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1.
Overview
How has the concept of public-private partnership (PPP) developed in your jurisdiction? What types of transactions are permitted and commonly used in your jurisdiction?To read more
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2.
Covered categories
What categories of public infrastructure are subject to PPP transactions in your jurisdiction?To read more
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3.
Legislative framework
Is there a legislative framework for PPPs in your jurisdiction, or are PPPs undertaken pursuant to general government powers as one-off transactions?To read more
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4.
Relevant authority
Is there a centralised PPP authority or may each agency carry out its own programme?To read more
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5.
Procurement
Are PPPs procured only at the national level or may state, municipal or other subdivision government bodies enter into PPPs?To read more
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6.
Remuneration
How is the private party in a PPP remunerated in your jurisdiction?To read more
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7.
Sharing revenue and usage risk
May revenue risk or usage risk be shared between the private party and the government? How is risk shared?To read more
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8.
Government payment obligations
In situations where the private party is compensated in whole or in part through availability or other periodic payments from the government, are the payment obligations of the government subject to the relevant legislative body approving budgetary funding in the future?To read more
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9.
Rate of return caps
Is there any cap on the rate of return that may be earned by the private party in the PPP transaction?To read more
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10.
Restriction of ownership transfer
Is the transfer of direct or indirect ownership interests in the project company or other participants restricted?To read more
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11.
Relevant procedure
What procedures normally apply to a PPP procurement? What evaluation criteria are used to award a PPP transaction?To read more
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12.
Consideration of deviating proposals
May the government consider proposals to deviate from the scope or technical characteristics of the work included in the procurement documentation during the procurement process, without altering such terms with respect to other proponents? How are such deviations assessed?To read more
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13.
Unsolicited proposals
May government parties consider unsolicited proposals for PPP transactions? How are these evaluated?To read more
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14.
Government stipend
Does the government party provide a stipend for unsuccessful short-listed proponents or otherwise bear a portion of their costs?To read more
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15.
Financing commitments
Does the government party require that proposals include financing commitments for the PPP transaction? If it does not, are there any mechanisms during the procurement process to ensure that the applicable PPP transaction, once awarded, is financeable?To read more
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16.
Legal opinion
May the government ask its counsel to provide a legal opinion on the enforceability of the PPP agreement? May it provide representations as to the enforceability of the PPP agreement?To read more
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17.
Restrictions on foreign entities
Are there restrictions on participation in PPP projects by foreign entities? May foreign entities exercise control over the project company?To read more
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18.
Form of contract
Does local law mandate that any particular form of contract govern design and construction activities? Does it mandate the choice of governing law?To read more
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19.
Design defect liability
Does local law impose liability for design defects and, if so, on what terms?To read more
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20.
Warranties
Does local law require the inclusion of specific warranties? Are there implied warranties in cases where the relevant contract is silent? Does local law mandate or regulate the duration of warranties?To read more
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21.
Damages for delay
Are liquidated damages for delay in construction enforceable? Are certain penalty clauses unenforceable?To read more
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22.
Indirect or consequential damages
What restrictions are imposed by local law on the contractor’s ability to limit or disclaim liability for indirect or consequential damages?To read more
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23.
Non-payment
May a contractor suspend performance for non-payment?To read more
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24.
Applicable clauses
Does local law restrict ‘pay if paid’ or ‘paid when paid’ clauses?To read more
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25.
Are ‘equivalent project relief’ clauses enforceable under local law?To read more
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26.
Expansion of scope of work
May the government party decide unilaterally to expand the scope of work under the PPP agreement?To read more
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27.
Rebalancing agreements
Does local law entitle either party to have a PPP agreement ‘rebalanced’ or set aside if it becomes unduly burdensome owing to unforeseen events? Can this be agreed to by the parties?To read more
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28.
Liens laws
Are statutory lien laws applicable to construction work performed in connection with a PPP agreement?To read more
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29.
Other relevant provisions
Are there any other material provisions related to design and construction work that PPP agreements must address?To read more
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30.
Performance obligations
Are private parties’ obligations during the operating period required to be defined in detail or may the PPP agreement set forth performance criteria?To read more
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31.
Failure to maintain
Are liquidated damages payable, or are deductions from availability payments possible, for the private party’s failure to operate and maintain the facility as agreed?To read more
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32.
Refurbishment of vacated facilities
Are there any legal or customary requirements that facilities be refurbished before they are handed back to the government party at the end of the term? (To what degree must facilities be refurbished?)To read more
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33.
Delay
How is the risk of delays in commercial or financial closing customarily allocated between the parties?To read more
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34.
How is the risk of delay in obtaining the necessary permits customarily allocated between the parties?To read more
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35.
Force majeure
How are force majeure and geotechnical, environmental and weather risks customarily allocated between the parties? Is force majeure treated as a general concept relating to acts outside the parties’ control or is it defined with reference to specific enumerated events?To read more
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36.
Third-party risk
How is risk for acts of third parties customarily allocated between parties to a PPP agreement?To read more
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37.
Political, legal and macroeconomic risks
How are political, legal and macroeconomic risks customarily allocated between the parties? What protection is afforded to the private party against discriminatory change of law or regulation?To read more
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38.
Mitigating events
What events entitle the private party to extensions of time to perform its obligations?To read more
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39.
What events entitle the private party to additional compensation?To read more
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40.
Compensation
How is compensation calculated and paid?To read more
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41.
Insurance
Are there any legal or customary requirements for project agreements to specify a programme of insurance? Which party mandatorily or customarily bears the risk of insurance becoming unavailable on commercially reasonable terms?To read more
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42.
Remedies
What remedies are available to the government party for breach by the private party?To read more
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43.
Termination
On what grounds may the PPP agreement be terminated?To read more
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44.
Is there a possibility of termination for convenience?To read more
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45.
If the PPP agreement is terminated, is compensation available?To read more
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46.
Government financing
Does the government provide debt financing or guarantees for PPP projects? On what terms? Which agencies are responsible?To read more
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47.
Privity of contract
Are lenders afforded privity of contract with the government party through direct agreements or similar mechanisms? What rights will lenders typically have under these agreements?To read more
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48.
Step-in rights
Is there a mechanism under which lenders may exercise step-in rights or take over the PPP project? Are lenders able to obtain a security interest in the PPP agreement itself?To read more
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49.
Cure rights
Are lenders expressly afforded cure rights beyond those available to the project company or are they permitted to cure only during the same period and under the same conditions as the project company?To read more
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50.
Refinancing
If the private party refinances the PPP project at a lower cost of funds, is there any requirement that the gains from such refinancing be shared with the government? Are there any restrictions on refinancing?To read more
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51.
Local law governance
What key project agreements must be governed by local law?To read more
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52.
Government immunity
Under local law, what immunities does the government party enjoy in PPP transactions? Which of these immunities can be waived by the government?To read more
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53.
Availability of arbitration
Is arbitration available to settle disputes under the project agreement between the government and the private party? If not, what regime applies?To read more
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54.
Alternative dispute resolution
Is there a requirement to enter into mediation or other preliminary dispute resolution procedures as a condition to seeking arbitration or other binding resolution?To read more
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55.
Special mechanisms
Is there a special mechanism to deal with technical disputes?To read more
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Updates and trends
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