Laws on investment in the form of public - Private partnership in Vietnam

hortcomings of current stipulations, the thesis has proposed solutions to help complete the laws on investment in the form of public-private partnership in Vietnam in the current period. 6. Theoretical and practical meanings of the thesis - The thesis is an intensive, systematic and comprehensive scientific study to solve practical and core theoretical issues of investment in the form of public-private partnership. - The thesis is a useful resource for the authorized state agencies in evaluating the effectiveness of the legal provisions on investment in the form of public-private partnership, forming a basis for perfecting the laws in the near future. - The thesis is also a valuable source of materials for institutions specialized in scientific research, teaching and learning about laws on investment in the form of public-private partnership. - With the theoretical and practical bases drawn from the research process, the solutions and recommendations given by the thesis are of reference value to the competent state agencies in the process of completing laws on investment in the form of public-private partnership. 7. The structure of the thesis Alongside the preamble, conclusion and list of references, the thesis is designed to include: 6 Part 1: Overview of research situation related to the thesis topic. Part 2: The content of the thesis comprises 3 chapters: - Chapter 1: Theoretical issues of investment in the form of public-private partnership and the laws on investment in the form of public-private partnership. - Chapter 2: Legislative practice regarding the laws on public- private partnership investment in Vietnam. - Chapter 3: Requirements and solutions to perfecting the laws on investment in the form of public - private partnership in Vietnam. Part One OVERVIEW OF RESEARCH SITUATION RELATED TO THE THESIS TOPIC 1. Assessing the research situation related to the thesis topic and the direction of deploying the thesis’s research topic Through surveying the research situation related to the thesis topic, the author draws some notions and assessments as follows: 1.1. The theoretical and practical results related to the thesis topic 1.1.1. The theoretical and practical results of other research work related to investment in the form of public-private partnership. In theoretical aspect: Other researchers have mentioned, analyzed and clarified several theoretical issues about investment in the form of public-private partnership such as the concept, characteristics and the role of this investment form in attracting investment capital into infrastructure and public services. In practical aspect: Other researchers have mentioned the practice of investing in the form of public-private partnerships of typical countries in the world, these research results are of great importance to the author and the thesis, having fully generalized the 7 practice of drafting and implementing laws on investment under this form in the world, thereby giving the author a basis for compraring, collating and reviewing the status of Vietnamese laws and proposing some research questions and solutions to drafting a Law on Investment in the form of public-private partnership in Vietnam. 1.1.2. The theoretical and practical results of other research work related to the topic of laws on investment in the form of public- private partnership - In theoretical aspect: The research work of foreign scholars about laws on investment in the form of public-private partnership mentioned and analyzed on the legal status and practical application of the law in some typical countries. In addition, scholars also pointed out the lessons learned about legal adjustment to this mode of investment in those countries. This is a precious resource for the thesis author to inherit and develop in the process of solving the requirements of the thesis. On the other hand, domestic research work about laws on investment in the form of public-private partnership have also initially approached and analyzed the investment practice in the form of public - private partnership in theoretical and practical perspectives. In which, most of the work focus on studying theoretical issues of the laws governing BOT contracts such as the nature, characteristics and roles of the laws on BOT contracts. These analyzes will continue to be studied, evaluated, commented by the thesis author. I will also make my own views on the theoretical basis and the current status of Vietnam's laws on investment under public - private partnership. - In practical aspect: Experimental research work abroad on PPP in the world is plentiful, with many important results having been published. Specifically, studies claim that there exists no standard PPP model and each country has its own strategy depending on its context, legislative institutions, funding and the nature of the 8 project. Meanwhile, domestic research on the practice of implementing the laws on investment in the form of public - private partnership in Vietnam have focused on practical research on the implementation of the laws on BOT contracts. Thereby, the studies have systematically analyzed and evaluated the legal provisions on the BOT contracts, pointing out both suitable and limited and inadequate points, from which making recommendations to perfect the legislation on BOT contracts in Vietnam. 1.2. Issues related to the thesis topic which have not been solved by published research work, or have been examined but not yet satisfactorily, or still sparked different opinions that need to be further studied in the thesis. Firstly, theoretically, there have been many studies on the nature of investment relations in the form of public-private partnership but mainly from an economic perspective; under the legal perspective, there have been research but not studied comprehensively about investment relations in the form of public- private partnerships, especially in terms of building a rule of law state and international integration. Secondly, in practical terms, there have been studies on the current state of the law on investment in the form of public-private partnerships but have not studied and assessed comprehensively, especially not yet indicated fully and analyzed profoundly the limitations and inadequacies of the current laws on investment in the form of public - private partnership, not yet proposing solutions to complete the legal framework on investment in the form of public- private partnership in Vietnam today, on that basis. 