You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

April 29, 2016

Impact of the Asian Infrastructure Investment Bank’s Operational Policies

Bangkok Post, Corporate Counsellor Column

Thailand’s current infrastructure needs are well known to policymakers. The development of urban and inter-city rail links, telecommunication networks, and renewable energy projects are some of the areas in need of investment, as identified by government agencies.

Much of the infrastructure development over the next decade will be capital-intensive, meaning that funding from the Asian Infrastructure Investment Bank (AIIB) could assist in developing Thailand’s various projects.

The AIIB is a new multilateral development bank, initiated by China, with a stated purpose to “foster sustainable economic development, create wealth and improve infrastructure connectivity in Asia by investing in infrastructure and other productive sectors.” At its first meeting in January, the bank’s board of directors adopted a number of policies on financing, pricing, and procurement. These policies provide an outline of how the AIIB will select projects to invest in, and the form these investments will take.

The AIIB’s Articles of Agreement, signed by representatives of 57 member states, is the basic constitutional document from which the AIIB’s governing bodies, such as the board of governors, the board of directors, and the president, derive their operational authority. Article 11 permits the AIIB to carry out its investment activities by participating in direct loans, making equity investments and guarantees, and undertaking other forms of investment activities.

The Operational Policy on Financing, which was adopted by the board on January 17, outlines the bank’s financing policies. Among other things, it sets out the following conditions that must be satisfied for the AIIB to invest in a particular project:

  • The project must have clearly defined development objectives consistent with the bank’s stated purpose, and those objectives must permit appropriate evaluation of the project’s impact;
  • The project must provide for specific productive activities necessary to meet development objectives;
  • Alternative sources of finance, particularly private capital, must not be available for the project on terms and conditions that the AIIB considers reasonable; and
  • The project must comply with the other requirements of the operational policy and other AIIB policies.

Broadly, the AIIB’s financing activities can be broken down into sovereign-backed financing and financing which is not sovereign backed. Sovereign-backed financing means either a loan to a Member; a loan which has been guaranteed by a Member; or a guarantee that covers debt service defaults under a loan that are caused by government failure to meet a specific obligation in relation to the project or by a borrower’s failure to make a payment under the loan, and is accompanied by an indemnity by the Member to the AIIB. Nonsovereign-backed financing is any financing that does not fall within the definition of “sovereign-backed financing,” as outlined above.

In determining whether to grant sovereign-backed financing, the AIIB will assess whether the project’s impact on the member’s fiscal sustainability is acceptable. The bank will place significant weight on debt sustainability analyses conducted by the International Monetary Fund and the World Bank. It will also assess whether the project contains acceptable oversight arrangements that provide reasonable assurances that the proceeds will only be used for the stated purposes of the financing.

The policy also outlines terms and conditions that must be included in the transaction documents for loans, including specific remedies, external debt reporting, and adherence to the general conditions as stipulated by the AIIB board from time to time. Significantly, the AIIB will not generally require specific security from a loan recipient that is a member, though it may require security if it is required by a co-financier. Loans to non-members may require security.

The policy provides the AIIB with significant leeway when granting non-sovereign-backed financing, although it explicitly states that market-based principles will be applied. Loans may be granted to project companies on a limited-recourse basis or directly to the project company’s sponsor (usually, the majority shareholders of the project company). The policy stipulates that loans will be based on standard template term sheets, loan agreements, and other relevant financing documentation.

Provided that the investment conditions are acceptable, the policy permits direct equity investments from the AIIB to either public- or private-sector companies. This form of investment may be particularly beneficial if the registered share capital of the project company must exceed a certain threshold.

Thailand has ambitious infrastructure goals that it aims to achieve in the next decade, and meeting these goals will require substantial capital investments. The AIIB is a potential source of funding for these projects, particularly when private capital is insufficient. In addition, since the AIIB will be investing in infrastructure throughout Asia, Thailand stands to gain from the knock-on effects of improved infrastructure in neighboring countries.

As the AIIB begins the process of approving investment plans for projects, it will be important to watch how the policy is implemented in practice.

