JORDAN ASSESSMENT OF THE QUALITY OF THE PPP LEGISLATION AND OF THE EFFECTIVENESS OF ITS IMPLEMENTATION 2011

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1 JORDAN ASSESSMENT OF THE QUALITY OF THE PPP LEGISLATION AND OF THE EFFECTIVENESS OF ITS IMPLEMENTATION 2011 I- PPP Legislative Framework Assessment (LFA) Compliance of the PPP legal framework with PFI Guide recommendations 1 and Best Practice Core Area Rating Assessment 1- PPP Legal Framework Existence of specific PPP law or a comprehensive set of laws regulating concessions and other forms of PPP and allowing a workable PPP legal framework 11/17 0,65 2-Definitions and Scope of the Law 3-Selection of the Private Party 4-Project Agreement 5-Security and Support Issues Existence of a clear definition of the boundaries and scope of application of the concession legal framework (e.g. definition of "PPP", sectors concerned, competent authorities, eligible Private party) limiting the risk of a challenge to the validity of PPP contracts, irrespective of whether the act is specifically targeted at PPP Mandatory application of a fair and transparent tender selection process. Limited exceptions allowing direct negotiations, competitive rules for unsolicited proposals and the possibility to challenge illegal awards. Flexibility with respect to the content of the provisions of the Project agreements which should allow a proper allocation of risks without unnecessary or unrealistic/not bankable/compulsory requirements/interferences from the Contracting Authority (obligations, tariff, termination, compensation). Availability of reliable security instruments to contractually secure the assets and cash-flow of the Private Party in favour of lenders, including "step in" rights and the possibility of government financial support, or guarantee of, the Contracting Authority s proper fulfilment of its obligations. 10/17 0,59 28/45 0,62 13/27 0,48 9/21 0,43 1 UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects, 2001 (hereinafter the "PFI Guide") Checklist : Jordan

2 6-Settlement of Disputes and Applicable Laws Possibility to obtain proper remedy for breach under the applicable law through international arbitration and enforcement of arbitral awards. 13/15 0,87 General LFA Rating 60,7% Medium Compliance II-Legal Indicators Survey Effectiveness Assessment : How the PPP law works in practice (LIS) Core Area Rating Legal Indicator Survey 7- Policy Framework Existence of a policy framework for public private partnerships 16/24 0,67 8 Institutional Framework Existence of an institutional framework for public private partnerships 11/27 0,41 9- PPP Law Enforcement Award and implementation of PPP projects in compliance with the Law 23/27 0,85 General LIS Rating 64,3% Medium Effectiveness OVERALL RATING 62,5% Medium Compliance/Effectiveness Local Expert 2 : ZUBI Law Firm -Jumana Toukan & Leena Nusseir 2. 2 The Local Experts in charge of each country have been consulted for the elaboration of the responses to the Checklist in their capacity of well recognized established law firm in their respective country but the Local Experts as well as EBRD are in no way responsible for the responses given to any question in this Checklist as the Consultant was free to use any other sources of information for its final determination. In addition to the local experts much consideration has been given to a 2011 report comissionned by the European Investment Bank (EIB) including a review of the Private Public Partnership Legal & Financial Frameworks in the Facility for Euro-Mediterranean Investment and Partnership (FEMIP) Region (the Study). The Study was carried out by Pinsent Masons LLP, Mazars LLP and Salans LLP and with J.C. Law Firm and Mazars (UAE) as local experts for Jordan. The Study - Volume 2 Country Analysis- May is referred to in the Checklist as the "EIB Report ".

3 3. RATING: Key for assessment of Each Question Yes 3 points Yes, with reservations 2 points No, with Limited compliance / redeeming 1 point features No 0 point N/A Not applicable 0 point/ Not included in total Key for Assessment of Each Core Area and for Overall Assessment > 90% Very High Compliance/Effectiveness 70%-89% High Compliance/ Effectiveness 50%-69% Medium Compliance/ Effectiveness 30%-49% Low Compliance/ Effectiveness < 30% Very low Compliance/ Effectiveness TERMINOLOGY So as to keep answers consistent and avoid ambiguity, we set out below some brief definitions of the terminology used in this questionnaire. Any definition is provided solely to clarify some of the terminology used below. The reader should note that any such definition does not correspond with any given definition under best international practice (which does not provide for any standardised PPP legal definitions recognised worldwide) neither should it be interpreted that we recommend the adoption of such definitions under actual documentation, but they are included in the interests of clarity for the completion of this questionnaire, and we should be grateful if you could adopt such definitions for the purposes of completing the questionnaire.

