Riscurile în parteneriatul public privat
Risks in the public-private partnership

Summary/Abstract: In this paper we propose to express certain different or nuanced opinions, as compared to most of the opinions expressed by the author of the main study. Although the commented research proposes to examine the problems of an extended sector of risks which may influence the project of a public-private partnership, our analysis shall take into account only the category of the risk of the fortuitous impossibility of the execution of the public – private partnership contract. For rigor purposes, we also add that the expressed opinion aims only at the supplementing content that the NCC offers to the public – private partnership, when the parties’ will or the special legal (regulating) framework is inadequate3). The methodological norms for the enforcement of the Law 178/2010 on public-private partnership insist on the obligation and importance of identifying the risk situations, requiring even the elaboration of a matrix related to the allotment of the project risks (Appendix no. 2 to the Norms) and to their efficient management4) as far as possible. “The risk of the occurrence of a force majeure event” takes part of these types of risks, and its consequences consist in delays in the performance of the projects or loss of the assets allocated for the contract. At first glance, the part of the NCC seems to be diminished or absent since the parties have to agree upon the management of the risk situations generated by the force majeure. Nevertheless, the research of the regulation of the NCC is important at least from two points of view. Firstly, the regulation of the operative part of the law is a benchmark (even if it is not the first one, considering the criteria of the secondary regulation) for the parties’ negotiation for the purpose of the straight arrangement of the management of the contractual risks. Then, despite the parties’ attention and competency, a “black swan” may always exist, this being a circumstance that the parties could not foreshadow upon the creation of the matrix of the allocation of the risks. The author of the commented study has two theses in substance which we come into opposition with (I). By criticizing the interpretation of Mr. Puie we shall design a readjusted table of the solutions given to the risks deriving from the fortuitous impossibility of the execution of the contract, in the light of the NCC (II).

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