Mastering Drafting and Negotiating PPP Concession Agreements is a pinnacle skill for professionals involved in Public-Private Partnerships, as these complex, long-term contracts form the legal bedrock that defines the rights, obligations, and risk allocation between public authorities and private concessionaires for critical infrastructure and public services. A meticulously drafted and skillfully negotiated concession agreement is paramount to ensuring project bankability, managing unforeseen circumstances, and safeguarding value for money over decades of operation, while poorly structured agreements can lead to costly disputes, renegotiations, and project failures. This comprehensive training course is meticulously designed to equip legal professionals, project managers, financial advisors, and government officials with the in-depth theoretical knowledge and practical strategies required to navigate the intricacies of concession agreements, from initial drafting principles and key contractual clauses to advanced negotiation tactics and dispute avoidance mechanisms. Without robust expertise in Drafting and Negotiating PPP Concession Agreements, parties risk significant financial exposure, operational inefficiencies, and a failure to achieve the long-term objectives of public-private collaboration, underscoring the vital need for specialized expertise in this critical domain.

Duration: 10 Days

Target Audience

• Legal Professionals (Lawyers, In-house Counsel, Legal Advisors)
• Government Officials involved in PPP contract negotiation and management
• Private Sector Project Developers and Investors
• Financial Advisors and Lenders' Legal Counsel
• PPP Unit Professionals
• Project Managers for PPPs (public and private side)
• Consultants specializing in PPP advisory services
• Senior Procurement Officers
• Academics and Researchers in contract law and project finance
• Anyone involved in the detailed structuring and closing of PPP projects

Objectives

• Understand the fundamental legal principles governing PPP concession agreements.
• Learn about the key structure and essential clauses of a typical concession agreement.
• Acquire skills in drafting clear, unambiguous, and enforceable contractual provisions.
• Comprehend techniques for effective negotiation strategies and tactics in PPP contexts.
• Explore strategies for optimal risk allocation and transfer within the agreement.
• Understand the importance of performance specifications and payment mechanisms.
• Gain insights into managing variations, defaults, and termination clauses.
• Develop a practical understanding of lenders' requirements and direct agreements.
• Master dispute avoidance and resolution mechanisms in long-term contracts.
• Acquire skills in identifying and mitigating legal and commercial risks during negotiation.
• Learn to apply international best practices and model clauses for concession agreements.
• Comprehend techniques for ensuring bankability and fiscal sustainability through contract terms.
• Explore strategies for balancing public interest with private sector incentives.
• Understand the importance of due diligence in contract finalization.
• Develop the ability to lead and successfully conclude complex PPP concession negotiations.

Course Content

Module 1: Introduction to PPP Concession Agreements

• Definition and nature of concession agreements in PPPs.
• Concession agreements vs. other PPP models (e.g., service contracts).
• Legal and commercial significance of the concession agreement.
• Key characteristics of long-term infrastructure contracts.
• Overview of international model concession agreements (e.g., World Bank, UNCITRAL).

Module 2: Structure and Core Elements of a Concession Agreement

• Parties to the agreement (public authority, private concessionaire, lenders).
• Recitals, definitions, and interpretation clauses.
• Conditions precedent to effectiveness and financial close.
• Term of the concession and extension/renewal provisions.
• Key schedules and annexures.

Module 3: Scope of Project and Performance Specifications

• Defining the project scope: design, construction, operation, maintenance, rehabilitation.
• Output specifications and performance requirements (KPIs, SLAs).
• Quality standards and service levels.
• Technical specifications and design standards.
• Mechanisms for monitoring performance and compliance.

Module 4: Risk Allocation and Transfer in Concession Agreements

• Principles of optimal risk allocation in contracts.
• Detailed contractual provisions for common risks: construction, operational, demand, force majeure, political, legal.
• Drafting risk allocation matrix within the agreement.
• Compensation mechanisms for transferred risks.
• Case studies of risk allocation in real-world concessions.

Module 5: Payment Mechanisms and Financial Provisions

• Types of payment mechanisms: user fees/tolls, availability payments, shadow tolls.
• Tariff setting and adjustment mechanisms.
• Revenue sharing provisions.
• Public sector financial support (e.g., viability gap funding, grants).
• Financial model integration and review.

Module 6: Financing and Security Aspects

• Legal framework for project finance in concessions.
• Security package: pledges, assignments, charges over assets and revenues.
• Direct agreements (Consent to Assignment, Step-in Rights) with lenders.
• Inter-creditor agreements and subordination.
• Conditions for refinancing and change of control.

Module 7: Defaults, Termination, and Compensation

• Definition of events of default by public and private parties.
• Rights and remedies upon default.
• Termination events (e.g., public sector default, private sector default, force majeure, convenience).
• Compensation on termination: valuation methodologies and payment mechanisms.
• Drafting clear and enforceable termination clauses.

Module 8: Managing Changes and Variations

• Mechanisms for managing changes to the project scope or contract terms.
• Change in law clauses: allocation of risk and compensation for legislative changes.
• Force Majeure clauses: definition, consequences, and relief.
• Renegotiation provisions: triggers, process, and principles.
• Preventing opportunistic renegotiations.

Module 9: Insurance, Indemnities, and Liabilities

• Types of insurance required for PPP projects (e.g., construction, operational, third-party liability).
• Indemnification provisions between parties.
• Limitations of liability.
• Environmental liabilities and responsibilities.
• Ensuring adequate coverage throughout the concession term.

Module 10: Dispute Avoidance and Resolution

• Contractual provisions for dispute avoidance.
• Tiered dispute resolution mechanisms (e.g., negotiation, expert determination, mediation).
• Adjudication and Dispute Boards.
• Domestic vs. international arbitration (e.g., ICC, ICSID, UNCITRAL rules).
• Enforcement of awards.

Module 11: Drafting Techniques and Best Practices

• Principles of clear, concise, and unambiguous drafting.
• Use of definitions, schedules, and annexures.
• Consistency in terminology and cross-referencing.
• Avoiding ambiguities and loopholes.
• Reviewing and auditing draft agreements.

Module 12: Negotiation Strategies and Tactics

• Preparing for negotiation: objectives, BATNA, ZOPA.
• Distributive vs. integrative negotiation approaches.
• Building rapport and managing emotions.
• Active listening and effective communication.
• Dealing with difficult negotiators and deadlocks.

Module 13: Due Diligence and Pre-Contractual Issues

• Importance of legal, technical, and financial due diligence before signing.
• Representations and warranties.
• Conditions precedent to financial close.
• Pre-bid agreements and consortium agreements.
• Managing information exchange during negotiation.

Module 14: Post-Completion and Handback Provisions

• Requirements for asset condition at handback.
• Handback procedures and timelines.
• Remedial works and rectification periods before transfer.
• Compensation on handback.
• Legal implications of asset transfer.

Module 15: Case Studies and Advanced Negotiation Scenarios

• In-depth analysis of key clauses from real-world concession agreements.
• Role-playing and simulation exercises for negotiation practice.
• Discussion of complex negotiation challenges and solutions.
• Lessons learned from major PPP contract disputes and renegotiations.
• Emerging trends in concession agreements (e.g., ESG clauses, digitalization).

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.