4 4. "Public Private Partnership" -"PPP" or "PPP project" includes all types of long-term arrangements between public authorities and private institutions, including but not limited to; Concessions, BOT and derived forms, PFI and Institutional PPP. For the purposes of this questionnaire, PPP excludes the sale of public assets or of public company shares which are part of a privatisation process and also excludes public works, services or supply contracts which are subject to public procurement rules. The following types of Public - Private Partnership Agreements may be adopted by a Contracting Authority for undertaking infrastructure projects. These are solely indicative in nature and the Contracting Authority may seek to adopt a combination of the different contractual arrangements, which incorporate some of their elements or combine elements. "BOT" - (Build-Operate-and-Transfer)- and derived forms : a contractual arrangement whereby the Private Party undertakes to finance, design, construct under a turnkey risk basis, operate and maintain an Infrastructure project for a specified period after which period the project facilities are transferred to the Granting Authority usually without payment of any compensation. The Private Party has the right to collect contract or market based tariffs or fees from the users of the infrastructure project, as specified in the PPP agreement, to recover its investment and operating and maintenance expenses for the project. A BOT type of PPP arrangement may provide for all the implementation and operational efficiencies of the private sector, together with new sources of infrastructure capital. Derived forms of BOT contractual arrangements exist such as Build-Own-Operate-and-Transfer (BOOT) similar to the BOT agreement, except that the Private Party owns the Infrastructure project during the specified term before its transfer to the Contracting Authority or its designee, or such as Build-Own-and-Operate (BOO) which is a contractual arrangement similar to the BOT agreement, except that the Private Party owns the Infrastructure project and no transfer of the project to the Contracting Authority or its designee at the end of the fixed period is envisaged. Derived forms incorporating Lease right rather than Ownership or dealing with rehabilitation or extension rather than construction which extent the possible combination which for the purpose of this questionnaire will all be hereafter refferred to as BOT for simplification purpose exept where legal specificcity requires specific treatment. "Concession": is an act attributable to the State whereby a Contracting Authority entrusts to a third party the total or partial management of public services for which that authority would normally be responsible and for which the third party assumes all or part of the risk. "PFI" (Private Finance Initiative) : a form of cooperation and partnership between public authorities and Private Parties which aim to ensure the funding, construction, renovation, management or maintenance of an infrastructure or the provision of service to the infrastructure without the delegation of the public service itself. It is a contractual arrangement whereby the Private Party

5 5. undertakes the financing and the construction of an infrastructure project and after its completion transfer it to the Contracting Authority or its designee. This arrangement may be employed in the construction of a public service facility for which the public service must be operated directly by the contracting authority for whatever reason but the operation and maintenance of the facility remain the responsibility of the Private Party for the entire duration of the PPP agreement. The contracting authority will reimburse the total project investment on the basis of a rent based of an agreed schedule with the payment starting from the date of commencement of operation and pay for the services rendered to the facility on a performance basis. "IPPP"(Institutional PPP): a structural or corporate form of PPP which provide for the cooperation between public authorities and a Private Party through a joint venture or mix (publid- private shareholding) company in which case all reference to the slection process refers to the selection of the Private Party. Other definitions: The "Law" or "PPP Law": a law regulating any form of PPP including but not limited to Concession, BOT, PFI, IPPP and including, for the purpose of this questionnair, the set of rules applicable to any PPP in the absence of a specific PPP law. The Law for the purpose of this questionnaire also includes any implementing regulation and any form of governemental act regulating PPP. "BOT Law" : a law regulating a BOT type of PPP in their multiple forms. "Concession Law": a law regulating a Concession form of PPP. "Contracting Authority": a public authority empowered to award a PPP and enter into Project Agreements "PFI Law": a law regulating a PFI form of PPP. "PPP unit" : specialized institution/agency/ministerial department established to promote and take care of PPP. "Private Party" : Private Party or other entity in the form of a special purpose company to which a Project Agreement in general has been awarded. [The word Private party will be used for the sake of this study even in case the PPP regulation allows PPP business partner to be a mix company or even a public entity.] "Project Agreement": an agreement(s) between the Contracting Authority and the Private Party regulating their respective rights and obligations with respect to the PPP project.

6 6. REFERENCE TO BEST PRACTICE UNCITRAL Legislative Guide on Privately Financed Infrastructure Projects, 2001 (hereinafter the "PFI Guide") and UNCITRAL Model Legislative Provisions on Privately Financed Infrastructure Projects, 2003 (UNCITRAL Model Legislative Provisions). EC - Commission Interpretative Communication on Concessions Under Community Law dated 12 April 2000; together with additional EU major documents/decision /recommendation on concessions including Directives 2004/18/EC and 2004/17 EC of 31 March 2004; Green Paper on Public Private Partnerships and Community Law on Public Contracts and Concessions dated 30 April 2004; Report on the public consultation on the Green Paper (SEC(2005) 629- Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Public-Private Partnerships and Community Law on Public Procurement and Concessions (Brussels, COM(2005) 569) European Parliament resolution on public-private partnerships and Community law on public procurement and concessions (2006/2043(INI)); European Commission Guidelines for Successful Public-Private Partnerships (2003).Commission Interpretative Communication Brussels, C (2007)6661on the application of Community law on Public Procurement, and Concessions to Institutionalised Public-Private Partnerships (IPPP); EBRD Core Principles for a Modern Concessions Law selection and justification of principles Prepared by the EBRD Legal Transition Team.2005; UNIDO Guidelines for Infrastructure Development through Build Operate Transfer (BOT) Projects, 1996 (UNIDO BOT Guidelines); and OECD Basic Elements of a Law on Concession Agreements,

