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Private sector involvement in the financing, delivery and operation of public infrastructure is nothing new; it is, however, constantly evolving. The public appetite for social and economic infrastructure is insatiable, yet must constantly be tempered by economic constraints. Alongside the increasingly sophisticated and internationalised market for funding and technical capacity, there has been in recent years a renewed focus upon the policy bases for public private partnerships (PPPs) by governments and the broader community. Navigating all this in its legal context is one of the great ongoing challenges faced by the infrastructure industry and its legal advisers. This subject is designed to equip students to respond to this challenge.
Principal topics include:
- Historical perspectives on private involvement in the delivery of public infrastructure, how it has changed over time and lessons learnt.
- The PPP family, and the different categories of PPPs within the family.
- The differing objectives of the various participants in a PPP.
- The benefits and challenges associated with privately financed PPPs, and how PPPs can be improved.
- The role of Australian governments (Federal, State and Territory) in PPPs. How PPP policies fit within the broader government policy framework for investing in and managing infrastructure assets.
- The role of government in developing nations in creating a PPP enabling environment.
- Funding and financing mechanisms, including government funding, private finance and value capture.
- PPP risk allocation, including how it is evolving in response to current trends and pressures in the Australian market.
- The matrix of contractual documents required for a privately financed PPP, including Government Project Agreements, Debt Financing Document, Equity Documents, Sub-Contracts, Tripartite Deeds, Interface Agreements and the like.
- The procurement process for PPPs, including how to manage a PPP bid.
- Dispute resolution on PPP projects, including linked claim provisions and equivalent project relief provisions.
- Other legal issues unique to PPPs including the legal enforceability of abatement regimes, the application of security of payment legislation, ipso facto provisions, transparency and disclosure obligations.
- Managing PPP contracts through the delivery, operation and handback phases.
Intended learning outcomes
A student who has successfully completed this subject should be able to:
- Examine and explain the means of private-sector involvement in the procurement of public-sector infrastructure projects
- Critically reflect on, and be confident in working across, the interaction between the policy, technical, commercial and legal aspects of PPP procurement
- Investigate, examine and analyse existing and emerging legal issues relating to procurement of privately financed infrastructure projects.
Last updated: 10 November 2023