UNCDF Jobs - 71389- Legal Analysis for Investors and PPPs Lao

Legal Analysis for Investors and PPPs Lao

Advertised on behalf of

UNCDF

Location :

Home based in Lao PDR with possible travel to Savannakhet

Type of Contract :

Individual Contract

Starting Date :

24-Apr-2017

Application Deadline :

06-Apr-17 (Midnight New York, USA)

Post Level :

International Consultant

Duration of Initial Contract :

up to 2 months

Languages Required :

English

Expected Duration of Assignment :

up ro 2 months

UNDP is committed to achieving workforce diversity in terms of gender, nationality and culture. Individuals from minority groups, indigenous groups and persons with disabilities are equally encouraged to apply. All applications will be treated with the strictest confidence. UNDP does not tolerate sexual exploitation and abuse, any kind of harassment, including sexual harassment, and discrimination. All selected candidates will, therefore, undergo rigorous reference and background checks.

Background

About UNCDF

UNCDF, the UN capital investment agency for the 48 least developed countries, provides seed capital and technical assistance to test new modalities of public and private financing for local development. These investments are designed to leverage innovative financial flows from the private sector, national governments and development partners, for maximum impact towards inducing sustainable growth and transformative impact via the localization of the SDGs. UNCDF discreetly operates two inter-connecting practice areas of; (1) inclusive finance, and (2) local development finance. The goals of UNCDFs local development finance practice is to assist municipal authorities develop productive infrastructures and provide quality services that contribute towards transforming the economic structures of local economies and improving the quality of life of citizens. This concept extends beyond local governance and the decentralized provision of services to the spatial, institutional and economic linkages required for comprehensive development. It additionally addresses the spectrum of climate change adaptation, food security, education and health, infrastructure, resilient environments, citizen empowerment and representation, and fulfilling and rewarding inclusive economic activity.

The UNCDF portfolio in ASEAN

Historically UNCDF have designed and implemented local development initiatives in a majority of the ASEAN member states both at national and sub-national levels. In particular, in alignment to its mandate, UNCDF has mainly operated in the Least Developed Countries, of the ASEAN region including (1) Cambodia, (2) Laos PDR, and (3) Myanmar.

In the area of local development finance in ASEAN, UNCDF is present in Cambodia and Laos PDR, and through the introduction of new projects and the associated programme to this mission will engage in Myanmar. UNCDF have a dedicated project team in Lao working alongside national government to promote decentralisation through the application of performance based grants for small scale local infrastructures.

The challenge of cross-border development

The least developed countries (LDCs) in ASEAN represent some of the fastest growing economies in the world. Estimates suggest that growth in Asia and the Pacific is expected to remain steady at 5.5% in 2016 (IMF Regional Economic Outlook, April 2015 issue).

Growth within the region will be driven by domestic demand and through global exports even though the economic recovery of the wider global economy will be moderate to weak and remain uneven. The region accounts for approximately 40% of the global output but contributes to nearly two thirds of global growth.

The inward expansion of the global value chains (GVCs) in Asia has been noticeable and has witnessed the engagement of the CLMV cluster of countries to engage in lower value activities, whilst the more advanced economies have moved into higher positions on the GVC (upstream) and are capturing a growing share of the GVC-related value added.

Although inter-regional trade has increased the level of financial integration across the ASEAN economies remain weak. Only between 20% to 30% of the cross-border investment and banking portfolio is inter-regional. This indicates that ASEAN member states have a tendency to invest more into their “home” country as opposed to neighbours. However, it is witnessed that financial integration increases with trade integration and the size and sophistication of financial systems. Given that Thailand has re-oriented its export policy towards ASEAN and the Asia region in general opportunities arise that support investments through inter-regional financing that specifically boost regional trade. The geographical focal point for such investments will be the cross border economic areas that combine service provision with competitive labour costs.

The CLM group of countries all are experiencing different patterns of socio-economic growth that are illustrated in the balance of their economies. Growth in most cases is not balanced be it across or within the broad sectors of the economy, geographically, and even amongst different societal groups. Such structural issues present substantial challenges for sustainable and equitable development in Southeast Asia.

Research and investments have been targeting the development of inter-regional economic corridors (Greater Mekong Subregion-GMS) that has resulted in the establishment of a comprehensive overland transport mechanism to aid the development and installation of regional production networks (RPNs). In the context of the GMS, cross-border transactions have in general been limited to ease of customs flows, safe storage and distribution, and in some cases the early establishment of special economic zones. Trade exchanges (informal and formal) additionally form and integral part of the cross-border eco-systems.

