The USA Journals Volume 03 Issue 04-2021
10
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 11, 2021 |
Pages:
10-15
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-02
I
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2021:
5.
952
‘
ABSTRACT
In this article, the author examines the problems of defining public-private partnership (PPP) from the
point of view of the international theory and the experience of the Republic of Uzbekistan in this area.
The views of foreign theorists, relevant international organizations, and scientists of the Republic of
Uzbekistan regarding the term PPP are studied in detail. The author analyzes the relationship of PPP
with the civil law contract and administrative law and concludes that the PPP agreement is classified
as an unnamed contract in the Civil Code of the Republic of Uzbekistan. In conclusion, the author gives
a proposal for improving the legislation of the Republic of Uzbekistan in the field of PPP.
KEYWORDS
Public-private partnership, PPP agreement, public partner, private partner, infrastructure, financing.
INTRODUCTION
The
term
public-private
partnership
(hereinafter PPP) has been formed relatively
recently. M. Marsilio, G. Cappellaro and C.
Cuccurullo argue that PPP does not have a
single meaning at its core and that "there is no
basic concept of PPP" [1]. G. A. Hodge and C.
Public-Private Partnership In The Republic Of Uzbekistan:
Foreign
Theory And Problems Of Defining The Regulatory Sector
Bakhtiyor Kayumov
Head Of The Department Of The Academy Of The General Prosecutor’s Office Of The Republic
Of Uzbekistan, Phd Student Tashkent State Law University, Uzbekistan
Journal
Website:
http://usajournalshub.c
om/index,php/tajpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 11, 2021 |
Pages:
10-15
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-02
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2021:
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Greve believe that the term PPP has been used
in several areas of activity, ranging from health
services and joint ventures to the provision of
public infrastructure [2]. One of the most
popular and constantly reinforced values of
PPP today is the provision of public
infrastructure using both public and private
efforts.
The PPP itself is a huge family, and there are
many definitions. A. Vives,
J. Benavides, and A. M. Paris, on the one hand,
argue that since almost all public infrastructure
projects involve the public and private sectors
in one way or another, "all projects are
therefore public-private partnerships" [3].
However, more narrow views were put
forward by Van Ham and J. Koppenjan,
according to which infrastructure PPPs can be
defined as "cooperation between public-
private entities, in which they jointly develop
products and services and share the risks, costs
and resources associated with these products
and services" [4]. M. J. Garvin and
D. Bosso emphasized the multi-year nature of
the relationship and the specific use of private
finance when they defined PPPs as "a long-
term contractual arrangement between the
public and private sectors in which mutual
benefits are sought and where ultimately (a)
the private sector provides management and
operational services and / or (b) exposes
private finance to risk" [5]. G. A. Hodge and C.
Greve similarly noted the key characteristics of
today's infrastructure PPPs, such as a
preference for private financing, complex
contracts through a consortium, and new
assumptions
about
accountability
and
governance [6].
THE MAIN FINDINGS AND RESULTS
The World Bank Group points out that PPP is a
mechanism that allows the state to purchase
and implement public infrastructure and / or
services using the resources and experience of
the private sector. Where the state is facing an
aging or lack of infrastructure and needs more
efficient services, partnering with the private
sector can help find new solutions and attract
funding [7]. This group offers a universal
definition of PPP – "a long-term contract
between a private party and a public
organization for the provision of a public asset
or service, in which the private party bears
significant risk, and the responsibility of
management and remuneration are related to
the results of activities" [8].
In the Republic of Uzbekistan, PPP is
understood as "a long-term contract between
the parties from the public and private sector,
concluded for the development, construction,
financing and operational management of the
state infrastructure by party from the private
sector" [9]. So H.N. Usmanov defines PPP as an
institutional
and
organizational
alliance
between the state and business for the
implementation of socially important projects
and programs in various industries, research,
and the service sector, which defines a model
of
long-term
and
mutually
beneficial
cooperation between the state and business to
solve socially important problems.
