Domestic projects, important national projects, projects approved by the Prime Minister for investment... need to have unity to overcome the arbitrary situation among relevant State agencies and the way to implement State management of investment in the process of receiving and processing, reviewing, accepting, approving as well as monitoring the implementation and management of investment projects after investment is approved.
Second , it is necessary to clearly stipulate the focal agency to handle work to reduce the dispersion of competent agencies to handle administrative procedures related to the implementation of BOT contracts.
Third , the implementation of BOT contracts in road traffic projects is greatly affected by legal regulations on BOT enterprise regulation, because BOT contracts can only be implemented through project enterprises. The implementation of BOT contracts is always associated with the establishment, organization and operation of project enterprises. The purpose of BOT contracts in road traffic projects also means good performance results of BOT enterprises. The activities of this enterprise are regulated by the law on enterprises similar to other enterprises.
The attractiveness of a BOT road project to private sector investors depends largely on how the Government addresses business and related issues. Weak laws governing business issues in general and BOT project enterprises in particular can undermine the strength and effectiveness of BOT projects in general and road transport projects in particular.
Fourthly , in the current period, the regulations on BOT contracts and other legal regulations governing enterprises still have many inconsistent and inconsistent points. Obviously, the differences and incompatibilities between the laws and regulations guiding the implementation of issues related to BOT enterprises as presented in Chapter 2 have caused unnecessary difficulties, risks and costs for both management agencies and enterprises. Therefore, the study, review and recommendation of amendments to regulations related to BOT enterprises has become more necessary than ever.
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In order to ensure the transparency, consistency and comprehensiveness of the law, it is necessary to amend and supplement the relevant legal provisions on enterprises, specifically the following issues:
- Regarding land allocation or land lease: the land lease or land allocation regime should be unified for domestic and foreign investors investing under BOT contracts in road traffic projects to create equality among investors.
- Regarding the rights of project enterprises: Article 7 of the Enterprise Law stipulates that enterprises are allowed to do things that are not prohibited by law, however, within the scope of the project.
In a PPP project, the project enterprise is only allowed to perform tasks within the scope and purpose of project implementation. This is a lack of consistency among laws, and there needs to be specific, detailed and unified regulations for PPP project enterprises in general and BOT road project enterprises in particular. At the same time, in addition to the business rights of the project enterprise recognized by the PPP law, it is necessary to continue the research project to clarify a number of issues regarding the determination of the right to operate the project construction, which is not only a type of normal property right but a type of limited property right, existing in parallel and independently of the investor's ownership of the project construction.
Fifth, it is necessary to supplement the provisions on property ownership in which the legal assets of investors are not nationalized or confiscated by administrative measures; In case the State purchases or requisitions assets for reasons of national defense, security or for national interests, emergency situations, or natural disaster prevention and control, investors will be paid or compensated according to the provisions of the law on investment, the law on requisition and requisition of assets and the conditions agreed in the project contract. This is a very important issue, of interest to domestic and foreign investors, which has been stipulated in Article 66 of Decree 63/2018/ND-CP but is not stipulated at all in the Law on Investment in the form of public-private partnership PPP.
4.2.1.6 Research on building BOT contract model for road traffic projects
Complete the BOT contract model, specifying in detail the rights and obligations of the Government and investors, finance and taxes, design and construction, site clearance costs, operations, toll collection time, toll rates, contract settlement value, traffic flow changes, land, guarantee agreements, guarantees, design and inspection procedures, etc. The contract needs to clearly stipulate the responsibility for ensuring the quality of the project during operation and until handover to the State. At the same time, there must be a process for monitoring, dividing, transferring and controlling risks by analyzing project risks before bidding, ensuring a balance of benefits and risks are reasonably allocated to the parties involved, and eliminating confidentiality clauses in the contract.
4.2.1.7. Review, amend and supplement a number of legal and sub-law documents related to investment activities in the form of BOT contracts in the field of road traffic.
