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​ 

August 12, 2024
With the growing prominence of ESG (Environmental, Social, and Governance) factors, businesses in Vietnam are increasingly recognizing their importance in driving global demand, societal impact, and economic value. A comprehensive acknowledgment of ESG-related legal requirements is critical for investors and companies operating in Vietnam to meet stakeholder expectations and ensure compliance. Our guide provides a basic overview of the rapidly evolving ESG landscape in Vietnam, covering a range of key issues for companies doing business in the country: What is ESG, and what does the ESG legal framework look like in Vietnam? Who needs to follow ESG regulations in Vietnam? What are the benefits of ESG compliance? How can enterprises enhance ESG best practices in Vietnam? Please click on the link below to view the full article.
June 6, 2024
On January 18, 2024, Vietnam’s National Assembly passed a new Land Law (“Land Law 2024”) that is scheduled to take effect on January 1, 2025, replacing the current Land Law 2013. To mitigate challenges faced by the real estate market, in late May 2024, the government proposed amendments to the Land Law that would move the effective date up five months, to August 1, 2024, pending approval by the National Assembly. One of the key sectors to be impacted by the Land Law 2024 is the energy sector, which requires large land areas for power plants and infrastructure, especially given Vietnam’s 2050 net zero emissions commitment. Below are highlights of how the new Land Law 2024 will affect Vietnam’s energy sector. Annual payment of land rental Under the Land Law 2013, investors implementing energy projects (e.g., solar power projects) are entitled to choose to lease land with either (i) an annual rental payment or (ii) a single upfront payment for the entire term of use. Under the Land Law 2024, these investors are only allowed to use land in the form of an annual rental payment. As the annual land rental is calculated in five-year cycles, based on the land price table decided by the state, this new restriction means that investors in energy projects will face an additional risk of a sudden increase in land rental, disrupting their financial planning. Investors using land sites leased with annual rental payments are also not allowed to mortgage their land-use rights, but can only mortgage assets attached to the land, at credit institutions licensed to operate in Vietnam. Accordingly, this may affect the ability of energy projects to obtain financing during the development stage, because they no longer have assets that can be mortgaged. Obtaining land Under the Land Law 2024,
June 4, 2024
Thailand’s Department of Mineral Fuels (DMF) is in the process of preparing a notification that will open the application period for onshore petroleum exploration and production rights in the country’s 25th bidding round. The 25th round of bidding will cover nine petroleum blocks, including the northeastern areas (blocks L1/66, L2/66, L3/66, L4/66, L5/66, L7/66, and L9/66) and central areas (blocks L6/66 and L8/66). The DMF estimates that application submissions will commence around the middle of 2024, and the successful bidder will be announced at the end of the same year. Based on previous rounds of bidding, applicants must meet the following key criteria: The applicant is a company with the purpose of carrying out petroleum exploration and production; The applicant commands the necessary assets, machinery, equipment, tools, and specialists to explore for, produce, sell, and dispose of petroleum; The applicant has not abandoned its operations under a concession or been subject to revocation of a concession in Thailand; and None of its personnel, shareholders, directors, or authorized directors is listed as a person who has abandoned its operations under a concession, or has been subject to revocation of a concession in Thailand. If the applicant does not itself possess all the qualifications under (2) above, it must have another government-approved company that possesses all the qualifications under (2) and has a capital or management relationship with the applicant, and the applicant must supply guarantees that the company will make available to the applicant all necessary assets, machinery, equipment, tools, and specialists for the applicant to explore for, produce, sell, and dispose of petroleum. Companies with a vested interest in petroleum exploration and production in Thailand must remain vigilant for updates. The DMF is expected to provide an update and more details on the bidding very soon. For more details
June 4, 2024
As Vietnam continues its rapid economic development, the demand for sustainable and reliable energy sources has never been more critical. Solar power has emerged as a key component of Vietnam’s strategy to diversify its energy portfolio and reduce its carbon footprint. Recent developments of the regulatory framework governing solar power projects in Vietnam, as discussed below, highlight the country’s commitment to renewable energy and its efforts to create a conducive environment for solar power investments. Objectives for the Development of Solar Power Projects On May 15, 2023, the Prime Minister issued Decision No. 500/QD-TTg, approving the National Power Development Plan for 2021-2030 with a vision to 2050 (“PDP VIII”). Following this, on April 1, 2024, the Prime Minister promulgated the Implementation Plan for PDP VIII (“Implementation Plan”). These documents underscore Vietnam’s commitment to promoting renewable energy, particularly solar. They emphasize self-production and self-consumption of solar power, the development of rooftop solar systems, and the promulgation of the direct power purchase mechanism. The integration of solar power with battery storage is also encouraged, contingent upon economic viability. PDP VIII sets ambitious capacity targets for solar power. By 2030, the capacity is projected to reach approximately 12,836 MW, accounting for 8.5% of the total power capacity. This includes 10,236 MW from concentrated solar power and 2,600 MW from self-production and self-consumption solar power. By 2050, the capacity is expected to rise to between 168,594 MW and 189,294 MW, representing 33.0-34.4% of the total power capacity. Additionally, PDP VIII and the Implementation Plan list 27 solar power projects, totaling 4,136.25 MW, slated for implementation after 2030. However, these projects may be advanced under self-production and self-consumption arrangements. Draft Decree on Direct Power Purchase Agreements On April 15, 2024, the Ministry of Industry and Trade (“MOIT”) released a draft decree on direct power