UNCITRAL Model Legislative Provisions on Public-Private Partnerships (2019)
Historical background
Infrastructure development in UNCITRAL started with the UNCITRAL Legal Guide on Drawing Up International Contracts for the Construction of Industrial Works (1987), which is designed to be of use to parties involved at various levels of negotiating and drawing up international works contracts. It is of particular benefit to purchasers from developing countries who find it difficult to acquire the necessary information and expertise required to draw up appropriate contracts, while seeking at the same time to take account of the legitimate interests of contractors.
In 2000, UNCITRAL adopted the UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects followed in 2003 by the UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects. In 2015, at the request of the Commission, the Secretariat undertook a thorough revision of those texts, in broad consultation with experts and relevant intergovernmental and non-governmental organizations. This led to the adoption of the UNCITRAL Legislative Guide on Public-Private Partnerships (“Legislative Guide”) and the UNCITRAL Model Legislative Provisions on Public-Private Partnerships (“Model Legislative Provisions”) by the Commission in 2019.
Purpose
The Model Legislative Provisions are intended to assist in the establishment of a legislative framework favourable to public-private partnerships (“PPPs”). The Model Legislative Provisions follow the corresponding notes in the Legislative Guide, which offers an analytical introduction with references to financial, regulatory, legal, policy and other issues raised in the subject area and assists the reader in evaluating the different approaches and solutions available and choosing the one most suitable to the local context. The user is advised to read the Model Legislative Provisions together with the Legislative Guide, which provides background information to enhance understanding of the legislative recommendations.
Why is it relevant?
Public-Private Partnerships cover a wide range of contractual arrangements between public authorities and private entities contributing to the private financing of public infrastructure in the broad sense. PPPs are an important tool to meet national infrastructure needs and achieve the Sustainable Development Goals. Such contractual arrangements, however, are complex and require strong and consistent national policies to attract investment and ensure the protection of the public interest. In addition, the lack of transparency of the PPP legal framework may lead to a greater risk of corruption and mismanagement of public funds. Responding to these concerns, the Legislative Guide and the Model Legislative Provisions assist States in developing a PPP legal framework that will both achieve value for money and reduce the risk of abuse.
Key provisions
The Legislative Guide and the Model Legislative Provisions cover the main issues relevant to the establishment of a favourable legal framework for PPPs. The various chapters provide information on: (a) The guiding principles for a legal framework for PPPs, the administrative coordination and the scope of authority to enter into PPP contracts; (b) Project planning and preparation, including the carrying out of economy and efficiency studies but also a thorough assessment of the fiscal, social and environmental impact of the project; (c) The contract award procedure, with a strong preference for the use of competitive selection procedures, such as the request for proposal with dialogue contained in the UNCITRAL Model Law on Public Procurement, and (d) the content of the PPP contract and its duration, extension or termination as well as the settlement of disputes arising throughout the project. The Legislative Guide also discusses other areas of law that may have an impact on the establishment of a legal framework favourable to PPPs, such as intellectual property law, environmental law, security interests, and consumer protection.