In Southeast Asia, the cross-border areas represent a huge potential for development based upon the features of complementary factor endowment that take advantage of low cost labour and the provision of high quality reliable services that are available or either side of the border area. However, limited activity in terms of productive municipal infrastructure investments is taking place to harness these endowments especially within the CLM country group due to their proximities to Thailand and Viet Nam.

UNCDF has developed the Local Uplifting Transformative Solutions (LoTUS) programme in Southeast Asia, which aims at facilitating investments that take advantage of cross-border locations and factor endowments. Within the framework of this programme UNCDF seeks to create innovative sustainable financial mechanisms to support regional and domestic investments into cross-border areas. Specific emphasis is placed upon promoting cross-border local economic development through the definition of “bundles” of interconnected investments that have maximum impact upon local and regional development. LoTUS will support regional and national policy formulation and the testing of targeted investment mechanisms to support regional integration and development of the border areas.

Duties and Responsibilities

Objective of the Assignment

The core design purpose of LoTUS is to unlock regional and domestic capital to finance small scale productive infrastructures (US$ 0.5 million to US$20 million) that compliment and support cross border development. These infrastructures can be developed solely by the private sector or local governments or via public private partnerships.

The objective of the mission is to develop and provide a technical report that determines the legal base and its current status of promulgation and implementation associated with cross border investments and FDI. Within this context, the technical review needs cover: -

An over-view of current investment law(s), to examine their application and known bottlenecks that are being encountered in terms of domestic and external investments;
Highlight the current government institutional gateways for investments (foreign and domestic);
Process map of current registration of domestic companies and joint ventures that include a national company;
Provide a brief over-view of the taxation systems – i.e. what taxes are required to be paid by domestic joint ventures, and solely foreign investors, highlight any tax breaks and specify geographical location / limitation (i.e. Special Economic Zones)
Provide a brief overview and current status of PPP legislation and provide examples (if available) of active PPPs in national and sub national government;
Detail and summarise contents of enacted legislation that permits local governments to apply for commercial loans and usage of local government assets including land as collateral to secure such loans;
Provide a definitive legal guide, referencing associated legislation, for local governments (as legal entities) to form or be shareholders in Special Purpose Vehicles (SPVs), highlight any associate law related to SPVs especially; (i) formation and registration, (ii) restrictions for SPVs to facilitate investments into multiple projects, (iii) share distribution and (iv) SPV responsibilities and legal binding in case of default, and (v) SPV liquidation / closure;
Highlight, in simple form, with reference to associated legislation, procedures and geographical location for arbitration in case of loan default and project failure.

The study should be a maximum of 20 pages with reference materials being provided within an annex and be accompanied with an electronic presentation.

Duties and Responsibilities

The legal review documentation and associated PowerPoint that forms the output of the consultancy will assist to UNCDF to develop key “knowledge products” to facilitate infrastructure investment decisions in emerging economies, thereby serving the needs of the LoTUS project whilst complimenting other key areas of UNCDF global work and corporate development.

Working under the direct supervision of the LDFP Regional Technical Advisor for Asia based in Bangkok, the consultant will be responsible for providing high quality legal review study for Lao PDR covering key areas as described above (Section III). The review will specifically answer the following questions;

Can local governments apply for commercial loans and if so on what legal grounds?
Can local governments establish and participate in SPV for investments?
Can local governments utilize public assets? (i.e. use public buildings and land as collateral for commercial loans)
To what extent are SPVs and local governments legally exposed (accountability and loss of assets) in case of loan default?
What kind of existing laws of Lao PDR that are applicable and required for the cross border development/investment projects?

The formulation of the review will be approached in 4 stages as described. The finalised content and legal references will be agreed in writing at the end the 1st week of the assignment with the RTA Bangkok.

Research and collect primary legal information pertaining to the overall objective of the consultancy (reference Section III);
Provide in note form (2 pages maximum) and over-view of the applicable legislative base (including tax and arbitration) covering local government investments in the form of PPPs, SPVs and as legal entries to apply for and secure commercial loans for local projects. This note will provide the agreed framework for the main review / study;
Provide a review / study as described in section III;
Provide an accompanying PowerPoint presentation describing the main findings of the review / study.

The UNCDF Regional Technical Adviser (RTA) based in Bangkok, will be the contact point for the mission, providing necessary management support, guidance, and over-sight of the mission. The RTA Unit will be responsible for reviewing intermediate and final products and providing approvals for payment based upon the deliverables under VI.