7 7. OVERALL ASSESSMENT 2011 JORDAN The legal framework for PPP and Concession in Jordan is based on the provisions of the Privatization Regulation Number (80) of 2008 for Implementing Privatization Transactions Issued in pursuance of Article (20) of The Privatization Law Number (25) of Privatization means according to the Law the adoption of an economic methodology which enhances the role of the private sector in the economy to include public sector enterprises the nature of which requires that they be managed on commercial bases. It is therefore the privatization law which was designed for the development of the private sector participation in public services and infrastructure and not specifically for PPP which has provided the legal framework for PPP. Jordan officially launched its PPP Program on June 23rd 2008, and assigned its implementation to the Executive Privatization Commission (EPC) as a way of continuation of its Privatization Program. The Privatization Regulation defines PPP as "A relatively long-term written agreement between the public and private sectors for the purpose of providing a service of a general nature or implementing a project or performing a certain task whereby project financing and allocation of risks arising therefrom shall be pursuant to the contract." The Privatization Law (Article 4) provides that the restructuring and privatization of public institutions or enterprises owned by the public sector can be carried out by adopting in addition to classical privatization methods the following type of agreement or license : BOT, BOO,BOOT, as well as granting the private sector the right to build a particular enterprise with a monopolistic and exclusive right to exploit it pursuant to a license or an agreement signed with the Government for this purpose or any other method not specified in the Law as decided by the Council of Ministers. The current legislation does enable for all types of PPP, but there is no specific legislation or regulation dealing with PPP procurement in detail and no regulation at all concerning PFI or PPP applicable to the non merchant sector. The experience successful project but also of the withdrawal of several projects which could not be achieved on a project finance basis have conducted the government to enlarge the scope of PPP and to follow the PFI route to be opened to smaller project on a PFI type of

8 project. And a new PPP law is now under consideration for some time and when enacted possibly in the near future will become the specific legal framework for the concession and PPPs in Jordan. 8. ASSESSMENT & LEGAL INDICATOR SURVEY 1. LEGAL FRAMEWORK 1.1 Existence of different forms of PPP legal framework QUESTION ANSWER ARTICLE COMMENTARY 1. Does the country have a single act dealing specifically with Concessions or a generalised act incorporating the legal framework for PPP, including Concessions? Jordan does not have a single piece of legislation dealing specifically with Concessions or incorporating the legal framework for PPP. However, Regulation Number (80) of 2008 for Implementing Privatization Transactions (hereafter "PR") issued in pursuance of Article (20) of The Privatization Law Number (25) of 2000 (hereafter "PL") (PL and PR shall collectively be referred to as the Law ) not

9 9. dealing specifically and exclusively with PPP, but allowing all types of PPP in most sectors other than mining. However and in addition to the Law, some sectors have sector-specific laws, which allow the relevant authority in such sectors to by-pass PL and PR when implementing PPP in its sector. For example, the Water Authority Law Number 18 of 1988, Public Electricity Law Number 64 of 2002 and the Telecommunication Law Number (13) of 1995 deal with PPP with respect to the water, electricity and telecommunication sectors, respectively. As for mining, there is no single legislation or group of legislations which deal with concessions or PPP relating to same other than the general principle for Concessions stipulated under Article (117) of the Jordanian Constitution that reads as follows: any privilege given to grant any right relating to an investment in mining, minerals and public facility must be ratified by a law. Additionally, the Law for the Regulation of Natural Resource Affairs Number 12 of 1968 grants the Natural Resource Authority ( NRA ) the power to grant the private sector with mining licenses. The Mining Regulation Number 131 of 1966 sets out the general framework for granting such licenses that allows NRA to grant the license without the need to go through the procedure set out in the Law.

10 Does the country have an act that allows BOT or derived forms such as BOOT, BOO or other forms either as part of a specific act or as part of a general PPP Law? PL4 Article 4 of PL specifically provides that the restructuring and privatization of public institutions or enterprises owned by the public sector can be carried out by adopting in addition to classical privatization the following methods: "C.The transfer of the management of enterprises from the public sector to the private sector pursuant to agreements according to which the private sector shall be entrusted with the management and operation of these enterprises. D.The adoption of one of the following options to establish specific investment enterprises pursuant to agreements reached for this purpose between the public sector and the private sector. i.the private sector builds the enterprise, exploits it and operates it for a specific period then transfers it to the public sector at the end of the said specific period (BOT). ii.the private sector builds the enterprise, transfers its ownership to the public sector while retaining the right to exploit and operate it for a sepcific period (BTO) iii.the private sector builds the enterprise, owns it, exploits it and operates it for its own account (BOO) iv.the private sector builds the enterprise, owns it, exploits it and operates it then transfers it and its ownership to the public sector (BOOT).

