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​ 

May 19, 2023
On May 15, 2023, Vietnam’s Deputy Prime Minister Tran Hong Ha signed Decision No. 500 of the Prime Minister approving the National Power Development Plan for the period 2021-2030, with a vision to 2050 (“PDP VIII”), following extensive public consultations and multiple rounds of review since the first draft version was circulated in 2021. The plan was approved in the context that in the past few years, a number of large power projects have been behind schedule for operation, while new projects have not been able to be implemented due to waiting for additional planning. PDP VIII is the master plan for the development of the power source and transmission grid at 220kV or higher; services in renewable energy and new energy in Vietnam; and works connecting the power grids of Vietnam and neighboring countries. We set out below some quick updates regarding PDP VIII. 1. Development Targets Key development targets are summarized in the table below: Investors in coal, domestic gas, and LNG projects may need to have a conversion plan ready given the 2050 targets to convert to other sources of energy. 2. Solar Projects A list of 27 solar power projects that were planned for the period of 2021-2030 but which have not been assigned to investors are not allowed to be deployed but can be considered after 2030, except in the case of deployment in the form of self-production and self-consumption (Appendix IV). These projects represent 4,136.25 MW of capacity that will be left on the sidelines until 2030. 3. Hydropower Projects A list of 14 potential hydropower projects can be considered if economic and technical conditions allow for more hydropower development (Appendix III). These projects represent 1,244 MW of capacity that can be added to the hydropower targets for 2030. 4. Projects Prioritized for
March 22, 2023
Attorneys from Tilleke & Gibbins have contributed the Cambodia, Laos, Myanmar, and Vietnam sections to DLA Piper’s Global Government Contracting Country by Country guide, which provides essential information for businesses in 75 jurisdictions on how to source and enter into government contracting opportunities. The guide provides procurement information for jurisdictions in Africa, the Americas, Asia-Pacific, Europe, and the Middle East, and includes information on how to find procurement opportunities, the structure of procurement laws, and in-country resources and relevant publications. Each jurisdictional section includes valuable information on procedures for government tenders, bidding, and contract execution, as well as an overview of the legal and regulatory framework governing government procurement. Businesses can refer to the guide to gain a better understanding of procurement processes and regulations in each jurisdiction, which can help them identify potential opportunities and make informed decisions when pursuing government contracts. The guide’s procurement information for Cambodia, Laos, Myanmar, and Vietnam, combined with the online platform’s comprehensive resources, provides businesses and governments with a valuable tool to navigate the complex regulatory landscape of government contracting in the region. The full Global Contracting Country-by-Country guide is available on the DLA Piper website.
February 20, 2023
On December 20, 2022, the Notification re: Rules, Procedures, and Conditions on Transfer of Energy Licenses of the Thailand Energy Regulatory Commission (ERC) became effective. The notification sets out the new standard and procedure for transferring licenses for energy industry operation. The notable changes in the notification are provided below. Anti-Competition Consideration and Impact Assessment Report In considering the transfer of a license, in addition to ensuring the transferee meets all the qualifications for an applicant for the license, the ERC will consider if the transfer would (1) create a monopoly, reduce or restrict competition, or result in market dominance; (2) affect the contracting parties of the transferors or energy users; or (3) affect energy security or the public interest. In this respect, the vetting process for an application for license transfer would be separated into two different approaches. If the ERC believes that the transfer of the energy license would affect competition, energy users, energy security, or the public interest, the transferor will need to submit an impact assessment report on the license transfer to the ERC. In this regard, the ERC may establish a sub-committee or an independent consultant to contemplate the transfer at the transferor’s expense. However, if the ERC believes that the transfer of license would not lead to any impact, the transferor will not be required to submit the impact assessment. Also, if the license transfer is related to any transactions specified under the ERC’s Regulation re: Rules and Procedures on Merger and Cross-Shareholding in Energy Businesses, B.E. 2565, the ERC can combine the license transfer application with the M&A application. After approval, the ERC might require the transferee to periodically report to the ERC and comply with measures stipulated by the ERC. Therefore, an energy license holder which plans to carry out M&A
February 3, 2023
The Federation of Thai Industries (FTI) announced on January 16, 2023, the opening of registration for carbon credit trading on its Renewable Energy and Carbon Credit Exchange Platform. This new online platform supports the domestic carbon market and provides Thai exporters with the ability to purchase carbon credits, allowing them to address demands from importing nations to conform to carbon emission reduction regulations. This is expected to be a positive step forward for the current practice in Thailand, in which the carbon market operates as a voluntary and unregulated buy-sell platform, free from government regulation. Developed in partnership with the Thailand Greenhouse Gas Management Organization (TGO), the FTI: CC/RE/REC X Platform, or FTIX, is intended to increase the promotion of national carbon credits, renewable energy, and renewable energy certificates, thus improving the country’s efforts to mitigate climate change. Entrepreneurs interested in registering for carbon credit trading on the FTIX can do so through the FTIX website at fti-cc.com. The platform initially supports carbon credit trading through over-the-counter methods. In the near future, the FTIX will be developed to support 100% renewable energy (i.e., RE100 energy) and renewable energy certificate trading. However, the related tax and carbon pricing policies have not yet been issued. The TGO is currently in discussions with the Fiscal Policy Office and the Ministry of Finance regarding fiscal policy for the FTIX. For more information on the FTIX, or on any aspect of renewable energy activities in Thailand, please contact Charuwan Charoonchitsathian at [email protected], Napassorn Lertussavavivat at [email protected], or Ratchapat Triteeyaputranonta at [email protected].