Structuring & Managing PPP Legal Agreements (PPP Contract Negotiation, Strategy & Legal Agreements Training Week)

3 days 7-9 Dec 2016, London UK £3,450.00 + VAT* Download brochure Add to basket

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Overview

This course forms module 2 of the PPP Contract Negotiation, Strategy & Legal Agreements Training Week. Attend both modules to save 15% on the combined price.

This course is about structuring and managing PPP agreements. Since these types of contracts are long term contracts, it is important that their development is based on an adequate risk allocation between the public and private sector. This course parts from setting out the basic issues of upstream policy and how these will affect how risks are apportioned within a sector and how competition can be enhanced. The course then delves into the specificity of how risks are dealt with in PPP agreements. It looks in detail at some of the standard clauses most likely to appear in PPP agreement regardless of a county’s legal tradition. Further it distinguishes between countries with a Common and Civil Law tradition. It goes on to explore in detail how different contracts have used certain specific clauses such as lender step-in rights, termination payments and tariff adjustments. Further it explores the different techniques available to practitioners to manage change including tariff resets, transition periods, extension of contract terms etc. It further assesses ways in which the public sector can backstop its obligations within the contract as a means of enhancing the project’s overall bankability. Finally this leads to a discussion on how to manage disputes that may arise and some recent trends in infrastructure contracts (and others) which are using innovative techniques such as expedited dispute resolution and expert panels to resolve disputes.

Course objectives

Provide a basic primer of commercial terms and their implications in different legal environments where PPPs take place
Link risk assessment to contract clauses by understanding the critical business aspects that are to be enshrined in a contract
Given the fact that PPPs have the added challenge of being a long term arrangements, afford practical insights and techniques to effectively introduce clauses that allow modifications and changes to the original terms of the contract without jeopardizing the overall business relationship

 

Methodology

The design of the course combines theory with relevant case studies as well as interactive participatory discussions. The course is comprehensive in its legal assessment of different techniques available to practitioners to deal with critical issue of PPP design and risk allocation. Importantly, through interactive discussions and case studies, it will illustrate the way in which change is managed in different PPPs. It will also provide course attendants with specific and practical techniques for drafting form scratch PPP agreement, based on proven pragmatic and practical techniques based on best international practice.

Who should attend

  • Government officials, ministries and public sector agencies
  • Investment planning commissions
  • Project developers, sponsors and consultants
  • Senior investment and credit analysts
  • Commercial, Business Development, Bid and Acquisitions Managers
  • Lawyers and legal counsel
  • Project financiers
  • Credit, Risk and Investment officers
  • Chief Financial Officers and Controllers
  • Infrastructure and structured finance specialists

Instructors

We work with a series of expert instructors, please select the course location of interest to review the credentials of who will be delivering the programme.

London
Marshall Levine

Marshall Levine

Marshall was the head of Construction and Engineering at Linklaters for 24 years and a founding partner of Linklater’s PFI/PPP practice when PFI/PPP began in or around 1993 in the UK.

At Linklaters, he was involved in many varied UK and International high profile projects and real estate developments including Nat West Tower, The Gherkin, UCLH, Heathrow Airport Baggage Handling Systems, World Cargo Project Heathrow, Beirut Solidere, West Nile Delta, and The Saint Petersburg Ring Road.

He currently works as a Partner specialising in PPP and infrastructure programmes. He advises international governments on their PFI/PPP and infrastructure programmes, project set up, negotiations, and transactions and he is particularly experienced in preparing tender documents, concession contracts, PPP agreements, design, construction and facilities contracts, dispute resolution and the rescue of difficult projects.

Marshall also works as a consultant to the World Bank, Difid and other multilateral agencies and works on the implementation of projects in Kenya, Ethiopia, Nigeria, and Ghana.

He trains government officials in PPP matters in Ethiopia, Kenya, Malaysia and Nigeria for Crown Agents, Difid and other Agencies.

Venue

London

Central London Hotel Venue

All courses are held at four or five star venues in Central London, Zone 1. We strive to provide you with a training environment of the highest quality, to ensure that the whole learning experience exceeds your expectations.

Your training venue will be confirmed by one of our course administrators approximately 3-4 weeks before the course start date.

Related Courses

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Do you have five or more people interested in attending this course? Do you want to tailor it to meet your company's exact requirements? If you'd like to do either of these, we can bring this course to your company's office. You could even save up to 50% on the cost of sending delegates to a public course.

To find out more about running this course in-house:





Our Tailored Learning Offering

If you want to run this course at a location convenient to you or if you want a completely customised learning solution, we can help.

We produce learning solutions that are completely unique to your business. We'll guide you through the whole process, from the initial consultancy to evaluating the success of the full learning experience. Our learning specialists ensure you get the maximum return on your training investment.



We can offer any of our public courses delivered at your office or we can devise completely tailored solutions:


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Agenda

Day 1

Introduction

Opening remarks
This is to brief the participants on the overall objectives of the second part of the programme for the structuring and management of PPP agreements, and how this links to the first two days.

