Renegotiating Contractual Terms under PPPs

Renegotiating Contractual Terms under PPPs Renegotiating contractual terms under PPPs- Moral Hazard or Practical Solution? Table of Contents (Jump to) Executive Summary 1. Introduction 1.1 Evolution of PPP model in India 2. PPP mechanism in India 3. Current status of PPPs in India 4. PPP model and schemes 5. Why closed approach to contract renegotiation? 5.1 Risk Involved in PPP 5.2 Case Study of Delhi Metro Express Line 6. Moral hazard or Practical solution? Executive Summary The development of the India depends on the extent to which the ongoing and planned projects are successgully executed. In twelfth five year plan 2012-1017 a total of $1 trillion is envisaged to be expensed on infrastrucural development and out of which around 50% will be catered by private sectors. The basic principle of partnering with public entity is profit maximization. Any disputes can adversely effect the project. This delay comes with a cost and loss of revenue for private partners. Thus, the effectiveness of partnership lies in the Dispute Resolution System (DRS) of the country. The practical solutions such as amicable settlement, mediation concilliation, arbitration and expert adjudication by statutory bodies are some of the measure to settle disputes. Other solutions can be mutual concessions and adjustments which can merge the differences between a concessionaire and the contract-granting government entity. Re-negotiation in a transparent and equitable manner can be the key adjustment solution for dispute resolution. This dissertation delves in the fundamentals of public-private partnership (PPP) model in India. It reflects on evolution, mechanism, current status, models and schemes, renegotiation factors. It concludes by giving recommendation on residing to practical solution of renegotiation rather than considering it a moral hazard. 1. Introduction A public-private partnership (PPP) is a joint agreement between government and private sector for the purpose of provisioning of public service or infrastructure. In order to develop a world class infrastructure for huge Indian geography and economy, mammoth investment is needed which posed liabilities to government sector. The partnership with private sector to develop public infrastructure is a possible solution to cater infrastructure bottlenecks. It shares knowledge risk and resources for development. Lack of adequate and improved infrastructure from public transport, housing, ports, education, and healthcare may turn out to be an impediment to growth. The rapid increase of population need and demand creates budgetary constraints in building large projects. Involvement of PPPs into the development framework is a more effective, disciplined, efficient and commercial way of approach. 1.1 Evolution of PPP model in India The evolution of PPP model in India dates back to mid-18th century where railway and tramway services were built on this model. There wasn’t much development in infrastructural development post-independence until the year of liberalization in 1991. Later which the government and private players jointly built large projects. The overall concept and implementation is still nascent in India when compared to developed nations. The policy framework of legal, institutional and regulatory are in evolutionary stage. Today, it is the favored model of project execution involving resource management by private sector. India Infrastructure Finance Company Limited (IIFCL), a government owned body incorporated by Ministry of Finance to provide long term debt finance to infrastructure projects and help central and state government in capacity building. Public Private Partnership Appraisal Committee (PPPAC) approves project proposal worth Rs. 100 crore or more. The World Bank, Asian Development Bank, IMF and the United States Agency for International Development (USAID) aims to promote aggressive PPP policy in India and help in attaining long term vision of development. 2. PPP mechanism in India The Department of Economic Affairs, Ministry of Finance manages the PPP mechanism in India. The process starts from Phase-1 of project identification where various projects are identified through strategic planning and pre-feasibility analysis. A detailed sustainability of the project as PPP is studied and evaluated against alternatives. Other parameters such as value for money, internal clearances and suitability checks are carried out. Value of Money analysis helps in decision making and choosing between PPP procurement and conventional procurement options. It gauges project on the three basis of: Viability- Will the project meet desired expectations? Desirability- Will the project outweigh costs? Achievability- Will the project be completed within stipulated timeframe? The ultimate goal is to maximize the profit of all stakeholders involved which can done by identifying risks and understanding mitigate measures. The partnering party must commit to adhere