Given the inherent complexity, long-term nature, and multi-stakeholder involvement of Public-Private Partnerships (PPPs), establishing robust and effective Dispute Resolution Mechanisms in PPP Contracts is absolutely paramount to ensuring project continuity, minimizing costly delays, and preserving the valuable public-private relationship. Disagreements are inevitable in contracts spanning decades, ranging from scope changes and cost overruns to performance failures and force majeure events, necessitating clear, tiered, and enforceable procedures to address conflicts efficiently and equitably outside of protracted litigation. This comprehensive training course is meticulously designed to equip public and private sector professionals, including legal counsel, project managers, financial advisors, and contract administrators, with the advanced knowledge and practical skills required to design, negotiate, and implement effective dispute resolution frameworks that foster collaboration, mitigate risks, and safeguard the long-term success of complex PPP projects. Without a well-defined and understood approach to Dispute Resolution Mechanisms in PPP Contracts, parties risk project stagnation, severe financial penalties, and irreversible damage to their partnerships, underscoring the vital need for specialized expertise in this critical domain.

Duration: 10 Days

Target Audience

• Legal Professionals (Lawyers, Legal Advisors, In-house Counsel)
• Public Sector Contract Managers and Administrators
• Private Sector Project Directors and Contract Managers
• PPP Unit Professionals
• Financial Advisors and Lenders' Legal Counsel
• Procurement Specialists
• Engineers and Technical Experts involved in PPPs
• Senior Management of public and private entities engaged in PPPs
• Mediators and Arbitrators specializing in infrastructure disputes
• Academics and Researchers in dispute resolution and project finance

Objectives

• Understand the fundamental importance of dispute resolution in long-term PPP contracts.
• Learn about the various types of disputes commonly arising in PPP projects.
• Acquire skills in designing effective tiered dispute resolution clauses.
• Comprehend techniques for negotiating dispute resolution provisions in concession agreements.
• Explore strategies for implementing informal dispute avoidance mechanisms.
• Understand the role of expert determination and dispute boards in technical disputes.
• Gain insights into mediation and conciliation as alternative dispute resolution methods.
• Develop a practical understanding of domestic and international arbitration in PPPs.
• Master legal and procedural aspects of arbitration proceedings.
• Acquire skills in enforcing arbitral awards and judgments in different jurisdictions.
• Learn to apply international best practices and model clauses for dispute resolution.
• Comprehend techniques for managing cross-border disputes involving sovereign entities.
• Explore strategies for cost-effective and time-efficient resolution of PPP disputes.
• Understand the importance of preserving relationships during dispute processes.
• Develop the ability to contribute to robust and equitable dispute management in PPP projects.

Course Content

Module 1: Introduction to PPP Disputes and Their Impact

• Nature and characteristics of disputes in long-term PPP contracts.
• Common causes of PPP disputes (e.g., scope changes, cost overruns, performance issues, force majeure, regulatory changes).
• Financial, operational, and reputational impacts of protracted disputes.
• The imperative for effective dispute resolution in PPPs.
• Overview of the dispute resolution landscape in PPPs.

Module 2: Principles of Dispute Avoidance

• Proactive measures to prevent disputes in PPPs.
• Clear contract drafting and unambiguous language.
• Robust contract management and performance monitoring.
• Effective communication protocols and relationship management.
• Early warning systems and issue escalation procedures.

Module 3: Tiered Dispute Resolution Clauses

• The concept of multi-tiered dispute resolution.
• Negotiating the sequence of dispute resolution steps (e.g., negotiation, mediation, adjudication, arbitration).
• Advantages of a tiered approach for PPPs.
• Drafting clear timeframes and escalation triggers.
• Ensuring the enforceability of each tier.

Module 4: Informal Dispute Resolution: Negotiation and Senior Management Escalation

• Principles of effective negotiation in a dispute context.
• Structuring senior management escalation clauses.
• Role of internal dispute resolution committees.
• Best practices for documenting negotiations.
• Maintaining working relationships during informal resolution.

Module 5: Expert Determination and Adjudication

• Role of independent experts in resolving technical or financial disputes.
• Binding vs. non-binding expert determinations.
• Adjudication in construction and infrastructure projects.
• Speedy resolution and interim binding decisions.
• Selection and appointment of experts/adjudicators.

