«Prepared by the United Nations Commission on International Trade Law United Nations New York, 2001 NOTE Symbols of United Nations documents are ...»
on Privately Financed
Prepared by the United Nations
Commission on International Trade Law
New York, 2001
Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United
Material in this publication may be freely quoted or reprinted, but acknowledgement is requested, together with a copy of the publication containing the quotation or reprint.
A/CN.9/SER.B/4 United Nations Publication Sales No. E.01.V.4 ISBN 92-1-133632-5 ii Preface The present Legislative Guide was prepared by the United Nations Commission on International Trade Law (UNCITRAL). In addition to representatives of member States of the Commission, representatives of many other States and of a number of international organizations, both intergovernmental and non-governmental, participated actively in the preparatory work.
The Commission considered possible work to be undertaken in the field of privately financed infrastructure projects in 1996, in the light of a note by the Secretariat on build-operate-transfer (BOT) projects.1 The Commission decided to prepare a legislative guide and requested the Secretariat to prepare draft chapters of such a guide.2 The Commission reviewed the drafts chapters from its thirtieth to its thirty-third sessions.3 The Commission adopted the Legislative Guide at its thirty-third session, held in New York from 12 June to 7 July 2000, subject to editorial modifications left to the Secretariat, and requested the Secretariat to ensure its widest possible dissemination.4 “Build-operate-transfer projects: note by the Secretariat” (A/CN.9/424) (Yearbook of the United Nations Commission on International Trade Law 1996 (hereinafter referred to as the “UNCITRAL Yearbook”) (United Nations publication, Sales No. E.98.V.7, vol. XXVII), part two, chap. V).
See Official Records of the General Assembly, Fifty-first Session, Supplement No. 17 (A/51/17), paras. 225-230 (UNCITRAL Yearbook 1996, part one).
See ibid., Fifty-second Session, Supplement No. 17 (A/52/17), paras. 231-247 (UNCITRAL Yearbook 1997, vol. XXVIII (United Nations publication, Sales No. E.99.V.6), part one); ibid., Fifty-third Session, Supplement No. 17 (A/53/17), paras. 12-206 (UNCITRAL Yearbook 1998, vol. XXIX (United Nations publication, Sales No. E.99.V.12), part one); and ibid., Fifty-fourth Session, Supplement No. 17 (A/54/17), paras. 12-307).
See Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 17 (A/55/17), para. 372.
Foreword The following pages contain a set of recommended legislative principles entitled “legislative recommendations”. The legislative recommendations are intended to assist in the establishment of a legislative framework favourable to privately financed infrastructure projects. The legislative recommendations are followed by notes that offer an analytical introduction with references to financial, regulatory, legal, policy and other issues raised in the subject area.
The user is advised to read the legislative recommendations together with the notes, which provide background information to enhance understanding of the legislative recommendations.
The legislative recommendations deal with matters that it is important to address in legislation specifically concerned with privately financed infrastructure projects. They do not deal with other areas of law that, as discussed in the notes to the legislative recommendations, also have an impact on privately financed infrastructure projects. Moreover, the successful implementation of privately financed infrastructure projects typically requires various measures beyond the establishment of an appropriate legislative framework, such as adequate administrative structures and practices, organizational capability, technical expertise, appropriate human and financial resources and economic stability.
For host countries wishing to promote privately financed infrastructure projects it is recommended that the following principles be implemented by
I. General legislative and institutional framework Constitutional, legislative and institutional framework (see chap. I, “General legislative and institutional framework”, paras. 2-14) Recommendation 1. The constitutional, legislative and institutional framework for the implementation of privately financed infrastructure projects should ensure transparency, fairness, and the long-term sustainability of projects. Undesirable restrictions on private sector participation in infrastructure development and operation should be eliminated.
xi xii UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects Scope of authority to award concessions (see chap. I, “General legislative and institutional framework”, paras. 15-22) Recommendation 2. The law should identify the public authorities of the host country (including, as appropriate, national, provincial and local authorities) that are empowered to award concessions and enter into agreements for the implementation of privately financed infrastructure projects.
Recommendation 3. Privately financed infrastructure projects may include concessions for the construction and operation of new infrastructure facilities and systems or the maintenance, modernization, expansion and operation of existing infrastructure facilities and systems.
Recommendation 4. The law should identify the sectors or types of infrastructure in respect of which concessions may be granted.
Recommendation 5. The law should specify the extent to which a concession might extend to the entire region under the jurisdiction of the respective contracting authority, to a geographical subdivision thereof or to a discrete project, and whether it might be awarded with or without exclusivity, as appropriate, in accordance with rules and principles of law, statutory provisions, regulations and policies applying to the sector concerned. Contracting authorities might be jointly empowered to award concessions beyond a single jurisdiction.