to the contract legislation and abide by them throughout project lifetime. Phase-2 of full feasibility ensures the commitment of contracting parties. It starts from PPP project development, structuring, contract making, getting project clearances and necessary approvals. The implementing agencies undergoes: Economic assessment- understanding project need, cost-benefit for all stakeholders and impact of micro and macro-economy. Financial analysis- revenue source model, cash flows, net present value (NPV) using discount rate (cost of capital), rate of return and other critical financial ratios. Affordability analysis- land acquisitions, environment and regulatory clearances, rehabilitation resettlement policies, tariffs and user charges etc. A qualitative assessment of value for money is performed to know the systematic risk of project. This risk must be optimally allocated between implementing parties rather than unequally transferring to private party. Phase-3 is related to project procurement and award. In order to imbibe public confidence, these procurements must be unbiased, competitive and non-discriminatory. It must be allocated timely and encourage maximum participation from several parties involving in competitive bidding. All applications must follow PPP rules and procedures as framed by Government. Request for qualifications (RFQ) and Request for proposals (RFP) have to be submitted by parties after expression of interest (EOI). Technical and financial proposals must also be submitted in case of large and complex projects. A prescribed bidding procedure and model documents should be followed by implementing agencies after getting approvals from competent authorities such Cabinet Committee on Economic Affairs (CCEA) or Public Private Partnership Appraisal Committee (PPPAC). E-tendering and online auction are also conducted to invite participation from large number of agencies. The contract draft containing legal rules, regu lations and standards are provided to prospective parties before bidding. Arrangements are made for speedy implementation of project. Phase-4 of contract management and monitoring is done after project allocation. It actively supervises project as per contract throughout the project life cycle. It is a phase where majority of dispute occurs and is most crucial due to changing business and economic scenarios. A credible and efficient dispute resolution mechanism is set up to deal with any differences. It must be in accordance to contract that has been made during bidding process. Project monitoring Committees are formed to assist parties and resolve issues among implementing agencies. 3. Current status of PPPs in India The sector wise distribution of PPP projects shows that 53% out of 758 projects are in road projects having worth of 46% by total value (Figure) mainly because of small size of projects. Urban development project accounts for 20% of total number of projects. Ports having larger project size accounts for only 8% of total number but 21% by total value. The expansion plans of highways, inadequate berth at Ports, inadequate capacity at airports, saturated routes with low payload to tare ratio in railways and energy shortages are some of the factors that drives the need of infrastructural development in India. The total cost of all the project is INR 3,833 billion. Some states have taken this model to far more extent than others. Karnataka, Andhra Pradesh, Madhya Pradesh, Maharashtra and Gujarat with 104, 96, 86, 78 and 63 projects are top five states following PPP based development. It can also be seen that states and municipalities have much larger role to play in boosting private investments in healthcare, e-governance and education sectors which seems to be untapped across India. National Highways Authority of India holds maximum of 155 projects and fall under Build-Operate-Transfer (BOT) or Build-Own-Operate-Transfer (BOOT) type of PPP. Government policies in favor of alluring private participation as well as innovation in implementation has rewarded success. Most of the contracts are awarded by domestic or international competitive bidding while remaining are awarded by negotiated MoUs. The valuation graph shows that almost 78% of total project worth 500 or more. 4. PPP model and schemes PPP model was formulated in order to improve public sector infrastructure and services. It includes whole spectrum of partnership between private and public agencies through contract making and revenue sharing. This arrangement includes significant risk due to imbalance in project finance and future uncertainties. Precautions are taken to keep the process flexible and discernible during contract formulation through various models and schemes which are summarized in figure xx. 5. Why closed approach to contract renegotiation? A big question is that why India does not have a defined and established legal and regulatory dispensation to address the issues relating to renegotiation and life-cycle management