PPP Research Center

 Romanian Public-Private Partnership Law Review

No. 10 / 2014

TABLE OF CONTENTS: 

Arbitral jurisdictions imposed by regulations at a regional level aimed at resolving litigations between states and investors from other countries (semiprivate litigations)
by Claudiu Buglea, PhD, Lecturer, Faculty of Law, University of Bucharest

In search of legal clarity: a commentary on the Constitutional Court’s Decision regarding the Law on public-private partnership
by Simona Gherghina, PhD, Associate Professor, Faculty of Law, University of Bucharest
and Monica Amalia Rațiu, PhD, Lecturer, Faculty of Law, University of Bucharest

The Value for Money (VfM) analysis for Public–Private Partnerships (PPP) projects
by Silviu Dinu, Senior Manager, PricewaterhouseCoopers Romania

 

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Arbitral jurisdictions imposed by regulations at a regional level aimed at resolving litigations between states and investors from other countries (semiprivate litigations)

Claudiu Buglea, PhD
Lecturer
Faculty of Law
University of Bucharest

Abstract:

This paper attempts to analyse a very interesting issue related to the trend of developing certain regional arrangements, in different parts of the world, in order to attract foreign investment.

The analysis will however only concern aspects relating to the regulation of aspects of potential conflicts that could arise between a host state and an investor whose nationality state is party to a regional agreement, due to the failure of meeting obligations arising out of legal relationships, born of investments.

In such, agreements concluded in Africa, Asia, South America or North America are considered, as well as certain aspects of some jurisdictions that tend to settle such disputes, organized on the European continent.

Keywords: arbitral jurisdictions, foreign investments, semiprivate litigations, host state, foreign investor.

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In search of legal clarity: a commentary on the Constitutional Court’s Decision regarding the Law on public-private partnership

Simona Gherghina, PhD
Associate Professor
Faculty of Law
University of Bucharest

Monica Amalia Rațiu, PhD
Lecturer
Faculty of Law
University of Bucharest

Abstract:

In its Decision no. 390/2014 the Constitutional Court upheld, in part, the objection of unconstitutionality filed by a group of members of Parliament and found that the provisions of Article 38 paragraph (1) of the Law on public-private partnership are unconstitutional. The Constitutional Court held that the provisions of Article 38 paragraph (1) violate several constitutional provisions: Article 1 paragraph (5), within its component relating to the quality of the law, Article 31 paragraph (2), Article 45 and Article 148. paragraph (4) of the Constitution.

The solution of the Constitutional Court is objectionable because the article in question has been declared unconstitutional by applying selectively considerations enshrined in the jurisprudence of The European Court of Human Rights, by including only part of the criteria listed in the respective law to determine the clear, accurate and predictable character of a normative document and, at the same time, by ignoring all the regulations contained in the Law on public-private partnership detailing the implementation of the mechanism set out in Article 38 paragraph (1).

Keywords: public-private partnership, unconstitutionality, predictability, unilateral amendment, unilateral termination, public interest.

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The Value for Money (VfM) analysis for Public–Private Partnerships (PPP) projects

Silviu Dinu
Senior Manager
PricewaterhouseCoopers Romania

 Abstract:

The VfM analysis plays an important role in many PPP programs. However, even in countries with well-established PPP programs, the approach to and use of this analysis is evolving, and is often the subject of controversy and debate. Practitioners face some significant methodological challenges (i.e. discount rate, risk analysis) that mean conclusions of the VfM analysis can be misinterpreted or worse, manipulated.

Nonetheless, public authorities benefit from having VfM at the center of PPP decisions. There is much to be gained from doing the VfM analysis to sense-check the decision to pursue the project, and it is worthwhile to public entities to understand whether or not implementing a project now as a PPP comes at a cost, and if so, to weigh this cost against the associated benefits.

Public authorities need to strike the right balance between qualitative and quantitative approaches – particularly in new PPP programs, where there is very limited data available to inform assumptions for quantitative analysis. Generally speaking, this will involve greater emphasis and scrutiny on qualitative aspects of PPP decision-making. The quantitative approach can be useful to inform decision-making, but should be understood and communicated more as a tool to consistently and systematically assess the combined result of a set of assumptions, than as a scientific process that provides “proof” of the VfM. In this respect, better data for quantitative approaches to the VfM analysis could be obtained by more systematic collection of data on actual PPP project outturns, and ex-post assessment of the VfM achieved in practice.

Keywords: Value for Money (VfM), cost-benefit analysis, traditional (public) procurement, Public–Private Partnerships (PPP), Public Sector Comparator (PSC), discount rate, risk analysis, quantitative and qualitative approaches.

 

 

  

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