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Public Private Partnerships in the Infrastructure Sector

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CoursesealsPublic Private Partnerships in the Infrastructure Sector
  • Introduction to PPP in the infrastructure sector 6

    • Lecture1.1
      What is PPP and how is the concept defined? 30 min
    • Lecture1.2
      The growth of PPP from an historical perspective 30 min
    • Lecture1.3
      The concept of privatisation in the context of PPPs 30 min
    • Lecture1.4
      Conventional procurement and PPP procurement 30 min
    • Lecture1.5
      Examples of PPP reform 30 min
    • Lecture1.6
      Summary of key characteristics and criteria of PPPs 30 min
  • Chapter 2: Structuring a PPP project 5

    • Lecture2.1
      Structuring a PPP project 30 min
    • Lecture2.2
      Project structuring: feasibility study 30 min
    • Lecture2.3
      PPP economics 30 min
    • Lecture2.4
      PPP economics 30 min
    • Lecture2.5
      Alternative PPP structure: rail project case study 30 min
  • Chapter 3: Financing an infrastructure PPP project 6

    • Lecture3.1
      Sources of financing for an infrastructure PPP project 30 min
    • Lecture3.2
      What is Project Finance? 30 min
    • Lecture3.3
      Drawbacks of using project finance in infrastructure PPP transactions 30 min
    • Lecture3.4
      Structure 30 min
    • Lecture3.5
      Key parties 30 min
    • Lecture3.6
      Timeline for financing an infrastructure PPP project 30 min
  • Chapter 4 :Documenting the transaction: anatomy of a PPP concession agreement and key risk allocation issues 11

    • Lecture4.1
      Scope and term of a PPP Concession Agreement 30 min
    • Lecture4.2
      Construction period obligations 30 min
    • Lecture4.3
      Operation period obligations 30 min
    • Lecture4.4
      Payment regimes 30 min
    • Lecture4.5
      Supervening events 30 min
    • Lecture4.6
      Termination and compensation 30 min
    • Lecture4.7
      Liability and insurance 30 min
    • Lecture4.8
      Dispute resolution 30 min
    • Lecture4.9
      Government controls 30 min
    • Lecture4.10
      Government support obligations 30 min
    • Lecture4.11
      Additional terms and conditions 30 min
  • Chapter 5: Documenting the transaction: finance documents 8

    • Lecture5.1
      Core finance documents 30 min
    • Lecture5.2
      Equity arrangements 30 min
    • Lecture5.3
      Impact on the concession agreement 30 min
    • Lecture5.4
      Direct Agreements 30 min
    • Lecture5.5
      Security 30 min
    • Lecture5.6
      Enforcement and insolvency 30 min
    • Lecture5.7
      Involvement of multilateral development banks (MDBs), development finance institutions (DFIs) and export credit agencies (ECAs) 30 min
    • Lecture5.8
      Government shareholder arrangements 30 min
  • Chapter 6:Documenting the transaction: other project documents 2

    • Lecture6.1
      Construction contract, O&M contract and interface issues 30 min
    • Lecture6.2
      Sub-contract risk pass-down 30 min
  • Chapter 7:Procurement arrangements 2

    • Lecture7.1
      A typical PPP timetable 30 min
    • Lecture7.2
      Unsolicited proposals 30 min
  • Chapter 8:Introduction to key sector issues 7

    • Lecture8.1
      Road projects 30 min
    • Lecture8.2
      Urban rail projects 30 min
    • Lecture8.3
      Freight rail projects 30 min
    • Lecture8.4
      Airport projects 30 min
    • Lecture8.5
      Port projects 30 min
    • Lecture8.6
      Accommodation projects 30 min
    • Lecture8.7
      Glossary 30 min

    Additional terms and conditions

    (a)        Transfers and assignment

    The concessionaire will want the ability to freely assign the contract to its lenders by way of security as this will be a condition of the funding security package.

     

    The government may also want the flexibility to transfer the PPP contract to a successor agency (government reorganization is not an unrealistic or unthinkable scenario) but it should not be permitted to do so where the new agency does not have the same financial strength to manage the obligations under the contract.

     

    (b)        Local content requirements

    Local law may provide for minimum percentage levels of employment or sub-contracting to local firms, however, if it does not, this can be detailed in the concession agreement itself. That said, such obligations are often relatively weak and may have reasonable exceptions and derogations that are difficult to police. For example, a common exception would be that the minimum levels of employment do not apply where the requisite skills do not exist in the local workforce.

     

    (c)        Waiver of sovereign immunity

    Investors and lenders will wish to have any rights of sovereign immunity waived to the fullest degree possible. If the government has assets in other countries, local advice may be required to understand whether the waiver offered will be sufficient to allow enforcement over those assets under local law.

     

    (d)        Intellectual property

    The contract should ensure that the government receives an adequate transfer of all intellectual property in the project so that it may use and modify the intellectual property when operating the facility following termination. The government should be protected by an indemnity in case any infringement claims arise against the government at any time after the concession agreement has been terminated.

     

    (e)        Confidentiality / Freedom of information

    Confidentiality provisions are fairly standard but consideration should be given to any freedom of information laws that are currently in place or other transparency initiatives. In some cases we have seen very clear statements that the concession agreement is to be treated as a public document and therefore it must be available for public inspection and scrutiny.

     

    SUMMARY OF KEY POINTS
    Additional terms and conditions

    • There are various other terms and conditions that will be included in the project documents which cover the concessionaire’s ability to assign the contract to its lenders by way of security and the government’s ability to transfer the PPP contract to a successor agency where there is a governmental reorganisation. This is in addition to terms governing the employment of sub-contractors, the adequate transfer of intellectual property rights and the usual provisions relating to confidentiality and freedom of information provisions. However it is important to note that sometimes concession agreements are treated as a public document and so they will be available for public inspection.

     

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