This workbook sets out the typical clauses in a concession agreement, together with issues and notes. These are organised in the usual order of the concession agreements, the content headings are set out in the first column.
The key issues in the second column are adapted from the guidelines, A Legal Perspective of Public Private Partnerships, which was drafted as part of the same project.
The example clauses provided in the third column of this workbook have been compiled by inserting relevant examples from concession agreements provided to or found by us.
Where there are a number of different ways of dealing with an issue, alternatives are provided. Alternatives are not provided when the differences are not significant or mainly stylistic (for example in the case of boilerplate clauses). The example clauses are illustrative only. These example clauses are also not appropriate for use in all circumstances, nor are these examples "perfect" in a sense that the drafting can be improved upon. In any case, the clauses need to be changed to ensure that the style of drafting and the definitions used are consistent throughout the agreement, and that they comply with and are appropriate for the local (and the applicable) laws of the jurisdiction.
The last column contains the cross reference to the source documents. We have retained and indexed copies of these agreements (as well as other agreements and documents). The references to the agreements are provided in the notes and references section, with the indexed reference. The reader is encouraged to go to the actual agreement to see the clause in context. No references are provided where the clauses are drafted by us, or where the clauses are so standard as to appear in almost identical form in most agreements.
In addition, references to "SOPC" refers to references to the guidelines by the Office of Government Commerce, UK, Standardisation of PFI Contracts - General, index reference C1, folder 5, containing a discussion of the issue.
Other notes on the example clauses are:
1. Variables, alternatives and commentaries are placed in square brackets.
2. Minimum changes have been made to the clauses, in using these clauses alterations are necessary to ensure that they are appropriate for the context. In particular, definitions need to be consistent throughout.
3. Throughout this worksheet, the "Authority" means the public contracting party, and the "Concessionaire" means the private contracting party. Apart from these, the definitions have not been amended from the source agreement and they appear with the first letter capitalised. As the clauses come from different sources, different definitions may be used with the same meaning, and the defined term may not have a consistent meaning throughout.
4. The clauses are not numbered except for sub-clauses which are numbered (a) (b) (c)…. Cross references are therefore left blank unless they are references to sub-clauses within the same clause. Where appropriate a brief description of the clause to be cross-referenced is inserted in square brackets.