RELATED INSIGHTS​ 

January 25, 2023
Thailand’s Energy Regulatory Commission (ERC) has issued four new regulations under the Energy Business Act B.E. 2550 (2007) setting forth competition regimes to control both anticompetitive conduct and market structure in the energy business sector. The regulations were published in the Government Gazette on December 19, 2022, and took effect the following day. The key provisions of these ERC competition regulations largely mirror those articulated in the Trade Competition Act B.E. 2560 (2017) and its subordinate legislation. The most significant features of these competition regulations are summarized below. Market Definition Regulation The ERC’s market definition regulation (officially the ERC Regulation re: Market Definition and Relevant Market of Related Energy Services B.E. 2565) outlines the general framework for defining relevant markets in the energy sector. The factors to be taken into consideration include types of energy licenses, geographical areas, competition conditions, and interchangeability of energy services. In the annex to this regulation, the ERC has classified the relevant energy service markets as follows: Power business activities include power generation, power transmission system services, power distribution system services, power distribution services, and power system control services. Natural gas business activities include natural gas transmission through pipelines via natural gas transmission systems, natural gas procurement and wholesale via natural gas distribution systems, natural gas retail via natural gas distribution systems, and storage and regasification of liquefied natural gas. The ERC will review its market definitions and relevant energy service markets from time to time, taking into account changes in technology and competition conditions as well as feedback from public hearings. Market Dominance Regulation Under the ERC’s market dominance regulation (officially the ERC Regulation re: Criteria on Business Operator having a Market Dominance B.E. 2565), the ERC is empowered to proactively determine and declare which license-holding energy business operators have a dominant position
August 31, 2022
Thailand’s Draft Climate Change Act Countries around the world have given significant attention to climate change legislation, with many national, regional, and global attempts to slow the momentum of climate change. The most notable of these multilateral efforts is the Paris Agreement, a legally binding international treaty on climate change currently adopted by 193 parties. Its goal is to limit the global average temperature to well below 2°C (preferably below 1.5°C) above preindustrial levels, and the treaty’s coordinated efforts to combat climate change are much more ambitious than previous global agreements and discussions. Article 4 of the Paris Agreement requires countries to provide “nationally determined contributions” (NDCs), consisting of their action plans for climate action. Thailand, as a party to the Paris Agreement, has put forth an NDC that pledges to achieve an unconditional greenhouse gas (GHG) emission reduction target of 20% from the business-as-usual projection for 2030, with the possibility of increasing that target to 25% subject to adequate and enhanced access to technology development and transfer, financial resources, and other support. To enable the accomplishment of this pledge, Thailand is looking to enact climate change legislation that functions as a key mechanism for domestic climate action. In 2018, the Office of Natural Resources and Environmental Policy and Planning (ONEP) under the Ministry of Natural Resources and Environment was assigned to prepare a draft Climate Change Act. The draft is now complete, and according to news reports it is set to be submitted to the cabinet for further consideration. The draft Climate Change Act lays out Thailand’s action plan for climate change mitigation and adaptation, including emissions reductions. Some of the key sections in the draft law involve citizen rights, the National Climate Change Policy Committee, and a national GHG database. Rights of Citizens The draft establishes the
August 26, 2022
Thailand’s Board of Investment (BOI) has extended its previously announced period for reduction of import duty on imported raw and essential materials for battery manufacturing for electric vehicles and other applications. The BOI’s announcement No. 5/2565 dated August 8, 2022, extended the reduction period to a maximum of five years. The BOI’s promoted activities list includes two battery-manufacturing business activities: Activity 4.8.3.1 – Battery manufacturing Activity 5.2.6.1 – High energy density battery manufacturing Qualifying battery manufacturers who have cell or module manufacturing processes are eligible for 90% import duty reductions on raw and essential materials that cannot be produced in Thailand. These reductions will be available on an annual basis, and are renewable for five years in total—up from the original two years. Existing projects (i.e., those which have the original two-year duration in their BOI certificate) can also benefit from the extension by preparing a project amendment form, along with a clarification letter and supporting documents, for submission to the BOI office. For more details on these customs duty reductions, or on any aspect of investment promotion in Thailand, please contact Charuwan Charoonchitsathian at [email protected] or +66 2056 5657, or Napassorn Lertussavavivat at [email protected] or +66 2056 5662.
August 16, 2022
On July 21, 2022, Vietnam’s Ministry of Industry and Trade (MOIT) submitted Report No. 126/BC-BCT to the Prime Minister regarding the mechanism for transitional wind and solar power projects. In this report, the MOIT proposed some recommendations to explicitly address difficulties for outstanding wind and solar power projects (“Transitional Projects”) which have been developed under the Prime Minister’s Decision No. 13/2020/QD-TTg dated April 6, 2020, on the development of solar power projects (Decision 13) and Decision No. 37/2011/QD-TTg dated June 29, 2011, on the development of wind power projects (Decision 37), as amended by Decision No. 39/2018/QD-TTg dated September 10, 2018 (Decision 39). The Transitional Projects primarily include those which have completed construction but have not yet been put into operation, and those which have been put into operation but for which the power price has not yet been decided, due to missing the deadline set forth under the aforementioned decisions to be eligible for the feed-in-tariff (FIT). In particular, the MOIT has proposed the following key recommendations to the Prime Minister: Mechanism for Transitional Projects The MOIT proposes two options: Option 1: Developers of the Transitional Projects negotiate and sign power purchase agreements (PPA) with Vietnam Electricity (EVN) within the price framework issued by the MOIT in accordance with the Law on Electricity, the Law on Prices, and their subordinate guiding legislation; or Option 2: The Prime Minister formulates a new decision specifying the mechanism for bidding on the purchase of power produced by the Transitional Projects, estimated to be implemented for the time limit of three years and within the price framework issued by the MOIT. Mechanism for future wind and solar power projects The MOIT proposes to apply the mechanism that developers of future wind and solar projects negotiate the power price and sign the PPA