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Kingdom of Cambodia
Nation Religion King
Royal
Government of Cambodia
No.
11/ANK/BK
Anukret
on
Build-Operate-Transfer (BOT) Contract
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Referring to the 1993 Constitution of the Kingdom of Cambodia;
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Referring to Reach Kret of September 24, 1993 on the Appointment
of the First
Prime Minister and the Second Prime Minister of the Royal Government of
Cambodia;
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Referring to the Reach Kret of November 1, 1993 on the Formation
of the Royal Government of Cambodia;
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Referring to Reach Kram No. 02/NS/RKM/94 of July 20, 1994 promulgating the
Law on the Organization and Functioning of the Council of Ministers;
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Referring to Reach Kram No. 03/NS/94 of August 5, 1994
promulgating the Law on Investment of the Kingdom of Cambodia;
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Referring to Reach Kret No. NS/RKT/1094/83 of October 24, 1994 on
the Reorganization of the Composition of the Royal Government of Cambodia;
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Referring to the Reach Kram No. NS/RKM/1096/18 of January 24, 1996
on the Establishment of the Ministry of Economy and Finance;
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Referring to Reach Kret No. CS/RKT/0897/147 of August 7, 1997 on
the Reorganization of the Composition of the Royal Government of Cambodia;
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Pursuant to the Proposal of the Senior Minister and the Minister
of Economy and Finances;
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Pursuant to the approval of the Council of Ministers of December
18, 1997.
It
is hereby decided
Chapter
1
General
Provisions
Article
1:
A Build-Operate-Transfer (BOT) project is a concession contract in which a
Principal, grants a concession to a Concessionaire who is responsible for
the construction and operation of a facility over the period of the
concession before finally transferring the facility, at no cost to the
Principal, as a fully operational facility.
Article 2:
This Anu-kret shall cover only for project where the State or public legal
entities as a Principal and private legal entities as concessionaire. It
shall not cover for project between private individuals.
A ministry,
institution and competent authority responsible for related infrastructure
projects shall have the power on behalf of the Royal Government of
Cambodia to enter into a BOT contract pursuant to the terms and conditions
as stipulated in this Anu-kret.
Beside the State, State owned legal entities shall also have the power to
enter into a BOT contract pursuant to the terms and conditions as
stipulated in this Anu-kret.
Article 3:
Only infrastructure projects declared by the Council for the Development
of Cambodia or an entity authorized by the Royal Government of Cambodia
can be the subject of a BOT contract.
Those infrastructure projects shall cover the following:
Electricity power plants, roads and highways for vehicles, ports,
telecommunication networks, railroads, residential development, hospitals,
schools, airports, stadiums, tourism resorts, new cities, hydropower
stations, dams, factories, clean water production plants and solid waste
processing.
The infrastructure construction costs incurred within the framework of a
BOT project shall be entirely borne by the Concessionaire.
The contract shall clearly stipulate the performance bond secured by the
concessionaire.
Article 4:
The contract shall
define the supervisory authority of the Royal Government of Cambodia or
other legal entities in the event of default of the Contract by the
Concessionaire.
The BOT contract shall grant the concessionaire’s sole management rights
over the infrastructure project for a maximum period of 30 years which can
be extended pursuant to the terms and conditions stipulated in the
Contract.
The concessionaire shall be responsible for any cost related to the
operation of the infrastructure as defined in the Contract.
The contract shall define the modalities for collecting revenues in which
the Concessionaire has the authority to do so. The internal rate of return
of the Concessionaire shall be subjected to the prior approval of the
Royal Government of Cambodia or any other legal entity granting the
concession.
The Concessionaire shall pay royalties or partial revenues to the Royal
Government of Cambodia or the concession’s legal grantor as stipulated
in the contract.
Article 5:
The Concessionaire shall transfer the related infrastructure projects and
facilities in good operational conditions to the Royal Government of
Cambodia or the concession’s legal grantor at no cost.
Such transfer shall be done at the latest at the expiration date of the
management period as stipulated in the contract.
Article 6:
The ministry or a public legal entity could enter into a BOT contract with
physical or legal person of Khmer or foreign nationality or with the
consortium which was established by the above mentioned persons.
Shall be considered as Khmer legal entity any company whose shares of at
least 51% are held by Khmer legal or physical person(s).
Article 7:
The Concessionaire shall be allow to transfer its rights arising under the
BOT contract to a third party pursuant to the following conditions:
1. At least thirty percent (30%) of the total investment facilities
stipulated in the contract have been completed.
2. The
Concessionaire shall be jointly liable with the third party for the
completion of the project as stipulated in the contract.
3. Such transfer shall be subjected to the approval of the Royal
Government of Cambodia or of any concession legal grantor.
