Kazakhstan: Public-Private Partnership As A Legal Concept And Its Features In The Civil Law Of The Russian Federation And Central Asian Countries And Issues Related To Due Qualification Of The Public-Private Partnership Contract

Summary

This article studies the international experience, as well as the experience of Russia and the Central Asian countries in understanding the mechanism of public-private partnership ('PPP')¹ in the doctrine of law, as well as in its implementation at the legislative level, including in view of the ongoing work on the SPP legislation harmonisation in different regions. The author states that with the lack of correct understanding of SPP as a legal category by the domestic science of civil law, properly enshrined in national legislation, the problem of SPP 'imitations' is inevitable. At the same time, a correct understanding of SPP as a phenomenon is only possible in view of the international practice and is achievable using the comparative law method. The article, therefore, raises the issue of a correct understanding of the SPP phenomenon and its qualifying features, which make it possible to distinguish it from related legal institutions, as well as the problem of the correct qualification of investment agreements with the participation of public legal entities as SPP agreements. The author founds that in Russia and the Central Asian countries, the approach to understanding SPP differs from the internationally recognised one, since the emphasis is on the content rather than the form, i.e., on the essence of SPP, as a special type of joint investment activity of the state and private business, which must meet certain criteria, and not as a kind of government contract. The article also concludes that, from the point of view of the global science of private law, SPP should be qualified as a complex legal institution of sui generis legislation, while a PPP agreement in Russia and all Central Asian countries should be qualified as a defined mixed contract that has a strictly private law nature. It is noted that the choice of the private law model for the development of the SPP agreement institution in Russia and the countries of Central Asia is obviously justified by the fact that the priority goals in these specific societies at this historical moment are to increase private interest and initiative, i.e., the preference is reasonably given to 'social value' of private law over the 'social value' of public law. Therefore, in any legal order, state-private partnerships must be distinguished from the overall mix of related legal institutions as a complex legal institution using the seven SPP features established at the legislative level, which are described below in detail. At the same time, to qualify any investment agreement with the participation of a public legal entity as an SPP agreement, such an agreement shall be concluded in the procedure and on the terms established by the relevant national SPP law or the law on concessions.

1. Topic Relevance

Since the Soviet Union collapse in 1991, the Central Asian countries and Russia have been in constant search and adjustment of optimal legal mechanisms for attracting private capital to create and upgrade public infrastructure. Apart from the fact that all these countries have laws on concessions² , as well as other contractual forms of investment agreements with the participation of public legal entities, there are specialised laws on state-private partnerships ('SPP') adopted in Tajikistan in 2012, in Kazakhstan and Russia in 2015, in Uzbekistan in 2019, and in Kyrgyzstan and Turkmenistan as recently as 2021³ . The formation and development of the SPP institution in the doctrine and dogma of civil law in the Central Asian countries and Russia is of particular interest for research, since over the past thirty years these states have already accumulated original experience in implementing the SPP phenomenon in national legislation, and Russia and Kazakhstan already have the law enforcement practice in the SPP area.

The solution of the problem of determining the legal nature and qualifying features of SPP that allow it to be distinguished from related legal institutions are of particular interest. Without a correct understanding of SPP and the SPP agreement as related legal categories by the domestic science of civil law, properly enshrined in national legislation and public policy instruments in the SPP area, both the abuse of the SPP mechanism by corrupt civil servants and dishonest business representatives, as well as the general inefficiency of using the SPP mechanism, even in the absence of any malicious intent on the part of the persons participating in SPP projects are inevitable. A good example of such an unsuccessful SPP development is still Kazakhstan So, due to the uncontrolled growth of 'imitated' SPP projects in Kazakhstan, the head of state - KassymJomart Tokayev, admitted in 2019 that in Kazakhstan "the very idea of SPP is discredited"⁴ . In Russia, the SPP institution is also developing not without problems, as can be seen from the resonant so-called 'Bashkir Case', 'Tuvin Case' and 'KhMAO Case', where at the initiative of the antimonopoly authority the generally accepted understanding of the concession was subjected to the risk of revision⁵ .. Thereat, the question remains open since in Russia there is still no confidence that the courts are not allowed to use the mechanism for re-qualifying concession agreements into state contracts for the purpose of terminating concession agreements or declaring them invalid.

2. PPP Concept and its Features in the Global Best Practices

There is, obviously, no one in the world still has an unambiguous answer to the question of what SPP is, neither lawyers nor economists⁶ . Moreover, there is still not even a single and universally recognised definition for the SPP phenomenon, not to mention a universally accepted legal term of PPP. For example, alternative names for the SPP include, among others, 'P3' in North American countries, 'private financial initiative' (PFI) in the UK, Japan and Malaysia, 'private participation in infrastructure' (PPI) in South Korea and so on⁷ . Therefore, it is not surprising that SPP is understood differently in different countries, but, nevertheless, there is an obvious trend towards harmonisation of SPP laws of the world countries both at the regional and global levels, including the unification of the SPP as a legal concept. First of all, it is worthy to note the so-called 'UNCITRAL Model Legislative Provisions on Public-Private Partnerships', as well as the 'UNCITRAL Legislative Guide on Public-Private Partnerships' adopted in 2019 by the United Nations Commission on International Trade Law (UNCITRAL), which are designed to help in creating a legal framework that is conducive to public-private partnerships (PPPs).

