Transition Towards Futuristic and Resilient InfrastructureET Edge
India has been moving on a growth trajectory over the last few years. The country is poised to achieve a Gross Domestic Product (GDP) of USD 5 Trillion by 2025[i] by undertaking transformative initiatives across various sectors. Government has been taking many initiatives for boosting connectivity, augmenting capacity and fostering industrial development. At the same time, the country would require an investment of USD 4.5 trillion by 2040[ii] for developing world-class infrastructure. The current trend of development indicates that the country is likely to meet the requirement of USD 3.9 trillion by the given time, leaving an investment gap of USD 526 billion[iii]. The need of the hour is to fill this gap by exploring alternate sources of finance including private investments, international financial assistance/ loans, innovative financing mechanisms, and leveraging public investments to attract substantial funding from the market.
Furthermore, the infrastructure landscape is changing rapidly in an era of Internet of Things (IoT) and Industry X.0, owing to the pace of development in technology. To achieve the long-term vision for cohesive development, along with the traditional infrastructure such as roads, highways, airports, railways, power grids, it is essential to focus on development of new age infrastructure such as logistics hubs, automation/ mechanisation of ports, smart grids, green buildings, smart traffic lights, and integrated traffic management systems, among others.
In this context, the Government’s focus on robust infrastructure development has been gaining momentum in the recent years. India’s infrastructure sector is expected to see a remarkable journey ahead.
Recent government initiatives reaffirm its commitment to invigorate the sector, with rising public spending in Union Budgets 2018-19 and 2017-18 (INR 5.97 lakh crore/ USD 83 billion and INR 4.94 lakh crore/ USD 68 billion respectively[iv]), policy actions taken to revive languishing Public Private Partnership (PPP) projects, establishing single-window clearances for industry friendly environment, instigating government-backed models such as Hybrid Annuity Model (HAM) and Toll-Operate-Transfer (TOT) models in highways, passing of the Insolvency Resolution Act, etc.
With a view to enhance connectivity, schemes such as Bharatmala, Sagarmala, and Regional Connectivity Scheme have been launched introducing abundant opportunities to the private sector. To further increase the appeal of the sector to potential investors, multiple steps have been taken including relaxation of Foreign Direct Investment (FDI) norms, approval of new Metro Policy with a mandatory PPP component for availing financial assistance, and operationalisation of various infrastructure focus funds. The roll-out of Goods and Services Tax (GST) is also expected to have a considerable impact on reduction in logistics cost.
) among 190 countries (Doing Business Report 2019), and improved to a rank of 44 among 160 countries in World Bank’s Logistics Performance Index (LPI) 2018[vi].
While a lot has been achieved, a number of structural and operational challenges still need decisive tackling: fragmented institutional framework, lack of integrated planning, land acquisition delays, lengthy clearance procedures, availability of financing, lack of comprehensive and balanced contractual framework, and a lack of proper infrastructure maintenance mechanisms, to name a few.
While sectoral reforms are being pursued, a significant thrust has been laid by the government to bridge the infrastructure gap by developing ambitious project plans for various sectors. These measures and technological advancements have opened up enormous opportunities for private participation in the provision of infrastructure and services. Persistent and collaborative initiatives with continued reforms are expected to further enhance infrastructure development in the country.
Reviving PPP investments remains a persistent theme
Given the requirement for private participation to support adequate infrastructure growth, the government has been focussing on enabling PPP projects in the sector.
The Indian PPP infrastructure market is significantly large with over 1,550 projects worth over INR 11.40 trillion[vii] (USD 150 billion) under various stages of implementation (PPP Cell, Infrastructure division, Department of Economic Affairs).
Figure 1: PPP projects across sectors
Source: Department of Economic Affairs PPP Database, Ministry of Finance, Government of India
As seen from Figure 1: PPP projects across sectors, India has witnessed a maximum number of PPP projects undertaken in the Transportation (particularly, roads) and Energy sectors. Going forward, the government is now seen focussing on exploring appropriate and innovative models in social sectors such as water and sanitation, education, healthcare, etc., for fast-tracking sectoral development, further leading to a holistic development of the economy.
Over the years, while PPPs have been lauded for their approach in sectors such as roads and aviation, they have been equally criticised for being constrained due to long gestation periods and increasing disputes leading to languishing projects.
Response to PPPs has been less enthusiastic in most other sectors owing to a number of regulatory challenges, economic and political changes, inaccurate demand estimation, high risk perception, and pending dispute resolution procedures, besides the want of commercially pragmatic implementable models. Financing is becoming more difficult to come by, as the banking system struggles with increasing Non-Performing Assets (NPAs) and investors have had past experience of value erosion, as uncertainties loom large on typically long-duration infrastructure projects.
The government’s focus to address these challenges by exploring and adopting alternative approaches towards PPP with models such as HAM and TOT backed with public funding, along with burgeoning emphasis towards undertaking policy and regulatory reforms to enhance PPPs are some steps in the right direction. These may work towards enhancing confidence in the banking system and investors comfortable with EPC (Engineering Procurement Construction) route.
In terms of sectoral development progress, the pace of road construction has increased to 28 kilometres/day in 2017-18 and is targeted to reach 40 kilometres/day in 2018-19[iii]. The port sector has also shown a growth of 20%[iv] since government’s flagship programme Sagarmala was launched to enhance ports’ connectivity through unleashing the potential of India’s coastline and waterways. Further, to promote inland water transport in the country, 111 waterways have been declared as National Waterways (NWs)
. Of these, 36 NWs have been found viable for development[vi]. The aviation sector too, is abuzz, as most large airports reach their flying capacity and metro cities require a second airport to meet future demand. The Government of India has also launched Regional Connectivity Scheme (or UDAN) to boost air connectivity to unserved and underserved airports in India. Under Phase I and II of RCS the government has already awarded about 453 routes to airlines and helicopter services.
