Vietnam: Bringing A BOT Project To Closure In Vietnam: Problems And Prospects

Last Updated: 16 June 2000

By Ellen Kerrigan Dry and Sesto E Vecchi*

I. Introduction

Vietnam introduced the concept of Build-Operate-Transfer ("BOT") investment projects1 when it amended its Foreign Investment Law in 1992.2 Since then, only one foreign-invested BOT enterprise, a water supply plant, has begun operations. Negotiations concerning several power plants have floundered on the price at which electricity can be sold. Two water supply plants have reportedly had difficulties coming to financial closure because the cost of supplying the water is greater than the cost which the Government says the Vietnamese people are willing to pay and because, as a result of inadequate planning, the current distribution system cannot handle an increase in water supply. Other projects are under discussion. Many more have been proposed, but have disappeared from the negotiation table. [See chart for a list of BOT projects and their status.]

Many reasons have been advanced to explain the slow pace of development. The Asian financial crisis has had some impact. Slower growth within Vietnam has, for example, dampened demand for power and thus slowed negotiations on power plant BOT projects. Official development assistance ("ODA") from international organizations such as The World Bank and the Asian Development Bank ("ADB") and bilateral donors has allowed Vietnam to pursue large infrastructure projects without the help of foreign investors.3 Where foreign investors have participated, they have encountered difficulty in arranging financing because, among other reasons, the bank regulatory regime interferes with a fundamental element of project finance: cash flow financing.

For BOT projects that have moved past the initial planning stage, foreign investors have claimed that Vietnamese negotiators appear to have insufficient authority to make necessary decisions. Moreover, excessive bureaucracy and an incomplete regulatory framework have slowed the negotiation process. Foreign investors have had to address obstacles in taking security over land-use rights, the guarantee of income streams, the impact of Vietnam’s limited foreign exchange reserves, and the difficulty for Vietnamese to pay a price that will ensure commercial viability. Perhaps as a direct result of these factors, the availability of risk capital for Vietnam has declined. Investors have increased their expectations of risk adjusted returns on capital while the availability of credit for Vietnam has contracted.

Layers of opaque bureaucracy continue. However, there have been some recent positive changes in the regulatory framework, especially with respect to secured transactions. This implies a readiness by Vietnam to address regulatory problems that discourage investment. There are reports that proposals to establish a mechanism for obtaining government guarantees of large infrastructure projects will soon be presented to the National Assembly, along with other amendments to the Foreign Investment Law. With or without these regulatory improvements, foreign investors interested in future BOT projects may find more direct routes to their goals if they are informed of the factors which have slowed or defeated others.

This article focuses on problems which, from a legal perspective, have plagued the negotiation of BOT projects. It comments on what is being done to address the problems and comments on prospects for the future.

II. The Legal and Regulatory Structure, In General

Less than fifteen years ago, Vietnam looked inward. It had a centrally-planned economy and lacked a legal structure that would permit private, commercial rights and obligations to be created and enforced.4 Since 1986, laws have been promulgated in the areas of foreign investment, land, economic and civil contracts, private and state-owned enterprises, intellectual property and banking. A securities market is being organized and many towns and cities reflect the energy of Vietnam’s people as they take advantage of new-found opportunities in business and commerce.

However, the reforms that have occurred must be considered first steps. Omissions and inconsistencies in the regulatory structure have contributed to making it problematical to finance projects, in particular, large-scale infrastructure projects.

The Legal Framework for BOT Projects

The Foreign Investment Law encourages investment in the construction and development of infrastructure projects. Decree 62 and a subsequent amending decree, Decree 2 ("BOT Decrees"),5 define and establish the basic parameters of BOT contracts involving foreign investment in Vietnam.6 While either a foreign organization or individual may be the foreign investor in a BOT contract, the local party is designated by the Prime Minister, and may be a ministry, governmental body, or centrally-governed provincial or municipal People’s Committee. The BOT project itself is implemented through a "BOT Enterprise," which may be either a joint venture or a 100% foreign-invested enterprise.

