ЮРИДИЧНЕ РЕГУЛЮВАННЯ ВІДНОСИН У СФЕРІ УПРАВЛІННЯ ПРОЕКТАМИ ПУБЛІЧНО-ПРИВАТНОГО ПАРТНЕРСТВА У СВІТІ

Abstract

Background. This article is devoted to the researching of PPP’s projects management models (world experience) and development of ways concerning settlement of management’s legislative problems. Methods. Methodological basis of the research is a set of theoretical and methodological means of comprehension of social phenomena and processes, which is predetermined by the purpose and peculiarities of the problem under study, as well as the general principles of scientific knowledge, approaches and methods traditionally related to the methodological apparatus of the humanities. As a result, the methodological basis of the study included methods as follows: dialectical, formal-logical methods, the method of legal comparison, the method of system analysis, the method of legal modeling, the interdisciplinary method of legal research and some others. With the help of the dialectical method, the peculiarities of the PPP projects legal nature were researched. The formal-logical method facilitated in studying of legal regulation of PPP models, the justification of the directions and prospects for their further settlement. The method of legal comparison was used for the comparative characteristic of the PPP projects implementation in Ukraine and in foreign countries such as Canada, Austria, Belgium, Argentina, Mexico and others. Application of the method of system analysis allowed to consider specific elements of PPP legal relations comprehensively and objectively, to distinguish the problems of legal regulation and to develop ways of their solution. The methods of legal modeling and the interdisciplinary method of legal research were used to develop draft of relevant legal acts, definition of PPP project etc. Results. The necessity of the development and adoption of the special codified Law – the Code of PPP relations is substantiated, also the Typical structure of this Code is proposed. An international practice of PPP projects realization is analyzed and the necessity of the advanced world experience’s implementation in the field of PPP is proved. Besides the Code should contain legal provisions concerning the most prevalent models of PPP as follows: BOT (Build – Operate-Transfer), DBFO (Design – Build – Finance – Operate), Concessions of different types (including commercial concessions), public procurements and so on. It is substantiated that the sponsors or creditors are mandatory participants of PPP projects in most cases. So it must be implemented so-called “the right to intervene” into PPP project for such members. Also the author describes peculiarities of this right’s implementation. Financial balance of PPP project should be the basic element of PPP agreement in any case. With that when choosing the type of PPP project’s financing (carried out by the public sector or private), the key role is played by the fact in which case the “value for money” ratio will be optimal. The procedure of private partner’s choosing must be unified independently of PPP direction (concessions, public procurements etc.). Also it is proved that under the PPP projects (corporate form) realization there is strong need to use special economically-operative technologies, for instance, public buyout of shares by a public partner of a company established by private individuals, that is, the organization of a “special purpose” company. In particular, after winning a concession (obtaining a concession), the concessionaire will have the right to establish the appropriate company with the status of a legal entity that will act with the same functions and the purpose of which will be to achieve the same results. In this case, the mode of obtaining international grants or payments by such a company, the rules of liability of shareholder partners and investor shareholders, the relationship of the company with credit institutions (in particular, banks) should be fixed. Also the author proposes the definition of PPP project, highlights international experience in commercial/innovative PPP projects realization, particularities of PPP agreement and so on. Conclusions. Currently, the PPP in the areas of infrastructure networks’ construction and operation, also in areas of public services is developing rapidly and is of increasing interest in the world. However, the absence of a sufficient scientific study of a specific PPP project’s implementation significantly slows down this development. Taking into account the foregoing, the conducted scientific study of the issues covered in this paper allows us to assert the relevance and practical necessity of making scientific articles on the topic of PPP.