In sectors other than transport, renewable energy (RE) projects are seen gaining traction. As per the Renewable Purchase Obligations (RPO), distribution companies and large industries are required to meet a percentage of power requirements from renewables. 100% FDI under automatic route for generation and distribution projects has opened up the market for international investors. Under National Mission for Clean Ganga, the government is considering doubling the capacity of sewerage treatment in 10 major cities to curb river pollution, and is also evincing international participation.
Several investment opportunities have also been emerging in the Smart Cities and Affordable Housing space. Smart Cities are gaining momentum on account of push from central and state investments. Given the technology play for smart solutions besides core infrastructure augmentation, service providers could gain from a series of projects in areas of IT connectivity, intelligent traffic management, air and water quality monitoring, energy efficient street lighting, among others. Further, as massive migration ensues from rural areas to urban centres, Affordable Housing is also emerging as an area offering significant investments opportunities.
With a plethora of opportunities ranging across various segments, India’s infrastructure sector is opening up avenues for private sector players to explore and establish their presence in contributing
Infrastructure development has been seen playing a pivotal role and is likely to be valuable in unleashing the growth potential of India. However, rapid urbanisation during the last decade have put immense pressure on the existing infrastructure.
Though there have been several initiatives taken by the Government of India to promote infrastructure development, some of the major challenges include cost and time overruns, uncertainty in the policy and regulatory frameworks, inappropriate risks sharing through PPP framework, prolonged disputes, as well as sectoral issues including poor financial health of public sector counterparts. These issues have been seen adversely impacting the commercial viability of the many of the projects which the infrastructure sector seems to be currently grappling with.
The gap that exists between the projects approved for award and the projects actually completed (some stalled due to land acquisition issues or, delayed approvals and clearances), is a testimony of the challenges which prove to be a significant impediment on infrastructure development. As on today, approximately 1556 Government PPP Infrastructure projects have been awarded out of which 761 are under completed or operational stage and 795 projects are under different stages of development.[i]
It has been long discussed that the infrastructure spending in the country is not commensurate to the GDP growth. The financing requirement is estimated to be around INR 50 lakh crores (USD 690 billion) in the next five years[ii]. The Indian Infrastructure sector faces critical financing issues in terms of high cost of capital, challenges in obtaining non-recourse funding and dearth of long-term funding sources. The challenge is aggravated further due to the unprecedented stress levels in the banking sector on account of increasing NPAs, slow development of alternate sources of finance and lack of innovation in financial instruments.
Structural issues persist with lack of mature financial mechanisms and appropriate credit rating systems for various infrastructure projects. Further, new infrastructure funds like National Investment and Infrastructure Fund (NIIF) and India Infrastructure Project Development Fund (IIPDF) proposed to enhance infrastructure financing are yet to fully take off.
A mature PPP framework could help the government to facilitate private investment in infrastructure. Concerted policy and regulatory actions such as follows could help address long pending demands of the industry.
The uncertainties and fluidity in the past on policy and regulatory frameworks related to Dividend Distribution Tax (DDT), applicability of Minimum Alternate TAX (MAT) to foreign companies, applicability of section 80 IA, introduction of General Anti-Avoidance Rule (GAAR), GST, land acquisition delays, Generation Based Incentive (GBI), and others are seen to have increased the perceived risk in various segments of the Indian infrastructure sector.
There is a lack of a legal framework for PPPs in the form of PPP act/law/policy in India. It is required to develop a comprehensive National PPP act/policy defining the objectives, scope and implementing principles of the PPP program envisaged by the government. This will impart an authoritative framework to implementing agencies as well as to legislative and regulatory agencies obligated with oversight responsibilities.
Absence or multiplicity of regulators is one of the major reasons for disputes being unresolved, leading to litigations and cases which in turn lead to delays or cancellation of projects and results in cost escalation, thereby making the projects unviable.
Given the long-term nature of complexities and sensitivities involved, many of the infrastructure projects tend to face challenges and roadblocks leading to issues in project execution and resulting in delays in completion or termination of contracts which further end up in disputes.
Dispute resolution mechanisms for PPP projects are seen to be time consuming, often derailing project timelines and freezing funds, eroding surpluses of the developers/operators involved. There is a need for an efficient and credible dispute resolution mechanism at the national level.
To foster the successful implementation of a PPP project, a robust PPP-enabling ecosystem including liquid and diversified financial institutions, sound regulatory and arbitration frameworks, optimal risk allocation among stakeholders, and a robust institutional structure are essential to address the contractual issues and facilitate development.
Going forward, with the emerging opportunities across new age sectors like Smart Cities, the PPPs may involve comprehensive reforms of the legislation and procurement procedures. There is a need for exploring and establishing new avenues for facilitating contractual mechanism and institutional arrangements to cater to the perspective of new and emerging players across various categories of projects.
In the current scenario, land acquisition is the single-largest roadblock for development of infrastructure. Several projects have been stalled or delayed due to land acquisition issues. Amendments to the Land Acquisition and Rehabilitation & Resettlement Bill (LARR) have been under discussion and are expected to ease the process of land acquisition and reduce the number of litigations.
Delay in regulatory and environmental clearance due to bureaucratic complexities and the protracted procedures for securing approvals, delays in conducting environment appraisal meetings and in constituting State-level Expert Appraisal Committees (SEACs) slows down the project approval process resulting in delay in the overall development of the project.
Governmental capacities to structure PPPs continue to remain low on many aspects, especially in the areas pertaining to risk frameworks, market trends and structuring of PPP projects, and operationalisation of PPP funds and haven’t kept pace with the market requirements.