In the Republic of Uzbekistan, PPP is mainly
implemented in the field of energy, utilities,
transport, health, education, culture, and
tourism. According to the Agency for the
Development of Public-Private Partnership
under the Ministry of Finance of the Republic
of Uzbekistan [10], the largest projects with a
larger amount of costs fall on the energy and
The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
April 11, 2021 |
Pages:
10-15
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-02
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transport
sectors.
For
example,
the
construction of a new thermal power plant in
the Syrdarya region with a capacity of 1,500
MW (initiated by "The International Company
for water and power projects" Saudi Arabia)
attracted $ 1,170 million for a period of 25 years,
another example is the project for the
construction of a solar photo power plant with
a capacity of 400 MW in the Samarkand region
(initiated by the Ministry of Energy of the
Republic of Uzbekistan) – $ 400-440 million for
a period of 25 years. In the field of transport –
construction of the Tashkent-Samarkand toll
road (initiated by the Ministry of Transport of
the Republic of Uzbekistan and the Committee
of Highways) with a length of 290 km for 30
years and a cost of $ 1 billion, construction of
the Tashkent-Andijan toll road (initiated by the
Ministry of Transport of the Republic of
Uzbekistan and the Committee of Highways)
with a length of 340 km for 49 years and a cost
of $1 billion.
In the energy sector, 5 PPP agreements were
concluded in the Republic of Uzbekistan during
2020:
1.
With the company "Masdar" (UAE) on the
construction of a solar photo power plant
with a capacity of 100 MW in the Navoi
region;
2.
With the company "Total Eren" (France)
about the construction of a solar photo
power plant with a capacity of 100 MW in
the Samarkand region;
3.
With the company "Acwa Power" (Saudi
Arabia) on the construction of a thermal
power plant with a capacity of 1,500 MW in
the Syrdarya region;
4.
With the company "Akşa Enerji" (Turkey)
on the construction of a 240 MW thermal
power plant in the Tashkent region;
5.
With the company "Masdar" (UAE) on the
construction of a wind power plant with a
capacity of 500 MW in the Navoi region.
In the field of energy and healthcare in the
Republic of Uzbekistan, according to the
Agency, major projects are in most cases
proposed by foreign private initiators (Saudi
Arabia, France, Turkey, the United Arab
Emirates). And although the PPP Law provides
for a minimum period of 3 years for a PPP
agreement, projects, according to the Agency,
are implemented for a period of at least 10
years.
Three parties benefit from the above PPP
agreements: (1) The Republic of Uzbekistan –
saves the budget and receives an updated /
new infrastructure; (2) the private partner-
invests their money in the form of investments
and receives a profit; (3) the consumer-gets the
opportunity to use high-quality infrastructure.
In our opinion, PPP relations are regulated by a
civil contract.
The name of the act itself, which is the basis for
PPP, is defined in the Law of the Republic of
Uzbekistan "On Public-Private Partnership
"(hereinafter-the Law on PPP) as a "PPP
agreement". Based on articles 4 and 5
(principle of equality of the parties) It can be
concluded that the PPP does not apply
administrative forms of management (there is
no authority and subordination), which speaks
in favor of civil law regulation of PPP.
PPP is considered as a cooperation between a
public and a private party to achieve a socially
useful goal, where each party has a certain
amount of rights and obligations, and the main
issue of regulation is the property relationship,
which also confirms the importance of civil
legislation in PPP. That is, it is appropriate to
The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
April 11, 2021 |
Pages:
10-15
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-02
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consider a PPP agreement as a type of civil
contract.
However, the Civil Code of the Republic of
Uzbekistan (hereinafter referred to as the Civil
Code of the Republic of Uzbekistan) does not
provide for this type of agreement as a
contract. Here we can safely use the provisions
of Article 354 of the Civil Code of the Republic
of Uzbekistan (the principle of freedom of
contract), and note the possibility of
concluding a contract by the parties and not
provided for by law. For example, D. A.
Samovolov notes that the PPP agreement is an
independent civil law contract, which refers to
unnamed contracts [11].
