Published 22 June 2020
The participation in projects related to public infrastructure, energy, other utilities, or any significant public projects carried out by governments and their agencies worldwide is a lucrative business for multinational enterprises spanning their operations across multiple jurisdictions with varying market entry barriers for foreign investors. The incentives and hindrances to participation in such projects by foreign persons could be tied foremost to the level of international liberalisation of government procurement markets. They could well be associated with the level of liberalisation of investment and provision of services in heavily-regulated monopolistic or oligopolistic sectors, like utilities. The scale of foreign investment in such sectors also rests on proper protection of investment by foreign persons, along with the position of such persons in the resolution of controversies that might arise between a public and a private partner.
From the international law perspective, the favourable investment climate for public-private-partnerships (PPPs) depends on a specific jurisdiction’s network of trade-and-investment-related commitments. From the domestic law perspective, which shall not be entirely disregarded, this climate hinges on a set of jurisdiction-specific public-law-norms. The public-law- norms, which regulate the details of the selection process of private partners, are most-often interwoven or nested in domestic public procurement laws. Such norms are also perforce convergent across different jurisdictions, complying with the framework imposed by the World Trade Organization’s (WTO) Government Procurement Agreement (GPA), and following best procurement and PPP-related practices delineated in the regional procurement models such as the European Union’s (EU) directives or the procurement chapter of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Less coherent and convergent across various jurisdictions are public-law-norms which modify private-law-norms in the fields of contracts and business organisation, to reflect the specificity of contractual arrangements or joint-ventures (JVs) between private and public partners.
This paper will be part of the TDM Special Issue on "The Changing Paradigm of State-controlled Entities Regulation: Laws, Contracts and Disputes". More information here www.transnational-dispute-management.com/news.asp?key=1719