The government is now seen focussing on undertaking a series of reforms to address many of these procedural and capacity issues which seem to be positive signs and attempts to revive PPPs
- Need to prepare for new age infrastructure – smart cities embracing technology, solar panels, electric vehicles, multi-use infrastructure
- New set of investors (formerly EPC), service providers likely to be in fray
- Appropriate models for the different set of proponents
- Contractual flexibility to keep pace with technological developments
- Time taken to resolve disputes is high
- Arbitration happens but decisions are not necessarily being implemented
- Need to move towards institutional arbitration
- Need for a pool of arbitrators from infrastructure sector
- Delay in land acquisition one of the primary reasons for stalled infra projects
- Cost of land acquisition rising – citizen/political protests, statutory clearances, lack of appropriate land
- Simplifying land acquisition processes
- Developing transparent, competitive, demonstrable rehabilitation packages
- Better project planning
- PPPs have seen success in some mature sectors such as transport, energy; need to structure projects in non-traditional sectors like water, health, education
- PPP market activities slowing down owing to economic upheaval and perceived risks by PPP players
- Reviving PPPs through public sector backed models/ Hybrid models, to continue to leverage capital market
- Globally, private finance of infra has declined, from ~ USD 150 billion in 2012, to USD 90 billion in 2017[i]– similar situation persists in India
- Currently, FDI is able to meet only about 2% of financing requirements[ii]
- Banking system struggling with NPAs, asset-liability mismatch that may deter them to finance long gestation high value infra projects
- Excess reliance on federal guarantees
- Presence of strong counterparties (NHAI, PGCIL) boosts investor confidence
- Foreign investors inclined to invest once agreements are signed, or projects are in operation stage
- Recognizing bankable projects and bankable institutions is important
- Need for mobilizing development financing
This section is based on discussions and deliberations held during various panel discussions and key note addresses during the summit. The details of the sessions and speakers are provided at Annexure.
PPPs continue to be important in the area of infrastructure development and offer potential to leverage funds from domestic and international markets. However, Foreign Direct Investment (FDI) in infrastructure has been sporadic over the past few years. The panel discussion, held at the Infra Focus Summit 2018, delved into issues with regards to the funding models of PPP, risk appetite of investors in PPPs, the challenges faced, and the trends that follow.
|Infrastructure sector provides ample opportunities for the high-spirited private sector/ economy of India
Infrastructure, and in particular the roads sector has been on a consistent growth trajectory over the years.
In the roads sector, the past few years have seen a tremendous increase in the road construction in India. During 2017-18, on an average, 27 kilometres of highways were constructed every day with a total of approximately 10,000 kilometres during the year.
The Bharatmala project, a large-scale highways development project single-handedly aims to build about 24,800 kilometres of highways in phase I across the country. With such greenfield projects underway, private participation can truly be encouraged to optimise performance. Not only would private participation ensure financial support, but also lead to reduction in time of delivery as private sector often pushes for faster completion to reap quicker rewards.
Further, for financially viable projects, market borrowings are a clear option. However, for social development projects e.g. road constructions in backward and border areas that do not guarantee high returns, the government would need to lend a hand. While FDIs are being targeted for mobilising investments, challenges remain. Despite several policy measures, the market is able to mobilise foreign investments in a limited way.
The government’s focus on undertaking progressive initiatives to bring in private sector efficiency has been gaining momentum and is envisaged to bring a change going forward.
This section draws inputs from panel discussion on ‘Reviving PPPs to woo FDI in infrastructure’. Moderated by Vishwas Udgirkar, Partner and leader of infrastructure practice at Deloitte, the panel was graced by eminent personalities such as Katsuo Matsumoto, Rohit Modi, Shailesh Pathak, Bipin Pradeep Kumar, P.R Jaishankar, S.K Saha, and Gurpreet Chhatwal. The key highlights of the interaction on the issues and future of FDI in PPPs revolved around alternative models such as ToTs and their potential, the government’s focus on upfront investments in projects, need for transparency in the system and new age projects like Smart Cities that may require a different approach. These are detailed below.
Large infrastructure market with high potential for foreign investors; PPPs: Important drivers for infrastructure
The Indian PPP infrastructure market is significantly large with over 1,500 projects worth over INR 10.48 trillion (USD 150 billion) under various stages of implementation (PPP Cell, Infrastructure division, Department of Economic Affairs).
Any plan for infrastructure development in the country has to keep in mind India’s economic requirements in the next 40-50 years. In a developing country like India, the basic requirements like education for all, 24X7 power supply, accessible safe drinking water, etc., are still the prevailing challenges in the economy. Hence, policymakers tend to invest in infrastructure assets that generate socially acceptable returns in relatively shorter periods of time. This creates a dichotomy between what is needed now (village roads, sewerage systems, basic care hospitals) and what is required to propel towards the future (smart cities, energy-efficient lighting, smart grids). However, both ends offer significant potential and opportunities for innovation and investments of diverse nature. Keeping a 50-year timeframe in perspective, an economy of USD 100 trillion would require substantial investments.
At a time when governments are reeling under budget constraints, PPPs offer to develop socially relevant infrastructure while tapping private sector efficiencies. Given the long gestation periods of infrastructure projects, requiring robust experience and large pockets, PPPs offer expertise which a single entity otherwise may not be able to possess. Over the years, while some PPP projects have garnered interest, many have been constrained owing to regulatory challenges, inaccurate demand estimation, economic and political changes, and pending dispute resolution. Despite these and other challenges, PPPs are seen as one of the important drivers for infrastructure development in India. Going forward, renegotiations of contracts are being looked at to revive languishing projects, as also to incorporate flexibility in future PPP contracts.
For new age projects like Smart Cities, new innovating financing mechanisms for recovery of costs along with measures related to monetization of data and use of technology like blockchain might be the new evolving models for consideration.
Foreign investments have been sporadic
The government has been trying to attract foreign investment in infrastructure to bring in financial, operational, and managerial efficiency from the private sector. However, despite easing of FDI norms, foreign investment in infrastructure PPPs has been sporadic due to concerns relating to PPP structuring, contracting mechanism, transparency, and dispute resolution. Nearly a quarter of India’s FDI is directed towards the infrastructure sector. However, can meet only about 2%% of the sector’s requirements. In the last few years, major FDI deals have taken place in the road and energy sector. While banks have played a key role in infrastructure development in the past, asset-liability mismatch, rising NPAs, and long gestation periods have deterred their funding to the sector. This has created a need for new financing mechanisms.