of PPP infrastructure assets? The struggle for reset of imported coal based projects for Adani Power and Tata Power, the GMR and GVK break up from mega-highway projects, The Gurgaon Expressway case, Delhi Metro Rail Express Line case of arbitration and private telecom operator case for fighting against government bodies poses a very clear demand for policy change. An independent, impartial and credible body should be set up in line with others created in emerging economies such as Infrastructure Concessions Regulatory Commission in Nigeria, the PPP Advisory Unit in Ghana, the PPP Centre in Philippines and the PPP Unit in South Africa. This empowered body should dispense judgment related to disputes in contract renegotiations. An overview of more than 1,000 PPP concessions studied by the World Bank Institut e in Latin America and Caribbean from 1985-2000 throw up these characteristics of PPP renegotiation: Some expert believes that perception among investors that PPP model will never face contract renegotiation related problems is a root cause of dispute. How can a large project having life of more than 20-30 years be expected to be never renegotiated? Several international case studies shows that it is rare to see project without renegotiations. In fact, in changing times, no human ingenuity can predict zero problems over a life cycle of PPP project. 5.1 Risk Involved in PPP Figure below shows some of the risks associated with public and private partnership that can result in conflict. 5.2 Case Study of Delhi Metro Express Line The Reliance Infrastructure and Delhi Metro Rail Corporation (DMRC) partnered subsidiary DAMEPL was the country’s first PPP project in railways. The airport express line project was commissioned in February, 2011. The dispute in this project was not a surprise as it was into controversy from day one on safety clearances and technical glitches. The tussle between parties was on payment of delay penalty. After commissioning of the project, the issue became severe and resulted in operational closure of service for six months. It settled only after payment of fees by Reliance infra who later claimed along with its lost reputation as penalty. Analysis: The fiasco that resulted in withdrawal of Reliance Infrastructure from airport express line of Delhi metro questioned the policy of PPP in India. The major factor for dispute of Express Line PPP was wrong projections of daily passenger traffic by DAMEPL. The actual passenger never exceeded 20,000 per day which was against the expected 40,000 per day. This skewed the financial liabilities towards the Reliance Infrastructure. Some critics suggests the private party to meet the commitment of concession agreement without asking for contract renegotiation. The penalty of Rs. 795 crore slapped by the private partner set the stage for a long drawn legal battle between the two agencies. Had the terms of contract been renegotiated, and financial implications been revisited, the dispute would have never been raised. A practical solution of dispute resolution by an independent government body could have rescued the parties entering into dispute and later penalty payments.

Creationism vs Evolutionism Essay -- essays research papers

  Ã‚  Ã‚  Ã‚  Ã‚  Most people view the theory of evolution as being a feasible explanation of how life became what is today. Evolution is a theory that the various organisms are descended from others that lived in earlier times and that the differences are due to inherited changes that occurred over many generations. It must be realized that evolution is a theory and cannot be considered a fact. Even though it’s roots are from Greek anatomists, the theory of evolution came to light in 1859 when Charles Darwin published his book The Origin of Species, which dealt with natural selection. Since then, scientists have been continually searching for proof for the theory through research and experimentation. Some of the topics that are associated with proving the theory are fossil records, carbon-14 dating, and DNA testing.   Ã‚  Ã‚  Ã‚  Ã‚  These are also noted as part of phylogenetic systematics, which is the term used for classifying and understanding the relationships and history among species of the past and present. Natural selection, or â€Å"survival of the fittest†, is the mechanics of evolution. Natural selection deals with the dying of weaker offspring of an organism, and the survival of the stronger offspring. When a strong organism survives, its dominent genes are passed on to its offspring. Over time, these genes will lead to mutations, which allow a species to adapt as they slowly move to different environments or other natural change.   