Workshop on Structuring Legal Agreements for PPP and Concession Contracts

Program overview:

A well-structured contracts and legal agreements are at the heart of any successful public-private partnership (PPP) transaction. With sound agreements, PPPs and concessions can achieve the objectives set forth by governments. With poorly structured agreements, these partnerships have a higher likelihood of failing. With so much money at stake, it is imperative that time and money is well spent in designing good PPP and concession contracts. This program is designed for participants will learn best practices in creating, negotiating, and implementing sound PPP and concession contracts. Through the use of classroom presentations, case studies, and exercises, participants will have a deep understanding of the key elements of successful PPP and concession contracts, how risks are effectively allocated, mitigated, and how to develop negotiation skills that they can deploy as soon as they get back to their various organizations.

For Whom:

The course is designed for Legal officers from ministries, departments, and agencies, of government, Legal officers from PPP and privatization units, and investment agencies responsible for infrastructure development, PPP transaction advisors, legal counselors, and project developers, Legal officers from regulatory bodies.  Executive officers of bilateral and multilateral international development organizations will equally benefit from this program.

Learning Objectives:

• At the end of this program, participants will be able to:
• structure and design of legal agreements for PPP infrastructure projects between public agencies and private investors;
• identify all relevant project risks: engineering, financial, economic, design/build, political, and social;
• analyze and review legal documents including concession, off take, and other types of PPP contracts and key financing agreements;
• examine effective legal contracts within a regulatory framework;
• identify how to take advantage of international best practices to design a best fit personal or organizational negotiating position vis-á-vis international, local investors and partners;
• develop effective negotiation strategies to reduce costs and delays in procurement and project implementation; and
• design a strategic legal agreement action plan.

Course outline

Day 1: PPP Contracts in Infrastructure Development

• Application of investment acts and laws to PPP concession law requirements
• Review of various types of PPP contracts: service/ management contracts, leases, and BOT concessions
• Structuring the SPV: legal issues in establishing the SPV project company and key provisions of the SPV contract, including sharing of profits and losses, voting and control issues, and transferring ownership interests in the project company
• Selecting and applying the most appropriate PPP technique
• Balancing contract terms and regulatory requirements
• Understanding the security package of interlocking agreements
• Case examples from the transportation, energy, water, health, education, and other infrastructure sectors

Day 2: Contract Risk Identification and Allocation: Creating the Legal Due Diligence Checklist and Developing Key Contract Clauses

• Relevant project risks: engineering, financial, economic, design/build, political, social
• Developing a risk matrix to evaluate, allocate, and mitigate risks for all relevant stakeholders
• Understanding possible government guarantee requirements
• Elements of the legal due diligence and linkages

 to risk Management

• Parties to contracts and roles, responsibilities, and risk allocation
• Technical and financial terms and performance requirements
• Dispute resolution and arbitration clauses
• Review of sample PPP contracts

Day3: Procurement Procedures, Award, and Negotiation

• Understanding the PPP procurement cycle
• Linking technical and financial feasibility to the

 procurement process

• Managing a PPP procurement and award

Announcement in an accountable and transparent way

• Key negotiation planning strategies

Day 4: Institutional Requirements to Structure Bankable PPP Projects

• Capacity requirements necessary to conduct feasibility studies,
• risk allocation, and financial modeling and rationale for PPP units
• Using a PPP unit to structure, promote, and monitor

viable PPP projects;

• institutionalize the procurement process; and serve as a

communication tool

Day 5: Designing Effective Dispute Resolution and

Mediation Procedures to Manage Contract Failure

• Strategies to incorporate dispute resolution and

arbitration procedures

• Managing a dispute process
• Examining the options for international arbitration
• Protocols: UNCITRAL, FIDIC, ICC, AAA, and ICSID rules

• Action Planning

Training Methodology

Lectures, discussions, exercises, case studies, audio-visual aids will be used to reinforce these teaching/learning methods.