In the Russian Federation, the Federal Law "On
Public-Private Partnership, Municipal-Private
Partnership in the Russian Federation and
Amendments to Certain Legislative Acts of the
Russian Federation" explicitly states that a PPP
agreement is a civil contract (Article 3 of the
Federal Law on PPP). And it was the
clarification of this provision in the Federal Law
that put an end to the numerous disputes of
theorists about the attribution of this
agreement to an administrative-legal contract
or to a civil-legal one.
In addition, the clarification of the above
provision will provide an additional guarantee
for the protection of the rights of the private
partner from the administrative form of
management.
But there is a question about the name of the
act – the PPP agreement. Why do we not use
the traditional and frequently used term
contract when regulating legal relations
between a public and a private party? In PPP,
both parties strive to achieve a socially useful
goal, that is, their interests are directed in one
direction, although the private partner is
interested in getting benefits from this
cooperation, and the public partner is
interested in saving their budget. It is
impossible not to agree with A. A. Demin [12],
who argues that the contract is usually aimed
at agreeing on counterclaims to meet their
needs (the goal is to buy, sell, rent), while the
agreements are aimed at organizing general,
rather than counter – actions. Agreement is a
multi-faceted term that can be used in
everyday life, as well as in legal science and law
enforcement practice. In civil law, there are
two main provisions of an agreement: (a) as a
type of agreement or " mutual consent»; (b)
the form of expression of the agreement or
mutual
agreement
reached.
The
PPP
agreement refers to paragraph (b), since
before the conclusion of the PPP agreement
itself (form of expression), the parties
negotiate, reach mutual agreement.
In developed countries, this type of contract is
referred to in different ways: PPP agreement,
PPP agreement, PPP contract, contract
agreement. But in most cases, it is the PPP
contract that is used. The latter term is used by
The World Bank Group [13], while the United
Nations Economic and Social Commission for
Asia and the Pacific (ESCAP) uses the term
contract agreement [14]. The term "PPP
contract" refers to contractual documents that
govern the relationship between public and
private parties in a PPP. These documents set
out the rights and obligations of the parties,
talk about the distribution of risks and
mechanisms for responding to changes. In
practice, a "PPP contract" may include several
documents and agreements.
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CONCLUSION
Thus, it is proposed to amend article 3 of the
Law of the Republic of Uzbekistan "On state-
private partnership" concept as follows:
"the agreement on public-private partnership
is a civil contract between a public partner and
a private partner, concluded for a period of not
less than three and not more than forty-nine
years old, in the manner and on the conditions
provided by this act."
REFERENCES
1.
Marsilio M., G. Cappellaro, and C.
Cuccurullo. 2011. “The Intellectual
Structure of Research into PPPs.”
Public Management Review 13 (6):
763–782.
doi:10.1080/14719037.2010.539112.
2.
Nodirov, D. (2020). ENSURING THE
SUPREMACY
OF
LAW
IN
THE
DEVELOPMENT OF AGRICULTURE IN
UZBEKISTAN. European Journal of
Molecular & Clinical Medicine, 7(8),
1414-1418.
3.
Hodge G. A., and C. Greve. 2017.
“Private Finance: What Problems Does
It Solve, and How Well?” In the Oxford
Handbook
of
Megaproject
Management, edited by B. Flyvbjerg,
362–388. Oxford: Oxford University
Press.
4.
Nodirov, D. (2020). Issues of improving
prosecutorial
control
over
the
implementation of legislation in the
field of agriculture and food. European
Journal of Molecular & Clinical
Medicine, 7(2), 663-670.
5.
Vives A., J. Benavides, and A.M. Paris.
2010. “Selecting Infrastructure Delivery
Modalities: No Time for Ideology or
Semantics.” Journal of Construction
Engineering and Management 136:
412–418.
doi:10.1061/(ASCE)CO.1943-
7862.0000113.
6.
Nodirov,
D.
(2020).
