November 8, 1980, State Organization of Buildings, Ministry of Housing, and
Construction, Baghdad, Iraq, awarded the construction of the Institute of Physical
Therapy–Medical Rehabilitation Center, Phase II, in Baghdad, Iraq, to Ajyal
Trading and Contracting Company, a firm duly licensed with the Kuwait Chamber
of Commerce.

On March 7, 1981, in behalf of Spouses Eduardo and Iluminada Santos, 3-Plex

International, Inc a local contractor engaged in construction business, entered
into a joint venture agreement with Ajyal. However, since it was not accredited
under the Philippine Overseas Construction Board, it had to assign and transfer all
its right to VPECI and entered into an agreement that the execution of the project
will be under their joint management. To comply with the requirements
of performance bond, 3-Plex and VPECI applied for the issuance of a guarantee
with PhilGuarantee, a government financial institution empowered to issue
guarantees for qualified Filipino contractors to secure the performance of
approved service contracts abroad. Subsequently, letters of guarantee were
issued by Philguarantee to the Rafidain Bank of Baghdad. Al Ahli Bank of Kuwait
was engaged to provide a counter-guarantee to Rafidain Bank, but it required a
similar counter-guarantee in its favor from the PhilGuarantee. The Surety
Bond was later amended to increase the amount of coverage and to change the
bank in whose favor the petitioner's guarantee was issued, from Rafidain Bank to
Al Ahli Bank of Kuwait. SOB and the joint venture VPECI and Ajyal executed the
service contract for the construction of the project. However, they were not able
to start the project on schedule because of that surety bond was also extended
and the Advance Payment Guarantee was extended three times more until it was
cancelled for reimbursement.

On 26 October 1986, Al Ahli Bank of Kuwait sent a telex call to the petitioner
demanding full payment of its performance bond counter-guarantee. VPECI
advised the PhilGuarantee not to pay Al Ahli Bank because efforts were being
exerted for the amicable settlement of the Project. VPECI received another telex
message from Al Ahli Bank stating that it had already paid to Rafidain Bank but
VPEIC insisted on not paying however Central Bank authorized the remittance to
Al Ahli Bank. PhilGuarantee informed VPECI that it would remit payment to Al Ahli
Bank, and reiterated the joint and solidary obligation of the respondents to
reimburse the PhilGuarantee for the advances made on its counter-guarantee but
they failed to pay so a case was filed.

Issue:
Whether or not the Philippine laws or Iraq’s laws should be applied in
determining VPECI's failure to pay in the performance of its obligations under the
service contract.

Ruling:
Yes. In this case, the laws of Iraq bear important link to the contract, since one of
the parties is the Iraqi Government and the place of performance is in Iraq.
Consequently, the problem of whether respondent VPECI evaded its obligations
may be determined by the laws of Iraq. However, those foreign laws of Iraq were
not properly alleged and prove. Under the doctrine of processual presumption,
where a foreign law is not pleaded or, even if pleaded, is not proved, the
presumption is that foreign law is the same as ours. Further, the Supreme Court
held that the petitioner guarantor should have waited for the natural course of
guaranty. Petitioner as a guarantor cannot be compelled to pay the creditor SOB
unless the property of the debtor VPECI has been exhausted and all
legal remedies against the said debtor have been resorted to by the creditor. It
could also set up compensation as regards what the creditor SOB may owe the
principal debtor VPECI. In this case, however, the petitioner has clearly waived
these rights and remedies by making the payment of an obligation that was yet to
be shown to be rightfully due the creditor and demandable of the principal
debtor.