Pinsent Masons have published two news articles which provide latest analysis on investment law: one on Asian countries’ private airport investment and the other on China’s new foreign investment law.
- ‘Rewards are there’ for Asian countries that get private airport investment right
ANALYSIS There is great potential for investment in and development of airports in Asia but there are barriers to overcome. Governments which want more private airport investment must make sure appropriate deal structures are in place and relax laws on foreign ownership and investment.
20 Mar 2019
The potential rewards for getting this right are enormous. Airports around the world are at near-capacity and those regions which can build new airports or increase capacity at existing ones will benefit from the increased trade and economic activity this will bring.
In 2017 12 of Asia’s top 20 airports were operating at or above capacity, according to research by the Development Bank of Singapore (DBS). DBS said that passenger numbers are growing in Asia by 5.1% a year, compared to the global average of 3.5% a year.
More capacity is clearly needed, and DBS estimates that this means investment of US$516 billion in airports in Asia over the next 20 years. Where will the money come from? Private finance and operation should be part of that picture.
Full privatisation of airports is unusual outside of the UK – most countries see airports as national assets and income streams. In Asia 88% of airports are publicly owned. But private funding and expertise can be introduced without full privatisation.
Early public private partnerships (PPPs) such involved the private sector designing and building airports and sharing gross revenues. This was the case for airports in Cyprus and Jordan, which Pinsent Masons advised on.
These days a more common approach is for a government to sell a concession to operate and develop a whole airport or elements of it, such as parking or baggage handling. The build-operate-transfer (BOT) model works this way, with ownership reverting to the government after the period of the contract.
This allows a government to retain overall ownership but to benefit from the risk-sharing, capital and expertise of a private partner.
“The debate shouldn’t be about which [approach] is better, but what are the main objectives for considering involving the private sector,” the DBS analysis said. “Every possible model should have a solid strategic definition of objectives and a sound business case before any decision is made.”
One operation that is widely seen as a success is the construction of a new terminal at Mactan-Cebu International Airport in the Philippines. The project was operated as a PPP and it tripled the airport’s capacity. It was funded by a $75m loan from the Asian Development Bank, which Pinsent Masons advised on, as well as US$450m of debt from a consortium of Philippine banks.
There are challenges for governments which want to involve private finance or expertise in their airports. Problems are caused by a failure to use sufficiently specific terms of reference during procurement, which in turn affects the ability of these projects to attract sufficient investor interest, due to the lack of well-structured deals.
Restrictions on foreign ownership may also diminish interest. In Indonesia, for example, foreign investors cannot own a majority stake in an Indonesian airport. In Vietnam seven international and 15 domestic airports are operated by public body Airports Corporation of Vietnam, and in the Philippines there are restrictions on foreign investment but there is provision for private sector consortiums to team up with majority locally-owned contractors to develop airports.
There are particular challenges for governments which wish to have an airport built on a greenfield site. They must compete with established airports which are usually closer to population centres and transport infrastructure, and raising investment is more difficult because investors see greenfield airports as more risky, both operationally and financially.
In India development has focused on the ‘aerotropolis’ concept, the integration of airport development with commercial, residential and land transport development. The first aerotropolis airport, the Kazi Nazrul Islam International Airport, opened in 2014.
Airport development activity in China is extensive. Accounting and consultancy firm PWC predicted that it would account for more than half of the US$275 billion spent on airports in Asia between 2015 and 2025. But opportunities for private sector are limited since the Chinese government treats airports as part of defence and security, restricting private sector involvement.
China is getting involved with other countries’ airport projects, though. Chinese state owned enterprises are developing and investing in airports in Africa and elsewhere as part of the country’s ‘belt and road’ foreign infrastructure development programme.
But this activity faces the same barriers as that of other international investors – Israel recently took steps which effectively excluded China from involvement in its aviation market, citing security concerns.
There are many upcoming opportunities in Asia. Indonesia has four airports in the pipeline near Medan, Lombok, Komodo and Batam. In the Philippines an unsolicited proposal by a local conglomerate to develop an airport in Bulacan has been “approved for procurement” subject to a
Swiss challenge, while two regional airport upgrades are awaiting approval. The government has also received an unsolicited proposal for development of the airport at Sangley Point.
PPP projects to expand airports are planned for seven of Japan’s Hokkaido airports and two bidders have been shortlisted, Groupe ADP and its local partner, and Mitsubishi Estate Co, Tokyu Railway, and Hokkaido Airport Terminal Co. The awarding of the contract is expected in July.
Expansions are planned for north Sri Lanka, Myanmar and Thailand’s U-Tapao International Airport, while the design of Suvarnabhumi Airport Terminal 2 was recently decided. The Vietnamese government is reviewing a feasibility report for a third terminal at Tan Son Nhat International Airport. Greenfield development opportunities also exist, for a third airport in Jakarta and the Kumamoto Airport in Japan.
Catherine Workman is a projects finance expert specialising in airport concessions at Pinsent Masons, the law firm behind Out-Law.com
- China’s new foreign investment law opens sectors up by default
A new Foreign Investment Law passed by China will mean that all areas of business are open to foreign businesses unless declared otherwise on a ‘negative list’.21 Mar 2019
The law was passed last week by the National People’s Congress, and will come into effect on 1 January 2020.
The law is part of a long-term trend toward the unification of the legal treatment of foreign and domestic enterprises. But the law has been delayed for several years already and is now also being seen as a step towards a new trade deal with the US and an attempt to de-escalate the trade war that has developed between the countries since Donald Trump became president of the US.
The law is more general and less detailed than previous drafts, leading to some concerns that restrictions on foreign investment and ownership might be added later in more detailed regulations and procedures.
It will transform the way in which foreign companies operate in China by replacing the current regime of foreign invested enterprises (FIEs), which requires the use of specific corporate vehicles for foreign investment such as wholly foreign-owned enterprises (WFOEs) and equity or cooperative joint ventures. The existing laws regulating those forms of FIE will be repealed when the Foreign Investment Law becomes effective next January. Instead, the existing Company Law and Partnership Law will apply to foreign entities.
William Soileau of Pinsent Masons, the law firm behind Out-Law said: “The repeal of these long-standing FIE laws is a huge change. It’s not yet clear what will replace them. We expect to see a good deal of confusion over the next year or so, both in forming new entities and in terms of compliance for existing entities.Confusion may be particularly acute for legacy JVs, which don’t fit well within the Company Law regime.”
The negative list approach is not new, having been pioneered in China’s free trade zones and extended nationwide over the past few years. The negative list outlines areas of business where foreign investment is prohibited or restricted. Anything not on the list is permitted.
“Foreign investors have long complained that foreign investments not included on the restricted or prohibited lists were nevertheless, in practice, routinely denied by local officials. We’ll have to see if the new law changes that situation,” said Soileau.
The current negative list prohibits foreign investment in areas such as television production; rare earth exploration and mining; compulsory education publishing; Chinese medicine; gene research fishing, and legal practice. Restrictions exist, and joint ventures with Chinese companies are required, in numerous other areas on the negative list, including internet and other value-added telecommunications; hospitals; oil and gas exploration; life insurance; securities, and domestic shipping. Such restrictions have been an important element of Donald Trump’s claims that China has manipulated the WTO regime to stifle free trade.