Table 1: FDI inflows in India
|Financial Year (April-March)||FDI inflows in India (USD billion)||FDI in construction sector (infrastructure activities) (USD billion)|
|2018-19 (up to June 2018)||16.9||–|
Source: Department of Industrial Policy and Promotion, Government of India
Alternative models and financing mechanisms may help draw FDIs
With an aim to deal with legacy issues, policymakers have taken steps to make PPPs more attractive viz., alternative models like HAM and ToT, dedicated institutions like India Infrastructure Finance Company Limited, and introduction of progressive financing mechanisms such as Viability Gap Funding (VGF) and NIIF.
Past experiences may have impacted market perception
Past infrastructure PPP bids have seen aggressive bidding by private sector to procure major projects, only to realise later that the project may not be feasible at agreed-upon costs. In addition, gold plating of projects, i.e., promising additional features which may not add value but substantially raise costs, have led to unrealistic expectations. Excessive reliance on federal guarantees, leading to low due diligence, as also unequitable risk allocations, have led to dilution of PPP principles per se.
Some major construction conglomerates have been able to mobilise foreign investments into their companies, on back of their positioning and strong financials. However, the success has been few and far in between. There is a persisting reluctance of foreign companies to undertake construction risk, and hence there is a preference for projects which are already in the operating stage. Investors’ expectation that the government will fill the risk-return gap and safeguard their investments, may also have been a deterrent which transfers more risk to the government.
G2G financing and bi-lateral cooperation another promising avenue
In such a scenario, G2G financing is yet another avenue such as through bi-lateral cooperation agencies like JICA, involved in Metro projects in India. In such projects, foreign companies have more concerns regarding passenger (footfall) risks, and a provision for compensation by government in case of a gap, would provide them adequate comfort.
Preparing the India infrastructure market for FDIs
To woo foreign investors, it is imperative to ensure stability of cash flows, empower development of strong counterparties, and facilitate predictable returns through more realistic forecasting. Government support in mitigating risks not only in the construction stage but also in implementation stage is necessary, especially in cases where there is a high revenue risk, or passenger footfall is unpredictable such as in the Railways sector. Adequate preparation for projects, selection of an appropriate model and prudent regulations are some of the key aspects required to generate desired outcomes. In the absence of these foundation stones, no amount of investment, due diligence, or budgetary support is likely to pay off.
Infrastructure development is the catalytic force driving economic progress. In the past, India’s difficult business environment with unpredictable regulations, bureaucratic delays in approving projects, endless struggles to secure land rights and the government’s stalled attempts at reforms have been the major prevailing challenges, curbing the enthusiasm of many in the private sector. The government is now focussing on formulating conducive new policies, offering more attractive incentive packages and developing mechanisms to facilitate greater private sector participation in improving the operational and managerial efficiency in the sector.
This section draws inputs from a panel discussion was held on preparing the roadmap for delivery of infrastructure targets, moderated by Himangshu Watts, Senior Editor, Energy and Infrastructure at The Economic Times. The panel was graced by eminent personalities from the industry such as Naveen Jindal, M.K.Gupta, Rajiv Mundhra and Ajit Gulabchand. Specific examples from rail sector were discussed during the session.
Railways are undertaking many initiatives to widen and modernise the rail infrastructure
Current Scenario: Railways in India have a 150-year old legacy. Over this period, the increment in infrastructure is hardly 30% in terms of laying new railway lines and tracks. Today, around 20% of the routes carry 50-60% of the traffic leading to clogged routes. The bottlenecks in augmenting the railway lines are associated with land acquisition, forest clearances and acquiring right of way. Further, there is a lack of competent contractors to deliver the railway projects and there is a lack of engineers to supervise these projects leading to difficulties in its implementation.
Furthermore, the eastern part of India majorly lacks in meeting the infrastructure target requirements due to which the private sector are operating at 70-80% capacity level. The delivery of railways projects are taking longer than initially planned. The government is now laying more emphasis to overcome the challenges leading to delays which would reduce the overall logistics cost and facilitate the development in this region.
Development initiatives for future enhancement: In the next 3-4 years, progressive initiatives are being undertaken to resolve these issues and meet the requirements of the next 15-20 years. More than 20,000 kilometres of new railway lines are planned to be constructed in remote areas for socio-economic development and in industrial areas to feed the industries. Analysis of routes and railway lines has been undertaken by the Railways and over 15,000 kilometres of railway lines are planned to be double or triple lined in the next 4-5 years. In terms of projects financing, reforms are being undertaken to promote project financing where non-financially viable projects are facilitated through government support and financially viable project are undertaken through market borrowing.
Currently, initiatives such as JVs with 11 states in India are being taken up for developing railway projects by incorporating a mechanism of involving private investors. Project specific JVs would also be floated. A new line in Chhattisgarh involving approximately INR 6000 Crores (~USD 1 billion) of investment is currently being undertaken through this model. This would be a major advantage in resolving state-related issues and faster clearances due to an integrated mechanism of stakeholders where the state government’s involvement, responsibility, and accountability for the projects would be crucial for its success.
Metro Rails are emerging as an important urban mobility element
Current Scenario: Urban public transport in India is not able to cater to the current development requirements. Due to boom in automobile industry, competitive prices of cars and easily available finance, the vehicle population is on a rise, and congestion has been multiplying. During the peak hours, the average speed on road ranges in single digit numbers and about approx. 10-12 kilometres of distance takes around 1-1.5 hours of traveling time. As per a recent estimate by NITI Aayog, we are losing around INR 3 lakh crores (over USD 41 billion) every year for not having a good sustainable transport due to factors like travel time, loss of productivity and fuel, etc.