The BOT Decrees: establish preferential tax treatment for BOT Enterprises, including import and technology transfer tax exemptions; specify the BOT Enterprise’s right to convert profits into hard currencies; and address issues which relate to the mortgage of assets and dispute resolution. The BOT Decrees allow Vietnamese enterprises to take part in BOT projects when permitted by the responsible State authority ("Authorized State Body"). They also provide that the Authorized State Body may "sponsor the implementation of commitments involving a Vietnamese enterprise’s financial obligations."

Negotiation of a BOT Project

The government encourages foreign-invested BOT projects in the areas of transportation and communications, power production and trading, water supply, drainage and waste treatment.7 Investment in other sectors, such as airports, seaports, railways and telecommunications, is restricted.

Anyone, including a foreign investor or a State-owned enterprise, may propose a project to the Prime Minister for BOT treatment. Even so, Decree 62 authorizes the Ministry of Planning and Industry ("MPI")8 to submit to the Prime Minister a list of proposed projects, showing necessity, location, designed capacity, estimated investment capital needed and suggested modes to choose foreign investors. The Prime Minister designates which projects will go forward and nominates the Authorized State Body which will be responsible for negotiating the relevant contracts, coordinating with ministries, and assisting the foreign investors to set up and implement each project.

Once the Prime Minister approves a project and designates the Authorized State Body, that Body gives instructions for the preparation of feasibility studies, which are used as a basis for choosing the foreign investor. The Authorized State Body must recommend a foreign investor based on Vietnam’s bidding regulations9 and must forward its recommendation to the Prime Minister for final approval.

After the designated foreign investor prepares a more detailed feasibility study, the Authorized State Body coordinates with various ministries, branches and central government People’s Committees to consider and approve the feasibility study. In the event that matters arise which the Authorized State Body is not authorized to address, such matters are referred to the Prime Minister for resolution. Upon approval of the feasibility study, the Authorized State Body and foreign investor negotiate the relevant contracts, until an agreement in principle is reached. The contracts are then submitted to MPI for assessment before being sent to the Prime Minister for approval. Following Prime Ministerial approval, the agreements are signed and MPI issues the investment license to the BOT Enterprise. Next, the BOT Enterprise submits the technical design to the Authorized State Body, which then consults with the Ministry of Construction and other relevant ministries and People’s Committees to assess the technical details. Once approval is obtained, the BOT Enterprise may begin the project.

III. Problems Faced When Bringing a BOT Project to Closure

As discussed above, the BOT Decrees address currency issues, dispute resolution, mortgage of assets, and they define the stages for negotiation and approval of BOT Enterprises and projects. Why isn’t this sufficient? Why have so few foreign-invested projects been licensed as BOT Enterprises since BOT-enabling legislation was introduced in 1992? Why have projects stalled both before and after having been licensed?

One explanation is that the clearly-defined negotiation process set forth in Decree 62 masks the fact that the authorized Vietnamese government negotiator has limited authority to settle substantive issues that arise during BOT contract negotiation. For example, the right to foreign currency may be provided in Decree 62, but another organization, the State Bank of Vietnam ("SBVN"), with a different agenda, must actually provide the guarantees. The right to mortgage assets may be set forth, but the procedure to implement and enforce mortgages does not exist. Existence of a framework to resolve disputes obscures the fact that enforceability -- as a general matter -- is a problem in Vietnam. Furthermore, the detailed formulation for dispute resolution is based on a distinction between foreign and local companies. As a result, some contracts related to a BOT project may have to be resolved in Vietnam while others may be resolved overseas, opening up the possibility of related disputes being heard before different forums. Therefore, although steps in the negotiation process are clearly set forth, the problems which have arisen relate to the realities of the decision-making process and business practices in Vietnam. There are also practical problems arising from the government’s perception that the Vietnamese people may be unable to pay a tariff or toll that the BOT Enterprise says is necessary to obtain an adequate return on its investment.

