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WHITE PAPER JEDDAH ECONOMIC FORUM 2016 Rishab Raturi, Mohamad Fakhreddin, and Stephen J. Mezias, INSEAD Middle East Campus, Abu Dhabi

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Page 1: WHITE PAPER JEDDAH ECONOMIC FORUM 2016...WHITE PAPER JEDDAH ECONOMIC FORUM 2016 Rishab Raturi, Mohamad Fakhreddin, and Stephen J. Mezias, INSEAD Middle East Campus, Abu DhabiJeddah

WHITE PAPER

JEDDAH ECONOMIC FORUM 2016

Rishab Raturi, Mohamad Fakhreddin, and Stephen J. Mezias,

INSEAD Middle East Campus, Abu Dhabi

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Jeddah Economic Forum 2016 – Draft White Paper

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TABLE OF CONTENTS

ABSTRACT ............................................................................................................................................................................. 4

1. INTRODUCTION ....................................................................................................................................................... 5

1.1 What are PPPs? .................................................................................................................................................................. 6

1.1.1 General Characteristics of PPP ....................................................................................................................................... 6

1.2. Why opt for PPPs? .............................................................................................................................................................. 7

1.2.1. Monetary constraints of the Government ................................................................................................................ 8

1.2.2. Private Sector Expertise .......................................................................................................................................... 8

1.3. What are the benefits and risks of PPPs? ............................................................................................................................ 9

1.4. What are Reward and Risk Sharing? ................................................................................................................................ 10

1.4.1. Regulatory risk ............................................................................................................................................................... 11

1.4.2. Planning and design risks ............................................................................................................................................... 12

1.4.3. Act of God ...................................................................................................................................................................... 12

1.5. Impact of PPPs on living standards ................................................................................................................................... 12

2. LEGAL AND REGULATORY FRAMEWORK ................................................................................................... 14

2.1. Strong legal framework ............................................................................................................................................... 14

2.2. Identification of project goals ...................................................................................................................................... 15

2.3. Manageable flexibilities .............................................................................................................................................. 15

2.4. Understanding the private sector needs ....................................................................................................................... 16

2.5. Revenue stream ........................................................................................................................................................... 16

2.6. Unclear contractual agreement .................................................................................................................................... 17

3. PPPS IN MUNICIPALITY ...................................................................................................................................... 18

3.1. Diverging kinds of PPPs in Municipality .......................................................................................................................... 18

3.2. Some of the main issues dealing with PPPs in Municipality............................................................................................. 18

3.3. Discussions at the JEF ...................................................................................................................................................... 19

2 4. PPPS IN SPORTS ......................................................................................................................................................... 21

4.1. Discussions at the Jeddah Economic Forum ..................................................................................................................... 21

5. PPP IN AIRPORTS .......................................................................................................................................................... 22

5.1. Legal Framework .............................................................................................................................................................. 23

5.2. Possible procurement and concessionaire related issues ................................................................................................... 24

5.3. Discussions at JEF ............................................................................................................................................................ 24

6.1. Different PPP models in Ports ....................................................................................................................................... 25

6.2. Identification of important points .................................................................................................................................. 27

6.3. Discussions at JEF ............................................................................................................................................................ 28

7. PPP READINESS .............................................................................................................................................................. 29

8.1. Potential Challenges ......................................................................................................................................................... 34

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3 9. PPPS IN HEALTHCARE ............................................................................................................................................ 35

9.1. PPP Benefits ..................................................................................................................................................................... 35

9.2. Challenges related to PPP ................................................................................................................................................. 35

9.3. Discussions at JEF ............................................................................................................................................................ 37

10. FINANCING PPPS .......................................................................................................................................................... 38

11. PPPS IN HOUSING ......................................................................................................................................................... 39

11.1. Market Potential .............................................................................................................................................................. 39

11.2. Requirements for PPP in Housing................................................................................................................................... 39

11.3. Different phases of Housing PPP projects ...................................................................................................................... 40

11.4. Some of the discussions at the JEF ................................................................................................................................. 40

12. PPPS IN INFRASTRUCTURE ...................................................................................................................................... 42

12.1. Advantages of PPP .......................................................................................................................................................... 42

12.2. Challenges to PPPs ........................................................................................................................................................ 44

12.3. PPPs discussions at JEF ............................................................................................................................................... 45

13. PPP IN ELECTRICITY .................................................................................................................................................. 46

14. PPPS IN WATER DESALINATION AND DISTRIBUTION ..................................................................................... 47

14.1. Aim of the water desalination plant ................................................................................................................................ 48

14.2. Transparent bidding process ........................................................................................................................................... 48

14.3. Financing options and cost-effectiveness ........................................................................................................................ 49

14.4. Discussions at JEF .......................................................................................................................................................... 49

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ABSTRACT

In recent decades, public private partnerships (PPP) for managing services or procurement

responsibilities that have traditionally been the domain of the public sector have been on the

increase. This growth can be attributed to a number of factors, including value for money, a

desire to leverage private sector expertise, and tightening governmental budgets. The shift of

public sector priorities from delivering services to regulating the delivery of services is a

difficult transition, but it is essential to succeed with these partnerships. This white paper

provides an overview of global research about PPP and highlights the potential for PPP

projects in the Kingdom of Saudi Arabia. Key topics include the importance of creating a

strong legal framework within Kingdom of Saudi Arabia, developing specific, relevant goals

for PPP, and best practices to design and maintain partnership, not partisanship.

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1. INTRODUCTION

Public Private Partnerships (PPP) are increasingly being considered for managing services or

procurement responsibilities that have traditionally been public sector deliverables.1 This

growing interest can be attributed to a number of factors including value for money, desire to

leverage private sector expertise and tightening governmental budgets.2 However, the shifting

of public sector priorities from delivering services to regulating the delivery of services is

possibly the most important reason for this turn towards PPPs.3 After all, the nature of modes

of delivery of services is changing, and countries recognize the importance of efficiency and

innovation that the private sector brings with it.

This paper is designed to serve two purposes: to introduce an overview of basic PPP,

and to highlight the potential for PPP projects in the Kingdom of Saudi Arabia. Further, it

will demonstrate the importance of creating a strong legal framework within Kingdom of

Saudi Arabia, evaluate the importance of project goals and assess the ideal relationship

between private and public sector in order to achieve a partnership - not a partisanship. This

will help analyse and identify the delicate balance between the needs of the private and public

sector.

1 Paul H.K. Ho, Practical Guide to Public Private Partnership Projects, Hong Kong Institute of Surveyors Publication, 2009, http://www.psdas.gov.hk/content/doc/2005-1-11/PDP%20-%202005-1-11.pdf (last retrieved on 7 February 2016). 2 Robert Puentes and Patrick Sabol, Private Capital, Public Good, Brookings Institute, 17 December 2014,

http://www.brookings.edu/research/reports2/2014/12/17-infrastructure-public-private-partnerships-sabol-puentes (last retrieved on 5 February 2016). 3 Organization for Economic Cooperation and Development, Recommendations of the Council on Principles for Public Governance of

Public-Private Partnerships, May 2012, http://www.oecd.org/governance/budgeting/PPP-Recommendation.pdf (last retrieved on 12 February 2016).

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1.1 What are PPPs?

Despite the prevalent use of the term 'PPP' since the 1990's, a standard global definition has

eluded both practitioners and academia.4 However, a reductionist definition of PPPs is the

delivering on public projects or services by the private sector.5 Restated, PPP is a legal

contract between a public sector entity and a private company where both partners agree to

share a contractually decided portion of the risks and rewards inherent in a project.6 The IMF

defines a PPP as “the transfer to the private sector of investment projects that traditionally

have been executed or financed by the public sector.”7This contractual relationship could

range from informal strategic partnerships such as short term management contracts8 to

medium-to-long term relationship9 such as design build finance and operate (DBFO) type

obligation with deep commitments for both parties.10

1.1.1 General Characteristics of PPP

Given the amorphous definition of PPPs, the lowest common denominator of similarities

between different PPP projects are as follows:

Private partners aim at designing, completing, implementing and funding the project;

Public sector partner concentrates on defining the objectives of the projects; develops

public policy frameworks; and provides guarantees and incentives.

4 World Bank, What are PPPs?, 2 October 2015 http://ppp.worldbank.org/public-private-partnership/overview/what-are-public-private-

partnerships (last retrieved on 5 February 2016). 5 PriceWaterhouseCoopers,Government Infrastructure Report 2005, http://www.pwc.com/gx/en/government-infrastructure/pdf/promisereport.pdf (last retrieved on 5 February 2016). 6 Restated, Robert Puenetes and Patrick Sabol, n.2. 7 Teresa Ter-Minassian, Public Private Partnerships, International Monetary Fund Report, March, 2012, p. 3, https://www.imf.org/external/np/fad/2004/pifp/eng/031204.pdf (last retrieved on 6 February 2016). 8 John Laing PLC, quoted in PriceWaterhouseCoopers (2005), n. 5 at p. 12. 9 Standard and Poor quoted in PriceWaterhouseCoopers (2005), n.5 at p.12. 10 Puenetes and Sabol, n. 2.

