Best Practices in Investment for Development
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1 Best Practices in Investment for Development Private investment in water and electricity OECD-UNCTAD Global Forum Paris, March 2008 Anna Joubin-Bret Senior Legal Adviser Policies and Capacity-Building Branch Division on Investment and Enterprise
2 2 Main points Legal issues arising from private investment in key infrastructure projects UNCTAD s response to the call to share best practices WIR08: research and policy analysis on FDI in key infrastructure sectors UNCTAD case studies of best practices in FDI: electricity, roads.
3 Infrastructure projects are: Sensitive: essential utilities,politically sensitive, broader policies issues, sensitive to climate change Complex: different involvement and responsibilities for public and private sector, various instruments Long term: long lasting commitments, value and return on investment are difficult to assess, evolving economic surrounding, competition is difficult. 3
4 4 Water and electricity are «worse cases» Water: Life essential High political sensitivity Sensitive to climate changes Old public service, not high tech Complex schemes for private involvement: drinking water, sanitization, irrigation, power generation Lower levels of government: municipalities Price of water? Not competitive sector No liberalization commitments
5 5 Water and electricity are «worse cases» Electricity: Essential for economic development Not competitive context but pressure from international and bilateral partners for liberalization Complex instruments and involvements: generation, transportation, distribution, retail Balance sensitive to outside factors: draughts, floods, geo political issues Involvement of private sector National policies, national implementation
6 Infrastructure cases: 40% of pending ISDS cases Investor-State dispute settlement cases arising under investment treaties 8% of concluded cases 40% of pending cases: (13 water, 23 electricity, 14 gas). More if add waste collection Dispute arising in the early years of concessions (4-5 years) Highly politicized. Three examples: Aguas del Tunari vs. Bolivia: complex concession Azurix vs. Argentina: operation concession Biwater Gauff vs. Tanzania: private operator condition for 6
7 7 Complex framework issues Transparent and fair tendering conditions: taking into account economic realities Long term contracts: unforseable changes in circumstances, «climate change» Catch-it-all term: PPP. Legal instruments very different. FLEXIBILITY: key word. Important for both parties to keep stakes: partnership, communication, adjustments. Previsibility/stability vs. Quality and cost effectiveness
8 Infrastructure projects: combination of ODA/FDI? Specificity of infrastructure projects: regulation and governance, competence and competitivity Combination of ODA and FDI for lowincome countries (UNCTAD TD/B/Com.2/80) FDI (incl.through PPP): better services (veolia page), quality, price of utility. 8
9 9 UNCTAD, Geneva The UN specialist on FDI Global research: World Investment Report ( Best practices case studies: electricity and roads (2008) Country-level advice: Investment Policy Reviews ( BITs and national law on FDI ( Investment promotion and facilitation (
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