GLN Projects (Infrastructure & Finance) Practice Group

Transcription

1 ALGIERS BEIJING BELGRADE BRUSSELS BUCHAREST BUDAPEST CASABLANCA HANOI HO CHI MINH CITY HONG KONG ISTANBUL KIEV LONDON MOSCOW NEW YORK PARIS PRAGUE ST. PETERSBURG SHANGHAI TUNIS WARSAW GLN Projects (Infrastructure & Finance) Practice Group Russian PPP Concession Projects Public-Private Partnerships: PPP Days 2012 Geneva, February 2012

2 Context I. Legal Framework for PPP Projects in Russia II. GLN Projects (Finance & Infrastructure) Practice Group in France & Russia

3 Legal Framework for PPP Projects in Russia Federal legal framework in the sphere of investments Codes: Civil Code, Town Planning Code, Budgetary Code, Tax Code Federal Laws: Federal Law No. 115-FZ "On Concession Agreements" (2005) Federal Law No. 39-FZ "On Investment Activities in the Russian Federation in the form of Capital Investments (1999) Federal Law No. 160-FZ "On Foreign Investments in the Russian Federation" (1999) Federal Law No. 257-FZ "On Roads and Road Activities" (2007) Federal Law No. 122-FZ "On the State Registration of Real Estate Rights" (1997) Federal Law No. 18-FZ "Charter of Railway Transport of the Russian Federation" (2003) Regulations: RF Government Regulation No. 134 "On Approving the Rules of Formation and Use of the Budgetary Provisions of the Investment Fund of the Russian Federation" (2008) RF Government Regulation No. 880 "On Budgetary Allocations of the RF Investment Fund" (2010) RF Government Regulation No. 744 "On Approving a Model Concession Agreement in relation to Railway Transport Assets" (2006)

4 Legal Framework for PPP Projects in Russia Available Structures Federal concessions (BTO) main route for PPP projects Regional (non-concession) PPP projects build-own-operate-transfer (BOOT) build-operate-own (BOO) lease-reconstruct-operate-transfer (LROT) other types provided for by the respective regional laws on PPP Public procurement Investment lease agreements

5 Legal Framework for PPP Projects in Russia Such models differ by the following criteria: Ownership title to the assets Responsibility for investing Allocation of risks Duration of the agreement Etc.

6 Legal Framework for PPP Projects in Russia Concession projects Application of the Federal Law on Concession Agreements 2005 The state acquires (maintains) the ownership of the concession property The investor operates the concession property after the completion of construction (reconstruction) The state can participate in the financing and payment of costs in order to cover the assumed risks Federal law on public procurement should not apply to such projects

7 Legal Framework for PPP Projects in Russia Concession under Russian legislation Scope of concessions: toll roads, bridges and transport infrastructure railways sea and river ports and ferries airports underground transport pipelines, electricity and infrastructure in the sphere of heating energy public utilities medical, social, educational and sports sites (except for prisons) The agreement is a contract governed by civil law (combining various types of civil law contracts) A party is the Russian Federation represented by the Government of Russia or an authorised public authority, or a Russian region represented by a regional authority, or a municipal entity represented by a local authority. Specific rights and obligations of a grantor may be performed by authorised bodies and legal entities. The powers of the grantor can also be performed by the State Company Russian Highways Subject matter: real estate owned by the State (or subsequently transferred to the State)

8 Legal Framework for PPP Projects in Russia Concession agreement: main characteristics (I) The concession agreement is uniquely for PPP projects The agreement forms the basis for the whole structure of a PPP transaction Determines the relationship between the public and the private sector Determines and distributes the risks of the project Represents an important part of the security documents for the lenders

9 Legal Framework for PPP Projects in Russia Concession agreement: main characteristics (II) Key conditions included in the concession agreement: Definitions and interpretation Duration of the agreement Project, construction site, plots of land and other assets Design, construction, putting into operation, operation and technical maintenance Operational and technical requirements Subcontractors obligations Payments and other financial issues (for example, tariffs, collection of fees, review and adjustment of prices, etc.) Independent technical expert Transfer of management of the project sites Insurance Responsibility and indemnity for loss Cases of non-fulfilment of obligations and termination of the project Control and reporting on the project Force-majeure Assignment of rights and step-in rights Changes in legislation Applicable legislation and dispute resolution

10 1 Legal Framework for PPP Projects in Russia Advantages of concession agreement Establishing a clear legal framework for the implementation of infrastructure projects Providing guarantees to concessionaires in the event of a change of law, as well as changes in the rates at which the concessionaire renders services to consumers Regulated tender procedure Consistent with land, budget, tariff and tax legislation

11 1 Legal Framework for PPP Projects in Russia Disadvantages of concession agreement No transfer of ownership to the private sector Expensive and time-consuming tender procedures Problems with ensuring the fulfillment of long-term contractual obligations by the grantor International commercial arbitration is not available Mandatory template concession agreements

12 1 Legal Framework for PPP Projects in Russia Security and enforcement issues No step-in rights, cure rights and direct agreements No transfer of licence A project company may not be replaced due to the requirement to observe an established tender procedure No pledge of bank accounts (alternative: direct debit agreements) Prohibition of pledge of the concession property and its alienation, as well as pledge of rights under the concession agreement Assignment of rights under the concession agreement is possible only upon the grantor s consent and after the construction has been completed Ambiguous status of termination payments