11 11. E.Granting the private sector the right to build a particular enterprise with a monopolistic and exclusive right to exploit it pursuant to a license or an agreement signed with the Government for this purpose. F.Any other method decided by the Council of Ministers." 3. Does the country have an act that allows PFI, either as part of a specific act or as part of a general PPP Law? 4. If the answer is No to any of the three first questions concerning a specific form of PPP does the Constitution or other general act (ex: the Civil Code, sectorial law) recognise the basic principles of the concerned PPP and regulate its granting? PL 4 F PFI is not one of the methods expressly provided under article 4 of PL. Therefore, it will fall within the ambit of article 4/F of PL which will require the Council of Minister approval for same to be allowed. N/A For our general information: Is a new PPP Law or an amendment to the existing Law being prepared, or considered, in the country? If so, at what stage of the legislative process is such new PPP Law or amendment to the existing Law? Yes, a draft PPP Law was prepared by EPC, which was established pursuant to PL. The EPC was entrusted, pursuant to the Council of Ministers resolution dated 2006, to draft such law. The draft law was submitted to the Legislative Bureau which amended the draft and reverted same to the Council of Ministers for their approval. Currently, the draft law is being reviewed by the House of Representatives (the lower house of Parliament). Until this day, the House of Representatives has not issued its decision regarding same. However, it is worth noting that after the

12 House of Representatives approves the draft law, the draft is submitted to the Senate (the upper house of Parliament) for their approval and thereafter submitted to the King for his approval prior to enacting the law by publishing it in the Official Gazette Specificity and integration of PPP legal framework 5. If the country has a Public Procurement Law, is it clear to what extent does the Public Procurement Law apply or not to the granting of a PPP? The PL and PR regulation make no reference to the Public Procurement Law, but provide for a concurrent set of rule which implicitly excludes its application. 6. If the country has sectorial laws regulating PPP in specific sectors, is it clear which law is applicable to the granting of PPP for each particular sector? 7. Does the country have a Law allowing the Institutional form of PPP (IPPP) which regulates IPPP participation to PPP? XX The Law is a general law governing privatisation and PPP in Jordan. Nonetheless, certain sectors including but not limited to mining, electricity and telecommunication have their own laws, which regulate PPP in such sectors. However, it is not clear which law applies and how they interrelate with PL and PR. XX PL 4 F IPPP is not one of the methods expressly provided under article 4 of PL, which will require the Council of Minister approval for allowing same. PPP cannot be

13 13. awarded to public entities as it is only restricted to private entities as stipulated in the definition of PPP under PR (please see the definition set out in question 2.1(1) above). Additionally, neither the PL law nor PR refers to IPPP, however, PPP may be awarded to IPPP as it is deemed to be a private entity.

14 DEFINITIONS AND SCOPE OF THE PPP LAW(S) 2.1 PPP definition 3 QUESTION ANSWER ARTICLE COMMENTARY 1. Does the Law define one or several term(s) (i.e. "PPP", "Concession", "BOT", "Partnership" etc. and/or respective agreements) for the arrangements to be regulated by the Law which specify the limits of application of the Law? For our general information,: please provide the given definition(s), if any. Art 2 PR There is no single legislation that defines the terms set out in the questions and some of the terms are not defined under any legislation. For example, PR defines PPP as: "A relatively long-term written agreement between the public and private sectors for the purpose of providing a service of a general nature or implementing a project or performing a certain task whereby project financing and allocation of risks arising therefrom shall be pursuant to the contract." 3 PFI Guide, Consolidated Legislative Recommendations, Recommendation 3and Commission Interpretative Communication on Concessions Under Community Law dated 12 April 2000; together with additional EU major documents/decision /recommendation on concessions including Directives 2004/18/EC and 2004/17 EC of 31 March 2004; Green Paper on Public Private Partnerships and Community Law on Public Contracts and Concessions dated 30 April 2004; Report on the public consultation on the Green Paper (SEC(2005) 629- Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Public-Private Partnerships and Community Law on Public Procurement and Concessions (Brussels, COM(2005) 569) European Parliament resolution on public-private partnerships and Community law on public procurement and concessions (2006/2043(INI))

15 15. In connection with BOT, article 4 of PL describes BOT, but does not define same. Additionally, and with respect to Concessions, there is no definition for what concessions are in any law, regulation or instructions. The only reference to Concession is in the Constitution under Article (117) (please see the comment on question 1.1 (1) above). Therefore, with respect to the definition of Concession, Jordan relies on custom for the definition of same. As for Partnerships, there is no definition for same in any law, regulation or instruction. 2. Does the Law apply to all contracts entered into that fall under the definition(s) given above, irrespective of the name given to such contract (concession, license, usufruct right, lease, etc.)? Yes, in accordance with Civil Law principles 3. Does the Law make a clear distinction between a PPP agreement (such as a Concession) and a license (i.e. an authorisation to operate by a public authority)? PL 4 E The law contemplates the two possibilities licence and agreement. However, it does not explain the difference as it only stipulates that: E.Granting the private sector the right to build a particular enterprise with a monopolistic and exclusive right to exploit it pursuant to a license or an agreement signed with the Government for this purpose.