Ã‚  Ã‚  Ã‚  Ã‚     Ã‚  Ã‚  Ã‚  Ã‚  This is a broad interpretation of how evolutionists explain, for instance, sea creatures becoming land creatures. Evolutionists believe that life began on earth when chemicals combined to produce the first cell. Throughout the course of millions of years, single cell organisms arose to life as it known today. Fundamentally, evolution is based on scientific reasoning and experimentation. As with most sciences, inaccuracies do occur through new discoveries and the theory of evolution must be rethought. Creationism deals with the theory that the world was created in a brief amount of time by a higher being. Creationism has been the way humans explain the making of the earth and the inhabitants on it for thousands of years.   Ã‚  Ã‚  Ã‚  Ã‚  This has been depicted through ancient hieroglyphs, stories, and popular mythology. Al... ...on. The only people who do think there can be coexistence are those who are less educated on the topic. A popular opinion that I share with these people is that evolution has and is happening as scientists believe, but at the fate of a higher being. An example of this belief is that when non-organic chemicals came together to form the first living cell, as scientists give credence to, there was a deity involved.   Ã‚  Ã‚  Ã‚  Ã‚   One way that evolution might gain more acceptance is the decline of religion in society. Since most creationism is based off of religion, which is declining in participation from generation to generation, more people might turn to science. Creationism would require a supernatural occurrence to turn evolutionists over to accepting it as fact.   Ã‚  Ã‚  Ã‚  Ã‚  The opposition between the theory of evolution and the belief in creationism is in an idle balance, and without any extravagant changes in evidence or approach, it will be for an extensive time. I myself, have personally come to a stand still. It might not be a life or death decision, but just the same it is a question that I do not think anyone is in the position to decide.

The Pros and Cons of Police Discretion

Drawing the line between the appropriate functions of discretion among members of the police force remains to be an important component of policing. With the discovery of police discretion, there had been different debates as to its importance and hindrance in the application of law within communities. Many arguments have been placed as a result of such discovery and have prompted different set of opinions and views concerning its continued practice.In the end, by actively enforcing the needs of accountability and the synchronization of processes, the process of discretion can be minimized or limited at a certain extent wherein it is due compliant with the rule of law and objective in nature. The way policing has been practiced in the realms of law enforcement has spurred an enhanced approach in the dealing with crime prevention and maintenance of peace and security within a particular community. However, the subjectivity of interpretation among police officers when it comes to exerc ising discretion has resulted in various criticisms since its discovery.Due to this, there had been clamors for the abolishment and the promotion of its control. The paper seeks to showcase the relative pros and cons of police discretion. By showcasing its relative strengths and weaknesses, it exposes the reality behind the subjectivity and bias of such actions. Realizing such scenario, there is a need for a redefinition and structuring of police objectives that will ensure the application of the rules and laws while at the same time ensuring that police discretion is rooted on objectivity and accountability.Defining Discretion Before dwelling deeper in the relative strengths and weaknesses of police discretion, it is first important to emphasize on its meaning and its relationship with the police practice. By properly defining the term ‘discretion’, it may be proper to link it to the police practice since such term is associated with different meanings. Linking it with policing objectives, the term ‘discretion’ must actively partake and coincide with (1) judgment, (2) choice, (3) discernment, (4) liberty and (5) license (APSU, 2001).Seeing such, ‘discretion’ means the freedom in making choices responsibly under the circumstances aforementioned. â€Å"Discretion designates power or freedom to judge and decide what needs to be done in a particular situation† (Seri, p. 2). Establishing parameters and causes Also before elaborating on the strengths and weaknesses of police discretion, it is also proper to point out the relative causes of such concept and how it has cultivated the development of such practice. Determining such parameters, one must look at the variables or factors that enhance police judgments and leads them to practice discretion.Examples include (1) offender variables, (2) situation variables, and (3) system variables (APSU, 2001). Under the element of offender variables, the practice of subjectivity and prejudice somehow are manifested in the practice of law enforcement. â€Å"Gender and mental health status affect how police handle many incidents† (APSU, 2001). Such issue only brings about unequal practice and in the facilitation of sanctions and punishments for different violations. Another important variable involves the situation where the police enforces and uses discretion.It is in this situation that the priority is given on things that are unimportant rather than the actual case (APSU, 2001). This lack of logical judgment on what matters most often results in a biased and inaccurate results. Lastly, the system in a society also serves as an important and tool for the practice of discretion among the police force. The actual practice of discretion is dependent on the current situations that a system might be facing. Such system in relationship with discretion varies, that is why such practice also is different depending on the particular situation.