Administrative coordination (see chap. I, “General legislative and institutional framework”, paras. 23-29) Recommendation 6. Institutional mechanisms should be established to coordinate the activities of the public authorities responsible for issuing approvals, licences, permits or authorizations required for the implementation of privately financed infrastructure projects in accordance with statutory or regulatory provisions on the construction and operation of infrastructure facilities of the type concerned.
Authority to regulate infrastructure services (see chap. I, “General legislative and institutional framework”, paras. 30-53) Recommendation 7. The authority to regulate infrastructure services should not be entrusted to entities that directly or indirectly provide infrastructure services.
Recommendation 8. Regulatory competence should be entrusted to functionally independent bodies with a level of autonomy sufficient to ensure that their decisions are taken without political interference or inappropriate pressures from infrastructure operators and public service providers.
Recommendation 9. The rules governing regulatory procedures should be made public. Regulatory decisions should state the reasons on which they are based and should be accessible to interested parties through publication or other means.
Consolidated legislative recommendations xiii Recommendation 10. The law should establish transparent procedures whereby the concessionaire may request a review of regulatory decisions by an independent and impartial body, which may include court review, and should set forth the grounds on which such a review may be based.
Recommendation 11. Where appropriate, special procedures should be established for handling disputes among public service providers concerning alleged violations of laws and regulations governing the relevant sector.
II. Project risks and government support Project risks and risk allocation (see chap. II, “Project risks and government support”, paras. 8-29) Recommendation 12. No unnecessary statutory or regulatory limitations should be placed upon the contracting authority’s ability to agree on an allocation of risks that is suited to the needs of the project.
Government support (see chap. II, “Project risks and government support”, paras. 30-60) Recommendation 13. The law should clearly state which public authorities of the host country may provide financial or economic support to the implementation of privately financed infrastructure projects and which types of support they are authorized to provide.
III. Selection of the concessionaire General considerations (see chap. III, “Selection of the concessionaire”, paras. 1-33) Recommendation 14. The law should provide for the selection of the concessionaire through transparent and efficient competitive procedures adapted to the particular needs of privately financed infrastructure projects.
Recommendation 15. The bidders should demonstrate that they meet the pre-selection criteria that the contracting authority considers appropriate for
the particular project, including:
(a) Adequate professional and technical qualifications, human resources, equipment and other physical facilities as necessary to carry out all the phases of the project, namely, engineering, construction, operation and maintenance;
(b) Sufficient ability to manage the financial aspects of the project and capability to sustain the financing requirements for the engineering, construction and operational phases of the project;
xiv UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects (c) Appropriate managerial and organizational capability, reliability and experience, including previous experience in operating public infrastructure.
Recommendation 16. The bidders should be allowed to form consortia to submit proposals, provided that each member of a pre-selected consortium may participate, either directly or through subsidiary companies, in only one bidding consortium.
Recommendation 17. The contracting authority should draw up a short list of the pre-selected bidders that will subsequently be invited to submit proposals upon completion of the pre-selection phase.
Procedures for requesting proposals (see chap. III, “Selection of the concessionaire”, paras. 51-84) Single-stage and two-stage procedures for requesting proposals Recommendation 18. Upon completion of the pre-selection proceedings, the contracting authority should request the pre-selected bidders to submit final proposals.
Recommendation 19. Notwithstanding the above, the contracting authority may use a two-stage procedure to request proposals from pre-selected bidders when it is not feasible for it to formulate project specifications or
performance indicators and contractual terms in a manner sufficiently detailed and precise to permit final proposals to be formulated. Where a twostage procedure is used, the following provisions should apply:
(a) The contracting authority should first call upon the pre-selected bidders to submit proposals relating to output specifications and other characteristics of the project as well as to the proposed contractual terms;
(b) The contracting authority may convene a meeting of bidders to clarify questions concerning the initial request for proposals;
(c) Following examination of the proposals received, the contracting authority may review and, as appropriate, revise the initial project specifications and contractual terms prior to issuing a final request for proposals.
Content of the final request for proposals Recommendation 20. The final request for proposals should include at least
(a) General information as may be required by the bidders in order to prepare and submit their proposals;
(b) Project specifications and performance indicators, as appropriate, including the contracting authority’s requirements regarding safety and security standards and environmental protection;
Consolidated legislative recommendations xv (c) The contractual terms proposed by the contracting authority;