亚开行-恢复公私伙伴关系的信心：改革风险分配并创建更多的协作性PPP（英文）-2020.10-15页_539kb

报告摘要

Summary of "Restoring Confidence in Public-Private Partnerships" (ADB Governance Brief Issue 41·2020)

Core Content

This document, Restoring Confidence in Public-Private Partnerships, discusses the need for reform in public-private partnership (PPP) contracts to address the declining global use of PPPs and the loss of confidence among governments, the private sector, and the public. It emphasizes the importance of risk allocation and dispute resolution in PPPs and explores alternative contractual approaches that could lead to more flexible and collaborative partnerships.

Main Views

Decline in PPP Activity: The global use of PPPs is declining, particularly in developing and emerging markets, due to perceived inefficiencies, inflexibility, and lack of trust in the risk and dispute management frameworks.
Risk Allocation as a Key Issue: Risk allocation is central to PPP contracts. Traditional models often assign risks in a rigid manner, leading to disputes and mistrust. The document highlights that certain risks, such as demand risk, are handled differently in Availability Contracts and User-Pay Contracts.
Dispute Resolution Challenges: The typical "staircase" approach to dispute resolution, involving negotiation, mediation, expert determination, and arbitration, is often adversarial and inefficient. This can lead to the breakdown of partnerships and increased costs.
Alternative Contractual Models: The paper explores alternative models such as Project Partnering, Alliance Contracting, Integrated Project Delivery (IPD), and Competitive Dialogue, which aim to foster collaboration and more equitable risk sharing.
Need for Governance Reform: There is a call for improved governance frameworks to support more collaborative PPP models, including enhancing the capacity of public authorities to manage complex and partnership-oriented contracts.

Key Information

Risk Allocation

Traditional Approach: Risks are assigned to either the public or private partner, with some shared risks.
Availability Contracts: Demand risk is typically assumed by the public partner.
User-Pay Contracts: Demand risk is usually borne by the private partner.
Common Issues: Unanticipated events (e.g., pandemics), technological change, and legal policy shifts are often not covered by traditional force majeure provisions, leading to disputes.

Dispute Resolution

Tiered Process: PPP contracts typically use a multi-step process, starting with informal negotiations and escalating to formal arbitration or litigation.
Adversarial Nature: The process can become costly and time-consuming, especially when disputes are not resolved early, leading to the erosion of trust between partners.
Renegotiation and Termination: Disputes can lead to contract renegotiation or termination, which are challenging for both public and private sectors.

Alternative Approaches

Approach	Description	Advantages	Disadvantages
Project Partnering	A collaborative model where parties commit to shared goals through a charter document.	Encourages collaboration and mutual trust.	Non-binding, may not be effective for major disputes.
Alliance Contracting	A model where parties share risks and rewards in a "no blame" environment.	Promotes collective risk sharing and innovation.	Requires high trust, may complicate procurement and financing.
Integrated Project Delivery (IPD)	A model where all stakeholders form a legally binding agreement early in the planning stage.	Encourages transparency and efficiency.	Difficult to apply in PPPs due to the need for early team formation.
Competitive Dialogue	A method allowing early collaboration between the public and private sectors while maintaining a competitive bidding process.	Enhances communication and design flexibility.	Complex, costly, and time-consuming.
Economic Stability Clauses	Provisions in civil law countries that provide relief in the event of unforeseen economic changes.	Offers flexibility and financial stability.	May be difficult to implement in common law jurisdictions.

Conclusion

The document argues that to restore confidence in PPPs, there is a need to move away from rigid, adversarial models toward more flexible and collaborative approaches. It suggests incremental reforms to risk allocation and dispute resolution mechanisms, drawing on alternative models and emphasizing the importance of strengthening public sector capacity to manage such partnerships effectively. The proposed changes aim to better align PPPs with the evolving needs of both public and private stakeholders, particularly in the post-pandemic context.

展开完整摘要