13 1 Legal Framework for PPP Projects in Russia Improvements to the Concession Law under discussion Draft law No specifying changes to the Concession Law was introduced to the State Duma on 14 September 2011: allows availability payments based on certain performance criteria allows the replacement of parties to the concession agreement by assignment of a claim or transfer of debt before the launch of the concession agreement object the assignment of concessionaire s rights may be used as a concessionaire s performance guarantee for creditors in housing and transport projects repeals the requirement of a mandatory tender for the purpose of replacing a party to a concession agreement model agreements no longer mandatory in the sphere of transport (only with regard to federal property) extends the possibilities for the parties to amend the terms and conditions of the concession agreements defined by results of a tender removes restrictions on the maximum value of "technical" criteria extends the possibilities for the parties to determine early termination payments in the concession agreement

14 1 Legal Framework for PPP Projects in Russia Improvements are still needed prohibition of international commercial arbitration is still in force list of tender criteria is still exhaustive conclusion of direct agreements with two or more financing organisations is still prohibited unlikely that the draft law will be enacted in the proposed version

15 1 Legal Framework for PPP Projects in Russia Project Bonds (I): legal framework in Russia Quasi-infrastructure/project bonds may be issued in Russia on the basis of recent FSFM regulations Exemptions from some listing requirements for project bonds, e.g. a number of transactions per month, period of existence of the issuer Issuer-concessionaire concept Decision on issuance of project bonds - upon execution concession agreement

16 1 Legal Framework for PPP Projects in Russia Project Bonds (II): draft Federal Law "On Particularities of Investing into Infrastructure by Virtue of Project Bonds" Prepared by FSFM, but has not yet been submitted to the State Duma Project bonds under the Draft Law: Are issued by the SPV selected on a concession tender Must be secured by state / municipal / VEB guarantee Have maturity of no more than 25 years May be used exclusively for project purposes May be purchased by qualified investors only

17 1 Context I. Legal Framework for PPP Projects in Russia II. GLN Projects (Finance & Infrastructure) Practice Group in France & Russia

18 SLIDE 1 A Strong International Presence 19 offices in 15 countries Budapest Warsaw Brussels Bucharest London St. Petersburg Moscow New York Paris Algiers Casablanca Tunis Kiev Istanbul Beijing Shanghai Hong Kong Hanoi Ho Chi Minh City

19 1 Russia Projects (Finance & Infrastructure) Group GLN Russia Project Practice Dedicated team of 10 Project lawyers based in Moscow and Saint Petersburg. GLN Russia Projects Group ranked "First tier PPP Practice" in Chambers Europe Guide in 2010, 2009, 2008 and Participating in the Expert Council for PPP Development in Russia of the Committee of the State Duma for Economic Policy. First-class project experience (incl. successfully bringing to financial close), acting for lenders and sponsors in all major sectors of Russian public infrastructure, such as transport, power, municipal infrastructure and waste disposal. GLN Russia Project Practice fully integrated into the Global Projects (Finance & Infrastructure) Practice Group: "This Paris-based firm benefits from a wide European reach, particularly in CEE, Russia and the CIS, where it has been active in a number of sizeable PPP and infrastructure mandates." Chambers Global 2010

20 2 Projects (Finance & Infrastructure) Group Selected Experience in Russian PPP Projects Kambarka Concession Project, Udmurtiya ( ): Advising the winning bidder on the commercial and financial close in respect of a concession project in Udmurtiya, the City of Kambarka involving the construction of toll bridges across Kama and Buy Rivers. Neva Water PPP Project, Saint Petersburg (2011): Advising a bidding consortium (Gazprombank, Veolia, Stroytransgas) on the PPP tender in connection with reconstruction of Northern Water Treatment Plant in Saint Petersburg. Moscow-St. Petersburg road (58-684km) PPP, Russia (2010): Advising Concession Infrastructure Company TransProject and the State on Moscow-St. Petersburg road (58-684km) PPP project. Western High-Speed Diameter, Saint Petersburg (2008): Advising a major Russian construction company in relation to one of the first concession projects in Russia the Western High-Speed Diameter; the advice included structuring of relations between the consortium members, as well as general advice on the bid documents and bidding procedure. Orlovsky tunnel concession project, Saint Petersburg, Russia (2008): Advising a bidding consortium on the approx. $1 billion Orlovsky tunnel concession project involving the financing, design, construction and operation of a toll-tunnel under the Neva River. Pulkovo Airport PPP Project, Russia (2008): Advising the Government of Saint Petersburg during the initial stage of the Pulkovo Airport reconstruction and expansion PPP Project. Waste Collection and Incineration Concession, Moscow, Russia ( ): Advising a major French industrial company regarding the first concession project in Russia in the field of waste collection and incineration in Moscow; negotiation of agreements with the Moscow City Council.

21 2 Contacts In Russia: Alexander Dolgov, Partner Tel Gide Loyrette Nouel Vostok 7 ul. Petrovka Pereulok Grivtsova, Moscow Saint Petersburg Russian Federation Russian Federation Tel Tel Fax Fax gln.moscow@gide.com gln.saintpetersburg@gide.com