Transparency and disclosure is a high priority for PPP Projects as the Contracting Authority is a public sector entity or agency. It has become increasingly common for Contracting Authorities51 to require a presumption in favor of transparency and disclosure in PPP Contracts to ensure that information on PPP Projects, PPP Contracts and related documents can be shared by them, to the fullest extent possible, with the public at large. Multiple factors have influenced this development. The main drivers in the PPP context are to reduce the risk of corruption, increase private sector involvement in infrastructure investment, increase public confidence and awareness and achieve value for money. As with any infrastructure project, PPP Projects may also involve social and environmental, public interest and human rights considerations, and these are additional factors in favour of enhanced transparency and disclosure.
Given commercial sensitivities as well as public interest-related limitations, however, transparency and disclosure obligations in a PPP Contract are typically subject to a number of exceptions in order to protect commercially or otherwise sensitive information relating to the Parties, the PPP Contract and the PPP Project. In most cases it is the Private Partner who has the most information to protect as it will not want its competitors to gain access to information which could give them a commercial advantage. However, the Contracting Authority may also wish to keep certain information confidential, for example if the PPP Contract is in the defense sector. In some highly sensitive projects, the Contracting Authority may require the Private Partner and other parties and individuals directly involved in delivering the service to sign a written undertaking to be bound by national security legislation. In some jurisdictions (e.g. in the EU), there are also data protection obligations which apply to the Parties and which are likely to be addressed in a specific clause.
| EMERGING AND DEVELOPED MARKET DIFFERENCES While the maturity of a jurisdiction's PPP market may be a factor in the level of transparency and disclosure sought under PPP Contracts, the World Bank's Framework for Disclosure in Public-Private Partnerships 2016 ('WB Disclosure Framework 2016") also suggests that practice relating to PPP disclosure may have developed more rapidly in emerging markets, perhaps due to the pressing need for new infrastructure. An additional relevant factor to such development may be if the PPP Contract has to satisfy the disclosure policy requirements of other relevant bodies (such as multilateral agencies) in order for those bodies to support the PPP Project. |
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51 See A Framework for Disclosure in Public-Private Partnerships, World Bank 2016. See link in Appendix, Additional PPP Resources.