해외 민관협력(PPP) 사업에서 사정변경 －법령 제⋅개정과 경제적 곤란에 관한 위험배분을 중심으로－

PPPs normally last for a long period of time, during which many circumstances relevant to the project may change. This article deals with two different changed circumstances, one of which is changes in law, and the other of which is unexpected changes in economic circumstances. The private partner may face additional costs in meeting its obligations under the PPP contract because of future, unforeseen changes in law applying to its activities. One of possible examples might include changed legislation aimed at a specific road project or road operating company, or at that class of privately operated road projects in highway projects. If the PPP contract remains silent in such changes in law, then the private partner may want to invoke into a remedy, such as a principle of changed circumstances, available under the governing law of the PPP contract. However, such a remedy may not be available under most of common law-based countries, depending on a legal system of the country to which the governing law belongs. If not, then the private partner shall bear additional costs. As a result, it is beneficial for the private partner to include an express provision in the PPP contract, for the purpose of having the appropriate solution to deal with the changes in law. The private partner has to include a well-balanced risk allocation clause in the PPP contract. Based on the above mechanism and understandings, this article covers principles of changed circumstances in many different countries and legal systems. Further, it explains how to draft such a well-balanced risk allocation clause in the PPP contract by focusing on the World Bank issued “Guidance on PPP Contractual Provisions, 2019 version”. This article further covers unexpected changes in economic circumstances, such as the situation where a toll road operator holding an exclusive concession might not be expected to take into account and assume the risk of traffic shortfalls brought about by the subsequent opening of an alternative toll-free road by an entity other than the contracting authority. This is a change in circumstances that may justify a modification of the PPP contract from the private partner’s perspective. In order to modify the PPP contract, such a change in circumstances must have been beyond the control of the private partner and of such a nature that the private partner could not reasonably be expected to have taken it into at the time the PPP contract was negotiated or to have avoided or overcome its consequence. A non-compete clause or a limited compete clause may also be included into the PPP contract to protect the private partner’s interests. This article provides a solution to cover that situation as well.