실시협약(PPP Contract) 중도해지시 대주의 이익보호방안－해지시지급금(Termination Payment) 산정기준 비교 및 이에 대한 대주의 직접적 권리확보방법을 중심으로－

Abstract

As private sector investments are prerequisite for all public-private partnership (PPP) projects, it is essential to secure the bankability of a PPP project for project financing. Accordingly, a PPP contract (concession agreement) shall be negotiated and entered into as a bankable contract. This article is written to compare and analyze protection measures for lender’s interests in cases of early termination of a PPP contract, centering around termination payment. The key to protecting lender’s interests in cases of early termination of a PPP contract is ensuring debt service, and it is mainly achievable by stipulating the appropriate amount of termination payment in the PPP contract and securing lender’s direct rights thereon. Since debt recovery ratio analysis on each termination payment scenario is, along with sensitivity analysis of the project finance (PF) financial model, an important part of a lender’s credit review, stipulating the appropriate amount of termination payment in a PPP contract has meaning not only to lenders, but to sponsors as well. This secures the bankability of a whole project, more than simply facilitating sponsors to recover their own equity investment. As such, this article introduces a legal basis and various approaches to calculation methods of termination payment so as to provide readers with a reference point when they conduct credit review for a PPP project or PPP contract negotiation. In addition, it compares and analyzes in detail various calculation methods of termination payment respectively provided under Guidance on PPP Contractual Provisions (World Bank), Framework Plan of PPP Projects (Ministry of Finance of Korea), and Standardisation of PF2 Contracts (HM Treasury of UK), depending on the cause of early termination. This article also addresses how lenders secure direct legal rights on termination payment which is due to the project company from the host government in accordance with the PPP contract. The lenders are not parties to the PPP contract; therefore, they need special legal methods to secure their direct rights with regards to the termination payment. This article introduces the most widely used methods therefor, security assignment and pledge, from a perspective of each governing law including, inter alia, English law and Korean law. One must also consider correlations between unique characteristics of security over the project company’s rights/claims under the PPP contract and legal principles regarding security assignment and pledge under each governing law. Further, this article introduces the surrogation right of the mortgagee over concession rights under the Korean PPP law as another method to secure lender’s direct legal rights on termination payment. Plus, it briefly introduces the Turkish government’s debt assumption programme as another method to ensure debt service in cases of early termination of a PPP contract.