恢復(fù)公私伙伴關(guān)系的信心：改革風(fēng)險分配并創(chuàng)建更多的協(xié)作性PPP

1、The Governance BriefISSUE 41 2020Restoring Confidence in PublicPrivate PartnershipsReforming Risk Allocation and Creating More Collaborative PPPsMark Moseley1Executive SummaryAs part of the work of the Asian Development Bank (ADB) on infrastructure governance, sustainability, and the principles of Q

2、uality Infrastructure Investment, this discussion paper has been prepared, at the request of the ADB, to inform ADB staff and officials in ADB developing member countries. It describes the loss of confidence in publicprivate partnership (PPP) transactions that has led to an ongoing decline in their

3、global use and argues that two of the major contributors to this loss of confidence are the approaches taken in PPP contracts to risk allocation and dispute resolution. The paper examines, in summary form, alternative contractual arrangementsincluding arrangements employed for transactions that are

4、not PPPsand analyzes the suitability of their use for PPPs, in the context of the development conditions that are likely to exist following the coronavirus disease (COVID-19) pandemic. Finally, the discussion paper introduces a series of suggested incremental reforms to current PPP contracting pract

5、ices, incorporating aspects of the various alternative arrangements, and taking into account the associated governance challenges. This brief was financed under the technical assistance for HYPERLINK /sites/default/files/project-documents/53081/53081-001-tar-en.pdf Strengthening Fiscal HYPERLINK /si

6、tes/default/files/project-documents/53081/53081-001-tar-en.pdf Governance and Sustainability in Public-Private Partnerships.Introduction: The Necessity of, and the Opportunity for, PublicPrivate Partnership ReformAt a time when infrastructure PPPs are acutely needed, the global level of PPP transact

7、ionsis decliningnot in every country, but on a widespread basis. The Private Participation in Infrastructure (PPI) database2 again reported areduction in developing and emerging market PPP investment commitments in 2019relative to 2018, a trend which began in 2012 (Figure 1). In advanced economies,

8、the United Kingdom (UK) has announced that it will no longer procure national-level infrastructure using the “Private Finance Initiative” approach (a form of PPP developed in the UK),3 and major corporate entities, such as SNC-Lavalin Group Inc. and1 Mark Moseley is Principal of Moseley Infrastructu

9、re Advisory Services. He is the former COO of the G20 Global Infrastructure Hub and a former Lead Lawyer in the World Banks Infrastructure Practice Group. His email address is HYPERLINK http:/Mark.MoseleyMMMI/ Mark.Moseley HYPERLINK http:/Mark.MoseleyMMMI/ MMMI.2 The World Bank. 2019. HYPERLINK /en/

10、ppi /en/ppi (accessed 22 September 2020).3 Government of the United Kingdom. 2018. Private Finance Initiative (PFI) and Private Finance 2 (PF2): Budget 2018 Brief. Policy paper. HYPERLINK .uk/government/publications/private-finance-initiative-pfi-and-private-finance-2-pf2-budget-2018-brief .uk/gover

11、nment/publications/private-finance-initiative-pfi-and-private-finance-2-pf2-budget- HYPERLINK .uk/government/publications/private-finance-initiative-pfi-and-private-finance-2-pf2-budget-2018-brief 2018-brief. It should be noted that this policy does not apply to projects carried out by devolved gove

12、rnments, such as in Scotland and Wales.Source: PPI database. /en/ppi (accessed 20 September 2020).1990199520002005201020158007006005004003002001000Figure 1: Private Participation in Infrastructure Database Dashboard Data on PublicPrivate Partnership Projects, 19902019Total Investment Number of Proje

13、ct180160140120100806040200At the heart of every PPP transaction is the allocation of risks between the public and private partners.the United States (US) division of Skanska AB, have indicated that they will no longer bid on PPP contracts.4The reasons for this decline are numerous. Among other conce

