Legal Study of Foreign Investment Restrictions and Project Financing through the Implementation of Engineering, Procurement, Construction, and Finance (EPCF) Contracts

دانشنامه حقوق اقتصادی

Article 10, Volume 27, Issue 18, June 2021, Pages 29-80   

Document Type: Scientific research

DOI: 10.22067/le.v27i17.83236

Authors

Mahsa Bahadoran-Baghbaderani^{* 1}; Ahmad Mohamadi²

¹MA in International Trade Law, Faculty of Law, Theology and Islamic Sciences, Islamic Azad University, Najafabad Branch, Isfahan, Iran

²Assistant Professor of Private Law, Faculty of Law, Theology and Islamic Sciences, Islamic Azad University, Najafabad Branch, Isfahan, Iran

Abstract

 
Extended Abstract
Introduction
A contract that has highly attracted the owners of industries, private employers, and even the public sector in recent ten years in Iran is the engineering fixed-price contract, complete project supply contracts, construction provided the project be financed by the contractor or engineering, procurement, construction, and finance (EPCF) contracts.
Under this contractual term, a comprehensive agreement is compiled by combining two separate yet completely associated parts. One part includes the statement of work, the executive operation of the project, work methods and standards, inventories, commodity-procurement sources, technical plans and documents, required equipment and instruments, and other conventional elements in the EPC contracts. The other part encompasses the conditions, methods, and financing mechanisms.
Theoretical Frame Work
The EPCF contracts were officially introduced to the ground of various types of service agreements in 2012, following the official dispatch of “guidelines for the use of EPCF in selecting qualified firms” by the Deputy Minister of Petroleum for Trade & International Affairs.
Despite its simple structure, this contract is regarded as an innovative type of contract in Iran. However,  due to the multiple ambiguities and deficiencies caused by the regulations appertaining to the preparation of this type of contract, it has been subjected to several restrictions in the tendering process and execution of the contract. Regarding the popularity of this type of contract, if the said restrictions are neglected, they can both prolong the negotiation process and create some unsolvable legal and financial problems.
Methodology
The present study was conducted using a descriptive research method and incorporated the data with quantitative-qualitative nature. The key restrictions of this type of contract in terms of foreign investment and international project financing were legally discussed in this study, considering the written and legal documents (i.e., EPCF contracts belonging to Isfahan Mobarakeh Steel Company), face-to-face interviews with the EPCF experts, and asking them for their opinions using Likert survey questions. The study also addressed the ranking of these restrictions in the pre-assessment of the EPCF contracts compared to other usual commercial contracts. Finally, having interviews with those working in the field of EPCF contracts and considering the specific nature of the contract, the present work attempted to identify, analyse, and describe the relating problems.
Results and Discussion
The study was carried out on the 60 contracting institutes. It was demonstrated that these contracts have not been practically very efficient in Iran, despite all their advantages, and ten years after their initial drawing up and application, contractors and employers still have no positive attitude towards this type of contract. Indeed, based on our findings, the main existing obstacles before the investment through EPCF contracts include: failure by the Management and Planning Organization of Iran (MPO) to draw up fair EPCF contracts,  the transfer risk of the change in values, the contractor is responsible for the transfer risk of unpredictable items at the end of the project [as stated by contractors], no prediction for the excitation of the said contract by holding the tenders by the governmental organisations and the prolonged contract financing [as stated by employers], and in some cases, the inability of the contracting organisation for financing from the beginning to the end of project. Besides, there are some other problems, for instance, this contract is not recognized and prevalent for financing by foreign parties, the fixed-price EPCF contracts, early repayment following the opening of the project by the executors, financing supervision by the executor carefully , the timing of capital injection into the project, ambiguity of the financing method in the contract (organisational/project), and failure to offer proper and acceptable guarantees to the financing institutions. Compared to other prevalent commercial contracts, the EPCF is the most challenging among service/investment-based contracts.
Conclusions and Suggestions
To eliminate the existing restrictions in the EPCF contracts, some of the issues were presented here as the research proposals, including failure by the Management and Planning Organization of Iran (MPO) to draw up fair EPCF contracts to better clarify the aspects and functions of this contract to contractors and Iranian and foreign financing institutions, modification of the definitions provided in the guidelines for the use of EPCF system in the selection of the qualified firms by the syndicate and legal authorities in line with the integration of institutional or project financing methods, determine the possibility and impossibility of referral to the assets of employer by the EPCF contractor, modification of the mechanisms of granting of guarantees to the contractors and the financing institutions and observance of the motivations of a third contractual party to the EPCF contracts (i.e. the financing institution) to improve the attractiveness of EPCF contracts for investors, taking into account the sanctions related to dispossession or reimbursement of the procured financial resources after project profitability to prevent any intentional delays by the contractors, etc. The findings of this study can provide certain implications to investors, lawyers, parties involved in the EPCF contracts, firms acting to conclude development contracts, and procurement counselors in signing the study contract.
 

Keywords

EPCF Contracts; Financing Structure; foreign investment; Obstacles and Restrictions

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