(APSU, 2001) Pos itive Outcomes After the discussion concerning its definition and relative parameters and causes, the paper will highlight the positive outcomes of police discretion. One important outcome of the issue is that it legitimizes the role of the police not only as the protector of laws but at the same time they are given the interpreting power to analyze situations. â€Å"The police enjoy innumerable opportunities for discretionary judgment and wider margins of discretion than any other sector within the state apparatus† (Seri, p. 3).Another important outcome of the said practice is that it creates a different aura for the police force that practice discretion. The creation of laws are only relevant if they are ought to be enforced and practiced. â€Å"Their discretionary power allows police officers to transform the spirit of laws. With their interpretation of a particular issue, there is a legitimization of its overall hold of a particular society in creating control† (Se ri, p. 3) The practice of discretion also improves the way police enforces the rules and regulations stipulated by the law.Since they serve as the executor and protector of such laws, they are expected to address every challenges and hurdles given to them. â€Å"Like other â€Å"street level bureaucrats†, police officers must adapt to law and norms on specific situations, deciding on the extent which legal policy extend reflects the original law on the books† (Seri, p. 3). Lastly, the practice of police discretion is an important factor of police power and the maintenance of its hold and grasp of people within a particular community.The concept of discretion in itself is creating the determination of who are good and law-abiding citizens and who are criminals (Seri, p. 4). Such power remains to be vital in the overall functions of police practice. Negative Consequences Given the positive influences that police discretion creates, there are also implications in such pra ctice. One important consequence is the relative abuse of power among police officers in the issue of discretion. Such actions often emanates on both the extremity and unequal judgment given by authorities.â€Å"The exercise of police discretion to stop, search, arrest or charge suspects is now regarded as inevitable and not necessarily improper, given the limits of police resources, variations in the seriousness of offending behaviours and the inappropriateness of criminal law for dealing with some situations of conflict and disorder† (Bergen, 2005, p. 127). In addition, there seems to be a lapse and undue changing of laws that somehow have been an effect of irresponsible police discretion.Prior to its original function of responsible practice under the basis of laws, there is now a scenario that challenges the foundation of accountability and laws. â€Å"Discretion allows the police to challenge mechanisms of accountability and to erode the laws and rules that they are req uired to enforce, in part because of the proactive character of policing and the limited, retroactive character of accountability† (Seri, p. 4) Such misuse can create different problematic instances in the realm of law enforcement.The practice of discretion is often times biased and prejudiced upon citizens and results in a negative impression and simplification among races and ethnicity in society. There are â€Å"instances of police stereotyping, harassment and breaches of basic human rights† (Bergen, 2005, p. 127-128). Controlling Police Discretion Given the relative importance and challenges brought about by the issue of police discretion, there needs to be a controlling mechanism that will seek to prevent the misuse and abuse of power by police. By controlling such concept, the process becomes objective, justified, fair and equal.The last part of the paper seeks to showcase several approaches in creating a fair avenue for police discretion while at the same time ad dressing the individual needs of citizens as far as safety and security is concerned. One important realization is that police will continue to use discretion. (Kelling, 1999, p. 38). But in this setup, instead of creating an avenue for unjust and subjective interpretations, the manner in which it shall be applied should be dependent on a basis; laws and regulations in a