This country-specific Q&A provides an overview to Lending & Secured Finance laws and regulations that may occur in Philippines.
Do foreign lenders require a licence/regulatory approval to lend into your jurisdiction or take the benefit of security over assets located in your jurisdiction?
Unless the lending activity amounts to doing business in the Philippines, foreign lenders do not require a license to lend or take security in the Philippines. However, the lending transaction may require regulatory approval or registration, as the case may be.
Foreign loans to the public sector require prior approval from the central bank of the Philippines, Bangko Sentral ng Pilipinas (BSP). Publicly-guaranteed foreign loans to the private sector require prior BSP approval applied for and secured at least 30 banking days before the target date of execution of the loan agreements and, if to be serviced with foreign exchange resources of the Philippine banking system, BSP registration within six months from utilization of proceeds. Foreign loans to the private sector which will be serviced with foreign exchange resources of the Philippine banking system require submission of notice to the BSP within 30 days from signing the loan agreement, and BSP registration within 30 days from drawdown date (for short-term loans) and within six months from utilization of proceeds (for medium- and long-term loans).
The ability of foreign lenders to hold security over real property in the Philippines is subject to the restriction against a foreign lender/mortgagee acquiring land in the Philippines or taking possession of the mortgaged property during the existence of the mortgage except after the default and for the sole purpose of foreclosure, receivership, enforcement or other proceedings and in no case for a period of more than five years from actual possession. Such foreign lenders are also prohibited from bidding or taking part in any sale of such real property in case of foreclosure.
Are there any laws or regulations limiting the amount of interest that can be charged by lenders?
With the suspension of the Usury Law which limits interests on lending, there no longer exists a law or regulation limiting the amount of interest in lending. In general, parties to a lending agreement may stipulate any interest rate. However, courts can interfere by declaring stipulated interest rates unconscionable. The BSP may also evaluate the compliance of the stipulated interest rate with prevailing rates in the international market when evaluating applications for foreign loan approval or registration.
Are there any laws or regulations relating to the disbursement of foreign currency loan proceeds into, or the repayment of principal, interest or fees in foreign currency from, your jurisdiction?
The BSP Manual of Regulations on Foreign Exchange Transactions (the “Manual”) governs the disbursement of foreign currency loan proceeds into, and the servicing of the loan principal, interest or fees in foreign currency from, the Philippines.
The Manual regulates the timing of disbursement of foreign currency loan proceeds. For instance, the Monetary Board, a seven member body through which the powers and functions of the BSP are exercised (the “Monetary Board”), requires the registration of foreign loans within 30 days from drawdown date of short term loans and within 6 months from utilization of medium and long term loans. For public sector foreign loans, no disbursement can be made until the loan is approved. In addition to such approval, post-authorization registration of publicly guaranteed private sector loans are required to be made within 6 months from utilization of proceeds.
The Manual also regulates the servicing foreign loans, requiring adherence to the requirements under the Appendix 1.3 of the Manual for servicing of loans reports on loan repayments made for registered loans. The Monetary Board provides the forms and guidelines to be followed in complying with the reporting requirements.
Can a company that is incorporated in your jurisdiction grant security over its future assets or for future obligations?
For real property, the law requires the mortgagor to be the absolute owner of the property mortgaged. Accordingly, a party to a contract may not constitute a real estate mortgage over property the mortgagor does not yet own. However, for personal property, a security agreement may provide for the creation of a security interest in a future personal property, but the security interest in that property is created only when the grantor acquires rights in it or the power to encumber it.
Can a single security agreement be used to take security over all of a company’s assets or are separate agreements required in relation to each type of asset?
A single security agreement can be used to take security over all of a company’s assets provided the description of the collateral, whether it is specific or general, reasonably identifies the collateral.
Are there any notarisation or legalisation requirements in your jurisdiction? If so, what is the process for execution?
The following documents which are required to appear in a public instrument should be notarized to be valid:
i. Donations of real property;
ii. Contracts of partnership where immovable property is contributed;
iii. Notarial wills.
The following documents are required to appear in a public document to bind third parties:
i. Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property;
ii. The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains;
iii. The power to administer property, or any other power which has for its object an act appearing or which should appear in a public document, or should prejudice a third person;
iv. The cession of actions or rights proceeding from an act appearing in a public document.
Acts and contracts executed outside the Philippines that are required to be in a public instrument to be valid must be consularized or authenticated by the Philippine Consulate Office at the place of execution.
Are there any security registration requirements in your jurisdiction?
