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17-Sep-2013  
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Chief Justice Georgina Theodora Wood has urged legal practitioners to adjust to the new legal challenges posed by the Public Private Partnership (PPP) approach to addressing Ghana’s infrastructure deficits.

She was addressing the annual general conference of the Ghana Bar Association (GBA) in Ho under the theme, “The role of the Legal Profession in developing Public Private Partnership regulatory framework for national development.”

“In effect, legal education and legal profession must appreciate, even more the relevance of and interplay between economics, finance, project financing and execution and societal needs.”

The PPP as defined by the national policy document is “a contractual arrangement between a public entity and private sector party, with clear agreement on shared objectives for the provision of public infrastructure and services traditionally provided by the public sector.”

“As Lawyers, it is imperative, that we acquaint ourselves with this Policy document,” she advised.

Chief Justice Wood said “unquestionably there will be a strong need for lawyers who understand the principles of intellectual property, contract, regulatory and tax laws that apply in the process chain.”

She urged Lawyers to acquaint themselves with the draft provisions and make relevant input before it finally becomes law.

Chief Justice Wood said there were several PPP related laws in Ghana, mostly un-coordinated, creating uncertainties and inconsistent approaches to participation by the private sector likely to “affect the appetite of private sector partners to participate in PPP projects in Ghana.”

Chief Justice Wood therefore recommended that the draft PPP law must provide for “critical issues” as the definition, objectives, and guiding principles to be followed in developing its scope and application.

She said examples of other countries must be followed by “enshrining in our laws a customized definition of PPP, crafted to meet the countries peculiar conditions”.

Chief Justice Wood suggested that other critical provisions should include the bidding process, complaints mechanism and settlement of disputes, institutional framework that establishes procedures and approvals for contracting out of PPPs.

She said form of contract and contract management, government support for PPPs and provisions for other related matters must also be considered.

Chief Justice Wood said the role of the legal profession in developing a Regulatory Framework for PPPs for national development is critical to avoiding pitfalls and creating the right conditions for its success.

She said the regulatory framework must achieve balance between the interests of both the public and private sector partners and clearly delineate the rights and obligations of each of them.

Chief Justice Wood said “PPP arrangements and contracts, including Joint Operating Agreements, between the operator and co-ventures or equity participants are very complex and effective drafting will demand highly accomplished legal expertise and a strong understanding of both general and sector-specific laws including the new P3 law under consideration.”

She said to be able to be able to measure up to the task there should be radical change to traditional focus and culture of legal education and practice.

“Consequently, legal instruction must not continue to focus solely or purely on traditional law subjects, legal rules, statutes and decided cases only but rather to bring to the fore, the economic, political, financial and social underpinnings that make legal rules and principles more relevant to society.”

Chief Justice Wood said this would require a paradigm shift in approach to legal education in order to make lawyers at ease with specialized legal documents including PPP Concession Agreements which they might consider far too technical to understand.

She said Lawyers in commercial litigation with specialized knowledge in Alternative Dispute Resolution (ADR) especially in international arbitration to make insightful contribution to the development of the PPP regulatory framework.

This is because most business men involved in capital intensive ventures and investments prefer resolving disputes through arbitration and appointment of technical experts.

Mr Nene Abayaateye, President of the GBA, said Private Public Partnerships and other forms of co-operation between the private sector and national governments have been used around the world to develop.

He said as those who help design the regulatory framework for such transactions, those who prosecute, defend and adjudicate those laws, the legal profession constitutes the lynchpin at getting the public sector regulatory framework right and assuring successful PPPs.

Mr Abayaateye said weak regulatory framework, and high levels of corruption have combined to procure many judgment debts against the state in the fourth republic.

“The root of this national canker is political and bureaucratic behavior.”

He said systems that promote transparency and accountability must be designed coupled with a commitment to deal with the corruption by those in authority.
 
 
Source: GNA
 
 

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