Vietnam’s new Legislation on Public-Non-public Partnership (Legislation No. 64/2020/QH14) (the “PPP Legislation“) was ratified on 18 June 2020 by the Vietnamese Nationwide Meeting and can come into impact on 1 January 2021.
Previous to the introduction of the brand new PPP Legislation, which was first mooted again in 2017, the authorized framework in Vietnam in relation to PPPs was present in numerous legislative devices as illustrated within the diagram under:
Vietnamese legal guidelines are usually drafted in comparatively broad phrases, with the intention being, in widespread with many different jurisdictions, that the Authorities and its ministries implement decrees, circulars and directives to provide higher specificity and refinement to the broadly-framed legal guidelines. Nonetheless, with ministries and authorities departments empowered to independently subject these clarifying rules, it has been the case prior to now that overlapping provisions have led to gray areas and conflicting interpretations leading to an absence of certainty, significantly for overseas traders in search of strong and predictable frameworks inside which to make their capital investments.
Within the context of PPP tasks, with ring-fenced undertaking financing and lengthy concession intervals, a clear and unified authorized framework is preferable in an effort to facilitate predictable behaviour and decision-making and in the end, the environment friendly allocation of threat. The PPP Legislation, which can change into efficient on 1 January 2021, represents a consolidation of the prevailing advanced authorized framework in addition to an evolution within the method to overseas funding.
A unified, well-developed framework for implementing PPP tasks will likely be essential if Vietnam is to efficiently obtain its vital infrastructure targets and overcome its present infrastructure bottleneck. The applying of the PPP Legislation to approaching street tasks will likely be a real take a look at of whether or not sufficient has been carried out to handle the expectations and issues of overseas traders, significantly as nations grapple with the implications of a worldwide pandemic.
PPPs are usually not a brand new phenomenon in Vietnam, nonetheless, prior to now traders, contractors and financiers have needed to navigate a posh framework of legislative devices to know the authorized provisions relevant to their explicit infrastructure undertaking. The introduction of the PPP Legislation will, for the primary time, elevate and codify provisions regarding PPP tasks on the legislation degree (as handed by the Nationwide Meeting of Vietnam), and in doing so, probably cut back the uncertainty and ambiguity of the authorized framework relevant to a selected infrastructure undertaking.
While this text focuses on the important thing provisions within the PPP Legislation, we additionally word that adjustments have additionally not too long ago been made to the Legislation on Funding and the Legislation on Enterprises. Notable provisions within the PPP Legislation embody:
- Relevant tasks (Article 4) – The PPP Legislation particularly stipulates 5 sectors by which PPP investments are permitted, being (i) transportation; (ii) energy grids and energy vegetation (aside from hydro-power vegetation and State monopolies as prescribed by the Electrical energy Legislation); (iii) irrigation, clear water provide, water drainage, sewerage and waste remedy; (iv) well being care and schooling; and (v) IT infrastructure. To qualify, a undertaking’s worth have to be a minimum of VND 200 billion (roughly US$8.5 million), aside from well being care and schooling tasks the place the edge is half that quantity. The decrease threshold additionally applies to tasks inside localities with troublesome socioeconomic circumstances. The permitted sectors for PPP tasks prescribed within the PPP Legislation is way narrower than these expressly permitted beneath Decree 63. Below the PPP Legislation, the fairness capital contribution of the non-public traders have to be a minimum of 15% of the entire funding capital.
- Commonplace Kind Contracts (Article 47) – The Authorities will present normal type contracts to be used for sure varieties of undertaking agreements in PPPs (being BOT (build-operate-transfer), BTO (build-transfer-operate), BOO (build-own-operate), O&M (operate-maintain), BTL (build-transfer-lease) and BLT (build-lease-transfer). Importantly, consistent with worldwide observe, the PPP Legislation not recognises the BT (build-transfer) mannequin as a type of PPP funding. Though it’s unclear as to how detailed these contracts will likely be and the extent to which industrial negotiation will likely be permitted by the Authorities, these paperwork will hopefully type a helpful baseline and streamline procurement processes, noting that it’s overly simplistic to hunt a ‘one-size-fits-all’ method to PPP threat allocation.
- Bid safety (Article 33) – The PPP Legislation requires traders to lodge bid safety (at a charge of between 0.5% and 1.5% of the entire undertaking funding worth). This bid safety is along with the overall safety to safe efficiency beneath the PPP documentation (at a charge of 1% and three% of the undertaking worth) and will likely be forfeited if the investor withdraws from the tender course of, violates the bid procedures (the place such violation results in bid cancellation) or if appointed the profitable proponent fails to signal the contract documentation inside 30 days (apart from because of power majeure).
- Authorities efficiency ensures – Not like Decree 63, the PPP Legislation doesn’t expressly present that the Authorities will grant ensures in respect of the contractual obligations of State-owned enterprises. It stays to be seen whether or not the Authorities will, nonetheless, proceed to offer such ensures, in keeping with market observe or whether or not financiers and traders might want to get snug within the absence of ensures making use of in respect of State-owned enterprises.