2. Research theory, research questions, research hypotheses 2.1. Research theory The thesis content is developed based on the general theory of 9 investment, in which the focus is on the theory of investment form in the form of public-private partnership. Public-private partnership investment form is carried out with the participation of public and private partners; without one of the two parties, it is impossible to implement this invesment method. Now, the invesment only takes the form of public investment or private investment. Simultaneouly, the thesis is also based on the general theory of contracts. 2.2. Research question Based on the results of evaluating the research situation on the topic, as well as the proposed research orientation of the thesis, the author identifies the main research questions and hypotheses that need to be justified in the thesis as follows: The study was conducted to find the answer to a question: “What are the limitations of the laws on investment in the form of public-private partnership in Vietnam, which need to be handled with to ensure legal provisions on PPP genuinely promote public-private partnership investment in Vietnam?”. To find the answer to this question, the thesis will research to find answers to the following small questions: - What is the legal nature of investment relations in the form of public-private partnerships? - How should the law regulating investment relations in the form of public-private partnership? - Should the establishment of investment contracts be decided by the parties at their discretion or under the direction of the State? Do the parties involved in the investment contracts have equal legal status? Does Vietnamese laws regulating entities participating in this relationship guarantee legitimate rights and interests for the parties? 10 - Are the order and procedures for investment in accordance with the current laws of Vietnam consistent with the nature of this relationship as well as in line with international practice? Has the investor selection in accordance with current regulations ensured publicity and transparency? Are the criteria for selecting investors really suitable to ensure that to-be-chosen investors have the best capabilities to implement the project? - Have the regulations on project settlement for PPP investment projects fitted and reflected the true nature of this relationship? - Investment activities in the form of PPP usually take place in a long time, so disputes are likely to happen between participating parties or between service users and investors. So when a dispute arises, which dispute resolution mechanism will be applied to resolve conflicts and disagreements? 2.3. Research hypotheses Based on the research of Decree No. 63/2018 / ND-CP, the Investment Law, the Law on Public Investment, the Bidding Law, the State Budget Law and the by-laws guiding the implementation of these laws, the thesis suggests two research hypotheses as follows: - The first research hypothesis: In order to improve the efficiency of investment activities in the form of PPP, it is necessary to have appropriate legal regulations, according to which: The promulgated legal provisions need to reflect the true nature of investment relations in the form of public-private partnerships; Provisions on the legal status of entities participating in this relationship, the rights, responsibilities and capabilities of the parties involved in the relationship; Investors in this relationship must meet certain requirements, so not all individuals and organizations can participate as investors; In order to find competent investors, open and transparent bidding must be conducted to 11 minimize the application of contractor designations; State participation with financial support is necessary for certain projects; It is necessary to stipulate governmental guarantee measures to offset risks that investors may incur; Regulations are needed to ensure the benefits of the service users; The punishments imposed must be strict enough to prevent the violation from happening and, at the same time, severely punish the violating parties. - The second research hypothesis: In order to improve the efficiency of investment activities in the form of PPP, the promulgated legal regulations aim to ensure the rights and benefits of public partners more to fulfill the State’s management objectives of investment activities; In this relationship, the state has the right to intervene by administrative orders to require investors to perform or not to perform a certain job that has not been aggreed upon in the contract; Investors only need to satisfy financial conditions to participate in PPP projects; The State does not need to offer financial support as well as investment guarantee measures to share risks with investors because if so, it is likely that the state will bear all risks; There is no need for legal provisions to ensure the interests of service users as this is a relationship established through a legal form that is a contract between the state and the investor. Part two CONTENTS OF THE THESIS Chapter 1 THEORETICAL ISSUES OF INVESTMENT IN THE FORM OF PUBLIC PARTNERSHIP AND THE LAWS ON INVESTMENT IN THE FORM OF PUBLIC PARTNERSHIP 1.1. Theoretical issues about investment in the form of public- private partnership 1.1.1. The concept of investment in the form of public-private 12 partnership In the author's view: “Investment in the form of public-private partnership is a special cooperation relationship between the state (through competent state agencies) and investors, formed based on the asymmetry in conditions, status and interests between the parties involved and implemented through a contractual mechanism intended to build, renovate, operate, trade, manage infrastructure work, and provide public services, in which the parties reach an agreement on the appropriate allocation of financial resources, sharing risks, liabilities and benefits arising in the process of implementing investment activities.” The above concept demonstrates the nature of a public-private partnership - inherently not an entirely equal partnership between the parties involved, although the parties still enter into contracts to create legal rights and obligations for themselves. 