Over the years, shortage of funds has resulted in a huge deficit in government budgets for infrastructure, especially in sub-Saharan Africa. Due to the huge costs involved in infrastructure procurement in relation to other competing demands on government spending, it is no longer feasible for governments to bear the entire burden of infrastructural development. This is especially the case in Nigeria, where annual infrastructure deficit is estimated at a massive $8 billion. Moreover, public officials have demonstrated incompetence in making public corporations profitable. Accordingly, Nigeria has adopted the public-private partnership model of infrastructure procurement to allow for the participation of the private sector in the design, funding, construction, management, and operation of public infrastructure. However, Nigeria’s legal framework for managing public-private partnership is not clearly defined, leading to gaps in policy and overlapping laws that make implementation of PPP very difficult. Unsurprisingly, public-private partnership in Nigeria have, thus far, produced mixed results, thereby raising a need for clear policy guidelines on streamlining overlapping laws to attract, sustain and reward investor interest. In what ways do Nigeria’s legal and policy framework for public-private partnership protect private investors’ funds? This study examines the concept of PPP and its practice in Nigeria, arguing that the regulatory framework be designed or enhanced to protect investors’ assets in public-private partnership projects and ensure they achieve proportional return on investments. Beyond the problem of overlapping laws, the study finds that political interference, weak institutional mechanisms and poor respect for the rule of law and sanctity of contract underlie the ineffectiveness of public-private partnership in Nigeria. Drawing from the public-private partnership experience in South Africa, it recommends holistic strategies for protecting investors’ assets and unlocking the local financial market for sourcing project funding. These strategies are notably the provision of guarantees, making the process less cumbersome, provision of incentives for investors and project companies and ensuring that the host community for public-private partnership projects are involved in the process from inception to operation to get their support.

Magister Legum - LLM / Good faith is an open ended concept which refers to fair and honest dealings. The function of this concept is to give expression to the community’s sense of what is fair, just and reasonable. The concept of good faith has and continues to acquire a meaning wider than mere honesty or the absence of subjective bad faith. It is an objective concept that includes other abstract values such as justice, reasonableness, fairness and equity. There is competition between the two underlying values or cornerstones of the law of contract, namely that of sanctity of contract (pacta sunt servanda) and fairness. Y Mupangavanhu holds that ‘it is becoming axiomatic that sanctity of contract and fairness are competing values that need to be balanced by courts’. Differently put, Hutchison holds that: ‘The tension between these competing goals of contract law is quite evident…every time a court enforces an unreasonably harsh contractual provision, a price is paid in terms of the ordinary person’s sense of what justice requires; conversely every time a court allows a party to escape liability under what is thought to be a binding contract, a price is paid in terms of legal and commercial certainty’. Courts are often called upon to assess the abovementioned tension. South African courts have, however, shown reluctance in balancing the competing principles and have instead been opting to uphold the principle of sanctity of contract in the spirit of preserving certainty in the law of contract. Public policy, ubuntu and good faith are all mechanisms that are aimed at achieving fairness in contract law. The apparent preference of the courts to uphold the sanctity of contract above all else, falls short of achieving fairness and reasonableness. Public policy functions as an alternative doctrine of equity, fairness and good faith in contract law. As such, the idea is that a contract that is contrary to public policy is illegal and should not be enforced. Although there is no clear definition of public policy, B Mupangavanhu opines that the ‘doctrine of public policy, while difficult to comprehensively define, can be understood to refer to courts consideration of what is in the interest of society or community when interpreting contracts’. In other words, it represents the legal convictions of the community or the general sense of justice of the community and the values that are held most dear by the society.

La question du traitement de l’aléa affectant les contrats publics semble opposer de façon « incommensurable » les droits anglais et français. Si le droit français est doté de règles de droit objectif permettant, dans l’intérêt général, le traitement de l’aléa affectant les contrats publics sans accord des parties, rien de tel n’existe en droit anglais ou la règle de la force obligatoire commande l’intangibilité de l’accord initial. La comparaison anglo-française permet, grâce à cet antagonisme, de mettre en exergue les ressorts profonds du traitement de l’aléa affectant les contrats publics au travers de l’opposition théorique entre force obligatoire et intérêt public. Dans cette perspective, les règles générales permettant, en droit français, le traitement de l’aléa sans accord des parties apparaissent comme étant fondées sur une conception économique et téléologique du contrat et de sa force obligatoire, que l’on peut également identifier dans certains aspects du droit anglais des contrats. En outre, le mode de traitement de l’aléa priviligié en Angleterre aussi bien qu’en France est l’accord de volontés – initial ou subséquent. Néanmoins, les possibilités de modification du contrat en cours d’exécution sont drastiquement limitées par le droit de l’Union européenne. A l’inverse, les stipulations initiales qui tendent à ériger, du fait de la généralisation des clauses standardisées, un régime contractuel autonome de traitement de l’aléa, apparaissent désormais comme le mode incontournable d’adaptation des contrats publics en cours d’exécution. / The question of the treatment of uncertain/unforeseen events affecting public contracts seems to oppose in an immeasurable way English and French laws. While, in French law, general rules provide, in the public interest, the treatment of uncertain/unforeseen events affecting public contracts without the consent of the contractors, no such provisions exist in English law, where the sanctity and intangibility of contract prevails. Thank to this antagonism, the proposed comparison enables to highlight the deep motivations of the treatment of uncertain/unforeseen events affecting public contracts, through the theoretical opposition between sanctity of contract and public interest. In this respect, the general rules allowing, in French law, the treatment of the uncertain/unforeseen events without the consent of the parties appear to be based on an economic and teleological approach of the contract and its biding force. Surprisingly, the latter approach can also be noticed, in some respects, in the English law of contracts. Moreover, the priviledged mean to treat uncertain/unforeseen events in England as well as in France is the agreement of the parties – whether ex ante or ex post. Nonetheless, the possibilities of variating the contract in the course of its performance have been drastically limited by the European Union law. By contrast, the intial terms which tends to erect an autonomous regime of treatment of uncertain/unforeseen events through the spreading of standard terms appear to be the major and indispensable mean of adaptation of public contracts in the course of their performance.