Enhancing
prosecutorial
control
over
the
implementation of legislation in the
agricultural
and
food
sectors.
ACADEMICIA: AN INTERNATIONAL
MULTIDISCIPLINARY
RESEARCH
JOURNAL, 10(12), 1072-1077.
7.
Ikromovich, N. D. (2020). The legal
basis for assigning responsibilities to
the prosecutor’s office in ensuring
control over the implementation of
legislation in the agricultural sector in
Uzbekistan.
ACADEMICIA:
AN
INTERNATIONAL MULTIDISCIPLINARY
RESEARCH JOURNAL, 10(12), 1058-
1064.
8.
Van Ham H., and J. Koppenjan. 2001.
“Building public-private partnerships:
Assessing and Managing Risks in Port
Development.” Public Management
Review
3
(4):
593–616.
doi:10.1080/14616670110070622.
9.
НОДИРОВ, Д. (2020). ЎЗБЕКИСТОН
Қ
ИШЛО
Қ
ХЎЖАЛИГИНИ
РИВОЖЛАНТИРИШДА
Қ
ОНУН
УСТУВОРЛИГИНИ
ТАЪМИНЛАШ.
ЮРИСТ АХБОРОТНОМАСИ, 1(4), 44-
49.
10.
Garvin M. J., and D. Bosso. 2008.
“Assessing
the
Effectiveness
of
Infrastructure
Public-Private
Partnership Programs and Projects.”
Public Works Management & Policy 13:
162–178.
doi:10.1177/1087724X08323845.
The USA Journals Volume 03 Issue 04-2021
15
The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
April 11, 2021 |
Pages:
10-15
Doi:
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I
MPACT
F
ACTOR
2021:
5.
952
11.
Hodge, G.A., and С. Greve. 2017.
“Contemporary
Public-Private
Partnership:
Towards
a
Global
Research
Agenda.”
Financial
Accountability and Management 1–14.
doi:10.1111/faam.12132.
12.
Nodirov, D. (2020). ENSURING THE
SUPREMACY
OF
LAW
IN
THE
DEVELOPMENT OF AGRICULTURE IN
UZBEKISTAN. European Journal of
Molecular & Clinical Medicine, 7(8),
1414-1418.
13.
https://ppp.worldbank.org/public-
private-partnership/about-public-
private-partnerships (Date accessed
21.02.2021).
14.
https://pppknowledgelab.org/guide/se
ctions/3-what-is-a-ppp-defining-public-
private-partnership (Date accessed
21.02.2021).
15.
Usmanov
Kh.N.
Public-private
partnership: foreign experience and
development prospects in the Republic
of
Uzbekistan.
"Iktisodiet
va
innovation
technologiyalar"
ilmiy
electron journal. No. 5, September-
October 2015.
16.
Projects. https://pppd.uz/ru/projects-
custom (Date accessed 22.03.2021).
17.
Samolovov D.A. Agreement on public-
private partnership as a civil contract //
Property relation in the Russian
Federation. 2015. No. 8 (167). pp. 21-30.
18.
Demin A.A. Contract and agreement:
correlation of concepts. Bulletin of the
V.N. Tatishchev Volga State University,
No. 2 (78), 2013, pp. 25-34.
19.
https://ppp.worldbank.org/public-
private-partnership/standardized-
agreements-bidding-documents-and-
guidance-
manuals#:~:text=What%20is%20a%20PP
P%20Contract,mechanisms%20for%20d
ealing%20with%20change.
(Date
accessed 20.03.2021).
20.
https://www.unescap.org/ttdw/ppp/p
pp_primer/module_7__contract_
agreement_contract_management
_and_ dispute_resolution.html (Date
accessed 20.03.2021).
21.
Ikromovich, N. D. (2020). The role of
prosecutor’s offices in the observance
of the norms of legislation in the
effective use of land and water
resources.
ACADEMICIA:
AN
INTERNATIONAL MULTIDISCIPLINARY
RESEARCH JOURNAL, 10(12), 1323-1327.