Registration is the operative act that perfects the security in most types of assets. The extent to which registration is required is discussed in item 4 above.
Can a company guarantee or secure the obligations of another group company; are there limitations in this regard?
A company can guarantee or secure the obligations of another company or group of company provided the undertaking is (a) approved by at least a majority of its board of directors, if the power to guaranty or secure the obligations of another company is among the primary purposes of the corporation, or (b) approved by at least a majority of the board of directors and ratified by stockholders representing at least 2/3 of its outstanding capital stock, if the power to guaranty or secure the obligations of another company is among the secondary purposes of the corporation. Accordingly, if there is nothing in the articles of incorporation which confers on the company the power to guarantee or secure an obligation of another company, the corporation is not authorized to do so. The Philippine Securities and Exchange Commission (“SEC”) has opined that such act could prove to be disadvantageous to the corporation and ultra vires for being an act not within the express, implied and incidental powers of the corporation conferred by the Corporation Code or articles of incorporation.
Can lenders in a syndicate appoint a trustee or agent to (i) hold security on the syndicate’s behalf, (ii) enforce the syndicate’s rights under the loan documentation and (iii) apply any enforcement proceeds to the claims of all lenders in the syndicate?
Lenders in a syndicated financing arrangement can appoint a trustee or agent for all such identified purposes. The appointment constitutes a contract of agency and a special power of attorney shall have to be executed by the lenders in favor of the agent to enable the latter to (i) hold security on the syndicate’s behalf, (ii) enforce the syndicate’s rights under the loan documentation and (iii) apply any enforcement proceeds to the claims of all lenders in the syndicate.
If your jurisdiction does not recognise the role of an agent or trustee, are there any other ways to achieve the same effect and avoid individual lenders having to enforce their security separately?
As explained in the discussion on item 13, the appointment of an agent or trustee in a syndicate is recognized in this jurisdiction.
Does withholding tax arise on (i) payments of interest to domestic or foreign lenders, or (ii) the proceeds of enforcing security or claiming under a guarantee?
Withholding taxes arise from interest payment and proceeds of security enforcement and the rates vary depending on the residence and nationality of the lender deriving income:
25% final withholding tax on gross income received by a Non-resident Alien Individual Not Engaged in Trade or Business Within the Philippines (in general)
20% final withholding tax on the amount of interest received by a Non-resident Foreign Corporation from Foreign Loans
30% final withholding tax on gross income received by a Non-resident Foreign Corporation (in general)
Bureau of Internal Revenue (BIR) identified mandatory withholding of top withholding agents:
– Income payments by large taxpayers to resident individuals or corporations – 2% creditable withholding tax
– Income payments by the top 20,000 private corporations to resident individuals or corporations – 2% creditable withholding tax
– Income payments by top 5,000 individuals to resident individuals or corporations – 2% creditable withholding tax
2% creditable withholding tax on income payments by government other than those covered by other rates of withholding
If payments of interest to foreign lenders are generally subject to withholding tax, what is the standard rate and what is the minimum rate possible under double taxation treaties?
The standard tax rates on interest payment are discussed in item 15. However, tax on interest income received by nonresident alien individuals and nonresident foreign corporations may be reduced by application of tax treaties for avoidance of double taxation. Preferential tax rates on interest payment range between 10 % to 15%.
Are there any tax incentives available for foreign lenders lending into your jurisdiction?
There are currently no tax incentives for foreign lenders. Any foreign loan related tax incentives are given to the borrowing company in the case of enterprises registered with the Board of Investments or the relevant economic zone authority, but not to the foreign lender.
Is there a history in your jurisdiction of financing structures being challenged by tax authorities, and if so, can you give examples.
It is not uncommon for financing arrangements to be challenged by local tax authorities in the Philippines. Such challenges have included related company advances and withholding issues on tax interest income. These challenges which commonly arise from examinations conducted in the course of a BIR tax audit come in the form of tax assessments.
Interest Income. In a case decided by the Court of Tax Appeals (CTA), a company extended advances to its affiliates without charging interest. The BIR challenged the arrangement and applying the principle of arms’ length pricing, imputed interest on the advances using the BSP’s schedule of prevailing interest rates and assessed income tax on the imputed interest. The CTA affirmed the BIR’s assessment for interest income.