particular state.Doing such actions can help enhance and prevent the process of bias and prejudice in apprehending alleged violators. Another vital criterion that can be exhausted in the process is the creation of rules and standards on as to how police practice discretion. Such feat may prove to be difficult in nature due to its relatively varied and diverse situations; however by making standards and rules, there can be a synchronized way of facilitating and improving the practice of discretion. It is a practice that is characterized as fair and equal treatment among different people.Moreover, there needs to be co ntinued training and development among police officers concerning amendments and changes in laws. Being familiar with such tenets can help prevent the occurrence of abuse and misuse of power. By actively cooperating among the citizenry and the academy, policemen/women can have a fair advantage and at the same time understanding within the community. (Kelling, 1999, p. 41). Accountability is the one often undermined and stepped on when police misuse their discretion.That is why, there needs to be a constant effort to enhance accountability while preserving the ability of the police to practice discretion. There needs to be an establishment of â€Å"accountability standards that identify competent and/or excellent performance violations of organizational rules, and incompetent and uncaring work, including performance with organizational rules† (Kelling, 1999, p. 38). Conclusions Indeed police discretion poses both positive and negative consequences in the community and society. On a high note, its importance in the practice of enforcement can clearly be seen. However, due to its uncontrolled state, it often leads to abuse and misuse among members of the police force. In the end, there is a need to control the practice of police discretion by placing and putting accountability and other important standards that can help prevent bias and subjectivity. In the end, after all such efforts had been made it still boils down to one common theme; the protection and maintenance of security among member of the community and society.

Essay about Wide Sargasso Sea and Antoinette - 1150 Words

Wide Sargasso Sea and Jane Eyre intertwined In Wide Sargasso Sea, author Jean Rhys uses intertextuality to tell the story of Antoinette Mason. Intertexuality is when an author bases their book/novel off of another text. In this case, Wide Sargasso Sea is shaped from Charlotte Bronte’s Jane Eyre and it elaborates on the character of Bertha, who is Antoinette Mason in Rhys’ novel. By reading Wide Sargasso Sea we are enlightened on things in Jane Eyre that Bronte does not tell us about or elaborate on. Also, by reading Jane Eyre we understand things about Wide Sargasso Sea that Rhys doesn’t include in her novel. Both authors have created compelling novels that aren’t built from each other and provides a deeper understanding of one†¦show more content†¦From the story of her life we get a better understanding of her role as a character in Jane Eyre and perhaps most of the mystery we have is cleared up. Wide Sargasso Sea is a very creative literary piece that provides depth to a character w hose story would have gone untold. After reading Wide Sargasso Sea we have a better understanding of Jane Eyre and some of the events that took place within the novel. We find more out about Rochester’s dark past; Bronte just didn’t go far enough back to enlighten us on his marriage. After reading Rhys’s Wide Sargasso Sea we now know how Rochester and Antoinette’s relationship came to be. Their marriage was arranged so that Rochester would have financial stability because he was the second son and was likely to not inherit anything from his father. Rochester felt he was duped into marrying Antoinette by his father and everyone else. In one scene Rochester says, â€Å"As I walked I remembered my father’s face and his thin lips, my brother’s round conceited eyes. They knew. And Richard the fool, he knew too†¦They all knew.†(Rhys 62). He thinks everyone knew Antoinette was crazy but didn’t tell him. Rochester seems to be ashamed with himself over locking Anto inette in the attic, but he feels like it was the right thing for him to do. He would have had a miserable life and also would have put everyone in danger at Thornfield, with crazy Antoinette around. Antoinette was a lunatic and if Rochester had to put up with her psychoticShow MoreRelatedAnalysis Of Antoinette Cosways Defiant Journey In Wide Sargasso Sea1920 Words   |  8 PagesThe Importance of Self-Truth and Active Protest: Analysis on Antoinette Cosway’s Defiant Journey in Wide Sargasso Sea Wide Sargasso Sea by Jean Rhys calls forth ideas of feminism and self-worth in the fight against colonization during the 19th century. Antoinette Cosway lived in Jamaica her entire life, and yet, as a white woman, remains alienated from her neighbors throughout the novel. 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