  • Upstream policy implications and their effect on PPP contractual agreements
  • Objective: In this session we specifically link the legal arrangements that are developed under PPP agreements and how they relate to upstream and sector policy. This involves three broad topics , including:
  • How do we define an appropriate Market structure
  • How do we identify the level of Government to be responsible for infrastructure services and what are the responsibilities of other levels of Government, and how these relate to PPP contractual agreements?
  • Competition and regulation – how can we establish competition and how does it get reflected in a PPP agreement e.g. how to deal with monopoly arrangements etc.
  • Implications of different legal jurisprudence environments
  • Objective: This session is intended to assess implications of different legal jurisprudence environments. Specifically:
  • Why does the system matter and how do I link contractual obligations with legal regime?
  • Contracts and local courts – the implications of legal precedence and how it can affect contract design

In order to illustrate these fundamental differences for contract drafting and its implication different examples will be providing, comparing and contrasting civil and Anglo-Saxon jurisprudence. Furthermore, examples will be provided as to how these ‘shape’ certain contractual arrangements.

Case study and discussion session
Each one of these issues outlined in session 10 and 11 will be explained by making reference to specific case studies in projects for toll roads (Senegal Diamando), Ports (Ghana), Metro (Sao Paolo Brazil and Dar es Salaam Rapid Bus Transport), Power generation (Azito Power, Kenya wind) and Health (Mozambique hospital). So for example, when dealing with early termination issues, the case study of Tanzania water lease contract will be used, etc.

  • Upstream policy implications and their effect on PPP contractual agreements
  • Objective: In this session we look at:
  • Where does VfM fit in the project evaluation cycle?
  • What is an adequate definition of VfM?
  • The linkage of VfM and the Public Sector Comparator
  • How to determine VfM?

Overview of case studies using the UK, Brazilian, Indian and Australia (Victoria) VfM methodology.

  • Summary and learning issues
  • Objective: Every day will conclude with a wrap up of core principles of each one of the sessions, drawing out each of the learning outcome for each session.


 

Day 2

Key Contractual Clauses

  • Objective: This session is divided into two given the quantity of contractual clauses that will be covered. The two sessions will look at some of the more critical contractual clauses encountered in PPP agreements. The starting point will be a discussion of the differences between Common and Civil Law legal traditions. In addition discussion will be had on:
  • Appropriate techniques for contract drafting
  • Estimating probability of risk
  • Developing a risk matrix (and setting out its minimum contents)
  • Use of ‘heads of terms’ as an instrument for risk allocation prior to contract drafting
  • Objective: This session will continue from the previous session but will specifically focus on:
  • Why standardisation is important and examples of where this approach has been successful
  • Role of credit committees and implications to key contract clauses
  • Institutional investors Clauses and risk allocation
  • Sample clauses and risk allocation
  • Objective: This session will continue from the previous session but will specifically focus on:
  • Clauses and risk allocation
  • Sample clauses
  • Standard clauses
  • Dealing with change within a PPP agreement (including tariff variation procedures – an often controversial set of provisions subject in some instances to regulatory approval)
  • How to manage change within a PPP including tariff resets, transition periods, extension of contract terms etc.
  • Objective: Building on the concepts of previous sessions, this session will be a structured discussion on:
  • Mechanisms to deal effectively with conflicts within a PPP
  • Back stopping of public sector obligations within the contract as a means of enhancing the project’s overall bankability
  • Other contractual clauses will be evaluated and their implication discussed by using relevant cases studies.

The session will interact with participants by doing a quick survey of the different experiences amongst the students, by asking each to outline their experience to date in preparing contractual documents and any issues/problems they currently face. The course leader will then present an overview of the process and share best-practice. This will be followed by an interactive Q&A session.


 

Day 3

Dispute Resolution and Managing Change within PPP Agreements

  • Objective: PPPs are long term contracts which by their nature will change. This session will look at mechanisms by which change can be managed within a contract, allowing flexibility to deal with change but at the same time ensuring contractual integrity. Particular focus will be on:
  • How to build clauses that allow for change e.g. tariff review processes, review procedures, milestone attainment etc.
  • Techniques to address change within a contract
  • Dealing with unforeseen circumstances
  • Case study example of Chile toll road programme of variable length contracts

The session is intended to be an introduction of the specifics of dispute resolution procedure in the session below.

  • Objective: building form the second session on Key Contract Clauses, this session will continue the discussion on how to manage change within a PPP agreement with a particular focus on:
  • The dispute resolution procedure
  • Expedited dispute resolution including expert panels
  • Arbitral awards
  • Managing the process of renegotiations
  • Venues for dispute resolution UNCITRAL, ICSID etc.
  • IFI Risk mitigation instruments and other forms of guarantees (political risk insurance etc.)

Case study: Review of conflicts e.g. Aguas Argentinas, Panama Canal expansion etc.

  • Group work
  • A specific worked session will be presented where the group will be split into grantor and sponsor. Each party will negotiate a mock PPP agreement. An interactive and moderated discussion will be done simulating:
  • Initial PPP negotiation with grantor
  • PPP negotiation to achieve financial close
  • Midterm tariff review
  • Early termination event
  • Wrap up and conclusions
  • Course review questionnaire to assess course
  • Distribution of reading material
  • Overall Q&A

Course summary and close

Why us


We have a combined experience of over 60 years providing learning solutions to the world’s major organisations and are privileged to have contributed to their success. We view our clients as partners and focus on understanding the needs of each organisation we work with to tailor learning solutions to specific requirements.

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  • Quality – our clients consistently rate our performance ‘excellent’ or ‘outstanding’. Our average overall score awarded to us by our clients is nine out of ten.
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