민간투자사업에 있어서 법령변경에 따른 위험과 그 배분

Allocation of Risk in case of Change in Law on PFI Projects - Focusing on PFI Projects in Korea and UK -

The PFI(Private Finance Initiative) Contractor must comply with all the applicable laws to the PFI projects. Its failure to comply with such laws could give rise to termination of the PFI contract. The costs of complying with legislation, current or foreseen at the time of the conclusion of the contract, should have been built into the price of the PFI project bids. Nevertheless, the PFI Contractor may not, for example, be capable of assessing some specific costs arising from changes in law which were not foreseeable prior to the conclusion of the contract, and adding such costs to its bid price. Accordingly, the concerning issues are who should be responsible for the costs arising from changes in law, and how such costs should be funded. In case of PFI projects in the United Kingdom, the 'Standardisation of PFI Contracts (HM Treasury)' categorizes the risk of change in law into three: 'Discriminatory Change in Law,' 'Specific Change in Law,' and 'General Change in Law.' Who bears the risk is different in these three categories. In case of the first two cases, the Authority, that is, government agencies related to the projects, bears the risk while the risk caused by the third case (General Change in Law) will be borne by the PFI contractor. It is noteworthy that the UK's allocation of risk is closely related to other method of risk avoidance. Therefore, the UK's indexation, benchmarking, and market testing provisions for risk allocation will be exemplary methods in order to cushion any adverse impact of the risk of change in law. In contrast, the Korean Act on Private Participation in Infrastructure which applies to PFI projects fails to have any specific provisions in risk allocation or transfer like those of the UK. The Korean 'Standardisation of PFI Contracts (PIMAC)' contains some provisions on total project costs, operating costs, and force majeure event, but fails to provide any specific differentiation in case of different risk in change of law like UK. The main feature of the PFI projects is how to share the risk in performing the projects between Authority and PFI Contractor. The best way to share risk is to allocate risk between the two parties in a reasonable way, and to minimize the costs for the two. The adequate allocation of risk will result in the successful performance of PFI projects.