Deliverables

The consultant will deliver the following within the framework of the mission: -
1. Preliminary detail (in note form – 2 pages) of the primary legal information pertaining to the overall objective of the consultancy (reference Section III);
2. Detailed review / study of current legal base in relation to the output described in section III and which responds to the questions raised in Section IV;
3. PowerPoint presentation that highlights the main findings of the review / study and provides recommendations for any regulatory upgrades that may be required to facilitate Local Governments entering into SPVs or accessing credit for local infrastructure development needs.

All reports and documents to be submitted in English.

Provision of Monitoring and Progress Control

The consultant will work in close consultation with Regional Technical Advisor and in coordination with UNCDF team in Lao PDR. The Regional Technical Advisor will provide overall supervision of the consultancy and approve key outputs and deliverables.

Terms of Payment

Travel cost will be reimbursable based on actual cost upon presentation and submission of receipts.

The following terms of payment based upon the above-mentioned deliverables will be applicable for this Terms of Reference and associated mission. Payments will be based upon a percentile of the contracted lump sum for each area as tabulated. The payment will only be made up on satisfactory completion and submission of the assignment and deliverables.

Lump Sum payments are based on the following deliverables

Research 30%: Preliminary detail (in note form – 2 pages) of the primary legal information pertaining to the overall objective of the consultancy (reference Section III);
Analysis 50%: Detailed review / study of current legal base in relation to the output described in section III and which responds to the questions raised in Section IV;
Report and Presentation 20%: PowerPoint presentation that highlights the main findings of the review / study and provides recommendations for any regulatory upgrades that may be required to facilitate Local Governments entering into SPVs or accessing credit for local infrastructure development needs.

Payment will be 2 weeks after the submission of the report with satisfactory rating.

Competencies

Owns a comprehensive knowledge of the organic and national laws governing national and sub national administrations in Lao PDR;
Owns a comprehensive knowledge and understanding of investment laws and SEZ by-laws in Lao PDR;
Owns a comprehensive knowledge and understanding of corporate tax laws in Lao PDR;
Owns a comprehensive knowledge and understanding of PPP laws and frameworks in Lao PDR;
Owns a comprehensive knowledge and understanding of investment laws and SEZ by laws in Lao PDR;
Has knowledge and understanding of the domestic finance sector operations (commercial loans);
Good communication skills; sensitivity and willingness/flexibility to respond to client’s needs.

Required Skills and Experience

Education

Bachelor Degree in Law preferably with specialization in Business Law.

Experience

10 years of professional experience with at least 5 years working within corporate legal services with Laos;
Proven track record of providing legal advice in Lao PDR re corporate and / or PPP type investments (domestic and international clients);
Experienced in corporate, investment and tax law in Lao PDR.

Languages

Full Fluency in English is required.

Evaluation of the applications

Individual consultants will be evaluated based on the combined scoring method.

The formula for the rating of the Proposals will be as follows:

Rating the Technical Proposal (TP): 70%
TP Rating = (Total Score Obtained by the Offer / Max. Obtainable Score for TP) x 100

Rating the Financial Proposal (FP): 30%
FP Rating = (Lowest Priced Offer / Price of the Offer Being Reviewed) x 100

Total Combined Score:
(TP Rating) x (Weight of TP, e.g. 70%)+ (FP Rating) x (Weight of FP, e.g., 30%)

Total Combined and Final Rating of the Proposal

Technical Criteria weight 70% includes:

25% Professional experience;
25% Competencies, past work related to the assignment;
10% Academic qualification;
10% Geographical working experience (proven).

Total maximum obtainable score for Technical proposal = 100 points. Only candidates obtaining a minimum score of 70 points under Technical evaluation will be considered for the financial evaluation

Application Guidelines

Interested candidate should submit the following information as part of the application package:
When applying for this consultancy position, please apply with your official name as shown in the government issued identification document (e.g. passport and/or driver license). Contract award is subject to this verification;
Detailed updated CV including past experience in similar projects or P11 link: http://sas.undp.org/documents/P11_Personal_history_form.doc;
One page of cover letter describing why the candidate is the most suitable for the assignment;
Confirmation of availability to take up assignments for the whole period;
Name and contact details of 3 references.

Should the applicant is shortlisted, the Technical Proposal will be requested. The Technical proposal shall consist of

The past work demonstrating comprehensive knowledge as listed under competencies.

Finanical proposals will be requested only from the shortlisted candidates.