14、rns, there is, on the government side, a perception that PPPs are not delivering valuefor money and, on the private side, that the risks associated with PPP transactions have become excessive and unpredictable. Underpinning many of these concerns with PPPs is the sense that the transactions are extr

15、emely inflexible, with the parties bound by long-term contracts and financing arrangements that are ill-suited to dealing with unforeseen changes, particularly in an era of unprecedented technological and social change. This sentiment was widespreadeven before the onset of the coronavirus disease(CO

16、VID-19) pandemic, and the concern regarding the inflexibility of PPPs has been significantly exacerbated by the pandemic.Given the enormity of the global infrastructure gapparticularly in those countries that are well short of meeting the infrastructure targets inthe United Nations Sustainable Devel

17、opmentGoalsthere remains a critical need for investment in the sector. At the same time, various private sources of capital (such as pension funds and other institutional investors) are eager to find long-term viable investment opportunities. Arguably, the need for such private investment in infrast

18、ructure may well increase in the next few years, as governments focus public spending on other sectors in response to the pandemic. Accordingly, and in light of the loss of confidence in existing PPP arrangements, there is an urgent need to examine alternatives to the current models. In particular,

19、there is a need to develop more flexible and collaborative forms ofPPP contracts that can better meet the objectives ofboth the public and the private partners and deliver the cost-effective quality infrastructure facilities and services people require.At the heart of every PPP transaction is the al

20、location of risks between the public and private partners.Traditionally, the process of drafting a PPP contract has involved a detailed identification of every conceivable risk associated with the project, and the development of a complex risk matrix, assigning each individual risk to either the pub

21、lic or the private party, with a small group of risks being shared.Number of ProjectsTotal Investment ($ billion)4 SNC-Lavalin. 2019. SNC-Lavalin Forges New Strategic Direction with Corporate Reorganization. Press release. HYPERLINK /en/media/press-releases/2019/22-07-2019 https:/www. HYPERLINK /en/

22、media/press-releases/2019/22-07-2019 /en/media/press-releases/2019/22-07-2019; and Global Construction Review. 2018. Skanska US Pulls Out of PPP Infrastructure Market after $100m Hit. 26 October. HYPERLINK /companies/skanska-us-pulls-out-ppp-infrastructure-market-aft/ /companies/skanska-us- HYPERLIN

23、K /companies/skanska-us-pulls-out-ppp-infrastructure-market-aft/ pulls-out-ppp-infrastructure-market-aft/.This approach necessarily leads to a heightened sense of separation between the public and private partieseven though, ideally, they are meant to be working as partners to deliver the project on

24、 a long- term basis. Accordingly, if PPPs are to become more flexible and collaborative, the treatment of risks must be a major area of examination.Another critical element in every PPP contract is the methodology for handling disputes between the parties. This is of particular importance in the con

25、text of PPPs, given the very long-term nature of the projects, which can stretch over decades during which time disagreements are very likely to arise. Again, therefore, if PPPs are to become more flexible and collaborative, close attention must be paid to the process of dispute resolution.Against t

26、his background, this discussion paper examines a number of alternative approaches to risk allocation/risk sharing and to dispute resolution, with a view to developing new, more collaborative, parameters for PPP contracting.The paper does not suggest that current issues with risk allocation and dispu

27、te resolution are the sole causes of the overall decline in PPP activity, but it does argue that addressing those issues will significantly help to restore confidence in PPPs among governments, the private sector, and the public at large.Risk Allocation and Risk SharingA key feature of every PPP tra

28、nsaction is the transfer of specified risks from the public partner (i.e., the government contracting authority) to the private partner (i.e., the project company). From a government perspective, this is one of the principal mechanisms for achieving value formoney in a PPP transactionby having the p

29、rivate sector assume certain risks that would normally remain with the government in a traditional public works project. From a private sector perspective, project companies are willing to accept various types of risks where the company has the ability to control them, and thereby earn profit as a r