Timing of Withholding. In another case, the BIR assessed a company deficiency final withholding tax on interest in year 2000 for a loan agreement it executed with a lender on 5 January 2000 where the borrower undertakes to repay the loan in semi-annual installments commencing on 1 June 2002. The loan agreement provides that interest shall accrue from the date of the loan but fails to state the period for payment of interest. The assessment was eventually cancelled as the court ruled that, since the borrower’s liability for interest payment became due and demandable only on 1 June 2002, the BIR may not assess deficiency final withholding tax on income in 2000. However, this rule has been overturned by subsequent regulations issued by the BIR providing that the withholding of final tax commences “at the time an income payment is paid or payable, or the income payment is accrued or recorded as an expense or asset, whichever is applicable in the payor’s book, whichever comes first.”
Do the courts in your jurisdiction generally give effect to the choice of other laws (in particular, English law) to govern the terms of any agreement entered into by a company incorporated in your jurisdiction?
Parties to a contract are free to establish such stipulations, clauses, terms and conditions as they may deem convenient provided they are not contrary to law, morals, good customs, public order or public policy. Accordingly, the choice of foreign law to govern the terms of an agreement entered into by a Philippine company would generally be upheld by a local court, provided there is substantial connection between any of the parties or the transaction and the country whose laws are chosen as the governing law.
Notwithstanding the choice of foreign law as the governing law of an agreement, a court may disregard such foreign law and apply the laws of the Philippines (i) where the foreign law sought to be applied is contrary to law, public policy, morals or good customs, (ii) with respect to procedural matters in the enforcement of the agreement in the Philippines, and (iii) in determining compliance of the agreement with all requirements of governmental approvals in the Philippines.
What (briefly) is the insolvency process in your jurisdiction?
The law governing insolvency in the Philippines is Republic Act No. 10142 or the “Financial Rehabilitation and Insolvency Act (FRIA) of 2010. The FRIA identifies the following debt relief processes: voluntary or involuntary liquidation, voluntary or involuntary rehabilitation, pre-negotiated rehabilitation and insolvency of individual debtor. While there are details of the process which are unique to one or some of these processes such as the party who can file, the relief asked for, the receiver or liquidator, and the effects of each process, all follow substantially the same process as outlined herein.
The process is initiated by the filing of a verified petition with the Regional Trial Court having jurisdiction over the city or municipality where the principal office of the debtor corporation or residence of an individual debtor is located. If the court finds the petition sufficient in form and substance (meritorious, in liquidation), it will issue: (a) in the case of liquidation, a liquidation order declaring the debtor insolvent (and dissolved, in the case of a juridical debtor) and ordering the liquidation of the debtor, (b) in the case of rehabilitation, a commencement order suspending all actions or proceedings for the enforcement of claims against the debtor or enforcement of any judgment or other provisional remedies against the debtor and upon which issuance, the rehabilitation proceedings shall commence, (c) in the case of individual debtors, an order prohibiting the sale of the properties of the debtor and payment outside of the necessary or legitimate expenses of his business or industry and appointing a commissioner to preside over the creditors’ meeting.
Creditors shall then convene to file their claims before the designated liquidator or receiver and to approve the liquidation or rehabilitation plan. The plan which addresses, among others, the payment of creditors, will be submitted to the court for confirmation. Upon confirmation, the plan shall be implemented by the liquidator or rehabilitation receiver or commissioner, as the case may be.
In liquidation, the court will issue an order ordering the SEC to remove the corporate debtor from the registry of legal entities upon determination that the liquidation has been completed. Upon receipt of evidence of the removal of debtor from the registry of legal entities at the SEC, the court shall issue an Order terminating the proceedings. Rehabilitation proceedings are terminated by order of the court either declaring a successful implementation of the Rehabilitation Plan or a failure of rehabilitation.
What impact does the insolvency process have on the ability of a lender to enforce its rights as a secured party over the security?
During the insolvency process, the lender is not able to freely exercise its right as a secured party over the security because the court generally issues a stay order that suspends all actions or proceedings for the enforcement of claims and judgment against the debtor including security enforcement.