16 Contracting Authority QUESTION ANSWER ARTICLE COMMENTARY 4. Does the Law identify (or allow clear identification by reference to other laws or regulations) the public authorities ("Contracting Authorities") that are empowered to select projects, prepare for, and award PPPs and enter into Project Agreements? PL Art 7 The Law does not identify the Contracting Authorities per se, but vests such right with the Council of Ministers where it stipulates that the Council of Ministers shall have the following responsibilities and powers: A ii.specifying the public institutions or public-sector enterprises it decides to be privatized, or restructured in preparation for privatization, and adopting the appropriate implementation method to achieve this purpose. iii.specifying companies in which the Government holds shares in order to privatize those shares pursuant to the legislations in force. For our general information: If yes, which of the following authorities are identified: National authorities (e.g.: the government, ministries, and independent agencies); Regional/state-level authorities; Local or municipal authorities; or State owned companies? Since the law vests the authority to identify the Contracting Authorities with the Council of Ministers, then it is difficult to depict which of the above-referred to institutions are identified as there is no exhaustive list.

17 Private Party and Project Company QUESTION ANSWER ARTICLE COMMENTARY 5. Is it possible for a PPP be awarded to a foreign company, a Private Party or to a domestic company with foreign participation in the share capital and/or management (without discrimination)? Although it is not specifically stated in PL, but there are no restrictions on foreign participation to PPP or Privatization except in the restricted sectors detailed in the Regulation for the Promotion of Non-Jordanian Investments Number 54 of However, an exemption can be granted by the Council of Ministers upon the recommendation of the Ministry of Industry and Trade enabling non-jordanian investors to own higher percentages in large development project which are of special importance. PPP are considered large development projects and enjoy special importance. Therefore, the Council of Ministers may grant such exemptions. For our general information: can a PPP be awarded to public entities or to entities jointly owned by private and public entities (IPPP)? Are there restrictions imposed on such contracts?

18 Concerned sectors 4 QUESTION ANSWER ARTICLE COMMENTARY 6. Does the Law identify (or allow identification by reference to other laws or regulations) the sectors and/or types of infrastructure and/or services in respect of which a PPP may or may not be granted? XXX No identification, No exclusion by the law 7. Do the list of sectors eligible for PPP correspond to an open-ended one (as opposed to being exhaustive) allowing (or at least not preventing) PPP to be granted in numerous sectors? 8. Do the sectors eligible for PPP includes non commercial activities such as the provision of government services (such as schools, hospitals, N/A N/A 4 For further information on the concerned sectors please refer to:pfi Guide, Consolidated Legislative Recommendations, Recommendation 3 and 4.

19 19. prisons, defence and housing) in addition to the merchant sectors of the economy (energy, transport, water, oil and gas). For our general information: Please indicate the restrictions if any imposed by the Law on the sectors eligible for PPP: N/A. 3. SELECTION OF THE PRIVATE PARTY General Considerations QUESTION ANSWER ARTICLE COMMENTARY 1. Does the Law require, in principle, the Contracting Authority to select Private Parties through a competitive tender process? PR 11 In the event the steering committee established pursuant to PR ( Steering Committee ) recommends, pursuant to Article 11 of PR, tendering the bids in two phases then same shall be similar to a competitive bid process. Article 11 of PR reads as follows: "A bid shall be tendered for selection of an investor in one phase, the Steering Committee may, in specific cases, recommend tendering the bid in two phases" 5 For further information on the selection of the Private Party, please refer to:pfi Guide, Consolidated Legislative Recommendations, Recommendations 14 to 39 included.

20 20. PR 4 B The Steering Committee shall, however, in relation to the implementation of any Privatization Transaction take the appropriate decision with respect to : "5. - The recommendations to the Council to approve resorting to direct negotiation or solicitation of proposals to implement the Privatization Transaction. " This wording, therefore, indirectly provides for the possibility of direct negotiation under unspecified circumstances. However, in practice such direct negotiations where never made. 2. Is there reference in the Law to the principles of transparency, equal treatment and proportionality? Art 5 PL "A.Compliance with the principles of transparency, openness and fair competition." 3. Is there a provision in the Law concerning the publication of information related to the competitive procedures in the country media and in the international media (for large projects)? Art 15 PL "A.Before the commencement of any privatization transaction, the Commission [EPC] shall publish in at least two daily newspapers and over two extended intervals the conditions of and requirements for any such privatization transaction at a date specified by the Council [Privatisation Council] for this purpose." Therefore and in light of the above referred to article, the publication of the information in relation to the competitive procedures shall only be made in local

21 21. media and not in international media. 4. Are there provisions within the Law or any special manual or recommendations governing in detail the selection of the Private Party (i.e.: the pre-selection of bidders, the procedure for requesting proposals or other procedure such as competitive dialogue/two stage procedure)? PR Art 13 C 2 All the provisions of PR govern the selection of the Private Party for any privatization process with few specific provisions for PPP, but not in much detail. 5. Does the Law provide that if the Contracting Authority rejects an applicant at the time of preselection or disqualifies a bidder, it must make public the reasons for the decision (or inform the rejected bidder thereof explaining the reasons for rejection)? PR Art. 17/a PR Art 18 The EPC shall, in cooperation with the Steering Committee and after the evaluation of the technical proposal, inform the investors, whose proposals were rejected, of the rejection decision. A. The Steering Committee shall invite the preferred bidder for negotiations with a view to issue a decision to award the bid and sign the privatization contracts. B. If negotiations do not result in the signing of the privatization contract with the Preferred Bidder, it is permissible to terminate negotiations therewith provided the Bidder is notified of the reasons thereof, and the second Preferred Bidder shall be invited to negotiate in accordance with the set principles and