Reviewing and studying amendments to legal and sub-law documents related to investment activities under the form of BOT contracts in road traffic projects to avoid overlaps and conflicts between legal documents, it is necessary to consider and pay attention to the following contents:
Firstly , it is necessary to amend and supplement instructions and regulations to clarify financial issues such as value added tax, tax refunds, loan interest calculation, etc. Research and amend
Supplementing regulations on sanctions for violations, settlement of road traffic works, settlement of BOT contracts, specific regulations on capital source mechanisms to handle responsibilities when the state violates contracts,...
Second , it is necessary to supplement the Regulations on State financial support for projects implemented under BOT contracts such as specifying the guarantee and guarantee mechanism to avoid overly general instructions. Specify the cases and criteria for applying guarantees and guarantees based on the specific characteristics of the project to avoid difficulties for ministries and branches in meeting the conditions to be granted guarantees for BOT projects.
The study comprehensively evaluates the policy of encouraging socialization and investment in the form of public-private partnership, thereby clarifying the subjects of application of socialization in BOT, creating conditions for state agencies when deciding to apply the form of investment implementation.
Third , it is necessary to amend and supplement the Law on Public Investment and the Law on State Budget to have a flexible and quick mechanism to ensure that guarantees are financial obligations under the responsibility of the state and are implemented promptly, in accordance with international practices (to avoid the current situation where expenditures and capital allocated for projects must be estimated and planned according to procedures and processes while guarantees may arise and need to be implemented immediately and cannot wait for planning and estimating according to the provisions of the above two laws).
4.2.1.8 Overcoming inconsistencies between the provisions of the PPP Law and the Decree guiding its implementation
With the birth of the PPP Law, it can be said that up to this point, Vietnam's PPP policy in general and the contents of the financial mechanism are truly a step closer to equality and transparency. However, PPP investment is a cooperation mechanism between the State and the private sector, in which each party pursues a separate goal. Meanwhile, the design of the State's policy is a "rule of the game" proactively set by the State, reflecting the expectations that the State needs to achieve, so it certainly does not meet all the expectations of the parties.
In reality, the researcher recommends that some inappropriate contents should be revised and supplemented as mentioned in the urgent situation section of Decree No. 28/2021/ND-CP dated March 26, 2021, stipulating the financial management mechanism of investment projects under the public-private partnership method as follows:
- Article 70 of the PPP Law clearly states that the "value, progress and conditions" for disbursement of state capital participation depend on the contract. This means that the spirit of this Law is that the State participates financially in the main project construction phase to increase financial efficiency. However, according to the provisions of Clause 3, Article 8, Decree 28, state support capital is only disbursed when the volume of those construction items has been completed, and is confirmed by the agency signing the project contract.
accept, is synonymous with inequality. So to resolve this problem, it is necessary to "adjust" the regulations in Decree 28 in the direction: If the investor invests one dong, the State must also promptly disburse one dong!
- Similarly, the provisions in item b, clause 1, Article 17 of Decree 28/2021/ND-CP (on adjusting prices, fees for products, public services, adjusting contract terms as prescribed in clauses 1 and 2, Article 82 of the PPP Law) are causing a deadlock in the application of the provisions on sharing increases and decreases in revenue for the 3-component project of the North-South Expressway in the East implemented under the PPP form, pushing investors into difficulties. The amendment of this law needs to detail the application of price, fee, and contract term adjustments to what extent and when to share the increase and decrease in revenue due to the inability to increase prices, fees for products, and public services being too high and increasing throughout the project life cycle?
The PPP Law stipulates that, annually, the parties to a PPP project contract must determine actual revenue and send it to the competent financial authority to implement the mechanism for sharing increased or decreased revenue. However, Decree 28 only stipulates that the state agency signs the contract, while the enterprise is a party to the project contract. Therefore, in order to effectively implement the PPP contract and create attractiveness for project investors, the Decree needs to aim to give enterprises the right to participate in the process of determining revenue, as a basis for implementing the revenue sharing mechanism.
- An important universal rule is that PPP is a contract, different from normal investment. Accordingly, whether the state or private sector participates in negotiations, they have an equal position to achieve optimal results. This means that the more legal regulations there are, the narrower the space for the parties to self-regulate through negotiation and agreement. As a result, the interest and enthusiasm of private investors in PPP projects will decrease. Therefore, this spirit must be reflected throughout the PPP Law and the upcoming revised Decree 28.