- International foreign money assure (Article 81) – According to present observe, the Authorities offers overseas traders with a assure in relation to the supply of overseas foreign money to fulfil the traders’ wants in respect of the undertaking, together with capital transactions, mortgage repayments and switch of income. Nonetheless, in contrast to earlier transactions the place the Authorities would usually assure 100% of those overseas foreign money wants, the PPP Legislation stipulates that such ensures will likely be restricted to 30% of undertaking income after subtracting undertaking bills, which displays the newer Vietnam market place. The publicity to overseas foreign money threat might be difficult for worldwide financiers, a lot of whom don’t maintain vital reserves of the native foreign money, and a neighborhood capital market that’s nonetheless too small to finance advanced, large-scale vitality and infrastructure tasks.
- Threat-sharing mechanism (Article 82) – The PPP Legislation offers that the place precise undertaking income is bigger than 125% of the income forecasted within the monetary mannequin, the State will obtain 50% of the income in extra of the 125% threshold. Conversely, for BOT, BTO and BOO type contracts, the place precise undertaking income is lower than 75% of the income forecasted within the monetary mannequin on account of adjustments in planning, insurance policies or legal guidelines and different measures resembling concession extensions or tariff changes haven’t addressed the shortfall, the State will share 50% of the draw back under the 75% threshold. Whether or not that is passable to overseas traders stays to be seen and can should be evaluated on a project-to-project foundation, significantly as in different jurisdictions, extra complete draw back safety is obtainable the place income is adversely impacted by authorities actions.
- Governing legislation (Article 55) – Typically, undertaking paperwork in earlier tasks have been ruled by the legal guidelines of different agreed overseas jurisdictions, significantly English legislation and Singaporean legislation, which have a longtime system of case legislation and jurisprudence. That is vital as PPPs contain advanced authorized documentation and traders depend on authorized techniques with substantial case legislation to offer steering on the varied contractual mechanisms in PPP documentation. The sensible impact of the PPP Legislation is that undertaking paperwork entered into between a State authority and undertaking events will likely be ruled by the legal guidelines of Vietnam. That is probably a major change as ideas, that are nicely established in different common-law jurisdictions resembling liquidated damages and consequential loss exclusion could also be harder to determine beneath Vietnamese legislation. There is also a mismatch between undertaking paperwork and financing paperwork, if a overseas legislation governs the latter.
- Native content material (Article 28) – Below the PPP Legislation, traders committing to make use of home contractors, items and supplies are eligible for preferential remedy in the course of the bid analysis course of. It is a step additional than Decree 63, which is silent on the matter, however doesn’t go so far as mandating native content material.
In line with some reviews, there are roughly 100 main infrastructure tasks with an estimated worth of roughly US$21 billion in planning which might be earmarked for supply through the PPP mannequin in Vietnam. Over half of those tasks are within the roads and bridges sector.
The flagship street undertaking, which the Authorities is at present procuring, is the 2100km North-South Expressway operating all the size of Vietnam from Hanoi to Ho Chi Minh Metropolis.
In Could 2020, the Authorities thought-about changing a serious part of this undertaking, the 654km Jap part (costing roughly US$5 billion), which was initially supplied as eight PPPs to traders in 2019, right into a public funding given difficulties in elevating debt from native industrial banks. Nonetheless, the Authorities ultimately retained 5 of the roads as PPPs and began calling for bids in July 2020 in respect of the next sub-projects:
- A street connecting Nationwide Freeway 45 with Nghi Son in Nghe An province;
- The Dien Chau-Bai Vot expressway;
- The Cam Lam-Vinh Hao street, linking Khanh Hoa province with Binh Thuan province;
- The Nha Trang-Cam Lam street in Khanh Hoa province; and
- The Nghi Son-Dien Chau street, connecting Khanh Hoa province with Nghe An province.
Prequalification was in September 2020. The successful bidders are anticipated to be introduced quickly.
Alternatives / Conclusion
With engaging underlying fundamentals, together with sturdy financial progress, political stability and an increasing center class, the infrastructure sector in Vietnam undoubtedly represents a major alternative for overseas traders, contractors and financiers. Certainly, in line with some reviews, Vietnam requires greater than US$600 billion to achieve its infrastructure targets by 2040. With its emergence as a low price manufacturing hub, it’s anticipated that Vietnam might want to proceed to put money into infrastructure, significantly within the transportation sector, to facilitate and maintain this continued progress in its financial exercise.
PPPs supply a super framework for utilising non-public sector finance while additionally deriving the good thing about home and overseas experience, know-how and innovation, each technically and technologically, and can little doubt be utilised extra continuously by the Vietnamese Authorities going ahead in order to liberate an already stretched state finances and permit the roll out of many extra tasks.
What stays to be seen is whether or not infrastructure procurement beneath the PPP Legislation will supply sufficient safety and an applicable threat profile to encourage overseas participation and funding, significantly for tasks that contain market threat, which is invariably troublesome to foretell in rising economies significantly in respect of main street tasks, that are exterior of densely populated cities. A part of this will likely be dictated by the implementing rules and standardised contracts, which will likely be launched by the Authorities beneath the PPP Legislation sooner or later. As all the time, it is going to be vital for infrastructure traders, contractors and financiers to be supported by competent authorized advisors who’re aware of this difficult authorized panorama and the related State authorities in Vietnam.