As illustrated in the chart, only one foreign-invested BOT project has actually begun operations. It is the Binh Duong Water Supply Plant, a US$ 36 million project to supply clean water to Ho Chi Minh City. This project, the smallest of three desperately-needed foreign-invested BOT water projects for Ho Chi Minh City, was inaugurated four years after its investment license was granted. Its operation is welcomed, but the Water Supply Company, which distributes the treated water, is paying VND 8 billion a month to Binh Duong Water Supply Plant for the water, while revenue from customers is VND 3 billion a month. This fact is overshadowing the construction of two other BOT water projects in the area. The Lyonnaise Vietnam Water Supply Company, a US$ 120 million project licensed in 1997, is under construction and is proceeding slowly toward completion. There is concern that revenue will not sustain its operation. It has recently been announced that the third water project, the Saigon River Supply Project, may proceed to its second stage and construction will begin in mid-2000. This has come about as a result of an agreement between the BOT Enterprise and Ho Chi Minh City on a formula whereby water would be sold to customers at different prices, depending on the stage of the project. Ho Chi Minh City has yet to announce its plans to address a significant related problem: The three water projects will increase water supply from 750,000 m/3 a day to 1,850,000 m/3 a day. However, the existing water distribution network can only handle 800,000 m/3 a day.

The fundamental question, ie, whether Vietnamese will pay a tariff that allows the foreign investor to operate the project with a reasonable return on investment, plagues other projects. Oxbow International Power Group has withdrawn from the US$300 million coal-fired thermo power plant in Quang Ninh Province because, reportedly, the government is unwilling to set the electricity tariff at a rate that will permit the project sponsors to receive a reasonable rate of return. Other power projects with foreign investors such as Enron International, among others, have been slow to get off the ground because of the electricity pricing issue, especially because the demand for electricity decreased after the Asian financial crisis. While there have been reports of renewed interest by the government in proceeding with power plant projects,* the issue of the price of electricity must still be addressed. Similarly, the foreign investors in the Ho Chi Minh City – Vung Tau proposed expressway, with a value of US$ 370 million, will have to devise ways to receive an adequate return on their investment, given the fact that their investment cannot be recouped by tolls alone. Some proposals which have circulated have involved the government permitting the BOT Enterprise to establish service facilities along the expressway.

The Phu My 2.2 power project, which has not yet been licensed, is the first competitively-bid BOT project, which is considered by the private sector as a step forward for BOT projects. The parties are in the midst of negotiating the BOT contract and related gas purchase and power purchase agreements. Observers are watching with interest to see if the negotiations on these contracts will proceed more smoothly than those of other power project agreements. It has been said that the foreign investors will focus on addressing the possible lack of foreign exchange as well as the price of electricity. The outcome of negotiations will have an effect on the Phu My 3 BOT project, another gas-fired power plant located near Phu My 2.2 in the south of Vietnam. Another major power project, the Wartsila project, has stalled since Electricity of Vietnam ("EVN") requested the renegotiation of the power purchase agreement. The high tariff in the early years of the power project and concerns about the availability of foreign exchange were stumbling blocks in the negotiations. Thereafter, the foreign investor requested to withdraw from the project. It has been said that other BOT power projects have faced similar problems.

The BOT projects described above face similar issues as they proceed from the proposal phase, through licensing toward implementation. All of them, throughout the negotiation process, have had to obtain government interpretations, clarifications and have even been subject to changes in policies. Because the Authorized State Body has inadequate authority to resolve issues related to the BOT contracts, too many other bodies must be consulted, making an already complicated process even more complicated and slow. Parties to BOT negotiations complain that other involved bodies are also unsure of their role in the decision-making process and, therefore, are reluctant to sign off on projects. These problems exist in every phase of the BOT project. Although creative financing is an answer for some of these problems, we address below the weaknesses in the regulatory framework that affect the negotiation process.

Three Major Weaknesses in the Regulatory Framework

As investors have attempted to work through the process of negotiating BOT contracts, they have identified three major weaknesses either in the law and regulatory structure or in its implementation: availability of foreign currency, security for loans, and dispute resolution. Foreign investors have addressed these problems by requiring assurances or guarantees. Negotiations on these points have either resulted in delay or have derailed the BOT contract negotiations altogether. In the end, the value of assurances or guarantees may be of uncertain value.

1. Availability of foreign currency

The BOT Decrees state that BOT Enterprises may exchange Vietnamese dong earned from implementing BOT projects for hard currency in order to pay for imported materials, equipment, etc., to repay loans and make interest payments, and to transfer profits and capital overseas. Foreign investors’ two overriding questions are: Will the currency be available and approved for transfer when it is needed? When may money be transferred overseas – ie is it earned before or after taxes are paid?