4.2.1.9 Focus on the quality of building legal regulations on BOT contracts in road traffic
Continue to strictly implement regulations, especially new regulations such as developing policy content, assessing policy impacts, collecting opinions, and appraising policies on investment under BOT contracts. In addition, research and complete regulations and procedures for developing public-private partnership laws as well as amending relevant laws in the direction of enhancing the legal value of appraisal documents and ensuring the "ultimate" responsibility of the agency submitting the draft law. At the same time, regularly review and systematize legal documents on BOT contract regimes in general and BOT contracts in the field of road traffic in particular.
4.2.2. Group of solutions to improve the effectiveness of law enforcement on BOT contracts in road traffic projects in Vietnam
In the legal regulation mechanism, law enforcement is the second stage after the law-making stage and is an important and indispensable stage. Because the law can only promote its role and values in regulating social relations and maintaining social order when it is respected and fully implemented. Therefore, the key issue is not only the promulgation of appropriate laws but also the awareness of the rule of law in the whole society.
Similarly, the establishment of a clear, complete and transparent system of legal documents to regulate the implementation of BOT contracts and road traffic projects is a necessary but not sufficient condition. Competent State agencies need to simultaneously implement solutions to improve the effectiveness of the implementation of investment laws under BOT contracts in road traffic projects in Vietnam to ensure the development of the road transport sector.
4.2.2.1 Improving the capacity to implement the law on BOT contracts in road traffic projects in Vietnam
BOT contract law can only have the most effective impact on BOT contract relations when these legal provisions are implemented accurately, thoroughly, fairly, and transparently. No matter how strict and reasonable BOT contract law is, if it cannot be applied to real life, it is just meaningless words on paper. In other words, BOT contract law is only truly effective when it is applied in practice. The practical application of BOT contract law helps to complete BOT contract law and make it suitable for real life.
Therefore, the improvement of the law on BOT contracts in road traffic projects is only truly meaningful when there is a suitable and effective mechanism for applying the law on BOT contracts. In addition to the requirement of having a complete legal system on BOT contracts, in order to apply the law on BOT contracts accurately and effectively, it is necessary to improve the capacity to apply the law on BOT contracts in practice. Specifically, it is necessary to implement a number of comprehensive solutions as follows:
Firstly , the competent State agency when negotiating, signing, approving and supervising the implementation of BOT contracts in general and in road traffic projects must be independent, objective and not influenced by political pressure from investors and other public service providers.
Second , it is necessary to educate those who implement and apply the law on BOT contracts in practice and to respect and comply with the law in general and the law on BOT contracts in the field of road traffic in particular.
Third , legal procedures related to all stages of the BOT contract from project formation, investment selection, negotiation, bargaining, to signing and implementing the BOT contract must be public. Administrative decisions of relevant agencies must clearly state the basis for making decisions and must be publicly announced to the public or made easily accessible to the public through mass media or other forms.
Fourthly , the law on BOT contracts must establish transparent procedures under which investors have the right to complain or sue the decisions of State administrative agencies. At the same time, the law must also clarify the legal basis as well as the related procedures for implementing such complaints and lawsuits. Fifthly , improving the qualifications and ethics of experts participating in negotiating and signing BOT contracts of competent State agencies to help them grasp the principles of applying the law on BOT contracts, that is, choosing appropriate legal regulations on BOT contracts and analyzing and clarifying the content and meaning of legal regulations on BOT contracts in the field of road traffic for
where applicable.
4.2.2.2 Closely combine the leadership of the Party and the government
Raise the determination and enhance the coordination capacity of the entire political system through the proactive participation of the National Assembly, the Government, Ministries, branches, National Assembly delegations, People's Councils and People's Committees at all levels in the work of supervision, propaganda, and improvement of management policies in the field of BOT contract investment in road traffic projects. Synchronously build a complete legal framework, suitable for practice, transparent and convenient in project implementation, while ensuring the harmony of interests between the State, investors, enterprises and people when implementing BOT projects in particular, and the PPP form in general, in accordance with international practices.
4.2.2.3 Legal education and professional skills training for cadres and civil servants with the duty and authority to apply the law.
