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1 Setting the Legal and Policy Framework

Stage 1:
Setting the Legal & Policy Framework

Setting the Legal and Policy Framework refers to the need for a country to formulate clear policies and strategies that both attract FDI and benefit the country.

Government Policies and Strategies Legislative and Regulatory Frameworks Sector-Wide Analyses
2 Pre-Negotiation

Stage 2:
Pre-Negotiation Stage

The Pre-Negotiation Stage refers to the period during which a government identifies a particular project or investment and conducts feasibility studies and impact assessments.

Feasibility Studies Impact Assessments Tender Process and Financial Structure
3 Contract Negotiation

Stage 3:
Contract Negotiation Stage

The Contract Negotiation Stage refers to the actual negotiation of investment contracts between a government and an investor.

Prepare for the Negotiation Assemble a Negotiation Team Develop a Negotiation Position Contract Negotiation
4 Contract Implementation and Monitoring

Stage 4:
Implementation & Monitoring Stage

The Implementation and Monitoring of the Investment Stage refers to the period during which an investment project is developed and operated pursuant to the terms of the investment contract.

Monitoring Implementation Grievance Mechanisms

Roadmap

Pre-Negotiation Stage

Content of this page:

The Pre-Negotiation Stage refers to the period during which a government identifies a particular project or investment and conducts feasibility studies and impact assessments. It is also at this stage that a host government should prepare the necessary documentation to carry out a tender or competitive bidding process, if such an application of rights process is being used.

Key Tools At This Stage

Useful Resources

Tendering & Procurement

Attracting Investors to African Public-Private Partnerships: A Project Preparation Guide Go to resource

  • Date:  2009
  • Sector:  Infrastructure
  • Source:  PPIAF

This publication is an earlier version of the book above on "How to Engage with the Private Sector in Public-Private Partnerships in Emerging Markets". This book was aimed at African public sector officials while the updated version focuses beyond Africa with a wide range of case studies from several regions and sectors to show a more global perspective and experiences. 

The publication is also available in French.  

Mineral Resource Tenders and Mining Infrastructure Projects: Guiding Principles Go to resource

  • Date:  2011
  • Sector:  Extractive Industries, Mining
  • Source:  World Bank

A guide on how to tender mineral assets and mining-related infrastructure. It offers advice on how to choose the appropriate tendering process, a review of recent trends in the tendering of mineral resources and a discussion of the structure of the tender and of the PPP process.

The guide also contains a detailed case study of Afghanistan’s Aynak copper deposit to illustrate the application of an international competitive bidding procedure in the tendering of mineral resources in a developing country.

NRGI Reader | Granting Rights to Natural Resources: Determining Who Takes Natural Resources Out of the Ground Go to resource

This reader comes from a series of 20 short, illustrated overviews of key topics in the extractives sector. Together they serve as a robust introduction for the lay reader to fundamental issues and concepts in oil, gas and mining sector governance. They contain helpful figures and infographics, and each reader has a standard format: key messages, concepts, case examples, and a final set of practitioner-orientated questions to ask.

OECD Procurement Toolbox Go to resource

  • Sector:  Extractive Industries, Infrastructure
  • Source:  OECD

This Toolbox is an on-line resource that captures emerging good practice to enhance corruption prevention and good management in public procurement in OECD and non-OECD countries. The tools contained in this website have been compiled from practices which have been successfully tested in a number of countries.

The tools are classified according to their use in the procurement cycle (pre-tendering phase, tendering phase, post-award phase, or entire procurement cycle) and also by theme according to the pillars underlying the OECD Recommendation (transparency, good management, prevention of misconduct, or accountability and control.)

Open Contracting Go to resource

A collaborative online platform for public procurement practitioners, this online platform seeks to provide a space where interested stakeholders from civil society, government, the private sector, media, academia, and others can share, learn, connect and collaborate around experiences in open contracting.

Open Contracting seeks to help ensure broader consensus around the importance of enhanced disclosure and participation in public contracting, at all stages of the contracting process and across all sectors. This community is used to support knowledge exchange between countries, identifying challenges and proposing solutions needed to address those challenges.

The Open Contracting Resources section contains a list of monitoring resources and a database of tender information from countries around the world. 

Petroleum Allocation and Exploration Rights: Allocation Strategies and Design Issues Go to resource

  • Date:  2010
  • Sector:  Extractive Industries, Oil & Gas
  • Source:  World Bank

An introduction to the factors that affect the efficient and transparent allocation of petroleum exploration, development, and production rights. It discusses the different political, economic and social interests that go into the allocation of these rights and touches upon various approaches to allocate them, including legal and fiscal issues. It then guides the reader through how to design an appropriate rights allocation system.

PPP in Infrastructure Resource Center for Contracts, Laws, and Regulation (PPPIRC) Go to resource

A website that provides practical guidance and best practice in the planning, development and legal structuring of infrastructure projects, especially those involving the private sector.

