*** « Public-Private Partnerships Colloquium» Vienna, 3 – 4 March 2014 *** Marc Frilet Managing Partner « Frilet – Société d’Avocats » Chair of the Management Committee of GcilA Vice-President of the French Institute of International Legal Experts (IFEJI) Head of the drafting committee CICA PPP-Working Group Co-promoter of UNECE PPP International Centre of Excellence 1

Institutional framework (1) 2 Monday, March 3rd (14:00 – 14:30) The lessons learnt in the last decades :  Pipelines of projects have very little chances to become a reality without an appropriate institutional framework and related processes  Several of the most practical issues to address for planning, preparing, developing and implementing most of the PPPs needed in core infrastructure service projects are new in most countries and substantially different in many aspects from traditional contracting for public infrastructure projects  There is a wide consensus among PPP experts of LDCs for the need to design and implement a holistic institutional system at different levels in government and related administrative organizations well coordinated and leading to an efficient engagement and decision making process in line with government policies and programs for Concessions and other PPPs.  Without such a framework progressively set up with a strong political support, the experience shows that a lot of time and resources are wasted in attempting to clarify and develop in practice the PPP planning, development and implementation process in virtually any country either at a global or project basis

Institutional framework (2) 3 Monday, March 3rd (14:00 – 14:30)  It is possible to consider the development of universal policy guidelines, however: - This work remains to a large extent incomplete, -Only a minority of the real issues for developing Concession/PPP family has been addressed and followed by formulation of best practices through professionally designed policy guidelines of more or less universal nature. Ref: PPIAF « Reference Guide on PPP », Currently, best practices and guidelines more or less of universal value having reached this step (aside from the institutional framework discussed below) are limited to (i) the area of PPP planning and preparation, transparency, and to some extent procurement, or (ii) to corner stone of framework (i.e. central units)  In other words, without core principles at least embedded in general laws or in PPP framework laws dealing efficiently with those issues, the best institutional framework – which remains to be designed and implemented in most countries – will have little chances to deliver in accordance with the objective of their promoters.

Institutional framework (3) 4 Monday, March 3rd (14:00 – 14:30)  It appears therefore in practice: - that several layers of institutional framework best practices need to be designed and proposed in a holistic manner if the objective of the PPP institutional framework is to deliver efficiently the pipelines of Concessions and other PPPs as expected at political level. Those best practices will then have to be incorporated in framework laws. - that it is in most cases necessary to consider in parallel the development of an additional set of principles for governance, transparency and efficiency for each PPP related institutions whether at a central or at a local level. Those principles should also be incorporated in framework law, since several of them are more or less of universal nature.  In conclusion: An appropriate PPP institutional framework is in fact based on two main pillars, which should be part of the legislative framework of a country in order to show a stable and reliable system able to attract serious private investors and operators which are often requested to invest in an infrastructure, and deliver the related public service often for decade.

Project planning and preparation (1) 5 Tuesday, March 4th (9:30 – 10:00)

Project planning and preparation (2) 6 Tuesday, March 4th (9:30 – 10:00)

Risk allocation (1) 7 Tuesday, March 4th (10:00 – 10:30)  Two preliminary considerations: - Risk and reward need to be consider at the same time for the life cycle of the project -Difference between perception and reality of risk and reward is subtantially for different players at different times  Allocation is only a part of the game of risk and reward  Several situations may be envisaged: - Some risks can be erased and canceled Various collaborative actions. Example: tax risk, permitting risk, environmental risk, land use risk, regulatory risk, etc.) - Other risks can be shared above or below a certain threshold Example: demand risk, etc.

Risk allocation (2) 8 Tuesday, March 4th (10:00 – 10:30)  General principles for remaining risks to the party which is the best able to control or limit the risk  Practical approach: implementing partner relationship to prevent, erase or reduce the risk

Unsolicited proposals (1) 9 Tuesday, March 4th (11:30 – 12:00)  Unsolicited proposals are controversial issues in most countries and there are few examples of projects having been satisfactory developed in the last decade as a result of unsolicited proposals.  In essence the scope of unsolicited proposal should be limited to public infrastructure service projects which have not been planned. Taking into account the role and importance of master plans and then prioritization of projects in order for any State to develop its vision of integrated development of public infrastructure services, the admissibility for unsolicited proposals appears to be exceptional and should be further reduced in the future with the improvement of planning conditions in most countries.

Unsolicited proposals (2) 10 Tuesday, March 4th (11:30 – 12:00)  How the Contracting Authority can check whether the new concept of the new technology proposed are really competitive and meet the public interest in the long term ? The best practices to be promoted seems to be that the Contacting Authority organizes a well-structured competitive dialogue with other preselected bidders including some provision for a premium to the author if the author is not selected. This is not all together simple even if the competitive dialogue charter (IGD January 2007) is helpful. When prima facie the innovative aspects of the proposal are such that it will not be possible to implement the project without the proprietary concept or technology of the author, and after a thorough check of this situation by the Contracting Authority, a negotiated procedure with the author without competition could be envisaged. However, if the PPP contractual form proposed is public payment PPP due consideration should be given to the use of the provisions of public procurement code for negotiated procedure. In conclusion and after a decade of experience the provision of the legislative guide on the matter have proven to be fair and robust. It seems that it should not be fundamentally amended but rather updated to take into account useful developments having taken place in PPP procurement best practices

Provision in legislation or contract (1) 11 Tuesday, March 4th (12:00 – 12:30)  Starting point: List of practical issues of all kinds which are real or perceive obstacles to the development of pipelines of projects  Aggregate experience and best practices to overcome the obstacles  Distinguish the ones which are common nature for PPIS and the ones which are of specific sector  Best practices can be formulated and became binding contractual or legal obligations  Identify best practices unusual or deriving from public contract law  Consider best practices and related obligations are familiar or can be enforced easily in the specific legal system

Provision in legislation or contract (1) 12 Tuesday, March 4th (12:00 – 12:30)  Incorporate in laws most of the provisions usually not found in private contract to facilitate pipelines of projects and easy implementation  Only incorporate in legal provisions best practices which can be formulated in simple and intelligible terms and valid for a long foreseeable time period  In all cases, draft interpretative guidelines

Thank You ! Me Marc Frilet Frilet – Law firm/ GcilA 91, rue du Faubourg Saint Honoré Paris – France Tel :