In fact, we can say that in a Mature market, the concession projects in the near future there may be new players who will come out with new initiatives in the field of PPP. New players — new forms of projects and PPP.
At the same time, the Novella of Federal PPP legislation will fundamentally affect regional markets for PPP projects. Adopted in the majority of subjects of the Russian Federation laws on the participation of subjects of the Russian Federation in public-private partnerships should be brought into conformity with Federal law No. 224-FZ[1]. In a number of subjects of the Russian Federation, for example in St. Petersburg, because of the PPP law will change the list of permissible forms of regional PPP. The good news is that for the implementation of already concluded at the regional PPP laws agreements 224-FZ because of the "grandfather clause" will not be affected.
In the 224-FZ, and in the last package of amendments to the concession law can be traced similar trends:
regulated initiation mechanism of concession and PPP agreements (in respect of the PPP agreement spelled out the procedure for initiating and the public partner. In concession — only the private initiative);
expanded/resolved the use of direct agreements;
fixed extended guarantees to the private partner;
regulated joint competitions and the possibility of concluding a PPP / concession agreement in respect of the several objects.
The next year or two will show how to change the ratio concessioned concession and PPP projects in the Russian market, whether demanded procedure of private initiative, how applicable will a comprehensive agreement with the participation of several public legal entities or in respect of the several objects.
Separate question — what fate will befall the regional PPP laws. Originally, the Federal PPP law was conceived precisely in order to legitimize the regional laws, in particular, give the subjects of the Russian Federation the authority to conclude PPP agreements.
Time and experience, as usual, put everything in its place. And yet in the absence of the right of enforcement practices bring to your attention a dimension on the key innovations of the PPP law, its comparison with the Federal law "On concession agreements"[2] and our assessment of the pros and cons of the adopted law.
Sincerely,
Head of PPP and infrastructure Practice VEGAS yet Lex
Adopted on 1 July 2015, the State Duma of the Federal law "On public-private partnership, municipal-private partnership in the Russian Federation and amendments to certain legislative acts of the Russian Federation" regulates the relations connected with the preparation, negotiation and execution of agreements on public-private and municipal-private partnerships (hereinafter PPP and MPP, partnership), establishes the authority of the public legal entities, bodies of state power and bodies of local self-government in the areas of PPP and MPP, and also provides for amendments to the legislation of the Russian Federation in terms of integration of PPP and MPP agreements.
The implementation of PPP/MPP projects will be possible after the entry into force of the PPP law, namely 1 January 2016. The subjects of the Russian Federation are obliged to bring their laws into compliance with 224-FZ until July 1, 2016.
The adopted revised PPP law significantly differs from the previously discussed 2014 version. So, the adopted PPP law establishes the possibility of concluding an agreement on the initiative of the public partner and the private partner initiative, establishes the concept of "direct agreement" establishes a more stringent compared to the 115-FZ, restrictions on structure of participants from the private partner maintains a list of objects of the agreement, details of the content of PPP/MPP agreement specifies the procedure of holding tender procedures, etc.
In accordance with the PPP law, concession agreements are under its regulation. The concession agreement is still governed by a special law, namely Federal law "On concession agreements".
In addition, the PPP-law made a clear distinction between PPP projects and concession projects. The key division is based on a different subject composition, requirements to the objects of the agreement and partly on the individual terms of the agreement. Under this analytical material, the innovations of the PPP law are analyzed, including through the prism of comparison with the norms of the Federal law "On concession agreements".
The subject of PPP and MPP agreements
PPP/MPP is a legally for a certain period and based on the definition of resources, risk-sharing cooperation between public and private partners. Thus, the concept of PPP/MPP is determined through the agreement, which is a civil law contract concluded for a period of not less than three years in the manner and on the terms provided by the new PPP law.
The definition of PPPs through the PPP agreement in the future may hinder the attribution of corporate forms of cooperation between government and business in PPP.
In addition, the PPP law establishes the concept of PPP/MPP project, although it specifies it only through the project, planned for implementation by the partners on the principles of PPP and MPP. However, such a definition does not answer the long-standing investment in the field of dispute about the most appropriate project definition (investment, PPP or concession project in this case does not matter) as the implementation of the investment or as a package of documents on the basis of which such activities are carried out.
The purpose of PPP and MPP in accordance with article 3 of the PPP law is attraction in economy of private investment, providing public authorities and local governments of availability of goods, works and services and improve their quality. Based on this goal, the main interested party in the agreement is a public partner, since the security of his interests is the main goal of the partnership.