The website includes sample documents, clauses and legislation from the power, water and sanitation, telecom, and transport sectors. It also includes standard procurement and bidding documents. Materials are available in English, French and Spanish.

Public-Private Partnerships Reference Guide: Version 2.0 Go to resource

The PPP Reference Guide is a comprehensive resource for PPP practitioners worldwide, drawing from global approaches and experiences.

The PPP Reference Guide seeks to provide advice on what PPP practitioners should know, rather than provide advice on what to do. The Guide sets out the main topics, looks at the key issues that must be addressed, and provides some of the most important references that PPP practitioners can turn to for answers and to enhance their own knowledge and understanding.

The website is also available in French and Spanish, but the document is only available in english.

It is structured into separate sections that focus on three main areas:

  1. What are PPPs, when might they be used and what are the advantages and disadvantages relative to public provision;
  2. What kind of policy, legal and institutional frameworks should be put into place to help improve their effectiveness; and
  3. What are the ways in which PPP projects can be developed and implemented.

A diverse range of case studies and institutional solutions, from all parts of the world, are presented in the PPP Reference Guide.

Toolkit for Public-Private Partnerships in Roads and Highways Go to resource

  • Date:  2009
  • Sector:  Infrastructure
  • Source:  PPIAF

Assists transport sector policy makers in low- and middle-income countries in implementing procedures to promote private sector participation and financing in the development of their road and highway sector.

Unsolicited Infrastructure Proposals: How Some Countries Introduce Competition and Transparency Go to resource

  • Sector:  Infrastructure
  • Source:  PPIAF

This paper looks at how governments can manage "unsolicited proposals" for PPPs--that is, proposals for PPP projects that originate from private companies, without being specifically requested by governments. The paper sets out the main challenges of dealing with such proposals--how to maintain private sector interest in coming up with project ideas, while ensuring competition and transparency in how these projects are developed and procured. The paper describes the various systems adopted by different countries to try to to address these.

Feasibility Studies

CCSI Gold Benchmarking Model Go to resource

With the support of IBIS, Columbia Center on Sustainable Investment (CCSI) has developed a gold benchmarking model that allows users to compare 10 fiscal regimes of gold producing jursdictions and the possibility to add the fiscal terms of an additional mining contract.

The use of the model has been piloted with the Africa Center for Energy Policy (ACEP) in Ghana and LATINDADD in Peru. Given that the benchmarking exercise needs to be done among peer group countries, which are those with a similar geology, infrastructure and political risk, the model includes the fiscal terms of countries chosen by ACEP and LATINDADD. 

Several sensitivity tests are provided, which allow the user to understand how the project economics and government returns change with varying assumptions, such as changes in the prices or changes in costs. CCSI has not locked any cells in the model to ensure that it is highly adaptable depending on the needs/requirement of the user.

Mining and Critical Ecosystems: Mapping the Risks Go to resource

Guidelines for assessing the viability of a project in environmentally or socially vulnerable areas that can help governments determine “no-go” areas for mining. It offers a general framework that can be used to identify risk areas globally and two case studies.

Outil de cartographie de l'énergie, créé par BP Go to resource

  • Sector:  Extractive Industries, Oil & Gas
  • Source:  BP Global

L'outil de cartographie de l'énergie, créé par BP, vous permet d'interroger les données, créer des graphiques et de télécharger les rapports de la "Statistical Review of World Energy". L'App "World Energy BP"- utilisant les mêmes données de la "Statistical Review of World Energy" - permet aux utilisateurs de télécharger les données interactives à leurs appareils.

Impact Assessments

FAO Investment Centre Environmental Impact Guidelines Go to resource

Guidelines that provide an overview of how to conduct environmental impact assessments of agriculture and sector-related investments.

Getting it Right: Human Rights Impact Assessment Guide Go to resource

This guide is a step-by-step process that allows assessment teams to take stock of the positive and negative human rights impacts of an investment project. Throughout the steps, information and additional references are provided including reference documents on human rights, examples of research techniques, relevant websites, and details on where to find specific information.

The guide is available in English, French, and Spanish.

Guidebook for Evaluating Mining Project EIAs Go to resource

The guidebook will help governments, public interest lawyers, grassroots advocates, and community members understand mining EIAs, identify flaws in mining project plans, and explore ways that mining companies can reduce the public health hazards associated with mining.

Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework Go to resource

En juin 2011, dans une initiative sans précédent, le Conseil des droits de l'homme des Nations Unies a approuvé à l'unanimité un ensemble de Principes directeurs sur les affaires et les droits de l'homme. Les Principes directeurs définissent une norme mondiale faisant autorité sur les rôles respectifs des entreprises et des gouvernements pour veiller à ce que les entreprises respectent les droits humains dans leurs propres opérations et dans leurs relations commerciales.

