世界银行-PPP合同条款指南（2017年版）（英文）-166页_4mb

Summary of Guidance on PPP Contractual Provisions (2017 Edition)

Core Content

This document provides guidance on the drafting of PPP (Public-Private Partnership) contractual provisions, focusing on key areas that influence the bankability, risk allocation, and overall success of PPP projects. It is aimed at Contracting Authorities, especially those in emerging PPP markets, to help them understand and negotiate the contractual terms of PPP agreements.

Main Objectives

• To offer drafting guidance and analysis for standard contractual provisions found in PPP contracts and related agreements.
• To assist in developing a successfully financed PPP project that delivers the desired public asset or service.
• To foster discussion and consensus on appropriate contractual language for PPP transactions.

Key Provisions Covered

The guidance includes detailed sections on the following contractual provisions:

1. Force Majeure

• Key aspects: Definition, impact on obligations, and the concept of foreseeability.
• Considerations for Contracting Authorities: Need to define clearly and avoid over-protection.
• Uninsurability: Some force majeure events may not be insurable, thus requiring contractual mitigation.
• Sample drafting: Two options are provided — one with an open-ended definition and one with an exhaustive list of specific events.

2. Material Adverse Government Action (MAGA)

• Key aspects: Definition and implications for the PPP contract.
• Considerations for Contracting Authorities: Importance of clarity and alignment with legal systems.
• Sample drafting: Provided to illustrate the language that can be used.

3. Changing Law

• Key aspects: Impact of legal changes on the PPP project.
• Considerations for Contracting Authorities: Need to assess the effect of legal changes on risk and returns.
• Sample drafting: Includes both a general and a specific version.

4. Termination Payments

• Key aspects: Conditions and types of termination, including default by either party.
• Considerations for Contracting Authorities: Balancing termination rights with the need for project continuity.
• Compensation: Detailed on how compensation is calculated for different types of termination.
• Method and timing of payment: Importance of clear procedures.
• Sample drafting: Provided for termination clauses.

5. Refinancing

• Key aspects: Mechanisms for refinancing the project.
• Considerations for Contracting Authorities: Ensuring flexibility and alignment with lender interests.
• Sample drafting: Illustrates the language for refinancing provisions.

6. Lenders' Step-in Rights

• Key aspects: Rights of lenders to step in and manage the project in case of default.
• Considerations for Contracting Authorities: Ensuring transparency and alignment with financial requirements.
• Summary of main provisions: Overview of lenders' rights and responsibilities.
• Sample drafting: Provided for lenders' step-in rights.

7. Confidentiality and Transparency

• Key aspects: Importance of transparency in PPP contracts.
• Considerations for Contracting Authorities: Balancing confidentiality with public accountability.
• Sample drafting: Provided to show how these provisions can be structured.

8. Governing Law and Dispute Resolution

• Key aspects: Choice of governing law and dispute resolution mechanisms.
• Considerations for Contracting Authorities: Ensuring legal enforceability and dispute resolution efficiency.
• Sample drafting: Included for governing law and dispute resolution clauses.

9. Bond Financing

• Key aspects: Use of bond financing in PPP projects.
• Understanding project bond financing: Overview of how bond financing works.
• Considerations for Contracting Authorities: Risk allocation and credit enhancement.
• Termination payment calculation: Methodology for calculating payments in case of termination.
• Credit enhancement: Tools to support lenders' confidence in the project.

10. Corporate Financing

• Key aspects: Use of corporate financing in PPP projects.
• Considerations for Contracting Authorities: Alignment with corporate structures and financial mechanisms.
• Termination payment calculation: Methodology for corporate financing scenarios.

Key Considerations for Contracting Authorities

• Risk allocation: Must be balanced and fair, with risks assigned to the party best able to manage them.
• Bankability: A critical factor in attracting lenders and ensuring project viability.
• Flexibility: Contracts must allow for adjustments in response to unforeseen events.
• Legal systems: Variations exist across jurisdictions, requiring tailored provisions.
• Consultation and feedback: The guidance is developed with input from various stakeholders and is intended to evolve.

Additional Resources

• The document includes links to additional PPP resources, such as:
  • Dutch Model: Version 4.3 of the Netherlands Standard PPP Contract.
  • Infra Australia PPP Guidelines: Guidelines from the Australian Government.
  • South Africa Guidelines: National Treasury Standardised PPP Provisions.
  • UK PF2 Guidance: Standardisation of PF2 Contracts guidance from HM Treasury.

Conclusion

The 2017 Edition of the Guidance on PPP Contractual Provisions is a collaborative effort involving the World Bank Group, legal firms like Allen & Overy LLP and Gide Loyrette Nouel, and various stakeholders. It is not prescriptive or mandatory, but rather serves as a starting point for drafting PPP contracts. The document emphasizes the importance of understanding the context, risk allocation, and financial structuring in PPP projects to ensure successful implementation and value for money for the public sector. It is designed to be a living document, with future updates planned based on industry feedback and new consensus.