Speaker: Algiers, June 2018

1. The contents of this document are proprietary and should not be duplicated or shared without express permission from Jones Day.
PRESENTATION TO
JUNE 22, 2018
Smart Cities Global Technology & Investment Summit 2018
Algiers 27 June 2018 Rémy Fekete
rfekete@jonesday.com

2. GLOBAL REACH
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WE DO BUSINESS WHERE OUR CLIENTS DO BUSINESS
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3. • Jones Day is a global law firm with more than 2,500 lawyers and 43
offices in major centers of business and finance throughout the world.
Covering 18 countries on five continents, our unique governance system
fosters an unparalleled level of integration and contributes to our ranking
as one of the best in the world in client service.
• Jones Day is based on a set of core principles - the most critical of which is
a relentless focus on client service that transcends individual interests. We
are One Firm Worldwide
• Our values are reflected not only in how we do business, but in how we are
organized. Jones Day is a general partnership—a single, true
partnership. We are not an LLP, or an LLC, or some other half-
partnership/half-corporate entity. We do not have limited partners or limited
liability partners. We are all partners. And, we act like partners.
• Our commitment to client service has repeatedly earned the Firm the "#1
for Client Service" ranking by The BTI Consulting Group, an organization
that monitors client satisfaction with legal services. The annual ranking is
based on independent, individual interviews with more than 300 Fortune
1000 general counsel.
Jones Day « One Firm
Worldwide »
§ Singular Tradition of Client
Service and Engagement with
the Client
§ Mutual Commitment of,
and Seamless Collaboration
by, a True Partnership
§ Shared Professional
Values Focused on
Addressing
Client Needs
§ Formidable Legal Talent
Across Specialties and
Jurisdictions
MORE ABOUT JONES DAY
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4. A LEADING AFRICA PRACTICE
• For more than 20 years, Jones Day lawyers have successfully assisted clients in more than 40
jurisdictions in Africa, across a large spectrum of industry sectors. We are committed to assisting our
clients in all aspects of their businesses and projects in the ever-growing complexity and sophistication of
the African business environment.
• Our Africa Practice lawyers, who are located throughout Jones Day’s 43 offices worldwide, with many in
Paris, London, New York and Washington, work alongside local counsel throughout Africa. Accordingly, our
clients have international access in all major time zones to French, English and U.S.-qualified
lawyers dedicated to projects and transactions in Africa.
• We advise investors, operators and lenders on multijurisdictional transactions and disputes involving
African operators and countries, as well as projects, investments and transactions in all main jurisdictions in
Africa.
• Jones Day’s Africa Practice assists clients throughout an entire transaction, from investment
structuring, to project financing and development. We can provide accurate analyses on corporate and
asset transactions, privatizations, crisis management and dispute resolution.
• We also advise African states in drafting/redrafting legal and regulatory frameworks in diverse
sectors. This activity represents a significant advantage for our private clients, whom we assist on projects
compliance with local laws and regulations. We take great pride in providing practical and commercial legal
assistance to our clients, adding value to their projects and businesses.
• Over the years, our lawyers have acquired an in-depth knowledge of most African legal systems,
which are often inspired by the French or English legal systems but have their own rules and specificities.
The Firm also has significant experience in regional/unified legal frameworks (such as OHADA, UEMOA,
ECOWAS, and SADC). Our lawyers are fluent in the languages necessary to do business in Africa –
French, English, Spanish and Arabic.
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5. PUBLIC-PRIVATE PARTNERSHIP PRACTICE
• EMEA : all types of Infrastructures : Hospitals, Clinics, Water,
Transportation, Airports, Highways, Railways, Bridges, Courts, Prisons,
Telecom fibers,
• Africa : In particular : Airports, Cable Landing Stations, Virtual Landing
Stations, National and regional backbones, Smart Cities;
• A mix expertise : Public law, Project Finance, Sectorial expertise
• Sponsor/ Financial institutions and/or States-State Agencies
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6. The contents of this document are proprietary and should not be duplicated or shared without express permission from Jones Day.