Article 8:
The State or the concession legal grantor shall have the sole to impose
fines, suspension or rescind the BOT contract without compensation in the
following cases:
- The Concessionaire is in bankruptcy proceedings.
- The Concessionaire fails to respect its main obligations as
stipulated in a contract after repeated warnings by the Principal.
- The Concessionaire violates the laws and other regulations of the
Kingdom of Cambodia.
Chapter
2
Concessionaire
Selection Procedures
Article
9:
The selection of the Concessionaire for a BOT contract shall be conducted
strictly through international or national (open or close) bidding
process.
The selection shall
be conducted through the negotiation procedure for the following cases:
1. The bidding process was not successful.
2. The
project contains necessary specifications requiring the selection of a
special concessionaire.
3. The special criteria for the infrastructure project require qualified
concessionaire to meet these special criteria.
The
selection procedures shall be as follows:
a. For any contract in which the Royal Government of Cambodia is a party,
there shall be a consensus between the Minister in charge of the related
project, the Minister of Economy and Finance and the CDC.
b. For any
contract acted on behalf of a public legal entity by the supervising
authority, the formality shall be made pursuant to a Prakas of the
Minister of Economy and Finance.
Article 10:
For any contract approved on behalf of the Royal Government of Cambodia,
the technical and financial selection of the Concessionaire shall be
defined by:
1. a joint decision made between the Minister in charge of the related
project, the Minister of Economy and Finance and the CDC for investment
project costing less than or equal to 5 million dollars.
2. a decision of the Prime Minister pursuant to a joint proposal of the
Minister in charge of the related project, the Minister of Economy and
Finance and the CDC for investment project costing less than or equal to
10 million dollars.
3. a decision of the Council of Ministers pursuant to a joint proposal of
the Minister in charge of the related project, the Minister of Economy and
Finance and the CDC for investment project costing more than 10 million
dollars.
For contract approved on behalf of a public legal entity, the technical
and financial selection of the Concessionaire shall be made by the
supervising authority of that public legal entity.
After selecting the Concessionaire, the authority that approved the
project shall issue a BOT license. The license shall be issued only
against the Concessionaire depositing its security deposit pursuant to a
Prakas of the Ministry of Economy and Finance on the implementation of
this Anu-kret. The license shall define the rights and obligations of the
parties to the BOT contract.
Article 11:
Based on the BOT license, it shall be prepared a detailed contract
stipulating the rights and obligations of the contracting parties.
The contract shall be signed by:
a. The
Concessionaire and the Minister in charge of the related project, the
Minister of Economy and Finance and the CDC for any contract approved on
behalf of the Royal Government of Cambodia.
b. The
Concessionaire and the supervising authority of the public legal entity,
the Minister of Economy and Finance and the CDC for any contract approved
on behalf of the public legal entity.
The Concessionaire shall form his company and register it under the laws
of the Kingdom of Cambodia for implementing the BOT contract. The company
objectives shall conform to the BOT contract license. The company shall
comply with the applicable laws and regulations of the Kingdom of
Cambodia.
Chapter
3
Responsibility
under the BOT Contract and Dispute Resolutions
Article
12:
The Concessionaire under the BOT contract may freely buy or transfer any
necessary foreign exchange for the purpose of fulfilling the obligations
under the contract and pursuant to the Law on Foreign Exchange Management
No. CH/RKM/0897/03 of August 22, 1997.
Article 13:
The Concessionaire under the BOT contract shall be entitled to incentives
and benefits as described in the Law on Investment promulgated by Reach
Kram No. 03/NS/94 of August 5, 1994 and its implementing Anu-krets.
Article 14:
All disputes arising under this BOT contract shall be settled expediently
and amicably through negotiations and arbitration in accordance with the
terms of the specific contract.
Chapter
4
Final
Provisions
Article
15:
Any BOT contract that was approved on behalf of the Royal Government of
Cambodia or a public legal entity that are contrary to this Anu-kret shall
be abrogated.
Article 16:
The implementing instructions for this Anu-kret
shall be determined by a Prakas of the Minister of Economy and Finance in
consultation with the Council for the Development of Cambodia.
Article 17:
The Co-Ministers in charge of the Office of the Council of Ministers, the
Minister of Economy and Finance, ministers and secretaries of state, and
provincial/municipal governors shall have the responsibilities to
effectively implement this Anu-kret.
Article 18:
This Anu-kret shall enter into force from the date of its signature.
Phnom
Penh February 13, 1998
First Prime Minister Second Prime
Minister
Ung Huot
Hun Sen
Has informed and Submitted to
First
Prime Minister Second Prime Minister
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