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1.
What types of collateral and security interests are available?
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2.
How is a security interest in each type of collateral perfected and how is its priority established? Are any fees, taxes or other charges payable to perfect a security interest and, if so, are there lawful techniques to minimise them? May a corporate entity, in the capacity of agent or trustee, hold collateral on behalf of the project lenders as the secured party? Is it necessary for the security agent and trustee to hold any licences to hold or enforce such security?
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3.
How can a creditor assure itself as to the absence of liens with priority to the creditor’s lien?
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4.
Outside the context of a bankruptcy proceeding, what steps should a project lender take to enforce its rights as a secured party over the collateral?
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5.
How does a bankruptcy proceeding in respect of the project company affect the ability of a project lender to enforce its rights as a secured party over the collateral? Are there any preference periods, clawback rights or other preferential creditors’ rights (eg, tax debts, employees’ claims) with respect to the collateral? What entities are excluded from bankruptcy proceedings and what legislation applies to them? What processes other than court proceedings are available to seize the assets of the project company in an enforcement?
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6.
What are the restrictions, controls, fees, taxes or other charges on foreign currency exchange?
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7.
What are the restrictions, controls, fees and taxes on remittances of investment returns or payments of principal, interest or premiums on loans or bonds to parties in other jurisdictions?
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8.
Must project companies repatriate foreign earnings? If so, must they be converted to local currency and what further restrictions exist over their use?
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9.
May project companies establish and maintain foreign currency accounts in other jurisdictions and locally?
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10.
What restrictions, fees and taxes exist on foreign investment in or ownership of a project and related companies? Do the restrictions also apply to foreign investors or creditors in the event of foreclosure on the project and related companies? Are there any bilateral investment treaties with key nation states or other international treaties that may afford relief from such restrictions? Would such activities require registration with any government authority?
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11.
What restrictions, fees and taxes exist on insurance policies over project assets provided or guaranteed by foreign insurance companies? May such policies be payable to foreign secured creditors?
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12.
What restrictions exist on bringing in foreign workers, technicians or executives to work on a project?
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13.
What restrictions exist on the importation of project equipment?
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14.
What laws exist regarding the nationalisation or expropriation of project companies and assets? Are any forms of investment specially protected?
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15.
What tax incentives or other incentives are provided preferentially to foreign investors or creditors? What taxes apply to foreign investments, loans, mortgages or other security documents, either for the purposes of effectiveness or registration?
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16.
What are the relevant government agencies or departments with authority over projects in the typical project sectors? What is the nature and extent of their authority? What is the history of state ownership in these sectors?
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17.
Who has title to natural resources? What rights may private parties acquire to these resources and what obligations does the holder have? May foreign parties acquire such rights?
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18.
What royalties and taxes are payable on the extraction of natural resources, and are they revenue- or profit-based?
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19.
What restrictions, fees or taxes exist on the export of natural resources?
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20.
What government approvals are required for typical project finance transactions? What fees and other charges apply?
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21.
Must any of the financing or project documents be registered or filed with any government authority or otherwise comply with legal formalities to be valid or enforceable?
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22.
How are international arbitration contractual provisions and awards recognised by local courts? Is the jurisdiction a member of the ICSID Convention or other prominent dispute resolution conventions? Are any types of disputes not arbitrable? Are any types of disputes subject to automatic domestic arbitration?
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23.
Which jurisdiction’s law typically governs project agreements? Which jurisdiction’s law typically governs financing agreements? Which matters are governed by domestic law?
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24.
Is a submission to a foreign jurisdiction and a waiver of immunity effective and enforceable?
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25.
What laws or regulations apply to typical project sectors? What regulatory bodies administer those laws?
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26.
What are the principal business structures of project companies? What are the principal sources of financing available to project companies?
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27.
Has PPP-enabling legislation been enacted and, if so, at what level of government and is the legislation industry-specific?
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28.
What, if any, are the practical and legal limitations on PPP transactions?
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29.
What have been the most significant PPP transactions completed to date in your jurisdiction?
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Updates and trends
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