Without a doubt, expanding countries’ toolkits to finance infrastructure has taken on increasing urgency with trillions of dollars of infrastructure investment forecast as needed over the next few decades to meet the UN’s Sustainable Development Goals and support the accelerating net zero agenda. One way to do that is through public-private partnerships (PPPs), and more specifically, helping governments establish effective legal environments for including PPPs among their methods for delivering infrastructure assets and services.
With so many elements involved in PPPs, why focus on legal frameworks—a detailed, complex area that is also unique to each country? The answer is that we know from experience that a well-designed PPP legal framework that is integrated into a jurisdiction's broader legal and political ecosystems is an important aspect in delivering key PPP objectives. A good framework can improve a country's ability to both reliably attract competitive, experienced private sector and overseas investor interest and ensure that PPPs satisfy the needs of the public and the government. It can facilitate implementation of PPP policy, as well as help deliver value for money, support fiscal, social, and environmental sustainability, and promote accountability, transparency, and integrity.
Given this experience, Allen & Overy is very pleased to have supported the World Bank in developing its new Guidance on PPP Legal Frameworks 2022, adding to an existing stable of tools and knowledge products the Bank makes publicly available to guide decision making about public-private partnerships (PPPs).
And while the new World Bank guidance explains why a suitable PPP legal framework is essential, it strongly recognizes there is no one-size-fits-all solution. The message is clear that any well-formed framework should take into account the characteristics of the relevant jurisdiction in applying the best practice principles set out in the guidance.
To create a user-friendly resource, we’ve looked at key considerations for governments and explained how to address them in primary or secondary legislation, policies, and guidance. To help practitioners imagine how their own frameworks might be designed, we’ve included benchmarking examples from a range of jurisdictions and markets with different legal traditions and maturities. We’ve focused on concise, practical guidance—with tables, diagrams, and examples to help highlight the key points to the reader.
Broadly speaking, the key themes the guidance looks at are:
- How to establish an appropriately flexible PPP legal structure, well integrated into the overall legal system, that creates a clear institutional framework for PPPs that is adequately empowered and resourced to drive PPP projects and programs and is aligned with national infrastructure policy objectives.
- How to incorporate key budgetary, environmental (including climate change), and social policy objectives to ensure they are considered at all stages of a PPP project.
The detailed sections of the guidance explore these elements in a deeper dive:
- The scope and application of the PPP legal framework. The guidance addresses the fundamental issues of the type of projects to be included and the framework’s interaction with both the wider legal system and the process for formulating periodic national infrastructure plans and priorities.
- The institutional framework. Establishing clear roles and responsibilities of the entities involved in PPPs is key to effective delivery. The guidance covers the establishment, authority, and interaction of institutions intended to drive PPP objectives, with a particular focus on the role of the ministry of finance (or equivalent) and the potential benefits of having a central PPP unit.
- Requirements in the project origination and appraisal stages. Here the guidance explains how to establish the processes and core parameters for originating and appraising eligible projects (both solicited and unsolicited proposals), including assessing environmental, social, and fiscal sustainability; feasibility, economic and commercial viability; and value for money.
- Approvals structure. Clarity around the approvals required from relevant institutions is key for both public and private sector participants in PPP projects. The guidance sets out how to provide for an appropriate approval process throughout the entire project lifecycle, including the recommended formal two-stage project approval process prior to contract signature.
- Procurement. Establishing a clear, fair, transparent and efficient PPP procurement framework is vital in establishing public and bidder confidence and delivering government infrastructure priorities. The guidance describes how to achieve this by providing for competitive multi-stage and single-stage bidding procedures and effective tender and evaluation processes.
- Ability to contract. Highlighting the need to consider the wider legal environment and potential constraints on freedom to contract, the guidance explains how to put in place a legal framework which enables PPP agreements to be structured with commercially viable terms that are also legally effective.
- Contract management and why it matters. To ensure PPP objectives are delivered, effective management practices must be implemented both in PPP contracts and within government itself for the whole lifecycle of projects. The guidance explains how to achieve this, touching also on the importance of the development and promulgation of relevant guidance materials.
PPP practitioners will find this to be a rich source that draws on the global experience of the World Bank, real-life legal experience, and on a range of sources and benchmarks published by national and supranational bodies , including the United Nations Commission on International Trade Law (UNCITRAL) and the United Nations Economic Commission for Europe (UNECE). The guidance also received expert technical review and support from various private and public sector stakeholders during consultations conducted in the fall of 2021.
Access the guidance here, and feel free to leave comments below about your experience with PPP legal frameworks as the World Bank builds up best practices and a global community interested in deepening engagement on these issues.
The Allen & Overy team drew on experience from around its global network and was led by Tim Conduit, Fleur Clegg, Cyril Cotterall, Farah El Yacoubi, Romaric Lazerges and Elliott Sawford. Christina Paul, Adetoun Adetouna, Aijaz Ahmad and Mikel Tejada Ibanez led this initiative from The World Bank side.
Disclaimer: The content of this blog does not necessarily reflect the views of the World Bank Group, its Board of Executive Directors, staff, or the governments it represents. The World Bank Group does not guarantee the accuracy of the data, findings, or analysis in this post.
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