Delhi Metro was initiated in 1997-98 and in less than 18 years, a network of over 300 kilometres has been developed. Additional 70-80 kilometres is envisaged to be constructed by the end of this year. As on today, it is one of the top metros in the world in the league of Moscow, New York and London. After its success, the Government of India is now focussing on constructing metros in about 10-11 cities of India by exploring different models for development. However, there are challenges related to complexities, high costs, and risks associated with them.
Future Focus: Private intervention in metro rail development would be challenging due to higher risks of ridership or revenue risk. This was also seen in a privately operated stretch of Delhi Metro. The cost of financing is also higher leading to expectations of higher return on equity. With a concession period of 30 years, there are huge stakes and uncertainties where private sector may be reluctant to participate due to limited risk appetite. The challenge lies in arriving at appropriate risk mechanism for these projects. The government may be in a better position to deliver such projects owing to the high risks of financing and delivering factors.
Other modes of private intervention are being explored in upcoming phases where part of the non-core services such as delivery stations are planned to be handed out to private sector Other option in consideration is the involvement of private parties for supply of rolling stock where a depot for maintenance would be provided by government, and the private sector would own, maintain and supply rolling stock on requirement basis.
Going forward, to meet the infrastructure targets in the sector, there is a need for a conducive policy framework with a cooperative endeavour to address issues. There is a need for development of a comprehensive strategy through integrated planning and contracting mechanism to resolve prevailing issues within definite timelines. Further, more emphasis on creating project specific entities like Delhi Metro Rail Corporation which are empowered to take project specific decisions in a more effective manner should be considered for establishing an appropriate institutional mechanism.
Measures being taken to improve the infrastructure ecosystem, expected to yield results
Interventions ranging from PPP policy and regulatory changes to development of long-term financial instruments which are likely to be instrumental in attracting investments to the sector are being undertaken, to accelerate the development and implementation of PPP projects. It is of paramount importance to implement these reforms to enable unlocking of the invested capital through strategic investments, efficient and innovative financing mechanism, developing capital market avenues and enabling reinvestment in new projects.
Some transforming initiatives that have been undertaken during the last couple of years include adoption of new PPP modalities in the roads sector, permission to infuse funds in languishing projects, liberalization of exit policies, revision of policy and regulatory frameworks, monetization of assets and setting up a Project Monitoring Group (PMG). Further, new avenues like InvIT, setting up of NIIF and IIPDF to enhance infrastructure financing have also been explored to play a pivotal role in infrastructure sector development.
Further, the Kelkar Committee’s recommendations on revisiting and revitalising PPP are being implemented, however the momentum with which these initiatives are driven and the execution of these ideas within stipulated timelines holds the key. Despite the efforts, some overarching issues such as balancing out the risks sharing mechanism in the PPP format, provision for re‐negotiation of contracts, impartial and quicker dispute redressal mechanism, and encouraging project finance based on prudent project appraisal and structuring expertise are some of the areas which still require improvements.
Construction and infrastructure arbitrations: Expediting dispute resolution and clearing the road for robust infrastructure
Government is working towards reinvigorating the infrastructure sector PPPs. However, given the long-term nature of these projects, there are several complexities and sensitivities involved. As a result, many of the infrastructure PPP projects tend to face challenges and roadblocks leading to disputes.
In the current scenario, the known quantum of disputes unsettled is more than INR .7 Lakh Crores Billion (USD 9.8 billion). The major crippling factor to the growth of the infrastructure sector lies in the fact that about 15% of the entire turnover of the industries has been eroded due to expenditure on disputes and about 95% of these disputes end in arbitration[i]. There is a need to ensure that an efficient dispute resolution mechanism is in place.
In India, arbitration is a preferred mode of dispute resolution and has been governed by the Arbitration and Conciliation Act, 1996. However, with the increase in complex infrastructure contracts, the entire arbitration management was perceived to be fraught with project delays, cost escalation and increased judicial interventions leading to a huge setback in the investment and business climate of the country. Therefore, as a major step towards improving the ease of doing business in line with the international jurisdictions, the present regime promulgated The Amendment Act, 2015 for speedy resolution of disputes, minimal judicial interventions and transparent and conflict-free appointment of arbitrator. This has been an optimistic and a revolutionary leap towards augmentation of growth in the infrastructure sector.
This section draws inputs from a panel discussion wherein eminent personalities from the fraternity discussed on arbitrations in construction and infrastructure projects. The discussion was moderated by Geetu Singh, Partner, Forensic & Dispute Practice, PwC. The panel comprised B.S. Saluja, Dr P. R. Swarup, Tejas Karia, Ajay Kharbanda and Atul Sharma.
Need to address implementation challenges
Progressive initiatives such as amendments to Acts and codal provisions have been made with the recommendations from UNCITRAL to improve the arbitration regime in the country. However, in the current scenario of disputes, the main challenge lies in the implementation of these provisions in all earnestness.
Strengthening contractual documentation and procurement methodology
The drafting of contracts is assumed to be the root cause for imbalance in the risk and reward in a project. The contracting regime followed in the country lacks appropriate risk-reward mechanisms in the bid to standardise procurement process. The public procurement methodology needs to be re-evaluated and strengthened to ensure a balanced approach towards risk and reward. There is a need to ensure early identification of risks prior to the contractual documentation for quick resolution.
Need for institutional arbitration
According to the prevailing practices in India, about 95% of the arbitration cases are dealt on ad hoc basis, relying on former judges, and adding exorbitant fees to the project proponents. As on today, there are limited institutions dealing with Arbitrations in India. Construction Industry Arbitration Council (CIAC) was the first institution in the country followed by other institutions like The International Centre for Alternative Dispute Resolution (ICADR), Mumbai Centre for International Arbitration (MCIA) and International Court of Arbitration (ICA) which continue to dispense arbitral justice at the national and international level. The country needs to promote institutional arbitration where a specialised institution aids and administers the arbitral process involving professional experts, who would have a better understanding to adjudicate and address the technical and complex issues in the industry.
