International Construction Law Review

Chantal-Aimée Doerries KC; Professor Douglas Jones AO

Document

AN OVERVIEW OF RISK ALLOCATION IN RECENT PPP INFRASTRUCTURE PROJECTS IN AUSTRALIA

ANDREW CHEW

Special Counsel, Mallesons Stephen Jaques, Sydney

DAVID STORR

Partner, Mallesons Stephen Jaques, Sydney

AND GEOFF WOOD

Partner, Mallesons Stephen Jaques, Sydney

1. INTRODUCTION

1.1 Types of PPP infrastructure projects

Australia has been at the forefront of delivering public private partnerships (PPP) projects.1 PPP projects in Australia to date have been generally based on Build-Operate-Transfer (BOT) model and have been essentially project financed by the private sector. The first of such PPP projects was the Sydney Harbour Tunnel which was completed in 1992. Since then, PPPs have been used to deliver infrastructure projects and services over a range of sectors including transport (road and rail), power stations, prisons, hospitals, schools, defence facilities and equipment, sporting facilities, court facilities, waste handling plants, water and waste-water treatment plants, etc. A list of recent Australian PPP projects is set out in Appendix 1.

1 The United Kingdom has been leading the world in delivering PPP projects. In mid-2000, the government embarked on a rebadged Public Partnerships programme named “Public Private Partnerships: the Government’s Approach”.

A recent survey by PriceWaterhouseCoopers (Developing Public Private Partnerships in Europe , 2004) showed that while most Member States of the European Union showed interest in PPPs, there is varied experience in developing PPPs.

Most East Asian countries have been delivering projects on a BOT basis for a number of years. Although a number of these countries have introduced laws or policy on delivery of BOT projects or PFI—see e.g. Anukret on Build-Operate-Transfer (BOT) Contract (1998) (Cambodia); Private Finance Initiative Promotion Act 1999 (Japan); Federal Roads (Private Management) Act 1984 (Malaysia); Republic Act 7718 Amended BOT Law (1994) (Philippines); Act on Private Investment in Social Overhead Capital Facilities 1999 (South Korea); Decree on providing investment regulations on BOT (build-operate-transfer), BTO (build-transfer-operate) and BOT (build-operate-transfer) contracts involving foreign investment in Vietnam (1998)—they (with the exception of Hong Kong) do not have any formal PPP policy.

[2005

The International Construction Law Review

290

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