22 22. conditions. 3.2 Award of PPP QUESTION ANSWER ARTICLE COMMENTARY 6. Does the Law provide that all proposals are ranked solely on the basis of a predefined evaluation criteria set forth in the pre-selection documents/ request for proposals? PR Art. 13/a/4 7. Does the Law provide for the publication of a notice of the award of the project, identifying the Private Party and including a summary of the essential terms of the project agreement? PR Art. 18 PR merely provides for the publication of the notice of the award of the project and only refers to identifying the Private Party not the terms of the project agreement. 8. Does the Law provide that the Contracting Authority or any other public authority maintain records of key information pertaining to the selection and award proceedings? PR Art. 14/d & 7/c The PR or PL do not refer to maintaining records for key information to the selection and award proceedings per se. However, PR indicates that a copy all minutes of meetings of the Steering and Technical Committees shall be deposited with the EPC and kept for a period of

23 If the answer to the previous question is Yes, does the Law provide that such record is accessible to the public, or at least to interested parties? XXX no less than three (3) years. Nothing in PL or PR expressly or impliedly states that such records or minutes are accessible to the public or any interested party. Therefore, by implication they are not accessible to such interested party or public. 3.3 Final negotiations QUESTION ANSWER ARTICLE COMMENTARY 10. Does the Law contain provisions regulating final negotiations (i.e. post contract award) so that transparency, equal treatment and competition are preserved? PR Art 18A PR Art 18D "Negotiations must not result in a fundamental change in the submitted proposal or bid documents in a way that would breach the principles of competition and transparency among investors" 11. Does the Law provide that the Contracting Authority has the authority to terminate negotiations with the invited bidder if it becomes apparent that the bid will not result in an agreement and start negotiations with the second ranked candidate? PR Art 18 B "If negotiations do not result in the signing of the privatization contract with the Preferred Bidder, it is permissible to terminate negotiations therewith provided the Bidder is notified of the reasons thereof, and the second Preferred Bidder shall be invited to negotiate in accordance with the set principles and conditions." 3.4 PPP Award without competitive procedure

24 24. QUESTION ANSWER ARTICLE COMMENTARY 12. Does the Law provide that the Contracting Authority has the authority to award a PPP without a competitive process? Is this only in limited/ exceptional circumstances? PR 4 B 5 In practice such direct negotiations where never used. 13. Does the Law provide for a procedure, set of rules or principles to be respected when awarding a PPP without a competitive process? XXX For our general information, please specify the conditions which would allow such direct negotiations? The Law does not specify any conditions, which would allow such direct negotiations.

25 25. Special case of unsolicited proposals QUESTION ANSWER ARTICLE COMMENTARY 14. Does the Law provide for an adequate framework for the Contracting Authority to manage unsolicited proposals/private initiatives (i.e. a proposal relating to the implementation of a PPP that is not submitted in response to a request or solicitation by the Contracting Authority) that ensures transparency and equal treatment and does not distort competition? XXX 3.5 Review procedures QUESTION ANSWER ARTICLE COMMENTARY 15. Does the Law allow the bidders who claim to have suffered, or that may suffer loss or injury, to seek review of the Contracting Authority s actions or failure to act? PR Art 20 "Bidders who submit proposals pursuant to the provisions of this Regulation may object to the outcome of the technical evaluation to the Steering Committee within five working days from the date of notification of the decision s subject matter whereby the Steering Committee must make a decision on the objection within ten working days from the date of receipt of the objection whereby its decision shall be final in this regard".

26 26. However, the provision of the above-cited article may be deemed unconstitutional as you cannot prevent an injured party from seeking relief from courts. Therefore, the Law only expressly provides that the bidder who submitted a proposal may object the outcome of the technical evaluation. There is nothing in the Law, which explicitly expresses that in any other situation the bidder may seek review of the Contracting Authority s actions or omissions. However, in the event a bidder suffers loss or injury, it may seek relief from the courts and review the Contacting Authority s actions or omission. Kindly note, that in any situation if the bidder seeks relief from the court and it is able to prove the damage, loss or injury, then the courts may only award compensation for actual damages, which do not include loss of profit or loss of business opportunity (please see answer to question 8 of section 9.3).