Addressing time delays for speedy resolution
The biggest challenge in the current scenario is the delayed timelines for clearing disputes, thus deviating form the core purpose of arbitration to settle disputes in the least cost and time. Prior to the amendment of the Act in 2015, there was no cap defined on the timelines. In the Amendment Act, a limit of 1 year from the appointment of arbitrator has been defined. Despite this, it still needs to address the additional time of 6-8 months for filing of claims prior to the appointment, causing further delay.
This defect is proposed to be revised in the pending amendment bill of 2018 which aims at defining a period of 6 months for filing of claims and a timeline of 1 year from the date of filing the claim for quick and efficient resolutions.
Alternative modes of resolution
There is also a need to ultimately explore other forms of dispute resolution like conciliation or mediation for evolving into a more developed dispute resolution process. Currently, National Highways Authority of India (NHAI) has adopted the mediation mode of settlement by creating a mediation cell consisting of 3 mediators and have been able to successfully settle 8-10 major cases involving crores of rupees.
The litigation funding system which has been successful in other jurisdictions, has been under consideration in India for a long time. Our judicial system is in the process of creating a more matured resolution ecosystem for adopting this mechanism. Further, the ceilings on the arbitration fees have been defined to ensure a more transparent and economical system. There is no law prohibiting such funding but its enforceability can be challenged under public policy in some cases.
The road ahead
The judicial system is now focussing on strengthening the arbitration act and expediting the dispute resolution process. It has been making progress by moving forward from ad-hoc and in-room based settlements to institutional arbitrations through online dispute resolutions.
The stakeholders in the sector are now looking forward to effective and timely implementation of the roadmap for institutionalisation of the dispute resolution mechanism. Resolving disputes in a timely manner could positively enhance the infrastructure market in India. However, some drawbacks such as the increase in the cost of arbitration needs to be addressed.
|Strengthening Regional Transport Connectivity in South Asia
In today’s world, trade accounts for over 40% of the world’s GDP . Yet, the growth rate in trade stands at a mere 2-3% year on year. However, it is interesting to note that up to 2008, the growth rate in trade was about 12%.
There is huge potential to improve this growth, and this potential lies in the South Asian regions of the world. It is imperative to focus on enhancing interconnectivity in countries such as Nepal, India, Bangladesh, Myanmar, etc for facilitating trade and coordinated development. It is an irony that transporting containers from India to its neighboring countries such as Nepal, Bhutan, Bangladesh and Myanmar is often more expensive than the transportation costs to far regions. Therefore, there is an enormous potential to exploit regional trade through developing inter-regional connectivity.
The benefits of broadening connectivity not only pertain to a growth in trade, but also include creating network externalities, fully harnessing strategical exploitation and enabling multilateral financing. With trade agreements such as the South-Asian Free Trade Agreement (SAFTA), Asia-Pacific Trade Agreement (APTA), etc. and trade unions such as South Asian Association for Regional Cooperation (SAARC), Association of Southeast Asian Nations (ASEAN), etc. trade has become more bilateral and has strengthened regional ties. Kick-starting the southern corridor would lead to huge positive spillovers in terms of externalities that can reach out quickly to markets everywhere.
Connected transportation infrastructure: The coming together of roads, railways, airports, ports, and renewables
Transportation sector is considered the lifeline of a nation. However, the main challenge arises in integrating the different transport infrastructure in the country to achieve cost efficiencies and economic prosperity. Improving connectivity and coordination in multiple modes would help achieve time and cost efficiencies.
This section draws on a panel discussion on Connected Transport Infrastructure which deliberated the situation in India on multimodality. Moderated by Jaffery Thomas, Director at PricewaterhouseCoopers, the panel was graced by eminent personalities such as Anoop Kumar Agrawal, Ankit Singhvi, and P.S Nair, who are all experts in their respective fields.
Multimodal transportation crucial for enhancing last mile connectivity
India is the world’s third largest importer of crude oil. Given that fuel costs are the main contributor to transport costs, logistics costs in the country are also high: logistic costs form about 14-15% of our GDP, while optimally it must be less than 8%. Historically, road and railways have borne the burden of carrying cargo across India’s borders and beyond, while waterways have played a relatively modest role owing to their insufficient development. Mode-specific silos have resulted in uncoordinated transport infrastructure and sub-optimal modal mix in India. It is believed that integrating multiple transport modes, improving last mile connectivity, adopting digital technologies, and deploying energy-efficient and renewable technologies can significantly bring down these costs.
Increasing government interventions to promote multimodality
The primary reason for lagging last mile connectivity has been capacity constraints, and inadequate infrastructure. This has led to high turnaround time for delivery of goods, higher transport costs, and smaller profit margins. However, the government is now trying to plug this gap through major programmes such as Bharatmala, Sagarmala, and Dedicated Freight Corridors (DFC). It is also working towards an integrated multimodal logistics and transport policy to switch from a point-to-point transportation system to a hub-and-spoke model that is expected to facilitate the movement of domestic freight on lower-volume corridors. The integrated supply chain program is likely to include development of 50 economic corridors, upgrades of key feeder and inter-corridor routes, 35 multimodal logistics parks and 10 intermodal points. While these are progressive actions, the need for cost reduction is critical to give a boost to the sector.
Need to explore energy efficient technologies
Deploying energy-efficient technologies may be able to reduce costs substantially. Given the decline in solar and wind costs in India, renewables are emerging as an alternative. While electrification (of vehicles, railways, etc.) has been catching up, renewable energy may fulfill its expectations subject to availability and reliability going forward.
To facilitate seamless flow across various modes of transport, inland container depots, container freight stations / private freight terminals, ports, and airports could be designed with cargo specificity and operational requirements in mind. The theme of multimodality also needs to incorporate digital elements in order to be successful. Automation, IoT, blockchain, robots, big data may well prove to be game changers for the sector. Many private sector players and public agencies have started using these technologies for tracking shipments, determining best route for doorstep delivery, predicting breakdowns, handling freight, and optimising asset utilisation.
