Article 38Supplement v1, p. 38

COMMERCIAL LAWS SUPPLEMENT

Section 36. Nolo Contendere. – An entity charged in a

criminal proceeding pursuant to Section 14(a) and 14(b) of

this Act may enter a plea of Nolo Contendere, in which he

does not accept nor deny responsibility for the charges

but agrees to accept punishment as if he had pleaded

guilty. The plea cannot be used against the defendant

entity to prove liability in a civil suit arising from the

criminal action nor in another cause of action: Provided,

That a plea of Nolo Contendere may be entered only up to

arraignment and subsequently, only with the permission

of the court which shall accept it only after weighing its

effect on the parties, the public and the administration of

justice.

Section

37.

Non-Adversarial

Remedies.

—

As

an

implementing and enforcement policy, the Commission

shall, under such rules and regulations it may prescribe,

encourage voluntary compliance with this Act and other

competition laws by making available to the parties

concerned

the

following

and

other

analogous

non-adversarial

administrative

remedies,

before

the

institution of administrative, civil or criminal action:

(a) Binding Ruling. — Where no prior complaint or

investigation has been initiated, any entity that is in

doubt as to whether a contemplated act, course of

conduct, agreement, or decision, is in compliance with, is

exempt from, or is in violation of any of the provisions of

this Act, other competition laws, or implementing rules

and regulations thereof, may request the Commission, in

writing, to render a binding ruling thereon: Provided, That

the ruling is for a specified period, subject to extension as

may be determined by the Commission, and based on

substantial evidence.

In the event of an adverse binding ruling on an act,

course or conduct, agreement, or decision, the applicant

shall be provided with a reasonable period, which in no

case shall be more than ninety (90) days, to abide by the

ruling of the Commission and shall not be subject to

administrative,

civil,

or

criminal

action

unless

the

applicant fails to comply with the provisions of this Act;

(b) Show Cause Order. — Upon preliminary findings motu

proprio

or

on

written

complaint under oath by an

interested party that any entity is conducting its business,

in whole or in part in a manner that may not be in accord

with the provisions of this Act or other competition laws,

and it finds that the issuance of a show cause order

would be in the interest of the public, the Commission

shall issue and serve upon such entity or entities a written

description of its business conduct complained of, a

statement of the facts, data, and information together

with a summary of the evidence thereof, with an order

requiring the said entity or entities to show cause, within

the

period

therein

fixed,

why

no

order

shall

issue

requiring such person or persons to cease and desist

from continuing with its identified business conduct, or

pay the administrative fine therein specified, or readjust

its business conduct or practices;

(c) Consent Order. – At any time prior to the conclusion by

the Commission of its inquiry, any entity under inquiry

may, without in any manner admitting a violation of this

Act

or

any

other

competition

laws,

submit

to

the

Commission a written proposal for the entry of a consent

order, specifying therein the terms and conditions of the

proposed

consent

order which shall include among

others the following:

(1) The payment of an amount within the range of fines

provided for under this Act;

(2) The required compliance report as well as an entity to

submit regular compliance reports;

(3) Payment of damages to any private party/parties who

may have suffered injury; and

(4) Other terms and conditions that the Commission

deems

appropriate

and

necessary

for

the

effective

enforcement of this Act or other Competition Laws:

Provided , That a consent order shall not bar any inquiry

for the same or similar acts if continued or repeated;

(d) Monitoring of Compliance. – The Commission shall

monitor

the

compliance

by

the

entity

or

entities

concerned, their officers, and employees, with the final

and executory binding ruling, cease and desist order, or

approval of a consent judgment. Upon motion of an

interested party/parties, the Commission shall issue a

certification or resolution to the effect that the entity or

entities concerned have, or have not, as the case may be,

complied with a final and executory ruling, order, or

approval.

(e) Inadmissibility of Evidence in Criminal Proceedings. –

The request for a binding ruling, the show cause order, or

the proposal for consent order; the facts, data, and

information therein contained or subsequently supplied

by the entity or entities concerned; admissions, oral or

written, made by them against their interest; all other

documents

filed

by

them,

including

their

evidence

presented in the proceedings before the Commission;

and the judgment or order rendered thereon; shall not be

admissible

as

evidence

in

any criminal proceedings

arising from the same act subject of the binding ruling,

show cause order or consent order against such entity or

entities, their officers, employees, and agents.

Section

38.

Contempt.

—

The

Commission

may

summarily punish for contempt by imprisonment not

exceeding thirty (30) days or by a fine not exceeding one

hundred thousand pesos (P 100,000.00), or both, any

entity guilty of such misconduct in the presence of the

Commission in its vicinity as to seriously interrupt any

hearing, session or any proceeding before it, including

cases in which an entity willfully fails or refuses, without

just cause, to comply with a summons, subpoena or

subpoena duces tecum legally issued by the Commission

being

present

at

a

hearing,

proceeding,

session or

investigation, refused to be sworn as a witness or to

answer questions or to furnish information when lawfully

required to do so.

Section 39. Appeals of the Decisions of the Commission.

– Decisions of the Commission shall be appealable to the

Court of Appeals in accordance with the Rules of Court.

The appeal shall not stay the order, ruling or decision

sought to be reviewed, unless the Court of Appeals shall

direct otherwise upon such terms and conditions it may

deem

just. In the appeal, the Commission shall be

included as a party respondent to the case.

Section 40. ‘Writ of Execution. – Upon the finality of its

binding ruling, order, resolution, decision, judgment, or

rule or regulation, collectively, the Commission may issue

a writ of execution to enforce its decision and the

payment of the administrative fines provided in the

preceding sections.

Section 41. Basic Necessities and Prime Commodities. – If

the violation involves the trade or movement of basic

necessities

and

prime

commodities

as

defined

by

Republic Act No. 7581, as amended, the fine imposed by

the Commission or the courts, as the case may be, shall

be tripled.

Section 42. Immunity from Suit. – The Chairperson,the

Commissioners, officers, employees and agents of the

Commission shall not be subject to any action, claim or

demand in connection with any act done or omitted by

them in the performance of their duties and exercise of

their powers except for those actions and omissions done

in evident bad faith or gross negligence.

Section

43.

Indemnity. – Unless the actions of the

Commission or its Chairperson, any of its Commissioners,

officers, employees and agents are found to be in willful

violation of this Act, performed with evident bad faith or

gross

negligence,

the

Commission,

its

Chairperson,

Commissioners, officers, employees and agents are held

free and harmless to the fullest extent permitted by law

from any liability, and they shall be indemnified for any

and

all

liabilities, losses, claims, demands, damages,

deficiencies, costs and expenses of whatsoever kind and

nature that may arise in connection with the exercise of

© Compiled by RGL

38 of 203