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Project Finance
Project Finance
Jurisdictional Comparisons
Series:  The European Lawyer Ref Series
ISBN:  9780414025578
Published by:  Sweet & Maxwell
Publication Date:  07 Nov 2012
Subscription Information:  Non-Subscribable Product
Format:  Hardback
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PRODUCT DESCRIPTION

Project Finance includes contributions from leading practitioners who are experts in the field of project finance:

  • Reader friendly Q & A allowing for easy cross jurisdictional- analysis,
  • Point of reference for global practitioners, legal advisors and corporate counsel
  • In-depth analysis of the regulatory and structuring issues and solutions often encountered in project finance transactions
  • Assists in the understanding of the diversity of risks associated with project finance transactions and the consequential managing of those risks
CONTENTS

Questions covered in author Q&A:

1. Introduction and Legal Framework

1.1 Please provide a brief history of project finance in your jurisdiction and describe its present day importance. 
1.2 An overview of the legal framework
1.3 Public-Private Partnership legislation

2. Regulatory Considerations

2.1 Is there a history of State ownership or repatriation of assets in your jurisdiction?   
2.2 Do any specific laws apply to govern foreign investment in your jurisdiction?  Are any limitations or prohibitions placed on foreign investment?
2.3 What environmental, health or safety laws or regulations apply to projects?  What regulatory administer those laws and what are their powers?
2.4 What governmental approvals are required for project transactions and what fees are payable as a result?  Are there any filing or registration requirements required in respect of any of the project documents with any governmental bodies? 

3. Structuring the deal, investment and exit considerations

3.1 What legal form do project companies typically take and what are the principal considerations behind the choice of such form when compared to alternatives?
3.2 Are there any regulations/rules relating to the permitted ownership of a project company?
3.3 Who are the main investor classes in project finance transactions and what sources of finance are typically available?
3.4 What is the usual governing law for any of the project contracts or financing agreements?  Is it enforceable for a party to submit to the laws of a foreign jurisdiction?  If the state were to enter into a waiver of immunity would it be enforceable?
3.5 Title to assets
3.6 Regarding insurance arrangements, are there any considerations in respect of insurance policies provided by foreign companies?  What costs exist in respect of such policies?  Can the proceeds be payable to persons, such as foreign creditors, other than the local project company?
3.7 Are workers from outside the jurisdiction permitted to work on a project?  Do any restrictions apply?
3.8 Regarding the equipment required for use on the project, are there any importation restrictions?
3.9 Are there any restrictions relating to foreign investment in a project company, such as restrictions relating to the payment of dividends, or repayment of shareholder loans from a project company to its foreign parent? 

4. Taxes, Duties, Charges and restrictions on the movement of monies

4.1 Please describe any specific tax incentives available to foreign investors relating to their investment in any particular projects?  Are any fees, taxes or other charges payable in respect of such investment in a project company?4.2 What taxes, duties or royalties are payable in respect of the extraction of minerals or other natural resources?  What is the basis of the charge?
4.3 Are there restrictions, fees or taxes relating to the export of minerals or natural resources?
4.4 Are project companies required to repatriate foreign earnings?  If so, do they need to be converted to local currency or are there any other restrictions in place over their use?
4.5 Are there any restrictions on project companies setting up and using foreign currency accounts, both in the jurisdiction and outside?
4.6 Are there any foreign treaties that assist a foreign entity investing in a local project company?

5. Security and enforcement considerations

5.1 What types of security are available?
5.2 Can a lender assure the priority of its security interest over any competing security interests?  Please describe any limitations or exclusions that may apply to such a lender gaining priority.
5.3 How are security interests perfected?  Are any fees or other charges payable and how can their cost be minimised? 
5.4 Does the law permit an agent or a trustee to hold security on behalf of a group of lenders?
5.5 What steps or other formalities are required in order for a lender to enforce its security?  How long will such proceedings take?
5.6 Can a lender foreclose or appropriate against an asset?  Please describe any restrictions that apply? 
5.7 Please describe how any form of bankruptcy proceedings affects a lender’s ability to enforce its security rights over a project company’s assets?  Do any preferential creditor rights apply?  Are court proceedings required in order to be able to seize an asset and if so how?
5.8 Are there laws governing contracts which the local courts will not recognise?
5.9 Do local courts recognise and uphold international arbitration provisions?  Please also describe any exceptions. 

6. Current Topics

CONTRIBUTOR INFORMATION

Jurisdictional Coverage:

1. Angola AVM ADVOGADOS
2. Australia Minter Ellison
3. Beijing Grandall Law Firm
4. Brasil Mundie e Advogados
5. Canada Fasken Martineau
6. Germany HEUKING KÜHN LÜER WOJTEK
7. Iraq Newton & Partners LLP
8. Italy CRW & Partners
9. Japan Atsumi & Sakai
10. Kazakhstan Grata
11. Korea Lee & Ko
12. Mozambique Taciana Peão Lopes
13. Netherlands AKD
14. Nigeria Templars
15. Qatar Sultan Al-Abdulla & Partners
16. Thailand Weerawong, Chinnavat & Peangpanor Ltd.
17. UAE Afridi & Angell
18. UK Fasken Martineau

EDITORS & EDITORIAL BOARD

Michael Wallin
Combined with top tier international experience, Michael Wallin draws on substantial expertise in corporate finance, private equity, mergers and acquisitions and outsourcing.

He advises on wide range of corporate matters, focusing on cross border mergers, acquisitions and disposals, private equity investments, joint ventures and venture capital work. Michael is also experienced in advising clients in connection with significant outsourcing transactions.

Recognised as the 'ideal lead counsel for a cross-border transaction' and commended for his 'responsive and practical' advice in the Legal 500 2011, Michael offers real-time Australian legal assistance to clients and law firms throughout the UK and Europe from Minter Ellison’s London office.

Michael is a Registered Foreign Lawyer in England and Wales.

Stuart Hills
A Partner at Fasken Martineau LLP and is a member of the Banking and Finance Group.
Stuart regularly represents corporate clients, financial institutions and private equity sponsors. His experience includes syndicated loans, leveraged finance, restructurings, project and infrastructure finance and acquisition finance. He has extensive experience in cross border and domestic transactions.
Stuart has previously been a partner at a US law firm in London having been a senior lawyer at Freshfields Bruckhaus Deringer and prior to that a banker with Standard Chartered Bank.

Andrew Thomas 
A Partner and Head of Banking & Finance at Fasken Martineau LLP. Andrew is also a member of the Global Energy Group.
Andrew has extensive experience in all forms of finance including syndicated debt, acquisition and real estate finance, Shariah compliant financings with a particular emphasis on project finance.
Andrew's extensive experience spans globally across the Middle East, Asia, Europe, Africa, and North and South America.

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