Arbitral Consent or Arbitral Award Feb 29 2016

7/25/2019 Arbitral Consent or Arbitral Award Feb 29 2016

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Amend into Build, Operate &Transfer Agreement

Advantages:

Under a contractually defensiblecompromise framework using the ArbitralAward or Consent under the under theArbitration provision in the Build, Leaseand Transfer (BLT Agreement and!"ecutive #rder $% (series &'&mandating use of alternative disputeresolution mechanisms including

arbitration the following can benegotiated) (a procurement of the ''*of the +TC share held by +T-. , (baccelerated transfer of ownership of the+T/ 0hase 1ystem can, (c re2nancingof ''* of the !3uity ental payments(!0s 4 ''* of the 0referred 1hares, (dprocurement of the residual rights and (econversion of the BLT Agreement into aBuild, #perate and Transfer Agreement

Allow the winning bidder to fully operateand maintain the +T/ 1ystem5

Disadvantages:

Longer time frame to implement due toneed for 6overnment to apply rules 4regulations of the 6overnment0rocurement 4 eform Act (60A insoliciting bids for the ehabilitation,!"pansion, #peration 4 Transfer of the+T/ 1ystem

7aluation of the residual rights will be atenuous negotiation between the e"isting+TC shareholders and the 8#TC

.mmediate availability of funds for there2nancing of the +T/ 9otes 4 0referred1hares and for the procurement of the+TC 1hares 4 esidual ights

Longer time frame to implement duetenuous negotiations regarding valuationof +TC shares and residual rights, needfor full cycle .CC:9!8A approval and theapplication of 60A bidding re3uirements5


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Amend the Build, Lease & TransferAgreement

Advantages:

Under a contractually defensible compromiseframework using the Arbitral Award or Consentunder the under the Arbitration provision in theBuild, Lease and Transfer (BLT Agreement and!"ecutive #rder $% (series &'& mandating useof alternative dispute resolution mechanismsincluding arbitration the following can be

proposed modi2cation can negotiated)

(a directly negotiate with interested ;oreign and

8omestic 8irect .nvestors, (b estructure and Amendment the BLT such as

!"tend the term from &'&< to a mutually agreedupon additional number of years, Consent to

#4+ the +T/ 1ystem 4 Allow .nvestor to settari= rates,

(c .ntroduce >b as Arbitral Consent or AwardAgreement and

(d .mplement Arbtral Consent or AwardAgreement5

1horter time frame to implement due a currentto a outstanding ;oreign 8irect .nvestment0roposal from 6lobalvia .nfraestructuras 1A(6lobalvia and 8omestic .nvestment 0roposalfrom +etro paci2c .nvestment Corp and +etro

ail Transit Corporation5

Disadvantages:

The 6overnment

will to continueservicing the&'* !3uity

ental0ayments5


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EXECUT!E O"DE" #O$ % series '()'+andating the inclusion of provisions on the use of alternative dispute resolution mechanisms in allcontracts involving public:private partnership pro?ects, build:operate and transfer pro?ects, ?oint ventureagreements between the government and private entities and those entered into by local governmentunits5

U#CT"AL *or+ing roup -Ar.itration and Con/iliation0 Enfor/ement of1ettlement Agreements "ea/hed in Ar.itration and 2ediation:Currently, parties can re3uest arbitration tribunals to record their settlement agreements as consentawards, i5e5 an arbitral award on terms agreed upon by the parties5 Consent awards are widely used ininternational arbitration and give rise to a number of legal problems which parties may not anticipate untilthey actually face them5

.n une &', under the ules of the .nternational Commercial Arbitration Court (.CAC at ussian Chamberof Commerce and .ndustry, the parties (a Latvian and a ussian company reached a settlement

agreement and asked the arbitral tribunal to render an award on the terms agreed by the parties5

The parties also asked the arbitrators to hold no hearing in the case5 The arbitrators found out that in thesettlement agreement the parties settled not only the dispute submitted to the .CAC, but also severalother disputes arising from other contractual relations5 Those disputes were not submitted to arbitration,and no correspondent arbitration fee was paid5

The ar.itrators rendered a /onsent a3ard, 3hi/h did not in/lude all provisions of the

settlement agreement .ut onl4 those /overed .4 the ar.itration agreement$

#ne important di=erence between consent awards and usual arbitral awards is that an arbitral tribunalrecords the agreement of the parties rather than renders its own decision on the merits5 1uch an awardwill be enforceable under the


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Documents

Arbitral Consent or Arbitral Award Feb 29 2016