Developing good infrastructure calls for an enormous amount of funds. There is often a gap between funds that the government can provide versus what is optimally required. It is therefore imperative to mobilise funds through diverse and alternative sources.
|Key hurdles preventing infusion of funds into the infrastructure sector
Over the past few years, infrastructure needs have multiplied at an exponential rate. With this accelerating infrastructure requirements in the country, the need for finance has been a crucial factor for meeting these requirements. Formerly funded exclusively by the government through tax collections and institutional loans, Infrastructure Finance has become an aspect of the economy that requires more than what the government funding can suffice.
Encouraging private investors to throw their hats in the ring, these gaps have reduced to a great extent. However, there still exist an exorbitant gap between the funds required for infrastructure, and the amount contributed by private capitalists. As per World Bank, in 2017, PPI investment totalled USD 93.3 billion across 304 projects, an increase of 37 percent over 2016 levels at the global level.
The key hindrances arise in crowding-in private investment through all available sources, increasing efficiency of the government in spending aforementioned funds, and also due to the large amount of non-performing loans that currently plague the capital market. The short term steps to recovery must therefore primarily include recognizing and speedily resolving the issue of non-performing loans, and identifying and filling the investment gap.
There is a need to identify a stage-wise process that helps monitor and ensure progress. Corroborating a development, project and operations stage to funnel through the various projects that are implemented would help direct them in an efficient flow that ensures completion.
This section draws inputs from a panel discussion moderated by Manish Aggarwal, Partner and Head of Corporate Finance – Infrastructure and Government Services and Head of Energy and Natural Resources, KPMG India and graced with the presence of experts such as Sujoy Bose, Satish Mandhana, Mukul Modi, M.K Sinha, T.N Arun Kumar, and Sujeet Govindaraju, who discussed the subject.
Investment promotion initiatives imperative for sector development
India needs USD 4.5 trillion by 2040 for developing world-class infrastructure. The current trend shows that India can meet USD 3.9 trillion by the given time, which will still leave the country with an investment gap of USD 526 billion. And while private sector participation is cited as one of the potential sources of finance to fill the infrastructure deficit, it is hard to come by, given the stringent regulatory policies, long gestation period of infrastructure investments, and the limited bargaining power of private sector in the event of significant changes in the economic environment.
Under-investment in infrastructure may constrain and even shrink developing economies, since new age infrastructure is needed, along with maintenance and operation of existing infrastructure. Financing sustainable urbanization is therefore an investment in our present and future.
Addressing risk perceptions to tap long-term funds
While there is money available with the pension funds and sovereign funds in India (USD 80-100 trillion), these funds typically want to invest in instruments with predictable and stable returns, have strong counterparties to mitigate risks, and are mostly unwilling to take on construction risks.
Recycling of assets could unlock potential
On the other hand, the agencies associated with handling good assets such as NHAI, Airports Authority of India (AAI), and National Thermal Power Corporation (NTPC) do not have an inclination towards trading them as they are hesitant to bid and are wary of audits and regulations. As a result, the assets are not being recycled, and are hence not reflecting their true value staggering the overall development of the sector.
Way forward: Exploring innovative financing mechanisms
The current scenario highlights the need to explore a new credit rating system for infrastructure projects and diversify the sources of funding through new age financing architecture through viable solutions around application of innovative products such as Masala Bonds, Infrastructure Investment Trusts (InvIT) and Infrastructure Debt Funds (IDF) along with exploring other sources such as Pension Funds and Covered Bonds.
As for the more innovative sources of financing, governments can look at instruments such as value capture financing tools, which recover some value generated by public infrastructure investments for private landowners through betterment levies, impact fees; green bonds, which invest in sustainable infrastructure projects (aimed at energy efficiency, pollution prevention, clean transportation, etc.), and monetizing Smart Cities’ data (charging access fees for any third-party developers who wish to develop applications using data obtained from smart cities, such as a parking space app). Additionally, urban local bodies need to be empowered so as to be able to raise resources through private means to recover their costs.
Lastly, given that financing for infrastructure is insufficient, the path to long-term finance is to diversify sources. These sources could take many forms: Private participation (through PPPs), budgetary resources, value capture financing, municipal bonds, etc. The viability of multiple sources may need to be assessed, to arrive at the best possible means to finance a given asset or project.
As the infrastructure landscape continues to mature, new opportunities and challenges are also likely to continue to emerge. In the light of new macroeconomic realities, the government will need to consider periodically reviewing implementation models including PPPs and their structure. Private sector is expected to continue to be an important player, and the onus of harnessing the collaborative power will have to be on the government.
While the government seems to be going the extra mile to generate interest in the infra sector through funds like NIIF, IDF, InVITs, etc., and mechanisms such as VGF, HAM, ToT, etc., whether they will be the only real financier in the future, and continue to set up bigger, larger institutions, or will the private sector eventually pick up the threads needs to be seen.
Given that PPPs are not a one-size-fits-all solution to all infrastructure development constraints, authorities will need to clearly define their objective for PPPs – is it only to get the finances off their balance sheet or transfer risks, or is it because they have a genuine faith that private sector will drive more efficient, long-term outcome in that particular segment. The answer to these questions are expected to help define a structure to meet the objective that the sector is seeking.