30、eward for managing those risks more effectively and efficiently.As indicated, the allocation of risks between the public and private parties in a PPP transaction is at the center of the PPP contract-drafting process. Recently, various guidance materials have been developed by governments and by inte

31、rnational organizations to help with this process, notably including:the PPP Risk Allocation Tool, 2019 Edition,5 developed by the G20s Global Infrastructure Hub (GI Hub); andthe Guidance on PPP Contractual Provisions, 2019 Edition,6 developed by the World Bank.From these tools, it can be seen that

32、the risk allocation process is extremely detailed and carefully tailored to the specific parameters of individual PPP projectsthe GI Hub tool, for instance, consists of four volumes of sample risk matrices across various sectors, totaling more than 750 pages in length.However, on a very general and

33、highly simplified basis, the risk allocation in a typical PPP transaction will usually be similar to that shown in Table 1.An important difference, particularly in regard to the treatment of “demand risk,” i.e., the risk that the usage of the infrastructure facilities and services will be less than

34、anticipated, exists between the two main types of PPP contracts, namely:Availability Contracts: where the private partner receives regular payments from the government partner if the infrastructure facility is “available for use” in accordance with the terms of the PPP contract, regardless of the le

35、vel of usage that is actually taking place (which might, for example, be the approach used on a PPP school building project); andUser-Pay Contracts: where the revenue for the private partner comes wholly or partly through fees paid by end-users (which might, for example, be the approach used on a PP

36、Ptoll-road project).In the case of an Availability Contract project, the demand risk is largely assumed by the public partner; whereas under a User-Pay Contract, theprivate partner normally accepts some or all of the demand risks.Another critical element in every PPP contract is the methodology for

37、handling disputes between the parties.5 Available at: HYPERLINK / /. In addition, there is also some guidance on the allocation of technical risks in the GI Hubs September 2019 Reference Guide on Output Specifications for Quality Infrastructure. HYPERLINK /infrastructure-output-specifications/ /infr

38、astructure- HYPERLINK /infrastructure-output-specifications/ output-specifications/.6 Guidance on PPP Contractual Provisions, 2019 Edition. HYPERLINK /documents/5749/download /documents/5749/download.Table 1: Simplified Risk Matrix for a Typical PublicPrivate Partnership ProjectRisksPrivate PartnerP

39、ublic PartnerSharedDesign PhaseDesign cost overrunsDesign delaysFitness for purpose risksFinancing risksLand acquisition and resettlement risksConstruction PhaseConstruction cost overrunsConstruction delaysCost overruns and delays associated with the preparation of documentation for construction- re

40、lated government permitsCost overruns and delays associated with the issuance of construction-related government permitsSelected environmental risks (depending on the nature of the project)Operations PhaseOperations and maintenance cost overrunsOperation and maintenance delaysOperational performance

41、 risksRisks associated with technological changesCost overruns and delays associated with the preparation of documentation for operation- related government permitsCost overruns and delays associated with the issuance of operation-related government permitsMajor equipment replacement and repairDeman

42、d risk (depending on the nature of the project, as noted in the paragraphs that follow)Handover PhaseHandover cost overruns and delaysCompliance with handover performance requirementsThroughout the ProjectCost overruns and delays associated with changes in law and government policy (other than those

43、 associated with certain limited types of changes for which the private partner is responsible)Cost overruns and delays associated with certain limited types of changes in law and government policy (generally, not including discriminatory or project-specific changes, or changes that necessitate capi

44、tal expenditures during the operations phase)Force Majeure risksSource: Author.Frequently, the main points of friction in PPP transactions are related to particular aspects of risk allocation. For instance, many private sector partners have been frustrated by construction andoperation cost overruns

45、and delays that have arisen due to wholly unanticipated events (such as a global pandemic) which may not precisely fall within the ambit of force majeure as defined in a given PPP contract. Similarly, the issue of unexpectedly low demand has frequently led to serious difficultiesfor the partner (or