1.1.2. Characteristics of investment in the form of public-private partnership First, in terms of legal nature, The legal nature of investment in the form of public-private partnership is a contractual relationship, which reflects the "asymmetric" status of the parties involved and the differences in advantages that each party has. Second, in terms of the entities participating in investment relations, The important difference between public-private partnership investment and public or private investment is that this type of investment always involves two parties, one of which is the State (through competent state agencies) and the other is a private investor. Thirdly, in terms of investment capital, In principle, the capital used to invest in a public-private partnership investment contract usually includes two sources: (i) the 13 public partner's investment; (ii) the private partner’s investment. Fourthly, in terms of investment purposes, For private investors, the purpose of participating in this investment relationship is earning profit, and for the State, the purpose of participating in this investment relationship is to exploit private sector’s investment capital, expertise, and management and governance capabilities to build infrastructure and provide public services. Fifthly, the subject of investment is building infrastructure and providing public services to society. 1.1.3. The role of investment in the form of public-private partnership Firstly, public-private partnership investment will create more investments in infrastructure. Secondly, the investment in the public-private partnership model will improve the efficiency of the construction and operation of public work. Thirdly, investing under public-private partnership will help allocate funds and manage risks better and more effectively. Fourthly, public-private partnership investment will contribute to improving the quality of infrastructure and public services provided. 1.2. Theoretical issues on the adjustment of laws on investment relations in the form of public-private partnerships 1.2.1. The concept of laws on investment in the form of public- private partnership At a general level, it is possible to introduce the concept of laws on investment in the form of public-private partnership as follows: 14 The laws on investment in the form of public-private partnership is a total of legal regulations stipulated or recognized by the State to adjust the investment cooperation relationship between the State and private investors in order to build, renovate, trade, manage infrastructure work and provide public services. 1.2.2. Regulatory principles of laws on investment in the form of public-private partnership Theoretically, the legal adjustment on investment relations in the form of public-private partnerships should adhere to some of the following basic principles: Firstly, the laws on investment in the form of public-private partnership must be designed and enacted in an orientation that satisfies the legitimate interests of all relating parties. Secondly, the laws on investment in the form of public-private partnership must ensure the principle of respecting the self- determination right of private investors in investment relations. Third, the laws on investment in the form of public-private partnership must ensure the fulfillment of the basic and core objective of building, renovating, operating, trading and managing infrastructure and public services. Simultaneously, the laws also have to avoid the risk of "profiteering" from private investors through the design of unfair and disadvantageous terms and provisions for the State in investment contracts under the form of public-private partnership (project contracts). 1.2.3. The structure of the laws on investment under public-private partnership From the thesis author standpoint, the structural model of the laws on investment under public-private partnership will include but is not limited to the following major legal groups of regulations: (i) Legal provisions on the legal entities and their rights and obligations when participating in investment relations in the form of 15 public-private partnerships. (ii) Legal provisions on investment contracts in the form of public-private partnerships. (iii) Legal provision on the order and procedures for investment in PPP projects (iv) Legal provisios on capital to implement the PPP projects (v) Legal provisions on investment incentives and guarantees (vi) Legal provisions on settlement PPP projects work (vii) Legal provisions on organizing project, inspecting and supervising investment activities in the form of public – private partnership (vii) Legal provisions on handling violations and the resolution of disputes arising from the process of implementing investment projects in the form of public-private partnerships. 