프로젝트 금융 하에서의 건설공사계약과 완공보증을 둘러싼 법률문제

Project finance is the long-term financing of infrastructure and industrial projects andwas introduced into Incheon International Airport Expressway PPP (Public PrivatePartnership) project in 1995 for the first time in Korea. Since then, it has been utilizedvery broadly both in the social overhead capital projects and real estate presale projects. Recently, Korean companies have begun to tap the overseas development marketincluding IPP (Independent Power Project), which involves project finance. Project finance is the advanced method of financing infrastructure and industrialprojects in that the lenders decide their financing, in principle, based upon the cashflows of the project rather than the balance sheets of its sponsors. However, it is acommonplace that the lenders have some kind of limited recourse to the projectsponsors in case where the project company has difficulties in complying with the loanterms. One of such limited recourses is the completion guarantee, which is referred to inKorea as the “undertaking with completion responsibility”, which has been understood tobe borne by the construction contractor. The construction contractor is the one thatalready promised to complete the project within the specified timeframe for a certainprice. Apart from such a promise, why does the construction contractor have to providethe completion guarantee? Is the contractor promising the same contractual obligationborne under the construction contract by the completion guarantee to the lenders? Whatis the legal consequence of the contractor failing to complete the project as promised?The completion guarantee is to be provided not by the contractor but by the sponsorsin that the obligation per se under the completion guarantee is different from thecompletion obligation under the construction contract. The contractor is usually entitledto the increase of contract price as well as the extension of contract period in certain circumstance under the construction contract. However, the lenders would face theshortfall of cash flows that needs to be used for repayment of loan due to theunforeseen circumstances. It is in this context that the completion guarantee is required. In general, the contractor would have no reason to take liability for the loss of thelenders caused by the project cost overruns attributable to unforeseen circumstances. The burden of providing the completion guarantee should lie with the sponsors whowould enjoy the upside potential of project earnings as ultimate project owners. To do without the completion guarantee, the lenders prefer to have an EPC contractwhich ensures the completion of a project within a fixed date for a fixed sum. FIDIC published what so called, the “Silver Book” to accommodate this kind ofdemand from the project financiers in 1999 even though it has another design-build orturnkey form of contract called the “Yellow Book”. The EPC turnkey contract underthe project finance is the contract which imposes much more risk on the contractor thannormal EPC turnkey contract.