46、partners) in a PPP transaction to whom demand risk has been assigned. Looking toward the future, there may well be many situations where even greater challenges will arise due to the risk of technological change, i.e., thepossibility that an infrastructure facility may become obsolete due to the adv

47、ent of new technologies (such as post-pandemic digital innovations that further erode the need for traditional transport infrastructure). These “points of friction” are a major cause of the increasing loss of confidencein both the public and private sectorsin PPPs.A useful analysis of various curren

48、t issues associated with risk allocation in publicprivate infrastructure transactions is set out in the World Economic Forum (WEF) January 2020 community paper on Rebalancing Risk Allocation in Infrastructure. The paper discusses seven specific risk categories including macroeconomic risks, politica

49、l risks, and technological change riskswhere, in the opinionof the authors, new approaches are required “to enhance collaboration between industry and the public sector.” The WEF paper also makes the point that governments must “build and sustain capacity in the public sector,” and develop “professi

50、onal human capacity that can work on even ground with the private sector.”7Dispute ResolutionAlongside the issue of risk allocation is the closely related topic of dispute resolution. Typically, PPP contracts call for a tiered or “staircase” approach to resolving disputes between the public andpriva

51、te parties, with each step in the process being increasingly formal.This staircase approach normally involves the following steps:the PPP contract provides that, initially, the parties should attempt to resolve the dispute through good faith negotiations between senior representatives of each party,

52、 who have the ability to agree upon a settlement;if this fails, the contract may call for the appointment of a mediator to act as a neutral facilitator of an amicable resolution;in situations where a dispute concerns a specific technical issue, the contract may provide for the appointment of an inde

53、pendent expert, or expert panel, to make a determination that is meant to be followed by the parties; andultimately, if none of these techniques achieve a final solution of the dispute, the PPP contract will normally call for some form of arbitration or court litigation (which the contract may requi

54、reto be held in a neutral country), so as to impose a binding judgment upon the parties.8As indicated, the long-term and complex nature of PPP projects is such that, inevitably, disagreements will arise between the partiesfrequently due to risk allocation “frictions.” If such disagreements are not q

55、uickly addressed, they can escalate into full disputes, triggering the staircase process as earlier described. By this point, the positions ofthe parties will have already begun to harden, such that the informal/amicable steps to be taken at the beginning of the dispute resolution staircase are not

56、effective. This, in turn, drives the parties to the expensive, time-consuming, and highly adversarial processes of arbitration and/or litigationwhich oftentimes lead to a complete breakdown of what was supposed to be a partnering relationship between the parties.9In addition, the failure of dispute

57、processes to achieve a successful result has often led one or both parties in a PPP transaction to seek therenegotiation of their contract or, in extreme cases,The long-term and complex nature of PPP projects is such that, inevitably, disagreements will arise between the partiesfrequently due to ris

58、k allocation “frictions.”7 World Economic Forum. 2020. Rebalancing Risk Allocation in Infrastructure: A Collective Effort to Improve Collaboration between the Public and Private Sectors. Community paper. HYPERLINK /docs/WEF_Risk_Allocation_Report.pdf /docs/WEF_Risk_Allocation_Report.pdf (quotes are

59、from pages 6 and 11).8 A good description of these dispute resolution techniques is found in Chapter 11 of the World Bank Guidance on PPP Contractual Provisions, 2019 Edition (see footnote 6).9 A detailed discussion of disputes in PPP transactions can be found in Chapter 5 of the GI Hubs July 2018 P

60、PP Contract Management Tool. HYPERLINK / /. The GI Hub tool includes data on the nature and prevalence of disputes, based on a representative sampling of PPP projects, selected across all regions.Figure 2: Typical Dispute Resolution “Staircase”Arbitration/ LitigationIndependent Expert AssessmentMedi