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Further, there is a shared risk and/or reward between the public and private sectors which

is generally defined contractually; and the payment mechanisms for PPPs tend to be based on

production or delivery outputs.11

Interestingly, even these similarities depend on a plethora of factors which are as

diverse as infrastructural assets, legal regimes, political constraints and other such limitations.

For instance, some advanced PPP markets such as United Kingdom having high levels of

legalization provide for deep integration between the public and private partners, whereas

other markets such as United States permit for lower levels of integration such as a simple

"design-build" project.12

Therefore, the onus is upon the public sector entity to identify the

correct form of PPP partnerships.

It is difficult to make a generalization about PPP descriptions given the wide range of

terms and its associated variables. Therefore, this paper will proceed to general questions and

queries related to PPPs, followed by a more detailed discussion on specific PPPs. The

primary motivation is to create awareness and generate interest in diverse and comprehensive

forms of PPPs and to identify which form of PPP is best suited to the diverse opportunity

provided by the Kingdom of Saudi Arabia.

1.2. Why opt for PPPs?

To determine the motivation to enter into a PPP is a complicated process that “requires[s]

robust economic analysis, complex negotiations, intense public scrutiny, long-term

commitments, political leadership, and force public sector employees and policymakers to

11 Puenetes and Sabol, n.2. 12 Id; See also, United States Department of Transportation, Federal Highway Administration, 'Design Build Effectiveness Study', January

2006, https://www.fhwa.dot.gov/reports/designbuild/designbuild5.htm (last retrieved on 13 February 2016). See further, The Louis Berger

Group, Design-Build Environmental Compliance Process and Level of Detail: Eight Case Studies, January 2005, http://onlinepubs.trb.org/onlinepubs/archive/NotesDocs/25-25(12)_FR.pdf (last retrieved on 11 February 2016).

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hone a relatively new skill set”.13

Nonetheless, the use of PPPs has increased exponentially in

the recent past for two main reasons:

1.2.1. Monetary constraints of the Government

PPP structures assist governments by not adding to its long term debt obligations, given that

the finance for a project is secured by the private sector.14

While the economic fundamentals

of the Kingdom are sound and the public debt levels are well under control, yet with the

eminent prospect if economic diversification, it is not unreasonable to account for a small

increase in public debt in the coming years.15

To counter-balance this, PPPs provide the

opportunity to reduce debt constraints.16

However, this does not mean that the public sector will avoid budgetary outlays. It only

means that the costs associated with financing, building and maintaining a project is not the

direct responsibility of the public sector.17

1.2.2. Private Sector Expertise

Private sector brings with it expertise, efficiency, management techniques and cutting edge

technologies that, in most cases, exceed the public sector capacities.18

When combined with

the oversight and experience of the public sector, PPP is the optimal path to harnessing new

ideas and overcome challenges that citizens face on a daily basis. Be it greenfield or

brownfield investment, PPP collaborations lead to innovations, faster project delivery,

13 Puenetes and Sabol, n 2; See also, International Bank for Reconstruction and Development-The World Bank-Asian Development Bank-

Inter-American Development Bank Joint Study, Public Private Partnerships Reference Guide Version 2.0, 2014, https://www2.unece.org/wiki/download/attachments/25265636/236899332-PPP-Reference-Guide.pdf?api=v2 (last retrieved on 15 February

2016). 14 Andre Laboul, Private Financing and Government Support to Promote Long term Investment in Infrastructure, OECD Working Paper, September 2014, http://www.oecd.org/daf/fin/private-pensions/Private-financing-and-government-support-to-promote-LTI-in-

infrastructure.pdf (last retrieved on 14 February 2016). 15 International Monetary Fund, Saudi Arabia, IMF Country Report No. 15/251, https://www.imf.org/external/pubs/ft/scr/2015/cr15251.pdf (last retrieved on 11 February 2016): 16 Puenetes and Sabol, n.2. 17 Puenetes and Sabol, n.2; See also, International Monetary Fund, Public Private Partnerships, 12 March 2004, https://www.imf.org/external/np/fad/2004/pifp/eng/031204.pdf (last retrieved on 1 February 2016). 18 International Finance Corporation, Infrastructure: How Private Sector Helps, 2012,

http://www.ifc.org/wps/wcm/connect/3c4a9e004af21a4bbcaefe888d4159f8/IFC_TOS_Infrastructure.pdf?MOD=AJPERES (last retrieved on 3 February 2016).

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operational efficiencies, etc.19

The ideas that the private sector introduce to the equation are

those that the public sector may never have considered.20

For example, PPPs can revitalize

government’s un-used infrastructural assets as, say, a municipal parking lot.21

This is

conceptually provides stimulus for an increase in economic activities around the parking lot,

and enhance property rates.

1.3. What are the benefits and risks of PPPs?

When considering PPP cooperation, government or public authorities have to assess the

benefits of such arrangements. The World Bank Group has noted that the financial crisis of

2008 brought renewed interest in PPPs in both developed and developing countries.22

This is

because countries recognize the importance of investments, and lacking fiscal space and

public resources, look towards the private sector as a source of funding. According to the

World Bank, these are the main reasons why governments look favourable at PPPs:23

Improved operational efficiency through the introduction of technology;

Incentivizing the private sector to deliver projects on time and within budget;

Imposing budgetary certainty by setting present and the future costs of projects over

time;

Developing local private sector capabilities through technical training, sub-

contracting or joint ventures;

Supplementing limited public sector capacities to meet the growing demand for

development;

Extracting long term monetary value for the PPP in terms of its effectiveness and

project longevity.

19 Puenetes and Sabol, n.2. 20 McKinsey & Company, A risk management approach to a successful infrastructure project, McKinsey Working Papers on Risk, No. 52. 21 Puenetes and Sabol, n.2. 22 World Bank, PPP Overview, http://ppp.worldbank.org/public-private-partnership/overview/ppp-objectives (last retrieved on 5 February

2015). 23 Id.

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Despite the benefits that PPPs offer, it also introduces some risks to the projects. These

risks represent the challenges that most PPPs face, and overcoming them is highly beneficial

to both parties. The primary risks are listed below:24

Re-assessment of its valuation of PPPs from traditional procurement PPPs depending

on the level of depth of the PPPs;

Some projects may be easier to finance than others depending on various factors

including demand for the service;

Some private partners may be dissuaded by the capture of remittance in Saudi Riyal,

where as other PPP projects would see private sector receiving remittances in

international currency;

Despite private sector participation, the burden on delivery and quality of delivery

rests on the public sector;

Recognition that the long-term nature of the project, along with the financial

complexities, could result in difficulty to identify all contingencies during the project

development;

Lack of a clear legal and regulatory framework will keep many competitive private

sector players out of the market.

1.4. What are Reward and Risk Sharing?

The hallmark of successful PPPs is the clear description of risk and reward sharing

mechanisms that are contractually enforced for both public and private party.25

This, of

24 Id. 25 See Generally, KMPG, Financing Australian PPP Projects in the Global Financial Crisis, 2009,

https://www.kpmg.com/NZ/en/IssuesAndInsights/ArticlesPublications/SmarterProcurement/Documents/Financing-Australian-PPPs.pdf (last retrieved on 10 February 2016).

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course, depends on the nature of the project itself. An example of reward sharing would be to

permit the private sector to collect toll tax on a road construction PPP project.26

Risk sharing is a complicated creature. Generally tailored into the contractual

obligations of either or both parties, risk sharing differs from place to place and from project

to project.27

Identified below are some of the possible risks that could be faced when

embarking on a PPP project in the Kingdom:

1.4.1. Regulatory risk

Regulatory risks potentially represent one of the greatest obstacles in PPP projects. This is

because a change in domestic regulation which will directly affect the costs or the time for

completion could set back the project.28

Another major regulatory or legislative risk is

expropriation, and the manner of expropriation of the project.29

While it is highly unlikely for

illegal expropriation of a PPP project in the Kingdom, the earlier example of changes to the

domestic regulation is a very real possibility. A change in the investment policy, or a change

in criteria of investment screening, can negatively affect the project. To remedy such a

situation, a strong contractual obligation is required on the role of the public partner to either

assume such risks or to be more considerate on the deadline of the project.30

Notably, this

could also attract challenges under International Investor-State Arbitration proceedings.

26 Puenetes and Sabol, n.1. 27 Bryan Shapiro, Transferring Risks in Construction Contracts, Shapiro Hankinson & Knutson Publication, 2013,

http://www.shk.ca/wp/wp-content/uploads/2013/02/Transferring-Risks-in-Construction-Contracts-BSS.pdf (last retrieved on 10 February 2016). 28 Alan Straus, Managing Risks in PPP Projects through Legal Documentation, presentation at MENA – OECD Investment Programme and

Executive Privatization Commission of Jordan, 2007, http://www.oecd.org/mena/competitiveness//39303648.pdf (last retrieved on 10 February 2016). 29 Chris Bishop, Legal Issues – Transport PPPs, Allen & Overy, presentation at UNESCAP, 2015,

http://www.unescap.org/sites/default/files/3.2%20Typical%20Legal%20Issues%20in%20PPP%20projects.pdf (last retrieved on 11 February 2016). 30 See Generally, Organization for Economic Cooperation and Development, Fostering Investment in Infrastructure – Lessons learned from

OECD Investment Policy Review, January 2015, http://www.oecd.org/daf/inv/investment-policy/Fostering-Investment-in-Infrastructure.pdf (last retrieved on 12 February 2015).