The SBVN is responsible for authorizing the transfer of foreign currency. It also registers offshore loans,10 authorizes foreign bank accounts, and imposes controls on interest rates.11

Lenders and foreign investors seek assurances or guarantees from the SBVN that foreign currency will be available when it is needed and on their rights to convert dong to foreign currency. The objective is that the BOT Enterprise will receive the same amount of foreign currency it would have received if payment had been made in the designated foreign currency.

Investors also attempt to pin down the timing of profit remittance. Decree 12 does not permit remittances of profit until all applicable taxes have been paid.12 However, taxes are calculated on an annual basis. Foreign investors attempt to address this issue either through a special exemption incorporated into the investment license or through a provision in a government support agreement.

Reportedly, both the Phu My 2.2 and the Wartsila power plant projects indicate that the need for exchange assurances has been a significant element in the negotiation process.

2. Security for Loans

Foreign investors have been frustrated by regulations that restrict the securitization of available collateral. These restrictions include requirements that collateral have been financed by the proceeds of the foreign loan and prohibitions on the mortgage or pledge of after-acquired assets and the mortgage of land to overseas lenders or to foreign branch banks.13 Recently, after much prodding by foreign investors and banks, the government took significant steps to clarify this area.14 However, foreign investors await implementing regulations to see whether the changes are meaningful.

Decree 165 provides a general legal framework for secured transactions. It also applies to security arrangements for international financing of BOT projects. It addresses a number of issues that have thwarted the financing of BOT projects. For example, it provides that future assets such as new structures affixed to land, revenue streams under contracts, other contractual property rights, and income and benefits derived from mortgaged or pledged property may be taken as security.

Decree 165 adds two new types of pledgeable assets: equity interest in foreign-invested enterprises, including BOT Enterprises, and rights to exploit natural resources. Decree 165 did not remove the prohibition on enterprises mortgaging land use rights to overseas lenders, foreign bank branches and joint venture banks in Vietnam. Neither did it clarify the tax issues involved in the transfer of ownership rights, in the event rights in the secured property are exercised. Decree 165 has been welcomed by investors, but until implementing regulations are issued, which among other issues establish a system for recording security interests, investors and lenders will continue to be affected by uncertainty.

Another recently adopted regulation, Decree 178, addresses some of the same on-going concerns. Decree 178 defines methods, principles and conditions for commercial banks to provide loans on a secured or unsecured basis. It states that a loan may be secured by a pledge or mortgage of the borrower’s property, an asset-based guarantee of a third party, or a pledge or mortgage of assets created from the loan proceeds. It permits banks to foreclose on mortgages by borrowers or guarantors that default.

Although Decree 178 addresses foreclosure remedies, an area of importance to foreign investors, it raises concerns in other areas, such as: requiring secured loans to be secured by assets of a value greater than that of the loan and restricting securitization to assets purchased with loan proceeds. These clauses in effect run counter to the steps taken in Decree 165 to permit future assets to be taken as security. This decree too is awaiting implementing regulations, and it is hoped they will clarify the intent of the drafters.

Another uncertainty which makes it difficult to arrange financing involves step-in rights. A transfer of the share of a foreign-invested enterprise given as security requires government approval. Although MPI has recently agreed to provide "approval in principle" for the transfer of shares involving foreign-invested enterprises, such approval is not provided for in the BOT Decrees and if it were, in the case of BOT projects, it could only be given by the Government, not by MPI alone. Moreover, "approval in principle", by its own language, remains conditional.

3. Dispute Resolution: Choice of Law and Forum and Enforceability

Parties to a BOT contract may stipulate in the contract that foreign law will apply; however, that foreign law must not be contrary to the laws of Vietnam.15 This stipulation must be approved by the Ministry of Justice, which is issued in the form of an opinion letter.