Module 6: Dispute Boards (DBs): DRB, DAB, DPA

• Types of Dispute Boards: Dispute Review Boards (DRB), Dispute Adjudication Boards (DAB), Combined Dispute Adjudication/Arbitration Boards (DAB).
• Composition, roles, and responsibilities of DBs.
• Advantages of continuous oversight by a DB.
• Drafting DB clauses in PPP contracts.
• Case studies of successful DB application.

Module 7: Mediation and Conciliation

• Definition and principles of mediation and conciliation.
• Role of the neutral third-party mediator/conciliator.
• Advantages of non-binding alternative dispute resolution (ADR).
• Techniques for effective mediation in complex PPP disputes.
• Drafting mediation clauses and selection of mediators.

Module 8: Introduction to Arbitration in PPPs

• Definition of arbitration and its advantages over litigation for PPPs.
• Key characteristics: party autonomy, confidentiality, enforceability, expertise.
• Types of arbitration: institutional vs. ad hoc.
• The arbitration agreement: scope, arbitrability, separability.
• Overview of major arbitration institutions (e.g., ICC, LCIA, SIAC).

Module 9: Investment Arbitration and ICSID

• Specifics of investor-state dispute settlement (ISDS) in PPPs.
• Bilateral Investment Treaties (BITs) and their role.
• The International Centre for Settlement of Investment Disputes (ICSID).
• Consent to ICSID jurisdiction and typical ISDS claims in PPPs.
• Balancing investor protection with sovereign rights.

Module 10: The Arbitral Process in PPP Disputes

• Commencing arbitration: request for arbitration, answer, counterclaims.
• Constitution of the arbitral tribunal: sole arbitrator vs. panel.
• Procedural rules: preliminary conferences, discovery, hearings.
• Evidence in arbitration: witness testimony, expert evidence.
• Interim measures and emergency arbitrators.

Module 11: Drafting Arbitration Clauses

• Essential elements of a robust arbitration clause in PPP contracts.
• Seat of arbitration and governing law of the arbitration agreement.
• Number and qualifications of arbitrators.
• Language of arbitration and confidentiality provisions.
• Multi-tiered clauses incorporating arbitration.

Module 12: Enforcement of Arbitral Awards

• The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
• Grounds for refusing enforcement of arbitral awards.
• Challenges to arbitral awards (annulment, set-aside proceedings).
• Enforcement against sovereign entities.
• Practical strategies for award enforcement.

Module 13: Litigation and Judicial Review

• When parties may resort to national courts.
• Judicial review of administrative decisions in PPPs.
• Role of national courts in supporting arbitration (e.g., interim relief).
• Challenges of litigation for long-term, complex contracts.
• Comparison of litigation vs. arbitration for PPPs.

Module 14: Cross-Border Dispute Considerations

• Navigating different legal systems and cultural approaches to disputes.
• Conflict of laws principles in international PPPs.
• Parallel proceedings and anti-suit injunctions.
• Due diligence on dispute resolution frameworks in foreign jurisdictions.
• Managing political and sovereign risks in international disputes.

Module 15: Case Studies, Lessons Learned, and Future Trends

• Analysis of prominent PPP dispute case studies and their resolution.
• Identifying best practices in dispute management from global experience.
• Lessons learned from dispute failures and costly litigations.
• Emerging trends: smart contracts, blockchain for dispute resolution, AI in dispute prediction.
• Workshop: Drafting and negotiating a dispute resolution clause for a hypothetical PPP.

Training Approach

This course will be delivered by our skilled trainers who have vast knowledge and experience as expert professionals in the fields. The course is taught in English and through a mix of theory, practical activities, group discussion and case studies. Course manuals and additional training materials will be provided to the participants upon completion of the training.

Tailor-Made Course

This course can also be tailor-made to meet organization requirement. For further inquiries, please contact us on: Email: info@skillsforafrica.org, training@skillsforafrica.org Tel: +254 702 249 449

Training Venue

The training will be held at our Skills for Africa Training Institute Training Centre. We also offer training for a group at requested location all over the world. The course fee covers the course tuition, training materials, two break refreshments, and buffet lunch.

Visa application, travel expenses, airport transfers, dinners, accommodation, insurance, and other personal expenses are catered by the participant

Certification

Participants will be issued with Skills for Africa Training Institute certificate upon completion of this course.

Airport Pickup and Accommodation

Airport pickup and accommodation is arranged upon request. For booking contact our Training Coordinator through Email: info@skillsforafrica.org, training@skillsforafrica.org Tel: +254 702 249 449

Terms of Payment: Unless otherwise agreed between the two parties’ payment of the course fee should be done 7 working days before commencement of the training.