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1.4.2. Planning and design risks

Generally, the private sector includes all the planning and design risks during the tendering

stage.31

These risks, however, may be expanded when calculating previously overlooked

factors. Construction risks, occupational and workforce risks, risks associated with operating

and maintaining the project, simple day-to-day mechanical problems and financial risks faced

by the private sector are all included within planning and design risk.32

1.4.3. Act of God

Another very specific kind of risk that has been accounted for in contract law is the “act of

god” or “force majeure”. 33

This kind of risk encompasses situations that could not have been

reasonable foreseen at the time of conclusion of contract. These can include everything from

terrorist attacks to unforeseen weather or geological events.34

1.5. Impact of PPPs on living standards

Water, healthcare, transport, energy and education are essential to the growth and, indeed,

survival of a nation. When planned and maintained well, these services play a vital role in

supporting a high standard of living and facilitating commerce and trade. The link between a

strong infrastructure to provide these services and national economic expansion is well

documented. However, governments function on tight budgets, especially in countries

experiencing population growth and urbanization. Governments of these countries may not be

equipped to make the necessary investments and, in turn, look to private partners to finance

and development. When coupled with the right set of policies and investment climate, these

31 Puenetes and Sabol, n.2. 32 Id. 33 See Generally, Allen & Overy, Termination and Force Majeure Provisions in PPP Contracts – Review of current European practice and guidance, Allen & Overy Publications, March 2012, http://www.allenovery.com/SiteCollectionDocuments/Termination_Report.pdf (last

retrieved on 13 February 2016). 34 See Generally, World Bank, Force Majeure Tool Kit, http://ppp.worldbank.org/public-private-partnership/ppp-overview/practical-tools/checklists-and-risk-matrices/force-majeure-checklist/sample-clauses (last retrieved on 12 February 2016).

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PPPs can also become a catalyst for economic growth. The process of PPPs impacting living

standards is best explained below:

Government looks to Private Sector to provide services with no debt on balance

sheets and reducing deficit. This keeps the economy

robust and benefits citizens.

Private sector provides services in a more efficient

manner.

Private sector find new markets to expand. This

investment promotes economic development in the country. Number of jobs also

increase.

Reduces risk of overstaffing, operation mismanagement and corruption. Inefficient

spending curbed, thus increasing government

budget.

Robustness of investment sources and a steady stream

of investments enable private sector to channel resources to consumers/citizens that are not otherwise served.

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2. LEGAL AND REGULATORY FRAMEWORK

Public sector entity should be prudent before considering PPPs. This is because work for the

public sector also increases substantially once a PPP arrangement is enforced. Therefore,

before pursuing a PPP approach, the public sector authority should consider whether the

private sector is equipped with necessary expertise to provide efficient and effective services

and its delivery.35

The public sector must also assess whether it has sufficient capacity and

skills to adopt the PPP approach.36

PPPs are not appropriate in all instances. However, public sector agencies interested in

using this tool need to implement a number of rules, tools, and institutions to ensure that the

process is carried out in a responsible manner.37

Some of the success factors for PPPs are

listed below:

2.1.Strong legal framework

It is well documented that markets grow on certainty. This is also true for PPP projects. A

strong legal framework is a necessary precondition for a successful PPP. After all, this will be

the private sectors safety net in case the PPP project has run aground because of political fiat

or other similar reasons.38

The requirement for a strong legal framework increase

exponentially when the private sector include foreign based firms, or domestically

35 Organization for Economic Cooperation and Development, Hand Out: From Lessons to Principles for the use of Public Private

Partnerships, 7 June, http://www.oecd.org/gov/budgeting/48144872.pdf (last visited on 12 February 2016). 36 Organization for Economic Cooperation and Development, Principles for the Public Governance of Public-Private Partnerships,

http://www.oecd.org/governance/50254119.pdf (last visited on 12 February 2016). 37 Puenetes and Sabol, n.2. 38 Id.

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incorporated firms with strong foreign shareholding. For these firms to be considered, it is a

prerequisite to have a functional and impartial legal framework.

A careful vetting of the laws is also required. This is because it is possible that existing

legal framework may undermine the PPP project implementation and functioning. For

instance – and without any prejudice - environmental review processes could delay PPP

projects.39

Therefore, complete legal due diligence is required before implementing a PPP

project.

2.2.Identification of project goals

Another reason for a successful PPP is clear identification of underlying policy goals – be it

social or economic. It is optimal to identify a project based on its economic rationale, taking

into consideration social equity, environment and other public sector goals. Further, it is

important to assess the goals since many of the failed PPP projects in the past have been

misguided in planning and incorrectly optimistic in projections.40

Also, most successful

projects demonstrate real value between the public and private sector partner.

2.3.Manageable flexibilities

Value creation through a PPP project is generally far greater than a public sector project. But

when entering into a PPP, the public sector will have to be flexible on various issues. Firstly,

as a caveat, it should be understood that PPPs are not the cheapest option in the short term,

but creates greater value for the public through other forms cost saving.41

Keeping this in

mind, it should be noted that occasionally, delivery of the service is delayed for a variety of

39 Id; See also, European Union, Investment protection does not give multinationals unlimited rights to challenge any legislation – Statement

by John Clancy, News Archives, 2013, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1008 (last retrieved on 14 February 2016). 40 Id; See also, World Bank, Success and Failures of PPPs, 2008,

http://webcache.googleusercontent.com/search?q=cache:dn1JCFJLnQgJ:siteresources.worldbank.org/INTECAREGTOPTRANSPORT/Res

ources/Day1_Pres2_SuccessesandFailuresPPPprojects15JUN08.ppt+&cd=3&hl=en&ct=clnk&gl=ch (last retrieved on 14 February 2016). 41 Id.

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reasons. At such times, the public sector partner should exercise flexibility knowing that the

PPP project will reap gains in the long-term.

2.4.Understanding the private sector needs

It is important for the public sector entities to understand the interests that drive the private

sector. The private sector will give priority to projects demonstrating:42

Sufficient demand;

Revenue generating and development potential;

Strong viability of the project;

Strong political commitments

The private sector invests in a thorough analysis of the specific engineering questions and

concerns for a PPP pitch, besides the legal and regulatory framework.43

But the private sector

will be less likely to make their investment in the Kingdom for a few projects, and would

need a defined pipeline of projects for an upfront justification of costs.

2.5.Revenue stream

PPPs succeed or fail based on a number of factors, of which a long term revenue stream is

one. The details of the funding and financing tools for the PPP are determined well in

advance. Nonetheless, the public sector or local governments should have set in place a

successful payment mechanism well before the project hits the floor. Value capture could

help in such a situation. In Denver, Unite States, the Tax Increment Financing model is being

used in conjunction with the Eagle Commuter Rail PPP to back redevelopment along the new

transportation corridor, which will move more housing closer to public transportation,

potentially increase the local tax base, and reduce road congestion in the region.44

Exploring

42 See generally, Asian Development Bank, Public Private Partnership Handbook, Manila,

http://www.apec.org.au/docs/adb%20public%20private%20partnership%20handbook.pdf (last retrieved on 15 February 2016). 43 Puenetes and Sabol, n.2. 44 Id.

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and establishing revenue streams will ensure that a PPP has the fundamental financial

underpinnings that will position the project to succeed.45

2.6.Unclear contractual agreement

Another major obstacle in the successful PPP project is an unclear contractual obligation.

This could lead to confusion for both parties – leading to inevitable conflicts and delays in the

project. Therefore, it is best to have a clear agreement highlighting the requirements from

both parties.

45 World Bank, Public-Private Partnerships Basics and Principles of a PPP framework, May 2012,

http://www.ppiaf.org/sites/ppiaf.org/files/documents/Note-One-PPP-Basics-and-Principles-of-a-PPP-Framework.pdf (last retrieved on 15 February 2016).

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3. PPP IN MUNICIPALITY

Delegating municipality functions and the development of municipality utilities represent

significant investment opportunities for international private firms. The Kingdom of Saudi

Arabia is considering PPPs as a way of delivering these projects.46

Many countries are

adopting this approach, with Canada being a prime example, having introduced over 150

PPPs in municipality (as of November 2011).47

PPPs in municipality are a win-win situation

for both the private and the public sector given that a PPP can effectively handle municipal

projects and infrastructure while improving governance and increasing innovation.

3.1. Diverging kinds of PPPs in Municipality

PPPs in municipalities are like snowflakes – no two projects are alike.48

They depend on the

differing needs of different municipality functions. For instance, maintenance of a zoo or a

public park, or the maintenance of road traffic, or the maintenance of garbage collection and

recycling are all municipality functions. Each kind of PPP project in municipality will require

its own due diligence process.

