Investment in power sector projects against changes in laws: government is reluctant to indemnify lenders
ISLAMABAD (November 03 2007): The government is reluctant to indemnify foreign lenders and companies investing in projects against changes in Pakistan's laws which can affect the legality and enforceability of the power sector 'Implementation Agreement' (IA), 'Power Purchase Agreement' (PPA) and government guarantee, sources in Private Power Infrastructure Board (PPIB) told Business Recorder here on Friday.
Under Power Policy 2002, the government had approved standardised project IA, PPA, and government sovereign guarantee, governed by the current laws of Pakistan, with arbitration in London Court of International Arbitration (LCIA) for disputes over a certain monetary threshold.
Sources said that the Ministry of Power had submitted a proposal to the Economic Coordination Committee (ECC) of the Cabinet on October 31 to offer a choice to the investors between the laws of Pakistan and England with respect to direct agreements (IA and PPA) but it was not approved, as some stakeholders opposed it.
Agreements signed by PPIB have been executed with Orient, Sail, Sapphire, Attock, Atlas, Nishat, Star and Fauji power project companies. However, independent power producers (IPPs), with participation of foreign lenders, have taken the position during the negotiations that the foreign lenders require English law as the governing law for the GoP guarantee and direct agreements.
Sources said that each foreign lender wants direct agreements (IA and PPA) and GoP guarantee to be subject to and governed by the laws of England to provide protection to them, as per the normal practice with cross-border limited recourse financing of projects of this nature involving international sponsors and lenders, against the invalidity and unenforceability of the GoP guarantee due to change in the laws of Pakistan.
The Ministry of Water and Power was of the view that the Pakistan government under Section 11.2(f) of the IA executes and delivers acknowledgements to the lenders, through direct agreements with respect to any assignment or creation of a security interest granted to them pursuant to article XI of the IA.
It is customary (practice) that the financing documents (including loans agreements, notes, indentures, security agreements, guarantees and other instruments providing security to the lenders) executed between the project company and the lenders are governed by the laws of England or New York, as it allows creation of secured interests in the future revenues and receivables of the project, and assignment of the project company's contractual rights and interests in the project agreements.
"These jurisdictions being major international commercial and banking centres, large number of precedents of the courts and practice are available in such transactions, which reduces the uncertainty regarding the outcome of disputes," the Ministry argued in its summary.
A project company is required under the financing documents to assign its rights and interests to the security trustee, or agent, who shall act for and on the lenders' behalf in the enforcement of their security interest.
Similarly, the IA allows the lenders to designate an agent for exercise of cure or step-in rights on their behalf, in the event of a default by the project company under the financing documents.
Since the security trustee, or agent, are acknowledged by the GoP under the direct agreements, it is essential from the lenders' perspective that the governing laws under the financing documents and direct agreements are the same to prevent any conflict in the enforcement of the lenders' rights.
According to the summary foreign lenders are of the view that since the project agreements (IA and PPA) and GoP guarantee are governed by the laws of Pakistan, a change in law affecting the legality or validity of these agreements shall create a risk that an international arbitration tribunal would be unable to enforce the project agreements.
In such a case international lenders would not be entitled to receive any compensation or other remedy under these project agreements, sources added.
"Lenders are of the view that if IA and PPA should be governed by laws of Pakistan, they must be given protection through GoP guarantee being governed by English law," sources said.
The Ministry of Water and Power, while backing the investors, had argued that to mitigate the risk of change in law, and afford protection to the foreign lenders and project company, GoP should indemnify the project company and its lenders from Pakistan's laws.
The PPIB had recommended that a choice may be given to the lenders to opt the laws of Pakistan, or England, with respect to IA and PPA, which may contain an indemnity to the effect that if the IA, PPA or GoP guarantee becomes unenforceable, illegal or invalid due to change in law, the GoP shall indemnify the project company or the lenders for any cost, loss or liability resulting from such unenforceability, illegality or invalidity, which amount in case of IA, PPA or GoP guarantee.
Business Recorder [Pakistan's First Financial Daily]