PPP Law
Generally, the PPP Law is aimed at unifying the principles regulating PPPs, defining the powers of public authorities when entering into partnerships with the private sector and specifying the procedures for entering into PPP arrangements.
In particular, the PPP Law includes the following provisions that help define, characterise and regulate PPPs:
· While the PPP Law does not set out an exhaustive list of forms for implementing PPP projects, it nevertheless allows for private ownership over the infrastructure facilities (thus enabling BOO, BOOT and other standard PPP models based on private ownership). This is in contrast to the Concession Law which requires the state to retain ownership over the infrastructure facilities.
· PPP is defined as the cooperation of a public partner (the Russian Federation, a region or a municipal authority) and a private partner (a Russian legal entity) on the basis of a PPP agreement entered into pursuant to a tender procedure and aimed at increasing the quality and availability of public services by attracting private investment.
· A PPP project may be initiated either by the public or the private partner; thus providing investors with a right to enter into a PPP agreement through a non-tender private initiative procedure.
· Major Russian state-controlled PPP market players (such as state banks VEB.RF, Sberbank, VTB, Gazprombank and state investment funds such as the Russian Direct Investment Fund) are expressly prohibited from controlling more than 50% in a private partner. As a result, they will need to enter in consortia with private entities, including foreign investors, to finance PPP projects under the PPP Law.
· A PPP agreement is to be signed for a minimum of three years.
· PPP agreements regulated by the PPP Law are distinct from concession agreements, which are implemented on the basis of the Concession Law. And the PPP Law does not apply to concession agreements.
· The list of objects under PPP agreements (the “Objects”) is exhaustive and includes, in particular, private roads, bridges, roadside utilities, transport infrastructure and relevant public transportation (excluding metros), railways, pipelines, sea and river ports, airports, electricity generation plants, public health facilities, social infrastructure, agricultural and industrial facilities, IT facilities, data processing centres and space infrastructure facilities. Any infrastructure that cannot be held in private ownership according to Russian law is excluded from the scope of regulation of the PPP Law and may only be subject to a concession agreement.
· Under a PPP agreement, the private partner must (re)construct the Object, fully or partially finance such (re)construction as well as operate and/or maintain the Object. The private partner may also be required to prepare the design documentation, and fully or partially finance the operation and/or maintenance of the Object.
· As a general rule, the private partner remains the owner of the Object after the PPP agreement expires provided, however, that the amount of financing contributed by the private partner exceeds the financing of the public partner.
· If, during the effective term of a PPP agreement, the applicable federal, regional and/or local laws and regulations are amended and this adversely affects the private partner, then the parties must review the provisions of the PPP agreement to restore the economic balance initially envisaged by the parties, as well as the property and financial interests of the private partner.
· The PPP Law allows including in the PPP agreement a provision under which the public partner alienates to the private partner the exclusive right to the results of intellectual activity in relation to existing IT objects that are subject to modification and relate to the Object.
The PPP Law also generally defines such matters as the preparation of the PPP agreement, the content of the tender documentation, the tender procedures and control over the implementation of PPP projects.