3.2. Some of the main issues dealing with PPPs in Municipality

Risk Sharing: One of the main advantages of PPPs is risk sharing between both

parties to the PPP. Generally, the private firms risk is limited to its investment in the

consortium whereas the public sector has the broader risk burden of making sure that

the service generated through the PPP project is equitably distributed to citizens of its

municipality/region.

46 PPP Canada, A Guide for Municipalities, November 2011, http://www.p3canada.ca/~/media/english/resources-

library/files/p3%20guide%20for%20municipalities.pdf (last retrieved on 14 February 2016), 47 Id. 48 Black and Veatch, Municipalities Have a Multitude of Options in a Public-Private Partnership,

http://bv.com/Home/news/solutions/water/municipalities-have-a-multitude-of-options-in-a-public-private-partnership (last retrieved on 14 February 2016),

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Contractual Obligation: The importance of a solid contract for PPP in Municipality

cannot be overstated. In fact, this will make onerous on both parties certain

obligations that the parties decided during the negotiation of the contract. There are a

plethora of examples regarding the invocation of legal disputes because of violation of

contractual obligations. One example is from Canada where, in 2006, the newly

elected city council decided to rework its light rail project. The private partner,

Siemens demanded a breach in contract that it had estimated at 175 million Canadian

Dollars.49

While these contractual disputes often de-rail the PPP project, they still

provide the opportunity of a fair and just hearing if the other party in the PPP project

has violated some contractual terms.

Flexibility: One of the greatest arguments in favour of PPPs in Municipalities are the

flexibility options. This largely depends on the relationship between the two parties.

However, it must be noted that even if the public and private entity maintain good

relations with flexibility provided by either party on the contractual obligations due to

reasons the other party find genuine, often a private contractor still has greater interest

in firmly walking along the conditions that are contractual.

3.3. Discussions at the JEF

At the Jeddah Economic Forum, participants will discuss the various issues and potential

opportunities related to PPPs in Municipality. In particular, they will be discussing the

following:

Development, ownership and operational aspects of PPPs in Environmental and

Recreational services

49 Pierre Hamel, Public Private Partnership and Municipaliy, INRS Urbanization, Culture et Societe,

https://www.fcm.ca/Documents/reports/Public_Private_Partnerships_P3s_and_Municipalities_Beyond_Principles_a_Brief_Overview_of_Practices_EN.pdf (last retrieved on 15 February 2016).

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Benefits and challenges of introduction of PPPs in Environmental and Recreational

services

Examining potential PPP models for Environmental and Recreational services

Merging aspirations of the public and private sector to mitigate legal challenges

Importance of clear contractual terms in promoting PPPs for Environmental and

Recreational Services.

Potential avenues for expansion of private sector in delegating municipal functions

Effects of PPPs on local governance

Harnessing consumer oriented service quality and management expertise through PPP

Considerations of potential financial constraints to fund for partnership with the

private player

Importance of risk identification, assessment and controlling for both public and

private entities

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4. PPP IN SPORTS

The Kingdom of Saudi Arabia has the potential to become a world-class sports hub that could

host global sporting events such as the FIFA Football World Cup and the Olympics. Many

countries with similar ambitions are looking to PPPs to deliver these events. Singapore has

recently embarked on a visionary project to create one of the largest sporting infrastructural

projects in the world by way of a 25 year long PPP between Sport Singapore and SportsHub

Pvt. Ltd.50

The Kingdom of Saudi Arabia also espouses similar ambitions and this represents a

great opportunity for the private sector. Besides having solid infrastructure, sports – as

various studies have indicated – are beneficial activities for the public. Increased sporting

activity has resulted in better academic performance and a significant reduction in crime.

4.1. Discussions at the Jeddah Economic Forum

At the Jeddah Economic Forum, panelists and participants will be discussing different aspects

of PPPs in Sports. These discussions include, but are not limited to:

What are the relevant opportunities to maximize profits in privatization of the sports

sector?

What are the risks to be identified?

How can they be assessed and controlled for both public and private entities?

How to ensure that PPPs in sports are delivered in alignment with the societal and

economic objectives of the Kingdom?

50 SportsHub, About Us, http://www.sportshub.com.sg/aboutus/Pages/sports-hub-project.aspx (last retrieved on 14 February 2016),

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5. PPP IN AIRPORTS

Airports link regional, national and international markets. This makes investment in existing

or new airport infrastructure essential to economic development.51

The World Bank reports

that:

“[t]raditionally, airports were owned, managed and operated by governments but there

has been a worldwide trend towards private sector involvement with varying degrees of

private ownership and responsibilities, including the use of public-private partnership

(PPP) models.”

The Kingdom of Saudi Arabia provides a good opportunity for the private sector

directly involve itself in airport PPPs. Annually, millions of religious pilgrims visit

Makkah and Madinah every year. These passengers receive the world class services

provided at the Hajj Terminal at Jeddah’s King Abdulaziz International Airport as a

result of concessions awarded by the General Authority of Civil Aviation (GACA). For

this, a consortium led by Saudi Binladin Group in association with Aeroports de Paros

Management won the 20 year BOT concession.52

TIBAH, a consortium of firms from

Turkey and Saudi Arabia won a 25 year concession to develop and operate an entire

airport in Medina.53

Many opportunities present themselves for the possibility of PPP in

airports in the Kingdom. Notably, many countries are now considering PPP for

airports.54

51 World Bank, Transportation in Airport PPP, http://ppp.worldbank.org/public-private-partnership/sector/transportation/airports (last

retrieved on 14 February 2016), 52 World Bank, Hajj Airport Terminal, http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2015/06/04/090224b082ef8249/1_0/Rendered/PDF/Saudi0Arabia00Hajj

0Airport0Terminal.pdf (last retrieved on 14 February 2016), 53 World Bank, Medinah Airport, http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2015/06/08/090224b082f05926/1_0/Rendered/PDF/Saudi0Arabia0000

Medinah0Airport.pdf (last retrieved on 14 February 2016), 54 India has redeveloped many existing airports in important economic cities such as Mumbai, New Delhi (both brownfield investments) and Hyderabad (greenfield investment).

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5.1. Legal Framework

A successful PPP in airport would require a strong legal framework. The World Bank

has developed a questionnaire that acts as checklist for the important legal questions

that could potentially arise before and during the implementation of the PPP project.

Some of these questions are:

Is the concession a Contract or a Lease?

What is the governing law?

What is the dispute resolution mechanism – is the court system appropriate or is

there a requirement for alternative forms of dispute resolution?

Are there any provisions to waive sovereign immunity of GACA, if applicable?

What is the functional scope and terms of concessions?

Some other pressing concerns that will need to addressed are the architectural

specifications of the airport – and the possible addition of a third party architectural

firm that will also be involved in the project.55

Further, an assessment has to be made

whether PPP structures will also extent to air traffic control, baggage handling, on-

board catering and fuel supply.56

Security is another major concern that both public and

private entities in the PPP need to discuss. Will the government of Saudi Arabia

provide security for the airport, or will that be sub-contracted from a private security

organization? It is best practice to discuss all pertinent and ancillary issues with the

conclusions of the discussion specifically mentioned contractually before entering into

PPPs.

55 World Bank Airport PPP Report, n. 95. 56 Id.

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5.2. Possible procurement and concessionaire related issues

Procurement: A pressing concern that often appears in a PPP related to airports

is the procurement regime. For instance, are their competing municipal, state or

federal procurement regimes? Would such a procurement regime constrain the

re-financing of the project? It is possible that a conflict of interest could arise

given that the State would be party to several PPPs in airports, which could

result delays in the bidding process. These are some of the issues that need to be

discussed by the public and private entity before entering into a PPP. Notably,

the Kingdom of Saudi Arabia has a strong track record of PPPs in airports, as a

result of which it is highly unlikely for such concerns to unfold.

Concessionaire obligations: Another issue that should be discussed in clear

terms is the concessionaire obligations. Identification of the type of PPP, the

kind of investment – greenfield or brownfield, the operating standards and the

revenue sharing mechanism will give confidence to both parties to the PPP.

5.3. Discussions at JEF

PPP in airports bring with it some complex legal, regulatory and operational questions. Given

the importance of an airport to national security, these issues are compounded even further.

The Jeddah Economic Forum will be discussion some of these issues, which include, but are

not limited to:

How can national interests and private interests be reconciled for effective PPPs in

Airports?

What are the most salient PPP opportunities for the GACA?

What are the relevant global best practices of PPPs in airline services and airports?

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6. PPP IN AIRPORTS

Majority of global trade is carried out at sea. Therefore, developing strong and well-

functioning maritime transport infrastructure is a key element of economic growth for many

developing and emerging countries.57

One opportunity that presents itself is the option of

PPPs. PPPs are often used to increase efficiency in managing port operations, which was

traditionally an exclusively government function.58

Presently, different port management

structures are used worldwide, with the most often used model being the delegation of

management responsibilities to the private sector, while the title in the land and assets

remains with the government.59

The Kingdom provides for lucrative opportunities for PPP in ports. In 1997, the Port

Authority of Saudi Arabia started passing the responsibilities of port management, operations

and maintenance to the private sector.60

This was done with the view to remain competitive in

the regional context. Possessing the most diversified economy in the Middle East, and a

strategic geographical location at the centre of shipping routes between East and West,61

private firms can stand to benefit from PPPs in ports. These opportunities have magnified

with the Kingdom demonstrating its intent further expand port systems in the country.

