1. UNCITRALThird International Colloquium on Public-Private Partnerships (PPPs) October 2017, Vienna
Experts for Chapter IV
October 2017

2. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Scope of Chapter: Construction and operation of infrastructure: legislative framework and project agreement(s)
General remarks – project agreement(s)
Terminology issues
What contract(s) should be covered?
Parties (groups of owners)
Different project models
Different risk constructs

3. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Contents of project agreements
- Legislative Recommendation 40,
Model Provision 28
“The concession contract shall provide for such matters as the parties deem appropriate”
Illustrative list
Role of “model provisions”
Party autonomy and/or legal prescription
Core terms and conditions (existence or content)?
“Boilerplate clauses”

4. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Governing law - Legislative Recommendation 41,
Model Provision 29
Explicit choice of law for project agreement
Does it cover dispute settlement?
Other contracts for the project?
Could the recommendations be shortened
Too descriptive?
Any further need for revision?

5. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Conclusion of project agreement
Need for explicit legislative provision on procedures?
Reduce time and costs
“Final negotiations” – scope?
Interaction with legislative framework for planning, institutional framework
eg approvals process

6. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Organization of project partner - Legislative Recommendations 42-43, Model Provision 30
Mandatory seat in host country for (new) project company?
Time-frame for establishing project company?
Permitted scope of activity
Associated activities?

7. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Ownership of assets- Legislative Recommendation 44-5, Model Provisions 31-33
Authority to transfer ownership
Clarity on ownership of assets
Definition(s) of “ownership”
Third parties
Handover of assets (end of project)
Civil/Administrative law restrictions?
Granting all necessary rights
Easements (variants)
The project site

8. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Financial arrangements - Legislative Recommendations , Model Provisions 34-35
Tariffs
Who may change them? Conditions?
Government control?
Competition?
Financial obligations of the contracting authority
Direct payments
Shadow tolls
– poor track record, so as exceptional arrangements?
Purchase commitments

9. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Security interests – Legislative Recommendation 49, Model Provision 35
Amendments?
Assignment and transfer of controlling interest/concession - Legislative Recommendations 50-51, Model Provisions

10. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Construction works - Legislative Recommendation 52
Interaction with planning and procurement process
Functional specifications
Variations
Responsibility for design obligation
Ensuring responsibility for meeting obligations on design and technical standards
Monitoring and possibility of suspension
Quality guarantees (mandatory, negotiable)

11. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Operation of Infrastructure - Legislative Recommendations , Model Provision 38
Performance standards – to become mandatory
Solutions where satisfaction is measured by third parties
Continuity of service
Resilience
Transparency and disclosure
Open contracting/key terms
Rules by concessionaire require regulatory agency or contracting authority approval

12. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Other operational issues
Expand guidance to include
Subcontracting arrangements and liability
Procedures for reporting obligations
Procedures for monitoring the concessionaire’s performance, controls and oversight
Role of Auditing/Oversight Agency
Third parties’ access to the reports

13. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
General contractual arrangements - Legislative Recommendations 56-60
Expand to include new provisions on
Refinancing
Operational health, safety and environmental standards
Contract management
Joint liability and subcontractor arrangements
Performance bonds, guarantees and insurance obligations
Liabilities and exclusions

14. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Legislative and regulatory changes and changes in economic conditions - Legislative Recommendations 58(c), Model Provisions 39-40
Revision of project agreement
Governance/abuse concerns
New provisions to cover
All circumstances for modification of contracts during their term
When modifications are allowed
Notice provisions
Model risk matrices
Negotiating changes

15. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Legislative and regulatory changes and changes in economic conditions - Legislative Recommendations 58(c), Model Provisions (continued)
Consequences of change
Refinancing benefits to be split?
“Rebalancing the contract”
Force majeure

16. Possible future work on PPPs
PROPOSALS FOR CHAPTER IV
Step-in rights for the contracting authority - Legislative Recommendation 59, Model Provision 41
Any need for revision?
Step-in rights for the lenders - Legislative Recommendation 60, Model Provision 42