The extent and effect of the stay order varies for each process. In rehabilitation proceedings, a Suspension or Stay Order is issued to (a) suspend all actions or proceedings for the enforcement of claims against the debtor, (b) suspend all actions to enforce any judgment, attachment or other provisional remedies against the debtor, (c) prohibit the debtor from disposing any of its properties except in the ordinary course of business, and (d) prohibit the debtor from making any payment of its liabilities outstanding. Any effort to foreclose on the security or otherwise collect or enforce a claim against the debtor is punishable as indirect contempt of court
In certain cases, however, the court may (a) allow a secured creditor to enforce his security or lien, or foreclose upon property of the debtor securing its claim, if the said property is not necessary for the rehabilitation of the debtor, or (b) terminate, modify or set conditions for the continuance of suspension of payment, or relieve a claim from the coverage thereof, upon showing that: a creditor does not have adequate protection over the property securing its claim; or the value of a claim secured by a lien, on property which is not necessary for rehabilitation of the debtor, exceeds the fair market value of the said property. In liquidation proceedings, a secured creditor has the option of (a) waiving his right under the security or lien, proving his claim in the liquidation proceedings and sharing in the distribution of the assets of the debtor; or (b) maintaining his rights under the security or lien. In the proceedings for suspension of payments of individual debtors, properties held as security by secured creditors are exempt from the suspension order.
Please comment on transactions voidable upon insolvency.
Any transaction occurring prior to commencement date (in rehabilitation proceedings), or prior to the issuance of the Liquidation Order (in liquidation proceedings), entered into by the debtor or involving its funds or assets may be rescinded or declared null and void on the ground that the same was executed with intent to defraud a creditor or creditors or which constitute undue preference of creditors.
A disputable presumption of fraud shall arise if the transaction: (a) provides unreasonably inadequate consideration to the debtor and is executed within ninety (90) days prior to the commencement date; (b) involves an accelerated payment of a claim to a creditor within ninety (90) days prior to the commencement date; (c) provides security or additional security executed within ninety (90) days prior to the commencement date; (d) involves creditors, where a creditor obtained, or received the benefit of, more than its pro rata share in the assets of the debtor, executed at a time when the debtor was insolvent; or (e) is intended to defeat, delay or hinder the ability of the creditors to collect claims where the effect of the transaction is to put assets of the debtor beyond the reach of creditors or to otherwise prejudice the interests of creditors.
Is set off recognised on insolvency?
In liquidation, if the debtor and a creditor are mutually debtor and creditor of each other, one debt shall be set off against the other, and only the balance, if any, shall be allowed in the liquidation proceedings. The rule is not clear in rehabilitation but it appears that the right of set-off may be exercised only prior to the commencement of the rehabilitation proceedings since the law provides that issuance by the court of a commencement order shall serve as the legal basis for rendering null and void any set-off after the commencement date of the rehabilitation proceedings.
Can you comment generally on the success of foreign creditors in enforcing their security and successfully recovering their outstandings on insolvency?
Enforcement of security and recovery of claims are unlikely on insolvency because of the stay or suspension order which the court issues in the proceedings and the serious legal repercussions of enforcing the security in violation of an existing stay order. In cases that have reached the court involving the enforcement of a creditor’s security in rehabilitation proceedings, the court prefers to prioritize the rehabilitation and restructuring of the distressed company and minimize any burdens imposed by the creditor while the rehabilitation is ongoing, and to rescue the debtor. The Philippine Supreme Court has explained that the priority given to “expediting the rehabilitation of the distressed corporation by enabling the management committee or the rehabilitation receiver to effectively exercise its/his powers free from any judicial or extrajudicial interference that might unduly hinder or prevent the rescue of the debtor company.”
Are there any impending reforms in your jurisdiction which will make lending into your jurisdiction easier or harder for foreign lenders?
There are currently no impending reforms which can significantly affect lending by foreign lenders. Related pending regulations however, include:
The Guidelines on the Implementation of ASEAN Capital Markets Forum (ACMF) Pass. The SEC en banc has recently approved the Guidelines on the Implementation of ASEAN Capital Markets Forum (ACMF) Pass Under the ASEAN Capital Market Professional Mobility Framework. However, the Guidelines have yet to be formally signed by the SEC Chairperson to take effect.
The Promulgation of the Implementing Rules and Regulation of the PPS Act. The Department of Finance, in coordination with the Department of Justice and through the LRA has yet to promulgate the implementing rules and regulations of the PPS Act.
What proportion of the lending provided to companies consists of traditional bank debt versus alternative credit providers (including credit funds) and/or capital markets, and do you see any trends emerging in your jurisdiction?
There is no comparative data available on this but based on limited public information, traditional bank financing continues to have the biggest share in lending in the Philippines. However, the participation of alternative credit providers such as mutual funds is growing. Capital markets are similarly developing and are expected to grow further given the relatively young but robust laws on securitization and the openness to a more connected and sustainable ASEAN capital market which the country has exhibited with the adoption of the ASEAN Capital Markets Forum Pass. For large and capital intensive projects, project financing is still the preferred alternative.