6.1. Different PPP models in Ports

Historically, ports been financed by public funds and municipal bonds. This is also true for

Kingdom of Saudi Arabia. However, with the increasing movement to austerity oriented

governmental spending in the aftermath of the 2008 financial crisis, public financing of

57 World Bank, PPP in Transportation Sector, http://ppp.worldbank.org/public-private-partnership/sector/transportation/ports (last retrieved

on 14 February 2016), 58 Id. 59 World Bank, PPP Tool Kit, http://www.ppiaf.org/sites/ppiaf.org/files/documents/toolkits/Portoolkit/Toolkit/module5/part_a.html (last

retrieved on 14 February 2016), 60 Saudi Arabia Port Authority, About Us, http://www.ports.gov.sa/English/Aboutus/Pages/Introduction.aspx (last retrieved on 14 February

2016), 61Arabian Business, Saudi's top shipping ports, 3 November 2010, http://www.arabianbusiness.com/saudi-s-top-shipping-ports--362304.html#.VsDOUfLhDWI (last retrieved on 14 February 2016),

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capital expenditure has become more limited and the focus shifts to the private sector.62

This

change bring with it views of the private sector which are primarily interested in partnering

on revenue generating port facilities. As a consequence, different models have been

introduced for PPPs in ports, depending on various economic factors. For instance, granting

private operators concessions to build and operate containers and bulk terminals are very

common in the United States.63

Presently, three major types of PPP models exist in port business units:

Management PPP Model: In this model, the private operator manages publicly

owned assets and makes additional investments in them in exchange for being given

the right to use them for a specified time period. Here, the ownership of public assets

is with the public entity, whereas the privately funded mobile assets (eg. Machinery)

remain with the private firm. This type of model is associated with port privatization

programmes that took place in Europe, Africa and South Asia in 1980’s.64

Build-Own-Transfer: In this model, the private investor buys the right to build new

port assets and have exclusive use of them for a fixed period of time. After such time,

which is generally defined in the contract, it is transferred back to the public sector.

One of the primary benefits of Build – Own – Transfer (BOT) is that ports – State-

Owned or private – can compete under conditions established by governments. This

type of PPP model is often used in North West Europe which has a long-established

landlord port tradition.65

62 Availability Payment PPP for Port Projects, Mayer Brown – HSH Nordbank – Rebel Group Joint Report, 2011,

https://www.mayerbrown.com/files/Publication/f83f06cf-20b5-4152-974b-3d561728c0b9/Presentation/PublicationAttachment/735ab7d8-

3c8f-4b0f-92e4-d298819cf896/11266.pdf (last retrieved on 14 February 2016), 63 Id. 64 Sheila Farell, Observation in PPP models in Port sector, 2010. 65 World Bank, Module 3: Alternative Port Management Structures and Ownership Modules, http://siteresources.worldbank.org/INTPRAL/Resources/338897-1117197012403/mod3.pdf (last retrieved on 11 February 2016).

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Public-Private Joint Venture Models: Used often in China and Indonesia, the public

sector has a controlling stake in a Special Project Vehicle which holds management or

development right contracts for new port facilities.

6.2. Identification of important points66

Performance requirement: With greater global discussion on environment related

issues, it is noted that environment targets linked to green-house gas emissions are

often included in PPP contracts.

Labour: Port PPPs has the potential to generate many jobs. However, given the

nature of the business, which is directly affected by various national and international

extraneous factors, could lead to labour related issues. Labour transfer agreements are,

thus, a very important part of present investment models where private sectors take

over the workforce from public sector predecessors.

Tariffs: It is important for both parties to identify which party will set tariffs. If the

tariffs are regulated, then is it through a formula within the PPP agreement or by the

port authority. Regulated tariffs generally take place where geography and traffic

volumes create natural monopolies.

Concession fees: Both parties must also discuss the form of concession fees. For

example, parties must identify if the concession fees in the form of a lump sum

payments, annual rents, royalties or revenues. Generally, the size of the concession

fees will probably be the most important criterion for selecting private sector partners

given the limited scope for innovation. Therefore, it is important to clearly distinguish

the different forms of concession agreements between the public and private entity.

66 Points are a culmination of thoughts derived from World Bank, Module 3: Alternative Port Management Structures and Ownership Modules, http://siteresources.worldbank.org/INTPRAL/Resources/338897-1117197012403/mod3.pdf (last retrieved on 11 February 2016

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6.3. Discussions at JEF

PPP in ports bring with it some complex legal, regulatory and operational questions. Given

the importance of an airport to national security, these issues are compounded even further.

The Jeddah Economic Forum will be discussion some of these issues, which include, but are

not limited to:

Role of PPP in delivery of transportation services

Assessing demands and risks in introducing PPP model in transportation sectors with

less financial viability

Addressing barriers to PPP by strengthening the legal and financial legal systems

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7. PPP READINESS

PPPs combine the technical knowhow and financial reserves of both the public and private

sectors through sharing of risks and responsibilities.67

This enables governments to benefit

from the expertise of the private sector, and allows them to focus instead on policy, planning

and regulation by delegating day-to-day operations.68

In order to achieve a successful PPP, a careful analysis of the long-term development

objectives and risk allocation is essential.69

The legal and institutional framework in the

country also needs to support this new model of service delivery and provide effective

governance and monitoring mechanisms for PPPs.70

A well-drafted PPP agreement for the

project should clearly allocate risks and responsibilities.71

One of the essential requirements for fostering and developing PPP projects in a

country is to have a robust legal and regulatory framework.72

The inherent nature and varied

characteristics of PPPs make it challenging to implement a coherent and uniform PPP

regulatory policy within a country. The needs of a particular sector are distinct from another.

A PPP regime in transport will be markedly different from that in power generation.

However, it is necessary to address the major underlying issues in order to formulate an

effective regulatory framework. In absence of a comprehensive framework, investors and

private parties may be averse to investing in PPPs as can be seen in the case of India. A

World Bank report of 2011 rated India as the largest market for PPPs. However, there have

67 Edward Farquharson et. al. , How to engage with the private sector in public private partnerships in Emerging Markets, World Bank

Publications, 2011, https://www.ppiaf.org/sites/ppiaf.org/files/publication/How-to-engage-with-private-sector-Clemencia-Farquharso-

Yecome-Encinas.pdf (last retrieved on 12 February 2016). 68 Puenetes and Sabol, n.2. 69 PPP Experts, What are PPPs, http://www.pppexperts.com/what-are-ppps/ (last retrieved on 12 February 2016). 70 World Bank, About Public-Private Partnerships, December 2015, http://ppp.worldbank.org/public-private-partnership/overview (last retrieved on 11 February 2016). 71 Id. 72 G-20 Working Group, Principles of PPP Effectiveness in Developing Countries, 2011, http://www.g20dwg.org/documents/pdf/view/15/ (last retrieved on 10 February 2016).

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been only 43 projects proposed, most of which have not been not been implemented because

of procedural and other delays.

Although it is impossible to identify and list all parameters which have to be considered prior

to formulating a legislative and regulatory policy, there are some considerations which have

to be accounted for. They are, as follows:

PPP Specific Legislation: It is imperative to draft a consolidated Act which deals

with all aspects of PPPs, both procedural and substantive. Most developing countries

tend to rely on the existing set of laws to address the challenges for implementation of

PPPs. A consolidated PPP Act will simplify and streamline the process for potential

investors and private parties. Dubai, Kuwait and Bahrain have recently implemented

PPP laws.73

Uniformity: PPPs are generally entrusted with different ministries. It is necessary to

draft a uniform policy for regulating PPPs across all sectors.

Streamlining Processes: There are numerous procedural hurdles for implementing

PPP projects. It is advised that a single mechanism is devised to cut through these

hurdles for effective and efficient implementation.

Dispute Resolution: The various facets of a PPP may give rise to a plethora of

disputes such as labour disputes, environmental challenges, opaque and unfair bidding

of tenders, arbitrary action of governments, financial irregularities by institutions.

Therefore, a dedicated mechanism to handle disputes arising out of PPPs specifically

needs to be devised or the existing dispute resolution framework needs to be adapted

to address such disputes.

73 DLA Piper, Dubai's new PPP law, 6 October 2015, https://www.dlapiper.com/en/bahrain/insights/publications/2015/10/dubais-new-ppp-law/ (last retrieved on 3 February 2016).

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Standard Documentation: A standard form agreement which can be tailored to suit

the specific needs of a particular PPP needs to be drafted.

Concessional Framework: A major incentive for private players to enter into PPPs is

concessions afforded by the government. These concessions may be subject to the

arbitrariness of the government. A regulatory framework needs to establish a uniform

policy for such concessions.

