PPP Policy
The Caribbean is home to two legal systems — Common Law and Civil Law. Countries following a common law system are typically those that were former British colonies or protectorates. Emerging market countries following civil law systems are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates. In the Caribbean the civil law jurisdictions are Suriname, Haiti, Dominican Republic, and the Dutch overseas territories. The civil law system is a codified system of law. Features of a civil law system include: • • •
There is generally a written constitution based on specific codes enshrining basic rights and duties; Only legislative enactments are considered binding for all. There is little scope for precedent or judge-made law in civil, criminal and commercial courts; and Less freedom of contract — many provisions are implied into a contract by law and parties cannot contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system. However, a government under either system will still need to consider whether specific PPP legislation is required in order to facilitate a successful PPP programme. There are a number of provisions implied into a contract under the civil law system — less importance is placed on setting out all the terms governing the relationship between the parties in the contract itself, as ambiguities can be remedied or resolved by operation of law. This will often result in contracts being shorter than in common law countries. In civil law jurisdictions, certain forms of infrastructure projects may be referred to by well-defined legal concepts. For instance, concessions and affermage have a definite technical meaning and structure to them that may not be understood or applied in a common law country.17 Whether or not a country requires a PPP law depends on the government’s political environment and legal tradition. PPP laws are more common in civil law countries than in common law countries. In Latin America, for example, all of the governments with successful PPP programmes have passed PPP and/or concession laws. In common law countries, public officials are generally permitted to take any actions that are not expressly prohibited by law. In civil law countries, however, public officials typically rely on highly prescriptive procedures, which often must be codified into law. Textbox 2.2 provides additional considerations in determining whether to introduce a PPP law.18 Experience in Jamaica shows that PPPs can be delivered in the Caribbean with only a PPP Policy and PPP Manuals and Guidelines in place.
For more information on how PPPs may be treated by common or civil law jurisdictions, refer to the World Bank’s PPP in Infrastructure Resource Center (PPPIRC), accessible at: http://ppp.worldbank.org/public-private-partnership/legislation-regulation/framework-assessment/legal-systems/common-vs-civillaw#Common_Law_System. | 18 For additional information on the advantages and disadvantages of introducing a PPP Law, refer to: “Developing a Public-Private Partnership Framework: Policies and PPP Units,” PPIAF and Castalia Advisors, May 2012, Accessible at: http://castalia-advisors.com/files/ note-four-developing-a-ppp-framework.pdf 17
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| Caribbean PPP Toolkit