The BOT regulations support negotiation and conciliation in the event of a dispute, with arbitration being an acceptable means of resolution in the event that negotiation and conciliation fail. However, for some contracts, and depending upon the parties to the contract, arbitration must be undertaken before a Vietnamese arbitration tribunal. For others, the parties may arbitrate abroad.16

Ideally, all BOT project-related contracts should be heard by the same dispute resolution body and contracts between the BOT Enterprise and state-owned enterprises should be governed by a sophisticated law. The parties should also be confident that an award will be recognized and enforced. However, whether arbitration occurs in Vietnam or off-shore, there are serious concerns about the enforceability of an arbitration award in Vietnam. Vietnam is a signatory to the 1958 New York convention on the enforcement of foreign arbitral awards, and has implemented the convention through the Ordinance on Recognition and Enforcement of Foreign Arbitral Awards ("Ordinance").17 The Ordinance requires that, before a foreign arbitration award is enforced, the applicant must obtain a decision on recognition and enforcement from the competent court through the Ministry of Justice. Upon receiving this decision, the applicant applies to the Department of Enforcement to implement the court’s decision. Although the court is not supposed to reconsider the underlying dispute, there is concern that as part of the process of obtaining the decision on recognition and enforcement, the parties may be required to re-litigate issues. Even if foreign law does apply, the domestic legal system is not sufficiently mature or sophisticated to apply foreign law.

IV. Avenues for Addressing Problems

The gaps in the regulatory system must be met by special measures. In order to obtain financing for a project, foreign investors have sought both performance and payment guarantees from the State for the obligations of the Vietnamese party to the BOT contract.

Investors in BOT projects sign contracts with a government agency. Although the government agency contracts on behalf of the State, the State does not thereby guarantee the performance or payment of each individual contract. Foreign investors have sought State guarantees to provide that the State will pay if a state-owned enterprise fails to pay. Thus far the Government has not guaranteed any loans for BOT projects. Currently, only state-owned enterprises or state-owned credit institutions are eligible to receive a government guarantee that it will repay a foreign loan.

Investors also seek specific performance guarantees. The Oxbow International Power Group reportedly sought guarantees of the price and availability of coal. Reportedly, Phu My 2.2 investors have asked for a risk guarantee to protect themselves from a possible shortage of gas and lack of foreign exchange. Wartsila, reportedly, also sought foreign exchange assurances.

In another instance not involving a BOT project, but one of a similar nature, investors sought: a foreign exchange guarantee; a guarantee on protection of the properties invested by the foreign investors during the project life; and a guarantee of the obligations of Vietnamese government agencies under relevant contracts, such as a gas purchase contract. The guarantees were provided in a document separate from the BOT contracts. The document was signed by the MPI on behalf of the State.18

Another form of assurance is pre-approval of the choice of law. However, it is uncertain whether in the event of a future dispute the Ministry of Justice’s opinion will be determinative.

Assuming it can be relied upon, the language of the opinion is very important and time must be spent ensuring that the Ministry of Justice’s opinion meets the foreign investors’ and lenders’ needs.

V. Prospects

As the region continues to recover from the effects of the Asian financial crisis, and if Vietnam continues to reform its economic policies, interest in Vietnam will return. This will highlight the need for infrastructure that can be provided by BOT project financing.19 The World Bank, ADB and other ODA providers are turning from funding infrastructure projects to poverty reduction and institution building, thus potentially making the BOT form of financing more attractive to the Vietnamese government.

The Vietnamese government has been receptive to many suggestions made by the private sector, international organization and bilateral donors to improve its investment environment. The Private Sector Forum ("PSF") is one significant example. The PSF was formed to build momentum for market-based economic development in the private sector. The PSF meets several times a year. Participants include representatives from the Vietnamese government and National Assembly, embassies, international organizations, including The World Bank, ADB, United Nations entities, and the private sector. Working groups prepare position papers, which are presented at the meetings and addressed by the respective ministries. At a recent meeting, issues addressed included banking, law, infrastructure, land rights, mining law and tax issues.

A number of the issues raised within the PSF will be addressed in draft amendments and supplements to laws for submission to the National Assembly. The draft amendments to the Foreign Investment Law reportedly will address investment security, dispute settlement, and government performance and payment guarantees of obligations of state-owned enterprises – the very issues which have hampered progress in infrastructure projects.

While it is unlikely that all of the factors that have hindered implementation of BOT projects will be resolved in the near future, the foundations have been established. The pioneering BOT investors described in this paper have highlighted a number of challenges. We expect that the next generation of BOT investors will enjoy a more certain regulatory and more realistic negotiating environment. These improved factors should lead to greater success in the future for BOT projects.