16 Chapter 2 LEGISLATIVE PRACTICE REGARDING THE LAWS ON PUBLIC – PRIVATE PARTNERSHIP INVESTMENT IN VIETNAM 2.1. Legislative status regarding entities participating in investment relations in the form of public – private partnership At a general level, there are some major shortcomings: Firstly, the current law provides irrational provisions of competent state agencies authorizing to sign the project contracts for non- business units to self – finance recurrent expenditures and investment expenditures. Secondly, the current law still opens the regulation on responsibilities of competent state agencies in case these agencies do not comply with commitments in PPP contracts. Thirdly, the current law provides quite general and lack specific details about investors participating on investment projects in the form of public – private partnership, resulting in shortcomings in the implementation process in practice. Fourthly, the current law does not specify the legal status of the project enterprise and the legal relationship between the project enterprises, the investors and the competent state agencies (public partner) in PPP project implementation process. 2.2. Legislative status regarding the laws on public-private partnership investment in Vietnam Firstly, in term of the name of investment contract in the form of private-public partnership in Vietnam The PPP investment contract is recognized in Clause 2, Article 3 of Decree No.63/2018/ND-CP under the name “project contract”. Secondly, in term of types of investment contracts in the form of private – public partnership 17 According to current law, investment contracts in the form of private-public partnership are signed in one of the following major categories: - Build – Operate – Transfer (BOT) - Build – Transfer - Operate (BTO) - Build – Transfer (BT) - Build – Own – Operate (BOO) - Build – Transfer – Lease (BTL) - Build – Lease - Transfer (BLT) - Operations and Management (O&M) Thirdly, in term of content of project contracts The content of contract is clauses which are agreed by the parties on the basis of cooperation and common benefit, which directly sets the rights and obligations of the parties when participating in the contractual relationship. Fourthly, in term of signing and implementation of project contracts According to Article 39 of Decree No. 63/2018 /ND-CP, based on the decision on approval of investors selection results and results of negotiation and completion of contracts, competent state agencies organize to sign project contracts. Fifthly, in term of disclosure of project contracts According to Article 41 of Decree No.63/2018/ND-CP, disclosure of project contracts is a mandatory procedure to ensure openness, transparency and access to information of society and community. Sixthly, in term of transfer rights and obligations of investors in project contracts to other organizations and individuals During the time of implementing the project contracts, if investors and project enterprises cannot or do not want to continue to 18 implement the project contracts, these rights or obligations may be transferred to another entities. Through the study of the regulations on investment contracts in the form of public-private partnership, some limitations and shortcomings can be identified: Firstly, the current law fails to show an agreement on the name of the contracts signed between investors, project enterprises and competent state agencies to implement investment projects in the form of public-private partnership. Secondly, the current regulations on project contracts do not clearly show whether the transaction and performance of the contracts must comply with the basic principles prescribed in the Civil Code or not? Third, the current regulations on project contracts are not sufficient to prevent the risk of taking advantage of the implementation of investment projects in the form of public-private partnership to profiteer, appropriate public properties or cause losses and waste of national financial resources, forming group interests during the implementation of PPP projects. Fourth, the current law does not have uniform regulations on the form of project contracts to ensure the conformity with the specific characteristics of each type of project contracts. 2.3. Legislative status regarding the order and procedures for public-private partnership investment in Vietnam Through researching and surveying the legislative situation of the order and procedures related to investment activities in the form of public-private partnership, including procedures for selecting investors, the author of the thesis ponders that these provisions have revealed a number of major limitations and shortcomings as followed: Firstly, the current regulations on investor selection procedures 19 for PPP projects by the method of appointing contractors are relatively general, unclear, easily exploited and hinder the application process in the real situations. Secondly, the law permiting the application of contractor designation to select investors for PPP projects not only limits competition, reduces investment efficiency of the projects, but also creates loopholes for corruption and group interests through PPP projects. 2.4. Legislative status regarding capital sources for implementation of investment projects in the form of public- private partnership. Through a survey of practical implementation of the law on investment in the form of public-private partnership, the author of the thesis believes that the group of regulations stipulating the capital sources to implement investment projects in the form of public- private partnership has revealed following limitations and shortcomings: Firstly, in terms of the regulations on investors' contributed capital, Under the provisions of Decree No. 63/2018 / ND-CP, the equity capital of the investor must be at least 20% of the total investment capital of the project (for investment projects with total investment capital up to VND 1,500 billion) and at least 10% of total investment capital (for investment capital exceeding VND 1,500 billion). The regulation on the ratio of equity over total investment capital as currently prescribed is low and not appropriate. Secondly, in terms of the State's capital participation, Practical evidences show that the funding structure plays important role in PPP’s success, in which the funding structure is