UNCITRALThird International Colloquium on Public-Private Partnerships (PPPs) 23-24 October 2017, Vienna Experts for Chapter VI October 2017

Possible future work on PPPs PROPOSALS FOR CHAPTER VI Updating of Chapter VI in order to incorporate new developments Recognition of partnership-like relationships (synallagmatic triallagmas) whereby the income- stream is generated from the market, that is, a third party A synallagmatic triallagma is a contract with two parties that both contribute to a project in a partnership-like manner, however, where the payment for the services and goods comes from the market that is the users of a toll road or of water and other public services.

Possible future work on PPPs PROPOSALS FOR CHAPTER VI Putting emphasis on best practices of the settlement of disputes such as the use of dispute adjudication boards (instead of dispute review boards) as dispute prevention mechanism Dispute Adjudication Boards should preferably be standing boards and not stand by One dispute board should suffice for all contracts involved

Possible future work on PPPs PROPOSALS FOR CHAPTER VI Separation of commercial arbitration from investment arbitration and extend comments about the latter Infrastructure projects are normally being structured under international investment agreements.

Possible future work on PPPs PROPOSALS FOR CHAPTER VI The distinction between (pre-) selection of the concessionaire disputes and disputes between the contracting authority and the concessionaire should be maintained With respect to pre-selection disputes a reference may be included to the UNCITRAL Model Law on Government Procurement

Possible future work on PPPs PROPOSALS FOR CHAPTER VI Issues of the governing law and the place of arbitration (preferably different from the project’s site) should be addressed

Possible future work on PPPs PROPOSALS FOR CHAPTER VI Use of liquidated damages formulas to avoid lengthy disputes in both commercial and investment arbitration (Murphy v. Ecuador) Recommendation of partnering approach using techniques such as “Front-End-Engineering Design” (FEED), Building Information Modelling (BIM) and “open book” approach in construction contracts Front end Engineering Design focuses on the technical requirements as well as rough investment cost for the project; Building Information Modelling is an intelligent 3D model-based process; Open book approach means that the cost of the contractor are transparent for the owner of the works and may be verified at any time. The contractor earns a profit margin over the cost.

Possible future work on PPPs PROPOSALS FOR CHAPTER VI Partnering would also be favoured through FEED (Front end Engineering Design), which focuses on the technical requirements as well as rough investment cost for the project, and BIM (Building Information Modelling), that is an intelligent 3D model-based process

Possible future work on PPPs PROPOSALS FOR CHAPTER VI Recommendation to use modern claim mechanisms in order to allow for contract adaption and modification, in particular, for unforeseen circumstances as part of dispute prevention Expanded guidance on dispute prevention and resolution