2.1. SPP Concept in the Global Best Practices

The UNCITRAL Model Provisions define PPP, which is treated as an "agreement", i.e., in essence, a civil law contract between a so-called 'corporate customer' and a private entity⁸ . This UNCITRAL definition may, most likely, be considered as an internationally recognised legal definition of SPP over time, given the international authority of UNCITRAL and its work on the unification of SPP legislation in the world.

Thereat, the concepts of «PPP» and «PPP contract», according to UNISTRAL, are essentially synonymous, since both of these terms mean exactly an agreement between a corporate customer and a private entity⁹ . Considering that an agreement and contract are institutions of private law, UNCITRAL thus obviously emphasises the private law nature of SPP. In particular, according to

UNCITRAL, an SPP agreement appears to be a mixed contract, since the UNCITRAL Guide clarifies that the term PPP should be understood as "a wide range of contractual relationships" and that "PPPs are not a particular new category of governmental contracts. In fact, PPPs may use various well-known contractual arrangements (lease agreements, concessions, service agreements, turnkey contracts, DBFO contracts)"¹⁰. Given that UNISTRAL proceeds from the private law principles of SPP, it understands the SPP precisely as a special type of investment agreement between a state customer and a private partner. The UNCITRAL Model Provisions leave it up to the state that enacts national PPP law based on the provisions to provide an exhaustive or indicative list of economic sectors in which PPP contracts may be entered into¹¹ .

Footnotes

1. The term 'public-private partnership' (PPP) is used as a synonym to the term 'state-public partnership' (SPP) for the purpose of this article. The term 'SPP agreement', respectively, for the purposes of this article means any agreement officially recognised as a public-private partnership agreement in the relevant jurisdiction.

2. See: 1) The Law 'On Concessions', dated 7 July 2006, No. 167-III. 2) The Law of the Kyrgyz Republic 'On concessions and concession enterprises in the Kyrgyz Republic' dated 6 March 1992, No. 850-XII. 3) The Federal Law of the Russian Federation 'On concession agreements' dated 21 July 2005, No. 115-FZ. 4) The Law of the Republic of Tajikistan 'On Concessions' dated 26 December 2011, No. 783. 5) The Law of Turkmenistan 'On Foreign Concessions' dated 1 October 1993, No. 859-XII.

3. The following laws were adopted (in order of priority): 1) the Law of the Republic of Tajikistan, dated 28 December 2012, No. 907 'On State-Private Partnership', 2) the Law of the Republic of Kazakhstan, dated 31 October 2015, No. 379-V ZRK 'On State-Private Partnership' , 3) the Federal Law, dated 13 July 2015, No. 224-FZ 'On State-Private Partnership, Municipal-Private Partnership in the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation', 4) the Law of the Republic of Uzbekistan, dated 10 May 2019 , No. ZRU-537 'On StatePrivate Partnership', 5) the Law of the Kyrgyz Republic, dated 11 August 2021, No. 98 'On State-Private Partnership', 6) the Law of Turkmenistan, dated 5 June 2021, No. 379-VI 'On State-Private Partnerships'.

4. The Speech by the Head of State K. Tokayev at the extended meeting of the Government on 15 July 2019. Official website of the President of the Republic of Kazakhstan. Available at: https://www.akorda.kz/ru/speeches/internal_political_affairs/in_speeches_and_addresses/vystuplenie-glavygosudarstva-k-tokaeva-na-rasshirennom-zasedanii-pravitelstva

5. The Resolution of the Ninth Arbitration Court of Appeal dated 4 September 2017, No. 09AP-33753/2017, 09AP34801/2017 in case No A40-23141/17 ('Bashkir case'). The Resolution of the West-Siberian district Arbitration Court, dated 14 February 2020, No. F04-162/2020 in case No. ?45-2242/2019. ('Tuvin Case') The Judgment of the Arbitration Court of the Khanty-Mansiysk Autonomous District - Yugra, dated 2 July 2021, in case No. A75-984/2021 ('KhMAO Case').

6. Many researches note the multidisciplinary nature of SPP as the main problem in a common understanding of SPP by economists, lawyers, political scientists, financiers, etc. For example: D. De Clerck & E. Demeulemeester & W. Herroelen, 2012. "Public Private Partnerships: Look before you Leap into Marriage," Review of Business and Economic Literature, Intersentia, vol. 57(3), P 248. https://ideas.repec.org/a/sen/rebelj/v57i3y2012p249-262.html Osborne, Stephen. (2000). Public Private Partnerships: Theory and Practice in International Perspective. London: Routledge. P. 10. Mouraviev, N., & Kakabadse, N. (2016). Conceptualising public-private partnerships: A critical appraisal of approaches to meanings and forms. Society and Business Review, 11(2), PP 155-173. Kochetkova S.A. State Private Partnerships: Textbook. ? ?.: Publishing House of the Natural Science Academy, 2016. – 174 p. Gromova Y.A. State-Private Partnership and Its Legal Forms: Textbook. M.: Yustitsinform, 2019

7. E.R. Yescombe, Edward Farquharson. Public-Private Partnerships for Infrastructure (Second Edition), ButterworthHeinemann, 2018, ISBN 9780081007662, https://doi.org/10.1016/B978-0-08-100766-2.00002-4. P 10.

8. UNCITRAL Model Legislative Provisions on Public-Private Partnerships. Available at: https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/ru/19-11013_mlpppp_r.pdf. P 1.

9. Ibid. P 2.

10. UNCITRAL Legislative Guide on Public-Private Partnerships. Available at: https://uncitral.un.org/ru/lgppp. P 6.

11. Ibid. P 3.

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