Revenue Sourcing: Revenue generation is arguably the biggest incentive for private

entities to undertake public projects. Generally, the revenue sourcing depends on a

case to case basis largely based on the negotiations between the parties involved. A

uniform method needs to be formulated for revenue generation, sourcing and sharing

Guarantees against Uncertainties: Public Sector is inherently controlled by

uncertainties, namely political and legal. A change in government or amendments in

existing laws can drastically change the way Public Sector functions. PPPs, especially

in infrastructure are long term projects which may range across decades. Private

parties need to be insured against legal and political contingencies.

Transparency and Accountability: Most PPPs are awarded on the basis of closed

biding through tenders. However, bureaucratic corruption is prevalent in developing

countries. PPPs are distinct from privatization and private contracts. It is imperative

that a government makes the bidding process and implementation transparent so as

prevent long drawn legal battles which cause a considerable drain on resources and

also hamper projects.

When designing the Regulatory Framework, the potential costs of monitoring activities

and data collection to all parties involved should not be forgotten.74

Where there are a number

of regulatory bodies responsible for regulating the sector, care should be taken to try and

74 World Bank, Regulation of Sectors and Regulatory Issues and PPPs, 12 June 2015, http://ppp.worldbank.org/public-private-partnership/legislation-regulation/regulatory (last retrieved on 15 February 2016).

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reduce duplication of information to be collected, audits required, etc.75

While it may be

economically viable in the UK market to have separate audited accounts drawn up for

company registration and for regulatory purposes, this may not be sensible in a developing

economy.76

75 Id. 76 Id.

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8. PPP IN EDUCATION

PPPs can create competition in the education market. The private sector can compete for

students with the public sector. In turn, the public sector has an incentive to react to this

competition by increasing the quality of the education that it provides77

Usually PPP contracts can achieve an increased level of risk-sharing between the

private sector and government. This risk sharing is likely to increase efficiency in the

delivery of services and, consequently, to induce the channelling of additional resources to

the provision for education78

. Furthermore, PPP allows government education authorities to

focus on core functions such as policy and planning, curriculum development and quality

assurance79

. It also helps in increasing the level of financial resources which may result in

sharpening competitive pressures in the education sector, resultantly generating efficiency

gains and spurring greater innovation in education delivery80

.

Other benefits of PPP model in education sectors involves- enabling participation

among all stakeholders in decision-making and responsibility for results is crucial for the

success of any innovation or reform; where governments are weak and personnel change,

PPPs provide continuity and stability in a project81

. It enables innovation as the business

sector can play a critical role in the production of new teaching materials as well as the

introduction of new communication technologies, in particular the development of

technologies for education in resource-poor environments.

77 World Bank, Role and Impact of Public-Private Partnerships in Education, 2009,

http://www.ungei.org/resources/files/Role_Impact_PPP_Education.pdf (last retrieved on 5 February 2016). 78 Id. 79 Michael Latham, Public-Private Partnership in Education, International Finance Corporation – CfBT Joint Study, March 2009,

https://www.epnuffic.nl/en/publications/find-a-publication/public-private-partnerships-in-education.pdf (last retrieved on 5 February 2016). 80 Id. 81 Id.

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8.1. Potential Challenges

Firstly, PPPs may lead to the privatization of education and thus will reduce the

government’s control over a public service82

. Secondly, increasing the educational choices

available to students and their families may increase socioeconomic segregation if better

prepared students end up self-selecting into high-quality schools, thus further improving their

outcomes83

. Third, there is a possibility that PPPs may lead to poorer students being left

behind in the deteriorating public schools that lose the support of more educated parents.

Fourth, the corporate or private firms are involved in PPP, whose ulterior motives often

conflict with educational goals in setting up schools and usually for whom there is no

difference between education and, any other business, as long as it ensures attractive profits84

.

Finally, private firms are likely to be less concerned with the hard to reach beneficiaries85

.

These are some of the contours that discussions at the Jeddah Economic Forum will

identify and further discuss. In specific, the discussion will deal with, but is not limited to, the

following topics:

Benefits and challenges of complete outsourcing of educational services to private

sector

Modalities and policy implications for transition to privatization in education – Do's

and Do not's

Case study of the Universal Voucher System from Chile

Balance between profit motivations of private sector and social agendas of the

government

82 World Bank Report (2009), n. 76. 83 Id. 84 The Hindu, Public Private Partnerships in Education, 24 May 2010, http://www.thehindu.com/opinion/lead/publicprivate-partnership-in-

education/article437492.ece (last accessed on 4 February 2016). 85 Michael Latham (2009), n.78.

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9. PPPS IN HEALTHCARE

PPPs in the healthcare sector are an important tool for improving the levels and quality of

healthcare to the citizens of the Kingdom. PPPs in the healthcare sector is seen as a national

asset with health promotion as goal of all health providers, private or public. Further, PPPs

will be very effective in regions where the public sector is generally seen to be less effective -

such as remote and backward areas - reaching out to poor clients.86

PPP in healthcare sector is particularly important because it helps in improving the

quality, accessibility, availability, acceptability and efficiency of the health services in a

region. Second, it facilitates the exchange of skills and expertise between the public and

private sector. Third, it mobilizes additional resources and improves efficiency in allocation

of resources87

. Fourth, the range of services can be widened to include a greater number of

service providers88

. Fifth, it promotes innovation in service delivery.89

9.1. PPP Benefits

PPP in health sector is cost effective.

High productivity- It’s possible by linking payment to performance

Accelerated delivery- since the contracts usually have incentive and penalty clauses

Enhanced social service

9.2. Challenges related to PPP

Equity: Equity is the primary challenge for most private-public partnerships related

to the health sector. This is because the aim of the private sector is profit

86 Sumit Barua, , Public Private Partnerships in Health Sector: Uttrakhand, Asian Development Bank – Government of India Joint Study, http://cell.upppc.org/index.php?option=com_docman&task=doc_download&gid=107&Itemid=6 (last visited on 5 February 2016). 87 Devadasan, N., Bart Criel, Wim Van Damme, S. Manoharan, P. Sankara Sarma and Patrick Vander Stuyft. Community Health Insurance

in Gudalur, India, Increases Access to Hospital Care, Health Policy and Planning 25 (2): 145-54, 2010. 88 Indian Institute of Public Health, A Rapid Evaluation of the Rajiv Aarogyasri Community Health Insurance Scheme–Andhra Pradesh–

Hyderabad, 2009, IIPH, Hyderabad. 89 Confederation of Indian Industry, White Paper on PPP in Healthcare, http://www.cii.in/webcms/Upload/Whitepaper%20on%20Partnership%20in%20Healthcare1.pdf (last visited on 6 February 2016).

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maximization whereas the public sector wants good healthcare facilities in all parts of

the Kingdom. A PPP based in urban regions of the Kingdom will be successful.

However, the same is perhaps not true for the rural regions and a solution for this is

needed.

Cost: Strategic planning is required in advance between the public and private sector

regarding the cost of implementation of the project. Indeed, efficiency improvements

will take place, but both partners – particularly the public sector will have to be

careful about the costs of medical treatments and medical technologies.90

Universal Access: To ensure that all public patients, particularly the poor and

uninsured, have access to adequate hospital care, most contracts for private

management of public hospitals require the provider to continue service to all public

patients91

.

Others

o Conflicts of interest over the role of industry partners;

o Donations in kind, such as drug donations, which often require relatively high

national inputs, including costs associated with guaranteeing distribution

networks, storing drugs at ports and airports, and training health workers;

o The exclusion of poor countries with large populations, unpopular governments or

poor infrastructure from public-private partnership programmes;

o The circumvention of mechanisms designed to ensure that developing countries

have a say in the policies that will affect their populations.92

90 Marc Mitchell, An Overview of Public-Private Partnerships in Health, https://www.hsph.harvard.edu/ihsg/publications/pdf/PPP-final-

MDM.pdf (last visited on 7 February 2016). 91 World Bank, Public Policy for the Private Sector, January 2002, Note Number 241, http://siteresources.worldbank.org/EXTFINANCIALSECTOR/Resources/282884-1303327122200/241Taylo-010802.pdf (last retrieved on 7

February 2016). 92 World Health Organization, Public Private Partnerships for Health, http://www.who.int/trade/glossary/story077/en/ (last retrieved on 5 February 2016).

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9.3. Discussions at JEF

The Kingdom offers great potential for investment in PPPs in Healthcare sector. They are

also a powerful policy tool for improving the viability of public hospitals and the quality of

their services. Some of the discussion that will take place at the Jeddah Economic Forum

include, but are not limited to:

Understanding the challenges and proposing solutions for healthcare PPPs

Assessment and identification of opportunities in Saudi Arabia

Risk mitigation strategies to encourage investors to fund projects in underserved areas

Determining performance standards to establish and monitor clinical quality,

effectiveness and efficiency

Overcoming challenges relating to access, reach and equity

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10. FINANCING PPP

Financing is one of the key motivations for governments to consider PPPs. It also represents a

major challenge since financing projects follow market trends and volatility. The World Bank

categorizes funding into three main verticals:93

Government funding: In this case, the government will fund majority of the capital

as investment for the project while looking at the private sector for bringing expertise

and efficiency. This is often referred to as Design-Build-Operate projects.