It can be said that the application of law is a specific activity carried out by competent state agencies. Therefore, the team of state officials and civil servants are the ones who directly apply the law. The regulations governing BOT contracts and road traffic are closely related to officials and civil servants of ministries, departments of transport, planning and investment, finance, the Vietnam Road Administration and a number of other state agencies. To improve the effectiveness of law enforcement in BOT projects and road traffic projects, it is necessary to focus on strengthening legal education and training for officials and civil servants in these units.
The quality and effectiveness of law enforcement activities of this team depends largely on their level of knowledge, legal understanding and professional skills. In many
The main causes of the limitations and errors in the application of law in our country today are the lack of legal knowledge, the lack of proactive updating of legal documents and the weak professional skills of the cadres and civil servants with the authority to apply the law. Therefore, strengthening legal education and fostering professional skills for the cadres and civil servants with the authority to apply the law is an extremely important measure that must be carried out regularly, continuously, with focus and key points in each stage and each specific field.
Legal education for the team of competent state officials and civil servants must have a clear annual orientation and plan, organized and implemented through specific methods and mainly in the form of short-term training and legal training to provide this team with an overview of legal issues in general and specific laws related to the field of BOT road traffic.
In addition to updating legal documents on road projects and BOT contracts, legal training and refresher courses need to include exchanges, discussions, and Q&A to clarify issues related to law application, provide specific and practical examples to help officials and civil servants understand correctly and deeply related issues, improve their ability to understand and flexibly apply the law, thereby protecting the rights and legitimate interests of relevant parties.
The legal education system is always a unified entity between the elements: purpose, objectives, subjects, objects, contents, methods and forms of legal education. Legal education activities for the team of state officials and civil servants with the authority to apply the law are activities specifically for a specific group of subjects, so it has certain specific characteristics. Therefore, in addition to complying with the general requirements of the legal education process in general, strengthening legal education for the team of state officials and civil servants with the authority to apply the law requires [44]:
Regarding the purpose, legal education for the team of state officials and civil servants with the authority to apply the law on BOT contracts in road traffic must aim to equip them with in-depth legal knowledge in related specialized fields, suitable to the title and authority to apply the law of each person, and strengthen the law application skills of this team.
Regarding the objectives: objectives are the concretization of the purpose of legal education. The objectives of legal education regulating BOT contracts, PPP investment, and road traffic projects need to be expressed in three aspects, including cognitive objectives, skills objectives, and emotional objectives.
The goal of awareness is achieved by regularly strengthening and improving the level of knowledge and understanding of specialized laws for the team of state officials with the authority to apply the law.
Skills goals are achieved through regular improvement and enhancement of professional skills in law enforcement.
The emotional goal is to form and strengthen trust in the law, especially trust in the fairness and strictness of the law.
Regarding the subject: the subject of legal education for state officials and civil servants must be qualified officials, lecturers, and legal experts with knowledge of BOT contracts, investment in the form of public-private partnerships, knowledge of road traffic projects, practical experience, and good pedagogical skills.
Regarding the subject, legal education for the team of state officials with the authority to apply the law: this is a special subject, they are the people who directly apply the law, in addition to the leaders and civil servants who are very busy with management and operation work. With such a specific subject, it is necessary to choose flexible and diverse training methods to suit.
Regarding content: in addition to general legal knowledge information, legal education content for state officials with the authority to apply the law needs to focus on specialized legal issues regulating BOT contracts, PPP cooperation, road traffic projects such as the PPP Law, Decrees guiding the implementation of the PPP Law... In addition, the subject of legal education needs to pay special attention to equipping knowledge about professional skills in applying the law for state officials with the authority to apply the law.
Regarding methods: it is necessary to select and combine many methods to ensure that the lectures are attractive, engaging, and lively. During the teaching and training process, questions and answers, specific legal situations and events related to the application of specialized law can be raised so that students can contribute their opinions and discuss to clarify the issue. The method of legal education must also aim to train the team of civil servants with the authority to apply the law in practical skills of applying the law in practice.
Regarding the form: should focus on the basic forms of legal training, aiming to equip legal knowledge about newly issued, amended and supplemented legal documents. Legal knowledge training aims to supplement, re-equip, and update this team of civil servants with specific and practical legal knowledge in law enforcement activities.