PPP AND TECHNOLOGIES : WHAT BEST
GOVERNANCE IN SUB SAHARIAN AFRICA
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7. WHAT IS A PUBLIC PRIVATE PARTNERSHIP
• The term “public-private partnership”, or PPP, does not have a
particular legal meaning
• Describes various arrangements involving the public and private
sectors working together
• There is no standard form of PPP project or structure
• Distinction must be made between PPPs stricto sensu and other forms
of public and private cooperation
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8. COMMON FORMS OF PPP
• Build-operate-and-transfer (BOT)
Ø The private party undertakes the designing, building and financing of the project
Ø The private party carries out the operation and maintenance of the facility
Ø The facility is transferred at the end of the fixed term
• Build-transfer-and-operate (BTO)
Ø The private party undertakes the designing, building and financing of the project
Ø Property is transferred
Ø The private party operates and maintains the facility
• Build-own-and-operate (BOO)
Ø The private party undertakes the designing, building and financing of the project
Ø The private party retain ownership of the facility
Ø The private party operates and maintains the facility
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9. OTHER FORMS OF PPP
• BDO : Build – Develop – Operate
• DCMF : Design – Construct – Manage – Finance
• BBO : Buy – Build – Operate
• LDO : Lease – Develop – Operate
• BOOT : Build – Own – Operate – Transfer
• BROT : Build – Rent – Own – Transfer
• BLOT : Build – Lease – Operate – Transfer
• Etc
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10. TYPES OF PPP CONTRACTS
• Contracts for goods and services and civil works contracts
Ø The private sector assists the public sector
Ø The public sector is entirely responsible
• Management and Maintenance Contracts
Ø The private party manage a range of activities for the public party
Ø The private operator is being paid a fixed fee
• Leases and Affermage Contracts
Ø The private sector is responsible for operating and maintaining the facility
Ø The private sector does not for finance the investment
• Concessions
Ø The private party is given the long term right to use all utility assets conferred
Ø The private party pays a concession fee
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11. JOINT VENTURE
• The partnership between the sectors may take several forms
• A special purpose vehicle (SPV) may be created
• Joint venture between the public and private sectors arise usually when
the contracting authority requires to have equity stake in the project
company or operator
• Rights between the shareholders are set-out in the articles of
association and the shareholders’ agreement
• Functions may be delegated to the private party or parties by way of
sub-contracts or the SPV may operate the facility
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12. EXAMPLE OF A JOINT VENTURE
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SPVPRIVATE
SECTOR
PUBLIC
SECTOR
SUB
CONTRACT
FACILITY
TITLE
OPERATES
OPERATES
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13. ADVANTAGES OF A JOINT VENTURE
• The public party can exercise control over the management
• Transparency (account and finances)
• Continuity of partners if the partner changes
• Possible diversity of partners
• Possibility to bring in new partners
• Share of profits
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14. DIFFERENT FORMS OF JOINT VENTURE COMPANY
• Joint stock company - société anonyme (SA)
• Partnership - société en nom collectif (SNC)
• Limited partnership - société en commandite simple (SCS)
• Limited liability company - société à responsabilité limitée (SARL)
• Simplified joint stock company - société par action simplifiée (SAS)
• Economic interest group - groupement d'intérêt économique (GIE)
• Cooperative society - société coopérative (SCOOP)
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15. DIFFERENT FORMS OF JOINT VENTURE COMPANY
• All forms of company are not suited for a PPP
• Shareholders’ responsibility is limited to the equity put in
Ø SARL / SA / SAS
• Shareholders’ responsibility is not limited to the equity put in
Ø SNC / SCS / SCOOP / GIE
• Depending on the laws and regulations, the company will have to be
constituted under a particular form if a public body is shareholder
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16. COMMON FORMS OF PPPS AND THE PARTICIPATION OF THE
PRIVATE PARTY
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17. GOVERNANCE
• Major maintenance and renovation
The private party maintains and replaces the equipment during the time period of the
partnership
• Risk management
The risk must be divided between the parties in order for the partnership to be successful
It will need to be allocated to the party that is best placed to manage it in a cost effective way
Main risks :
Ø Completion risk
Ø Market demand or volume risk
Ø Design/output risk
Ø Financial risk
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18. GOVERNANCE
• Golden shares (in case of a joint venture)
Ø The public party may retain management control thanks to golden shares which gives its
owner a veto right
Ø The veto right may be specific to particular decisions regarding specific management
issues or of a general nature
• Transparency
Ø In order to control the private party, the agreement may establish a right of information
regarding the management
Ø All documents needed may be required by the public party
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19. Rémy Fekete
rfekete@jonesday.com
Partner - Avocat au Barreau de Paris
2, rue Saint-Florentin
75001 Paris, France
Office +33.1.56.59.39.39
Mobile + 33 6 79 66 99 80