* Ms Dry is in the Hanoi office and Mr Vecchi in the Ho Chi Minh City office of the law firm of Russin & Vecchi.

1 The Foreign Investment Law dated December 29, 1987 was amended twice, on June 30, 1990 and December 23, 1992, before being replaced by a new Foreign Investment Law dated November 12, 1996.

2 Vietnam licenses BOT, Build-Transfer ("BT") and Build-Operate ("BTO") projects under the same regulatory regime. However, for purposes of this article, we limit our discussion to BOT projects.

3 With respect to power projects in Vietnam, The World Bank now provides guarantees for some financial arrangements.

4 In 1986, Vietnam instituted the policy called "Doi Moi," or renovation, to restructure its economy and renovate its institutions with the aim of transforming its centrally-planned economy into a market-based economy promoting all economic sectors. Doi Moi promoted substantive market-oriented reforms, including the encouragement of cooperation and trading relationships between Vietnam and other countries.

5 Decree 62/1998ND-CP, August 15, 1998, and Decree 02/1999/ND-CP, January 27, 1999.

6 Decree 62 also addresses requirements for contracts between the BOT Enterprise and sub-contractors.

7 Decree 62, article 2.

8 MPI is a key government body. Its primary function is to issue investment licenses. But it also has advisory functions in all matters relating to the development of strategies and plans for Vietnam’s socio-economic development, including the targeting and promotion of domestic and foreign investment. It acts as chairman of national committees to approve economic and technical standards. MPI evaluates domestic and foreign investment projects, including BOTs, as it selects bid winners, serves as the central agency for the coordination, utilization, and management of ODA funds. Recently, MPI became the agency within the Government designated to receive business registrations under the new Enterprise Law.

9 Decree 88/1999/ND-CP of September 1, 1999, promulgating the Regulations on Bidding.

* See note 19, infra.

10 Registration is not approval, and the terms of the loan are not free from subsequent challenge.

11 The ceiling on interest rates is currently set at Libor + 2.5% per annum for medium- and long-term loans. Decision 308/1999/QD-NHNN7. Bankers state that this is inappropriately low for Vietnam. Even if the capped rate did offer an acceptable return on a loan, the cap would curtail the ability of the lender to collect penalty interest in workout situations. In addition, most foreign lenders are now required to pay a withholding tax of 10% on loan interest paid on foreign loans. Circular 169/1998/TT/BTC regarding Interest Withholding Tax, January 1, 1999. In reality, it is the borrower who will pay this tax, further undermining the project economics and making it more difficult to come to financial closure.

12 Article 73, Decree 12/CP Providing Regulations on Foreign Investment, February 18, 1997.

13 Decision 217-QD-NH1 on Mortgages, Pledges and Guarantees, August 17, 1996. Decree 90/1998/ND-CP on regulations on the Management of Foreign Borrowing and Repayment, November 7, 1998.

14 Decree 165/1999/ND-CP on Secured Transactions, November 19, 1999, effective December 4, 1999; Decree 178/ND-CP on Security of Loans Extended by Credit Institutions, December 29, 1999, effective January 12, 2000.

15 Decree 62, articles 24 and 25, as amended by Decree 02, articles 2 and 3.

16 For example, disputes between the BOT Enterprise and Vietnamese enterprises during the implementation of the contract are resolved by Vietnamese arbitration organizations or courts in accordance with Vietnamese law. However, if a dispute arises among the parties of a BOT Enterprise during implementation of the BOT contract, the parties may agree to select one of the following dispute resolution alternatives: a Vietnamese court or arbitration body, a foreign arbitration body, an international arbitration body, or an arbitration tribunal established pursuant to an agreement among the parties. (Decree 62, article 25, as amended by Decree 02, article 4.)

17 The Ordinance entered into force on January 1, 1995.

18 However, the wording of the guarantees was general and although it guaranteed foreign exchange, when the investors sought approval of a specific foreign exchange schedule, reportedly, SBVN did not agree.

19 Recently, EVN announced it is considering building ten BOT power plants with a total capacity of 2,700 MW. This would bring the number of BOT power plants in various stages of negotiation or construction nation-wide to 15. Twelve of the 15 power plants are to be built with foreign investment.

This article has previously appeared in the Spring 2000 issue of The Journal of Project Finance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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