Transparency and accountability mechanisms in UNCITRAL’s PFI instruments Dr. Michael Fruhmann UNCITRAL 17th July 2014

© Michael Fruhmann 2014 Background – relevant UNCITRAL instruments  UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects (2000)  UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects (2003)  Post 2015 development agenda

© Michael Fruhmann 2014 Transparency 3 aspects in context of PFI Transparency when planning infrastructure projects Transparency in the process to enter into concession contracts for the implementation of infrastructure projects (clear focus of UNCITRAL instruments) Transparency during the implementation of infrastructure projects (vis-à-vis contracting authority, 3 rd parties/”the general public”)

© Michael Fruhmann 2014 Transparency II Transparency when planning infrastructure projects UNCITRAL instruments do not specifically address the issue of transparency in this phase, only general statements are made “transparency requires the disclosure of information of “public relevance” “some” public participation is considered to be “useful” in the preliminary assessment of the project’s environmental impact and the various options available to minimize it

© Michael Fruhmann 2014 Transparency III Transparency in the process UNCITRAL instruments contain extensive rules covering all pre-award phases, for example: rules/regulatory decisions should be made public, accessible, not complex and understandable reasons for decisions should be communicated records should be maintained contract award should be published availability of review procedures

© Michael Fruhmann 2014 Transparency IV Transparency during the implementation of infrastructure project UNCITRAL instruments contain some provisions focusing on relationship contracting authority – concessionaire for ex reporting requirements on operation and dispute settlement UNCITRAL instruments deal only with specific transparency aspects vis-à-vis 3 rd parties (users) like issue of adjustment of tariffs or user fees (“fair price”)

© Michael Fruhmann 2014 Accountability 4 perspectives contracting authority vis-à-vis concessionaire concessionaire vis-à-vis contracting authority contracting authority vis-à-vis 3 rd parties (“users”) concessionaire vis-à-vis 3rd parties (“users”)

© Michael Fruhmann 2014 Accountability II Relationship contracting authority vis-à-vis concessionaire (and vice versa)  (pre)contractual relationship  UNCITRAL instruments have a strong focus on this relationship

© Michael Fruhmann 2014 Accountability III contracting authority vis-à-vis 3rd parties (“users”)  not specifically dealt with in UNCITRAL instruments concessionnaire vis-à-vis 3rd parties (“users”)  UNCITRAL instruments only touch upon this subject (see Model Provision 50 + Recommendation 71) – disputes btw “customers” of infrastructure facility and concessionaire

© Michael Fruhmann 2014 Conclusions  UNCITRAL instruments have a very strong focus on relationship contracting authority – concessionaire  Transparency mechanisms are focused on pre- award phase  Accountability mechanisms are mentioned but should be improved (especially as regards the implementation phase of infrastructure projects)  UNCITRAL instruments should be extended to non-infrastructure PPPs

© Michael Fruhmann 2014 Conclusions II  UNCITRAL instruments discuss important issues of public concern (continuity of services, fairness of user fees, health/quality/social/environmental standards, equal treatment of customers) but those issues should be further developed (for example institutionalized customer participation in planning, developing + implementing projects)  various interests (public, investor and customer) should be dealt with in a more balanced way

Thank you for your attention! Contact: Dr. Michael Fruhmann, Federal Chancellery, Constitutional Service, Republic of Austria