(Part 2: Paper Tigers and Lawfare)

We established in the previous chapter that the very foundation of Antonio T. Carpio’s history of lies insofar as the South China Seas discourse is a paper tiger.

A “Paper tiger” is a literal English translation of the Chinese phrase zhilaohu (纸老虎 / 紙老虎), refering to something or someone that claims or appears to be powerful or threatening, but is actually ineffectual and unable to withstand challenge. (Wikipedia)

To sum up:

  1. The Permanent Court of Arbitration is a private arbitral body.
  2. It is not in any way connected with the United Nations and has no enforcement capability. In private arbitrations, the enforcement of decisions belongs to the contending parties.
  3. In the case the Philippine filed against China, no arbitration took place, as arbitration necessitates voluntary participation by contending parties. China did not participate.

China’s opting out of the process did not put China under the jurisdiction of the PCA, and as Ambassador Rosario Manalo said the only thing we achieved was megaphone to the world our position in the South China Seas.

In short, public relations.

Cost of Arbitration

President BS Aquino and his foreign affairs secretary Albert del Rosario proclaimed however that the PCA ruling was a “victory,” a “landmark” to the Philippines.

Actually, with no legal mooring established after the spreadsheets were determined, it was more of a “phyrrhic” victory.

The government paid $7 million in legal fees to the American legal firm Foley Hoag LLP to represent the Philippines in the two-and-a half year “arbitration” filed on January 22, 2013 with a ruling made on July, 2016.

Counsel for the Philippines Paul S. Reichler. Former foreign affairs secretary Albert Del Rosario is shown at his immediate left. The blurred face farther to Del Rosario’s left belongs to Antonio T. Carpio.

  That was about three hundred fifty million in Philippine currency.

The $7 million (P328,996,500 at P47 to $1) was the third ceiling set, more than 65 per cent higher than the original contract fee of $4,212,000 agreed upon in December 2012 by then Solicitor General and now Supreme Court Associate Justice Francis Jardeleza and Paul S. Reichler of Foley Hoag.

Reichler headed a team of six American and British lawyers from Foley Hoag, which has offices in Washington D.C., Boston and Paris.

Other members of the Philippine legal team are Lawrence H. Martin and Andrew B. Loewenstein, both from Foley Hoag; Bernard H. Oxman of University of Miami School of Law, Miami; Philippe Sands of Matrix Chambers, London; and Alan Boyle of Essex Court Chambers, London.

Counsel for the Philippines Philippe Sands. Former solicitor-general Florin Hilbay is at his immediate back.

The original cap of $4,212,000 was adjusted to $5,870,000 in July 2015 under a supplemental agreement that would “cover all legal services and expenses through the end of the oral hearings on the merits of the Philippines claim, but exclude any post hearing proceedings and any extraordinary hearings such as requests for provisional measures.”

Counsel for the Philippines Bernard H. Oxman, Alan Boyle, and Lawrence H. Martin.
Photos courtesy of the Permanent Court of Arbitration.

In December 2015, Foley Hoag exhausted the payment and sought another adjustment of the ceiling.

Vera Files said the fee of at $7 million does not include the cost of arbitration which PCA asks Parties involved in the case to shoulder.

An affluent picnic

The PCA is not part of the United Nations but is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes.

Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding and other dispute resolution proceedings among various combinations of states, state entities, intergovernmental organizations, and private parties.

Its rules of procedure require fees and expenses of members of the Tribunal, Registry, and experts appointed to assist the Tribunal, as well as all other expenses on the venue and facilities including hearings and meetings, information technology support, among many others.

According to my source inside the Department of Foreign Affairs, those items plus the attendance of a bevy of Aquino officials who “graced” the hearings, a safe estimate would have reached another seven hundred million, which means that the arbitration costs exceed a billion pesos of Filipino taxpayers’ money.

If this were a valid and legitimate process, China should have shared half of the expenses or as pre-agreed upon by participating parties.

That drew a reaction from Ambassador Manalo, speaking before Tapatan sa Aristocrat on October 16,2017, “an arbitration was not set up correctly…it was just a Philippine panel handpicking the people who would deliberate the very issues that we want…at binabayaran yun noong panahon nila (and we paid them at that instance). E ikaw ba naman at kung binabayaran at nadoon ka, e hindi mo naman ibibigay ang pabor sa kanila ang desisyon? (If you were paid na you were there, will you not give them the favor in your decision?)

In a statement to Vera Files, Joel Butuyan of Roque & Butuyan Law Office, who has handled cases in the World Bank’s International Centre for Settlement of Investment Disputes said, “The Philippines does not lack legal talent and expertise that equal those of the foreign lawyers who successfully represented the Philippines in the West Philippine Sea arbitration.”

“In fact, Philippine lawyers would have had the advantage of unequalled passion and dedication if they were given the chance to represent their country,” Butuyan said. “And certainly, Philippine lawyers would have been much less expensive.”

Let me ask you then, under what overpowering motivation could former associate justice Carpio be defending this monumental fraud?

Certainly not patriotism

The answer is lawfare.

The lawfare that Antonio T. Carpio has staged against China and President Duterte is not just his own but more of an adjunct of the Albert del Rosario Institute for Strategic and International Studies (ADR-ISIS), relaunched from Stratbase Research Institute (SRI) on its tenth anniversary on November 21, 2014.

Recently, this same organization morphed into further readjusting its name to Stratbase ADR Institute for Strategic and International Studies, reducing its principal’s name to bare initials, after an incident last year when he struck a series of bad publicity for wanting to bully his entry into Hongkong to attend a board meeting of the First Pacific.

Del Rosario, a private citizen but who was traveling on a diplomatic passport, was supposed to go to a board and shareholders meeting of investment management and holding firm First Pacific Company Limited, where he has been a non-executive director since June 2016.

But lest we be sidetracked, we shall return to this episode in our later chapters, and return to a definition of lawfare.

Lawfare is not about the rule of law.

Wikipedia has a definition.  “Lawfare,” in fact, “is the misuse of legal systems and principles against an enemy, such as by damaging or de-legitimizing them, tying up their time or winning a public relations victory.

“The term is a portmanteau of the words law and warfare.”

Staging the Permanent Court of Arbitration was a classic lawfare strategy.

(To be continued)