27 PROJECT AGREEMENT Model or list of provisions QUESTION ANSWER ARTICLE COMMENTARY 1. Does the Law give flexibility to the negotiation of most terms of the Project agreement and if it contain (or refer to): (i) a model PPP agreement it is an optional template agreement for guidance only or (ii) a list of mandatory material provisions which must be included in the agreement, the content of such provisions is left for negotiation)? PR Art 13 C 2 The Law does not contain a model PPP agreement. However, Article 13(c) of the PR does not specifically mention the project agreement, but rather states that the EPC, in coordination with the Steering Committee, shall provide the project investors with heads of terms containing the following: B. In the event of a PPP: The PPP Agreement. This should set out (i) the rights and obligations of each party, (ii) the purpose of the partnership and a description of the tasks and/or services that will be undertaken and provided, (iii) the indicators that will be used to guarantee the quality of work and services, (iv) the financial obligations of each party, (v) the proposed financing for the implementation of the transaction, (vi) the allocation of 6 For further information on the project agreement definition, please refer to:pfi Guide, Consolidated Legislative Recommendations, Recommendations 12 and 40 to 68 included.

28 28. risks under the transaction, (vii) tariffs payable by the ultimate beneficiary of the services, including tariff adjustment and collection, (viii) the requirements for transferring ownership of the project to the government and (ix) any other provisions. In light of the foregoing, the PR sets out standard heads of terms which the EPC will include the underlying project agreements. It is a mandatory obligation that these heads of terms are included. The provisions of the heads of terms are all subject to negotiations provided that same shall not be fundamentally changed so as to not compromise the principle of transparency and fair competition indicated in the Law. 4.2 Duration and extension of the Project Agreement QUESTION ANSWER ARTICLE COMMENTARY 2. Does the Law provide that the duration of the Project Agreement should depend on the length of time taken for the amortisation of the Private Party's investment and an appropriate return on the capital? XXX PR Art 2 The inclusion of provisions relating to the length of the Project Agreement is left to the outcome of negotiations between the private party and the government. The inclusion of provisions relating to the extension of

29 Does the Law provide that the renewal or extension of the Project Agreement should be limited and depend on exceptional circumstances (such as Contracting Authority default or an event of force majeure)? XXX the Project Agreement is left to the outcome of negotiations between the private party and the government. For our general information, please provide the given minimum and maximum duration (if any) The Law or the sectorial laws do not set out a minimum or maximum duration for Project Agreements. 4.3 Termination of the Project Agreement QUESTION ANSWER ARTICLE COMMENTARY 4. Does the Law leaves open to the Project Agreement negotiations the list of possible ground for termination and the content of the termination provision? The Law does not specifically deal with the list of possible grounds for termination, and these provisions may be subject to the negotiations between the parties based on the type of project being undertaken provided that such negotiations do not result in fundamental changes to the proposed draft agreements attached to the request for proposal provided to the bidders. 5. If the answer to the previous question is No does the Law provide for a list of grounds of termination which does not affect the balance between the parties rights and obligations (one sided provisions) or the stability of the contractual relation under the Project N/A

30 30. Agreement (e.g.: too large or non exhaustive list)? 6. Does the Law provide for (or at least does not prevent) compensation of the Private Party for losses incurred as a result for termination on the grounds of public interest for losses incurred as a result of public authority acts? 7. Does the Law provide for (or at least does not prevent) compensation of the Private Party for all cases of early termination (including in case of serious breach or failure by the Private Party), for fair value after depreciation of the assets financed by the Private Party? The Law does not specifically deal with compensation as a result of termination, and such provisions may be subject to the negotiations between the parties based on the type of project being undertaken. The Law does not specifically deal with compensation as a result of early termination, and such provisions may be subject to the negotiations between the parties base don the type of project being undertaken. 4.4 Tariff setting, service standards QUESTION ANSWER ARTICLE COMMENTARY 8. Does the Law provide clear guidance on all aspects of interaction between the bodies that have the power to award PPP and the bodies that regulate tariffs and service standards? XXX

31 4.5 Financial responsibilities of the Private Party and Contracting Authority 31. QUESTION ANSWER ARTICLE COMMENTARY 9. Does the Law provide that the Private Party can collect tariffs or fees for the use of the facility or its services? PR Art 13 C 2 Partnership agreement encompassing the rights and obligations of parties to the contract shall include: "Tariffs payable by the beneficiary of the service or work and a tariff adjustment mechanism and collection mechanism thereof"; 10. Does the Law provide for the possibility of fixed and/or consumption-based payments to the Private Party by the Granting Authority or other public authorities (in the case of Power Purchase Agreement, shadow tool or PFI for instance)? XX The law and the Regulation are silent on this point but experience show that payment mechanisms vary depending upon the project allowing many different types of payment mechanism to be adopted

32 SECURITY AND SUPPORT ISSUES Security Interests QUESTION ANSWER ARTICLE COMMENTARY 1. Does the Law provide for (or does not specifically prevent) a Private Party to create security interests over the project assets, rights and proceeds or other valuable guarantees related to the project? 2. If the answer to the previous question is Yes, does the Law clearly state which types of security can be provided and include some of the most common type of guarantees in project financing (such as those listed in the request for general information below)? XX The law is silent about this, but experience show that Lenders are able to obtain the necessary level of security over project assets.. For our general information, please can you confirm whether a Private Party may pledge or assign by way of security: By way of introduction, the following types of security exist under Jordanian law: (i) Floating charge over all the company s moveable assets, whether future or present. 7 For further information on support and financial securities, please refer to:pfi Guide, Consolidated Legislative Recommendations,Recommendations 13, 49, 57 and 60.

