2324 October 2017 Vienna Experts for Chapter VI October 2017 Possible future work on PPPs Updating of Chapter VI in order to incorporate new developments Recognition of partnershiplike relationships synallagmatic triallagmas whereby the incomestream is generated from the market that is ID: 651667
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Slide1
UNCITRALThird International Colloquium on Public-Private Partnerships (PPPs)23-24 October 2017, Vienna
Experts for Chapter VI
October 2017Slide2
Possible future work on PPPs
Updating of Chapter VI in order to incorporate new developments
Recognition of partnership-like relationships (synallagmatic triallagmas) whereby the income-stream is generated from the market, that is, a third
party
PROPOSALS FOR CHAPTER VISlide3
Possible future work on PPPs
Putting emphasis on best practices of the settlement of disputes such as the use of dispute adjudication boards (instead of dispute review boards) as dispute prevention mechanism
Dispute Adjudication Boards should preferably be standing boards and not
stand by
One dispute board should suffice for all contracts involved
PROPOSALS FOR CHAPTER VISlide4
Possible future work on PPPs
Separation of commercial arbitration from investment arbitration and extend comments about the latter
Infrastructure projects are normally being structured under international investment agreements.
PROPOSALS FOR CHAPTER VISlide5
Possible future work on PPPs
The distinction between (pre-) selection of the concessionaire disputes and disputes between the contracting authority and the concessionaire should be maintained
With respect to pre-selection disputes a reference may be included to the UNCITRAL Model Law on Government Procurement
PROPOSALS FOR CHAPTER VISlide6
Possible future work on PPPs
Issues of the governing law and the place of arbitration (preferably different from the project’s site) should be addressed
PROPOSALS FOR CHAPTER VISlide7
Possible future work on PPPs
Use of liquidated damages formulas to avoid lengthy disputes in both commercial and investment arbitration (Murphy v. Ecuador)
Recommendation of partnering approach using techniques such as “Front-End-Engineering Design” (FEED), Building Information Modelling (BIM) and “open book” approach in construction contracts
PROPOSALS FOR CHAPTER VISlide8
Possible future work on PPPs
Partnering would also be favoured through FEED (Front end Engineering Design), which focuses on the technical requirements as well as rough investment cost for the project, and BIM (Building Information Modelling), that is an intelligent 3D model-based process
PROPOSALS FOR CHAPTER VISlide9
Possible future work on PPPs
Recommendation to use modern claim mechanisms in order to allow for contract adaption and modification, in particular, for unforeseen circumstances as part of dispute prevention
Expanded guidance on dispute prevention and resolution
PROPOSALS FOR CHAPTER VI