Corporate Finance: In this case, the private entity will also fund some of the capital

investments for the project. This is generally the case when the “value of the project is

not significant enough to warrant a project financing mechanism.”94

Project Finance: This is the most common, and often, the most efficient form of

financing. It generally takes form of a limited recourse lending to a specially created

project vehicle which has the right to carry out the construction and operation of the

project.

Some of the sources for potential financing could be:

Islamic Financing

Debt Contribution

Bank Guarantees/Letter of Credit/Performance Guarantees

Capital Market Financing

Intercreditor agreement

93 World Bank, Financing PPPs, http://ppp.worldbank.org/public-private-partnership/financing/mechanisms (last retrieved on 2 March

2016). 94 World Bank, Main Financing Mechnisms for Infrastructure Projects, http://ppp.worldbank.org/public-private-partnership/financing/mechanisms (last visited on 29 February 2014).

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11. PPPS IN HOUSING

Affordable housing in cities is a challenge everywhere in the world, and the Kingdom of

Saudi Arabia is no different. Housing encapsulates two powerful trends that are reshaping

trends in the Kingdom: economic competitiveness and social justice for all citizens.95

Affordable housing, in particular, plays an important role in urban efficiency and social

equity.96

It is well documented that poor urban infrastructure, in particular, housing, has a

direct correlation to rising crime levels and social unrest. Further, traditional housing is often

associated with over-emission of greenhouse gas. PPPs have the potential to solve this

problem, given the economic stagnation in the Kingdom owing to declining global oil prices.

11.1. Market Potential

Saudi Arabia is expected to see the greatest city growth in MENA with its five largest cities

expected to house additional 4.5 million people between 2010 and 2020. Therefore, the need

for low-cost, long term, sustainable and environmentally friendly housing is pressing.97

Encouragingly, PPPs in the MENA region have forayed into the housing sector. An example

is the Bahrain Affordable Housing PPP which seeks to construct 3110 social housing units

and 1000 affordable homes for low-income citizens.98

11.2. Requirements for PPP in Housing

Regulatory Policy: The government of Saudi Arabia must come out with a clear

policy on PPPs in housing with a view to make the housing affordable.

Financing: Financing represents another challenge for the government. With the

introduction of private financing through the PPP structure, this burden will

95 Ernst & Young, Housing the Growing Population, Jeddah Economic Forum 2013 Report,

http://www.ey.com/Publication/vwLUAssets/EY_-_Housing_the_growing_population/$FILE/EY-Housing-the-growing-population.pdf (last retrieved on 14 February 2016), 96 Id. 97Gulf Online, Private sector eyes low cost niche, March 2012, https://thegulfonline.com/Articles.aspx?ArtID=4342 (last retrieved on 14 February 2016), 98 James Morgan, Construction Weekly Online, Is PPP the key to affordable housing in the Gulf?, 7 November 2015,

http://www.constructionweekonline.com/article-36197-is-ppp-the-key-to-affordable-housing-in-the-gulf / (last retrieved on 14 February 2016),

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substantially reduce. However, the public entity will have to ensure that the planning

of the project is sustainable so as to bring monetary profits to the private sector.

On the other hand, the government will also have to reassess its policy of providing

credits and loans to persons from economically weaker segments of society.

Unlocking Land Supply: Equally important is the unlocking of land supply, given

that land is the biggest source of expenditure in real estate. Making available existing

land in strategic locations for development of affordable housing, and helping

increase the facilitation of development of the surrounding land in a sustainable and

environmentally friendly manner will thoroughly boost the participation of the private

sector in housing PPP projects.99

11.3. Different phases of Housing PPP projects

The implementation of PPP projects for housing is divided into several phases. The first

phase involves identification of the appropriate form on PPP structure for the project. Once

that is discussed and finalized, the procurement and tendering phase begins. The

fundamentals of this phase remain the same as all other tendering phases – emphasis on

impartiality and transparency. After this, the project is build and maintained. This simplistic

synopsis of PPPs in Housing, in practice, requires detailed economic, legal and social

analysis.

11.4. Some of the discussions at the JEF

The potential for growth of the private sector in the housing sector is substantial. The

potential to achieve various social goals of the public sector is also substantial. The match is

perfect, and the Jeddah Economic Forum will facilitate further discuss some of this topic. In

particular, the participants will discuss the following topics:

99 Indian Express, PPP Push for Urban Affordable Housing, http://indianexpress.com/article/business/business-others/a-ppp-push-for-urban-affordable-housing/ (last retrieved on 14 February 2016),

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What is the role of government in defining social and economic objective of the PPP

project?

What forms of PPPs are best suited to real estate in the KSA context?

How to ensure transparency in the bidding models and project selection guidelines for

real estate PPP? (Global best practices)

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12. PPP IN INFRASTRUCTURE

Infrastructure is an integral part of development of an economy and provides basic services

that people need in their everyday life and the contribution of infrastructure to economic

growth and development is well recognised both in academic and policy debates.100

Lakshmanan notes that:101

"A developed infrastructure provides key economic services efficiently, improves the

competitiveness, extends vital support to productive sectors, generates high productivity and

supports strong economic growth. Infrastructure covering transportation, power and

telecommunication through its forward and backward linkages facilitates growth; social

infrastructure including water supply, sanitation, sewage disposal, education and health, which are

in the nature of primary services, has a direct impact on the quality of life."

Traditionally, developing the infrastructure of a country was carried out by its

government. However, governments in most developing countries face the challenge to meet

the growing demand for new and better infrastructure services.102

As available funding from

the traditional sources and capacity in the public sector to implement many projects at one

time remain limited, governments have found that partnership with the private sector is an

attractive alternative to increase and improve the supply of infrastructure services.103

12.1. Advantages of PPP

Generally, the advantages of PPP are considered as follows: 104

100 L. Lakshmanan, Public-Private Partnership in Indian Infrastructure Development: Issues and Options, Reserve Bank of India Occasional

Working Paper, Vol. 29 N0.1, 2008, https://rbidocs.rbi.org.in/rdocs/Content/PDFs/ppp1.pdf (last retrieved on 4 February 2'016). 101 Id. 102 UNESCAP, Guidebook on Public-Private Partnerships in Infrastructure, 2011, Bangkok,

http://www.unescap.org/sites/default/files/ppp_guidebook.pdf (last retrieved on 11 February 2016). 103 Id; See also, United Kingdom, Department of Treasury, 2010 to 2015 government policy: Economic Growth in Developing Countries, 8 May 2015, https://www.gov.uk/government/publications/2010-to-2015-government-policy-economic-growth-in-developing-

countries/2010-to-2015-government-policy-economic-growth-in-developing-countries (last retrieved on 4 February 2016). 104 PPP Broad Band, 'What are the advantages in PPPs in General', http://www.ppp4broadband.eu/what-are-advantages-of-ppp-in-general.html, (last retrieved on7 February 2016).

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to remove the responsibility of funding the investment from the government’s balance

sheet;

to introduce competition;

to adopt managerial practices and experience of the private sector;

to provide better technology and scientific knowledge;

to restructure public sector service by embracing private sector capital and practices;

and to achieve greater efficiency than traditional methods of providing public

services.

Efficiency gain is the main source of sustainable public savings and, therefore the main

objective of and justification for PPP105

. In the UK, the Treasury estimates that the use of

PPPs has produced average savings of 17% to 25% over all sectors during the past 10

years.106

Most governments are drawing their decisions for PPP based on greater efficiency the

private promoter delivers in comparison to the traditional public procurement.107

Major

drivers for efficiency gains are transfer of risk to the private sector, long-term nature of

contracts, incentive structures and payment upon performance, output-oriented service

specification, competition between bidders, incorporate feedback and negotiation in the

procurement process, innovation and management skills by the private sector, and

administrative cost reduction.

For example, in Germany, the basis for the decision whether to adopt a PPP approach

or to procure the project conventionally through government resources lies in the evaluation

105 European Commission, Guidelines For Successful Public - Private Partnerships, March 2013, p. 19,

http://ec.europa.eu/regional_policy/sources/docgener/guides/ppp_en.pdf (last retrieved on 6 February 2016). 106 Graham M. Winch, Masamitsu Onishi, Sandra Schmidt, TAKING STOCK OF PPP AND PFI AROUND THE WORLD, Certified Accountants Educational Trust (London), 2012, pg. 42, http://www.accaglobal.com/content/dam/acca/global/PDF-technical/public-sector/rr-126-001.pdf

(last retrieved on 7 February 2016). 107 Michael B. Gerrard , Public-Private Partnerships, Finance and Development, IMF, Vol. 38, No.3, September 2001, Washington, http://www.imf.org/external/pubs/ft/fandd/2001/09/gerrard.htm (last retrieved on 6 February 2016).