33 33. (ii) (iii) (iv) (v) (vi) Pledge of shares (whether private or public). mortgage of immovable assets (land). mortgage of moveable assets by way of possessive mortgage. mortgage of moveable assets with a central registry (vehicles, aircraft and ships). Assignment of rights, obligations, accounts, etc. the proceeds and receivables arising out of the PPP; A floating charge may be created over all the company s moveable assets, including proceeds and receivables. Additionally, all the accounts can be assigned. It is worth noting that Jordanian law does not recognise assignment by way of security and only recognises outright assignment. the assets for which it has rights of use under a project agreement; As a note, all the assets must be owned by the company for it to pledge them. In addition to the floating charge created over assets (above), moveable assets (such as fixtures, machinery, equipment), which do not have a central registry (such as vehicles, aircraft and ships) may be subject to a possessive mortgage. A possessive mortgage involves the passing of possession of the pledged assets to the pledgee/mortgagee. In order for the pledgor to retain the assets for use in the Project, the parties may enter into an Adel Appointment Agreement, whereby the assets are handed to an individual/company called the Adel, which holds the assets in safe keeping for the pledgee, and lends the assets back to the pledgor for use. In addition to the floating charge over moveable assets (above), moveable assets that have a central registry (vehicles, ships and aircraft), may be mortgaged by filing the mortgage agreement with the relevant authority that maintains the asset registry. For example, aircraft may be mortgaged by filing the mortgage agreement with the Civil Aviation Regulatory Commission. its property; Immoveable assets (land) may be mortgaged, and such mortgage should be registered with the Land and Survey Department. shares of the Project Company;

34 34. Shares of the project company can be subject to pledge. the project agreement; or The Project Agreement may be assigned pursuant to an assignment agreement. Furthermore, the parties may enter into a direct agreement, allowing lenders/mortgagee s step-in rights into the Project Agreement. obtain other valuable guarantees (please specify)? Corporate/Shareholder guarantees and in some cases government guarantees may be given. Furthermore, the company may issue irrevocable letters of credit in favour of third parties. 5.2 Government support QUESTION ANSWER ARTICLE COMMENTARY 3. Does the Law provide for (or does not specifically prevent) the public authority to provide support to the Contracting Authority and a guarantee for the proper implementation of the PPP by the Contracting Authority? PR Art 5 PR Art 8 Description of the financial support if required from the government and the proposed mechanism for providing the same; Description of the economic justifications for government support for the project, if the project requires such support;

35 4. Does the Law provide for (or does not specifically prevent) the Public Authority to provide financial or economic support for the implementation of PPP? 35. PR Art 5 PR Art 8 idem 5. If the answer to the previous question is Yes, does the Law clearly state which public authorities may provide such support and which types of support can be provided? (i.e. tax and customs benefits; foreign exchange protection (convertibility and transfer guarantees; subsidies; equity or loan participation)? XXX

36 Lenders rights QUESTION ANSWER ARTICLE COMMENTARY 6. Does the Law provide for the Parties to arrange the financing with reasonable flexibility under the Project Agreement without strict time constraints or other constraints (except with respect to security package and government support)? PR Art. 13 The Law only stipulates that the heads of terms provided to the bidders should include the method of financing which is subject to negotiations provided that the negotiations do not result in a fundamental change in a way that would compromise transparency and fair competition between the bidders. The Law does not deal with financing in much detail, but experience show that Lenders are able to obtain standard lender protection, including direct agreements. 7. Does the Law provide, in the event of the default of the Private Party for the lenders to step-in or substitute the Private Party with a qualified new Private Party without initiating a new tender process? XXX

37 SETTLEMENT OF DISPUTES AND APPLICABLE LAWS Settlement of disputes QUESTION ANSWER ARTICLE COMMENTARY 1. Does the Law permit the Contracting Authority to enter into a Project Agreement that is subject to international arbitration? Not specified but not a problem in practice. 2. Has the government of the country ratified the Washington Convention on the Settlement of Investment Disputes (ICSID) (1965)? 3. Has the government of the country ratified the New York Convention on recognition and enforcement of foreign arbitral awards (1958)? 30 0ctober November For further information on the settlement of disputes, please refer to: PFI Guide, Consolidated legislative Recommendations, Recommendations 57, 69 and 71.

38 Applicable laws QUESTION ANSWER ARTICLE COMMENTARY 4. Does the Law permit (or does not prevent) the Contracting Authority) to enter into side agreements to the Project Agreement (such as a direct agreement with the lenders to the project or a support and guarantee agreement in respect of the Project Agreement) that is governed by foreign law. 5. Has the country ratified any international convention for the protection of foreign investments? Not specified but common in practice. Jordanian law only applies to all PPP agreements but not to the side agreements such as financing contracts generally governed by foreign law.

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