Guidance on PPP Legal Frameworks - Juin 2022

Juillet 2022
Banque Mondiale (148 pages).
This Guidance is intended to aid government officials inform themselves about and establish suitable PPP legal frameworks and sets out key considerations and sample drafting in relation to a number of critical provisions in publicprivate partnership (PPP) legislation and supporting instruments. The Guidance explains the background to these essential legislative provisions, while providing benchmarking examples from markets with different legal traditions and maturities, to highlight the need to cater to a government's specific set of circumstances. Designed as a succinct and digestible practitioner’s guide, the Guidance is not intended to cover every possible aspect of a PPP legal framework.
Neither is it a recommendation to opt for PPP as the delivery model for projects, nor an analysis of PPP’s advantages and disadvantages.
While PPP may be implemented on a one-off basis without any specific supporting legal and institutional framework, most countries with successful PPP programs rely on a sound enabling framework. These typically regulate the development and management of PPPs from upstream to downstream, anchoring PPP processes in the respective country’s overall public investment management framework and providing for clear assignment of institutional roles and responsibilities, implementation of appropriate project origination and appraisal processes and strong risk management throughout the PPP lifecycle.
Numerous emerging and nascent PPP markets have therefore made and are making efforts to adopt their own PPP legislation, and in doing so are looking for good practice to follow. While several international organizations have developed guidelines for good governance in PPPs regarding different types of infrastructure projects, specific knowledge products on drafting PPP legislation have been less numerous. Important recent examples include the UNCITRAL Legislative Guide on Public-Private Partnerships (2019) and accompanying Model Legislative Provisions on Public-Private Partnerships (2019), as well as the Draft UNECE-EBRD People-first PPP/Concession Model Law (at the time of writing not yet formally adopted).
It is against this background that the World Bank developed the Guidance as a practical tool for government officials to complement the global body of knowledge as regards the understanding and drafting of PPP legal frameworks. In focusing on selected key legal provisions, the Guidance particularly aims to address considerations related to the fiscal, environmental and social sustainability of PPP projects as well as their resilience/adaptability to external shocks such as natural disasters, climate change extreme weather events and crises such as the COVID-19 pandemic.
With respect to the sample drafting contained in the Guidance, the authors would like to emphasize that it is neither intended to be exhaustive nor prescriptive, but is provided as illustrative and a starting point for jurisdiction-specific drafting. Specifically, it is not meant to be mandatory for use in World Bank financed operations which may involve the review or reform of legal enabling environments for PPP. Instead, the contents of this Guidance should be regarded as one of many inputs for governments to consider when thinking of establishing or amending an existing PPP legal framework. It should equally be noted that references to country examples throughout the document should not be interpreted as World Bank endorsement of the respective country’s PPP framework/program or as recommended best practice. Rather, these examples are given for benchmarking purposes and to illustrate the drafting considerations explained in each chapter of the Guidance.
The authors would finally like to stress that this publication is seen as an evolving process. The intention is to develop further iterations of the Guidance as market practice around the key themes covered in this document (and any new areas) evolves, conceivably in response to the omnipresent challenge of climate change and other future crises.