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of the Public Sector Comparator (PSC)108

. Each PPP project is, before being tendered,

compared to traditional public sector procurement by a so called “value for money test” (or

efficiency comparison test), which comprises quantitatively a comparison of the net present

value of all cost occurred during the intended contract period, i.e. for design, construction,

finance, maintenance, operation etc. for the traditional (PSC) and the PPP option.109

12.2. Challenges to PPPs

The following are the main challenges of PPPs:

Long- Term Commitment (mainly political and economic);

Requirement for PPP Policy Framework and associated reforms;

Higher transaction cost for smaller projects;

Dominance of foreign players in PPP market;

Increase in construction costs due to limited domestic market capacity;

Introduction of user charges;

Private profit at the public’s expense;

Accountability;

Problem with financier led PPP;

Frequency of contract negotiation

Given the long-term nature of these projects and the complexity associated, it is difficult

to identify all possible contingencies during project development. Many issues may arise that

may not be anticipated in the negotiation documents or by the parties at the time of the

agreement110

. It is more likely than not that the parties will need to renegotiate the contract to

accommodate these contingencies. It is also possible that some of the projects may fail or

108 Efraim Sadka, Public-Private Partnerships: A Public Economics Perspective, International Monetary Fund, WP/06/77, Washington, https://www.imf.org/external/pubs/ft/wp/2006/wp0677.pdf (last retrieved on 7 February 2016). 109 Id. 110European Union – South East Europe –SIVA Joint Study, Common format for organizing a Public-private partnership event, 2013, http://www.burgas.bg/uploads/54d669691550775cd1a9c2570c79e1b9.pdf (last retrieved on 5 February 2016).

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may be terminated prior to the projected term of the project, for a number of reasons

including changes in government policy, failure by the private operator or the government to

perform their obligations or indeed due to external circumstances such as force majeure.111

While some of these issues will be able to be addressed in the PPP agreement, it is likely that

some of them will need to be managed during the course of the project. In assessing the

feasibility of projects, a lot of factors have to be considered, primarily the scale of the project

and the revenue generation source. In the traditional model of infrastructure development, the

end user had greater faith and trust or simply had to be at the mercy of the government. It is

to be noted that PPPs are distinct from privatisation projects. Hence, the government may be

at the liberty to transfer risk and implementation to private entities.112

However, it is still

accountable for any lapses. A thorough analysis needs to be done before any such project is

undertaken.

12.3. PPPs discussions at JEF

The main advantage of public private partnerships is the creation of value for money, which

is a collection of several factors. The most important value for money-drivers are the transfer

of risk, the output based specification, the long-term nature of contracts, the performance

measures, the increased competition and the private sector management. Other important

advantages of public private partnerships are the quicker delivery of projects, the improved

incentives to market forces, the cost efficiencies, the broad support for PPP and the improved

cost calculations by the public sectors. These are some of the broad topics that the Jeddah

Economic Forum seeks to discuss in detail.

111 Road Projects In Transition Europe, Transportation Equipment and Infrastructure Review, Euromoney Publications, 1998. 112 Arne Kaijser, Per Högselius, Erik van der Vleuten, Europe’s Infrastructure Transition: Economy, War, Nature, Palgrave Macmillan,

2005, pg. 50, https://books.google.co.in/books?id=k2mkCgAAQBAJ&dq=Road+Projects+in+Transition+Europe&source=gbs_navlinks_s, (last retrieved on 6 February 2016).

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13. PPP IN ELECTRICITY

Improvements in the electricity infrastructure will lead to energy efficiency. This will benefit

interest of the government, the private sector and the citizens. There is a constant requirement

for expansion of capacity generation and electricity sector reforms. These reforms could take

shape in the form of stronger regulatory framework. Short term solutions such as introduction

of rental power plants based PPP structures. Also, support mechanism such as feed-in tariffs

are considered important for attracting investors for renewable energy generation. This will

be particularly important considering Saudi Arabia produces 65% of its electricity from oil –

which is not a sustainable option.113

Further, the incentive systems will have to be reworked

so as to reduce strains on the national budget. Therefore, there exists a great opportunity for

the private sector to invest in PPPs in Electricity.

Some of the discussions that are set to take place at the Jeddah Economic Forum

include:

• Energy licensing procedures

• Types of energy agreements best suited for Saudi Arabia

• Market potential

• Rural Electrification

• Clean technology and energy efficiency requirements

• Who sets the tariffs?

• What are the challenges to private sector entities?

113 United States Energy Information Association, http://www.eia.gov/beta/international/?fips=SA (last visited on 29 February

2016).

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14. PPP IN WATER DESALINATION AND DISTRIBUTION

Despite being blessed with one of the most important liquid natural resource – oil, the

Kingdom of Saudi Arabia lacks abundance in another liquid natural resource – water. Indeed,

many regions in the Kingdom face severe water shortages. However, this challenge brings

with it opportunity for the private sector firms that are keen on entering into a PPP with the

government. Water production through desalination and its dissemination through

distribution systems provide international private firms specializing in water desalination

with a profitable opportunity to grow in the Kingdom.

The Kingdom already has some sterling examples of PPPs in Water Desalination. The

Shoaiba complex produces 880 million litres of water per day.114

The Al Jubail complex

produces 800 million litres per day.115

Even smaller scale water desalination projects in the

Kingdom have been achieved through PPPs. For example, the King Abdulaziz International

Airport Desalination project was a direct result of lack of water around the airport region.

Examples from other parts of the world that have successfully implemented desalination

projects include Australia and Singapore.116

Singapore: Singapore has imported water from Malaysia, with an accord signed in

1961 and 1962 to guarantee supply. In order to reduce dependency on Malaysia for

water – which supplies for half of Singapore's daily water needs, desalination is a

natural solution for Singapore. The Tuas desalination project is a successful PPP that

operates on a Build, Own and Operate (BOO) structure. It is the country's first water

desalination project and provides for 10% of Singapore's portable water demand.117

114 Government of Victoria, Desalination History, http://www.depi.vic.gov.au/water/urban-water/desalination-project/desalination-

background/desalination-history (last retrieved on 14 February 2016), 115 Id. 116 World Bank, King Adullahaziz International Airport Desalination Project. 117Abu Naseer Chowdhury Robert LK Tiong, Financing and Case Study of Singapore PPP Desalination Project, April 2011, http://www.ceci.org.tw/book/90/web/114-125.pdf (last retrieved on 14 February 2016),

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Australia: Based on a designing, building, financing, operating and maintaining

structure, the Victorian Desalination Project is a service based PPP. The agreement

between the public and private partner is 30 years and the project costed 3.5 billion

AUD.

Further, Australia also has a major seawater desalination plant that was commissioned

in Perth in 2006 and produces 130 million litres per day. A similar plant has been

developed in Adelaide and Sydney.118

14.1. Aim of the water desalination plant

Conducting due diligence for the new desalination project is important. It is possible that

refurbishing existing plants could provide for the water needed by the Kingdom. If not, then

the most cost efficient construction of a new plant should be considered. A risk assessment of

the technology should also be made. For example, it is often considered that seawater reverse

osmosis desalination is the most cost effective method of water desalination. However, a

scientific risk assessment must be introduced to evaluate if, indeed, such a method is the most

efficient method. Further, the new desalination plant must include improved reliability,

reduction in energy consumption and emissions, no thermal pollution of the sea water and

flexibility to increase capacity through modular construction.119

14.2. Transparent bidding process

Like all other PPPs, it is important to have a highly transparent bidding process. Such a

bidding process should give fair treatment to all bidders. The transparency of the process will

also increase the legitimacy and credibility of the project. The bidding process must also

118 Government of Victoria, Urban Water Desalination Project, http://www.depi.vic.gov.au/water/urban-water/desalination-project/desalination-background/desalination-history (last retrieved on 14 February 2016), 119 International Finance Corporation, PPP Impact Stories: Saudi Arabia Desalination Project, 2013,

http://www.ifc.org/wps/wcm/connect/e63d6500498390f48364d3336b93d75f/PPPImpactStories_SaudiArabia_Desalination.pdf?MOD=AJPERES (last retrieved on 14 February 2016),

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Jeddah Economic Forum 2016 – Draft White Paper

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include clear and defined expectations of the post-tender result for both public and private

entities.

14.3. Financing options and cost-effectiveness

While considering desalination technology, it is important to look at the costs: costs of

building the plant, costs associated with running the plant, costs of the water produced.120

PPPs provide a good opportunity to effectively and efficiently reduce costs owing to the

private sector expertise and competitiveness. The sharing of skill and financing of the private

sector, combined with the assets of the public sector, can achieve reduced costs. However, it

is not unlikely that desalination may not be the cheapest option. This is the case in for the El

Paso Water Utilities Plant in the United States. Nonetheless, such plants provide for

supplemental water needs of the citizens.

14.4. Discussions at JEF

Water is a necessity, and any discussions related to water bring with it some pressing

questions that are being addressed at the Jeddah Economic. These include, but are not limited

to:

Possible legal, regulatory and other challenges facing PPP projects in saline water

conversion

Communication strategy and public awareness of domestic tariffs increase and cost

recovery – Role of public and private sector

Setting realistic economic and social performance indicators to increase sustainability

of operation management

120 Water Resource Research Centre, University of Arizona, https://wrrc.arizona.edu/awr/s11/financing (last retrieved on 14 February 2016),