Right preparation, right model, and right regulations are key to reinvigorate private interest in infrastructure domain and generate best outcomes. In the absence of these foundation stones, no amount of investment, due diligence, or budgetary support are likely to pay off. Development of robust institutional mechanism, backed by sector specific policies and an integrated approach towards technical and financial planning is crucial in undertaking infrastructure development. Hence, it is imperative that the governments look into fine-tuning these aspects to achieve the required pace on the road to a futuristic and resilient infrastructure.
|6th Annual The Economic Times Infra Focus Summit
27th September 2018
Taj Palace, New Delhi
Theme : Transition towards Futuristic and Resilient Infrastructure
|09:00 – 10:00||Welcome & Registration|
|10:00 – 10:05||Welcome Address from ET Edge|
|10:05 – 10:15||Opening Remarks|
|10:15 – 10:45||Chief Guest Address : Government’s push in addressing the Infrastructure Investment Gap|
|Shri Mansukh L. Mandaviya, Hon’ble Minister for State for Road Transport & Highways, Shipping and Chemical & Fertilisers|
|10:45 – 11:30||Flash Presentations – Taking Stock – Rebranding and Redefining India through new age Infrastructure Projects|
|The Sagarmala Project|
|Kailash Kumar Aggarwal, Joint Secretary, Ministry of Shipping|
|Pravir Pandey, Chairman, Inland Waterways Authority of India|
|Versova-Bandra Sea Link|
|R.L. Mopalwar, Vice Chairman, Maharashtra State Road Development Corporation|
|The Bharatmala Project|
|Nagendra Nath Sinha, Managing Director, National Highways Infrastructure Development Corporation( NHIDCL)|
|11:30 – 11:45||Networking Tea/Coffee Break|
|11:45 – 12:00||Keynote Address: Sector’s outlook and upcoming opportunities for the high-spirited Economy of India|
|Shri Yudhvir Singh Malik, Secretary, Ministry of Road Transport and Highways|
|12:00 – 12:45
|Interactive Panel Discussion – Reviving PPP to woo FDI in Infrastructure|
|Katsuo Matsumoto, Chief Representative, Japan International Cooperation Agency|
|Rohit Modi, Chief Executive Officer, Essel Infra & Smart Utilities, Essel Infra|
|P. R. Jaishankar, Chief Executive Officer, IIFCL Projects Limited|
|S.K Saha, Adviser, NITI Aayog|
|Shailesh Pathak, Chief Executive Officer, L&T Infrastructure Development Projects|
|Bipin Pradeep Kumar, Co-Founder & Director, Product Development, Gaia Smart Cities|
|Gurpreet Chhatwal, President, CRISIL Ratings|
|Panel Moderator: Vishwas Udgirkar, Partner & Leader Government Utilities Infrastructure Development, Deloitte|
|12:45 – 13:00||Spotlight Session: Aviation related challenges with a spotlight on UDAN- RCS|
|Dr Guruprasad Mohapatra, Chairman, Airports Authority of India|
|13:00 – 14:00||Networking Lunch|
|14:00 – 14:45
|Talk Show – Prepare the roadmap for delivery of India’s infrastructure targets|
|Naveen Jindal, Chairman, Jindal Steel and Power Limited|
|M.K Gupta, Chairman, Indian Railways Station Development Corporation & Member Engineering Railway Board|
|Rajiv Mundhra, Chairman, Simplex Infrastructures Limited|
|Dr Mangu Singh, Managing Director, Delhi Metro Rail Corporation|
|Panel Chair: Himangshu Watts, Senior Editor, Energy and Infrastructure at The Economic
|14:45 – 15:00||Keynote: International Case Study – Strengthening Regional Transport Connectivity in Southern Asia|
|Nagesh Kumar, Director of Social Development Division, United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP)|
|15:00 – 15:45||Panel Discussion: Construction and Infrastructure Arbitrations – Expediting the Dispute Resolution and unwinding the road for Robust India|
|B.S. Saluja, Secretary General, The International Centre for Alternative Dispute Resolution|
|Dr P. R. Swarup, Secretary & Director General, Construction Industry Development Council|
|Tejas Karia, Partner, Head – Arbitration, Shardul Amarchand Mangaldas, Vice-Chairman, Society of Construction Law, India|
|Ajay Kharbanda, Chief Legal Officer, Delhi International Airport Limited|
|Atul Sharma, Managing Partner, Link Legal India Law Services|
|Panel Moderator: Geetu Singh, Partner, Forensic & Dispute Practice, PwC|
|15:45 – 16:00||Case Study: Indian Railways’ most expensive project – The Chenab River Bridge Project|
|AK Sachan, Managing Director, Dedicated Freight Corridor Corporation India Limited (Chenab Railway Bridge)|
|16:00 – 16:45||CEO’s Panel Discussion: Connected Transportation Infrastructure – The coming together of roads, railways, airports, ports and renewables|
|Anoop Kumar Agrawal, Managing Director, Indian Port Rail Corporation Ltd|
|Saibal De, Chief Executive Officer, IL&FS Maritime Infrastructure Company Limited|
|Hemant Kumar Thanvi, Chief Financial Officer, Mytrah Energy|
|P. S. Nair, Chief Executive Officer-Corporate, Airports Sector, GMR Group|
|Panel Moderator: Jaffery Thomas, Director, PricewaterhouseCoopers|
|16:45 – 17:00||Special Keynote Address – Key Hurdles Preventing Infusion of Funds into the Infrastructure Sector|
|Dr Sumila Gulyani, Program Leader, Infrastructure and Sustainable Development, World Bank|
|17:00 – 17:45||Special Panel Discussion on Alternative Sources – Need for new sources and their impact on Infrastructure Financing|
|Sujoy Bose, Chief Executive officer, National Investment and Infrastructure Fund|
|Mukul Modi, Senior Vice President, SBI Capital Markets|
|Sujeet Govindaraju, Director, Canada Pension Plan Investment Board|
|M.K. Sinha, Managing Partner and Co-Head – India, Global Infrastructure Partners India|
|T.N. Arun Kumar, Executive Director, CARE Ratings|
|Satish Mandhana, Managing Director and Head of Investments, Eversource Capital|
|Panel Chair: Manish Aggarwal, Partner and Head, Corporate Finance – Infrastructure and Government Services, Head – Energy and Natural Resources, KPMG India|
|17:45 hours||End of Conference|
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