Ils ont été élaborés par le Professeur John Ruggie de la Harvard Kennedy School, alors Représentant spécial du Secrétaire général de l'Organisation des Nations Unies chargé de la question des droits de l’homme et des sociétés transnationales, pendant les six ans de son mandat auprès des Nations Unies de 2005 à 2011. Ces principes reposent sur les trois piliers du cadre de référence des Nations Unies, à savoir « protéger, respecter et réparer » proposé par le Professeur Ruggie au Conseil des droits de l'homme en 2008. Ces trois piliers du cadre de référence sont les suivants :

L'obligation de l'État de protéger les humains contre des abus perpétrés par des tiers, notamment les entreprises, grâce à des politiques, réglementations et décisions adéquates ;

La responsabilité des entreprises de respecter les droits humains, c'est-à-dire, d'agir avec la diligence requise pour éviter la violation des droits des autres et contrer les effets néfastes qui s'ensuivent ; et

Le besoin d'un plus grand accès, par les victimes, à des solutions efficaces, sur le plan judiciaire et non judiciaire.

ICMM Land Acquisition and Resettlement: Lessons Learned Go to resource

  • Date:  2015
  • Sector:  Extractive Industries, Infrastructure, Land & Agriculture, Mining, Oil & Gas
  • Source:  ICMM

The publication provides recommendations for managing the resettlement of local communities who have been displaced or whose livelihoods have been impacted due to the presence of mining. This includes ensuring adequate compensation and development opportunities.

The document is structured around 10 modules that cover planning, stakeholder engagement, compensation, livelihood restoration and monitoring impacts among other topics.

It is targeted primarily at companies, but also contains information and guidance relevant for all stakeholders, including government representatives.

ICMM Mining Partnerships for Development Toolkit Go to resource

  • Date:  2009
  • Sector:  Extractive Industries, Mining
  • Source:  ICMM

Methodology for assessing the mining environment in which a potential project will take place as well as the social and economic impacts of the project. It includes advice on how to measure impact on local communities and a mine’s life cycle, governance-related issues, and an overview of the different actors and interests involved in investment projects.

Mining and Critical Ecosystems: Mapping the Risks Go to resource

Guidelines for assessing the viability of a project in environmentally or socially vulnerable areas that can help governments determine “no-go” areas for mining. It offers a general framework that can be used to identify risk areas globally and two case studies.

New Alliance Analytical Framework for Responsible Land-Based Agricultural Investments Go to resource

This analytical framework is designed to assist investors in aligning their policies and actions with global and continental guidelines on responsible land-based investments, most notably the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT) and the Guiding Principles on Large Scale Land Based Investments in Africa (LSLBI). 

The Framework offers investors a due diligence and risk management resource to apply to their land-based agricultural investments. It is an effort to provide advice and highlight best practices related to structuring investments in the most responsible way possible.

The Framework includes red lines that indicate in which situations investment projects should be cancelled if no benign alternatives can be found. 

The Framework should be used throughout the life of the project, beginning with the preliminary project assessment, followed by the due diligence phase and continuing through the negotiation, agreement, operation and close-out phases. Hence, while the Framework ideally should be used from the beginning of a project, it can also be used after a project has commenced, as land tenure risks can and should be assessed well beyond the due diligence and start-up periods, especially in areas where communities have insecure land rights.

The Framework was developed by an international group of land experts and vetted through consultation with a broad array of stakeholders. The New Alliance and Grow Africa Leadership Council welcomed and recognized the Analytical Framework as a tool for investors, and agreed to assess experience with the framework in one year.

Practical Guide: Mining and Communities Go to resource

  • Date:  2015
  • Sector:  Extractive Industries, Mining, Oil & Gas
  • Source:  Communities First

Written in a question-and-answer format with dialogues among local people, the 300-page combined reference manual and interactive curriculum addresses: mines & communities, meaning the mine life cycle, the changes it brings, how to participate in an impact assessment and monitor the management plan; the rule of law, including human rights and the roles and responsibilities of each actor; conflict and violence prevention and tools supporting improved communication, negotiation and community cohesion, including consultation or community protocols and participatory land use planning; the possible benefits of mining, and tools to capture mining’s benefits, including local content strategies, community development agreements, and local financial management; ways to address and minimize impacts on land (compensation mechanisms, and resettlement), environment and cultural sites; what actions people can take locally to voice their concerns, how to document and monitor (including baseline studies, community-controlled impact assessments, joint participatory monitoring) and options for access to remedy locally, nationally, regionally and internationally.

In each of the Modules, the Guide draws on and summarizes relevant aspects of domestic law (not only the mining law, but also the Constitution, law of decentralization, land law, environmental protection law, water law, public health law, and more), regional and international human rights law, gender, industry best practice, and advice and case studies from affected communities around the world.

The Guide is available in French. An abridged summary version of the Guide is available in French and English. A folder with the Guide’s reference documents is available on Dropbox.