2018年01月02日 10:05 来源：PPP知乎 【打印】
Transparency and disclosure is a high priority for PPP Projects as the Contracting Authorityis a public sector entity or agency. It has become increasingly common for Contracting Authorities to require a presumption in favor of transparency and disclosure in PPP Contracts to ensure that information on PPP Projects, PPP Contracts and related documents can be shared by them, to the fullest extent possible, with the public at large. Multiple factors have influenced this development. The main drivers in the PPP context are to reduce the risk of corruption, increase private sector involvement in infrastructure investment, increase public confidence and awareness and achieve value formoney. As with any infrastructure project, PPP Projects may also involve socialand environmental, public interest and human rights considerations, and these are additional factors in favor of enhanced transparency and disclosure.
Given commercial sensitivities as well as public interest-related limitations,however, transparency and disclosure obligations in a PPP Contract aretypically subject to a number of exceptions in order to protect commercially or otherwise sensitive information relating to the Parties, the PPP Contract and the PPP Project. In most cases it is the Private Partner who has the most information to protect as it will not want its competitors to gain access to information which could give them a commercial advantage. However, the Contracting Authority may also wish to keep certain information confidential,for example if the PPP Contract is in the defense sector. In some highly sensitive projects, the Contracting Authority may require the Private Partnerand other parties and individuals directly involved in delivering the service to sign a written undertaking to be bound by national security legislation.
For public policy reasons, many jurisdictions have policies, laws or regulations imposing disclosure obligations on Contracting Authorities and/or ensuring the public have access to public procurement information. Clauses dealing with transparency, disclosure and confidentiality should always be drafted following an analysis of the legal and policy framework, and it is for the Contracting Authority to decide whether contractual obligations should go beyond what is legally required. It is usual to include specific reference to any such laws and regulations.
There may also be international financial institutions and multilateral agencies supporting the PPP Project which, as a condition of their support, require Contracting Authorities to comply with their own policies on transparency. The information required to be disclosed under such policies does not, however,usually include disclosure of commercially sensitive or proprietary information.
A disclosure and transparency provision typically deals with how all announcements relating to the PPP Contract and the PPP Project are to bemanaged. The Contracting Authority will want to control how all information relating to the PPP Project is publicly communicated and will require prior approval of any media announcements and communications.
Injurisdictions with disclosure frameworks it has also become best practice to require the posting of important project and contract information in the public domain. The Contracting Authority may therefore also want to ensure that it has the right under the PPP Contract to make public the terms of the PPP Contractas well as related information (subject to applicable confidentiality restrictions) by its preferred means. This may include publishing on the internet. The level of information available for it to disclose regarding the progress of the PPP Project will be dependent upon the Private Partner's compliance with reporting provisions elsewhere in the PPP Contract which oblige the Private Partner to disclose certain information (such as performance data)to the Contracting Authority.
Scope of the confidentiality undertaking：
In the context of a PPP Project, confidential information is typically information the disclosureof which would be likely to prejudice a party's commercial interests. This will include information contained in the PPP Contract terms or supporting documents, such as trade secrets, commercially sensitive intellectual property rights and know-how and personal data. Key financial information, such aspricing elements and methodology and the Private Partner's financial model,including details of the costs of financing through debt and equity and other aspects, are also typically treated as confidential information. From the Contracting Authority's perspective, confidential information will include information which it is not in the public or national interest to disclose (e.g. defense,national security and custodial matters).
Confidential information in the context of a PPP Project should be the exception rather than the rule and should be justified by reference to principles of confidentiality in applicable underlying transparency and disclosure policies and legislation.Concerns relating to particular information should be addressed specifically in the drafting. Any disclosure of such information should be clearly justifiedand made in accordance with the terms of the confidentiality provisions in the PPP Contract. Certain categories of information are typically excluded from confidentiality undertakings, such as information already in the public domainor received legitimately from another source. Confidentiality undertakings also do not usually apply where a Party is obliged to disclose information, for example as part of a legal, regulatory or judicial process.