The Projects and Construction Review: Saudi Arabia
Saudi Arabia is the largest market economy in the Middle East and North Africa in terms of gross domestic product (GDP)2 and, with 33 per cent of the world's proven petroleum reserves, the largest exporter of oil in the world.3 It has a population of approximately 33.4 million,4 39 per cent of whom are below the age of 25.5 years.
Thus far, 2022 has seen economic recovery and revived growth following the difficult period resulting from the outbreak of the covid-19 pandemic. Owing to the government's efforts in combating the virus (which minimised its negative impact on the economy), economic activities in the Kingdom have experienced positive growth over the past year. In the first half of 2021, non-oil domestic products grew by 5.4 per cent and there was a 7.5 per cent real increase in private sector activity. The emphasis that the government placed on social benefits and subsidies for sectors affected by the pandemic produced tangible results to ensure harmed parties receive essential services.
Saudi Arabia has also continued enforcing its financial policies to ensure increasing non-oil revenue, which has experienced dramatic fluctuations, as well as to raise spending efficiency and increase the level of private sector participation in the economy.
The year in review
The overall economy is in a recovery phase following the covid-19 pandemic. The rebound started early in 2021 and was driven mainly by the various stimulus packages that the government implemented to boost the economy, coupled with the relaxation of precautionary measures that were implemented to combat the spread of covid-19. In addition, covid-19 vaccination campaigns were successfully launched and implemented, which led to a high percentage of immunisation across the Kingdom.
Oil markets also recovered significantly from the collapse they suffered during the crisis, where oil prices registered at US$67 in August 2021. The production of the Kingdom was at 8.8 million barrels per day in the year to August 2021.
The government has also instituted several other programmes to boost the economy, including, but not limited to, the Public Investment Fund plans to inject approximately 150 billion Saudi riyals into the national economy on an annual basis until 2025. A number of other megaprojects are also underway, such as:
- the Neom project, which is a planned eco-city and part of the Saudi Vision 2030;
- the Red Sea Project, managed by the Red Sea Development Company, which is a planned tourism and hospitality destination;
- the Qiddiya project, which is a planned entertainment destination and part of the Saudi Vision 2030;
- the Amaala project, also managed by the Red Sea Development Company, which is a planned luxury tourism destination; and
- the ROSHN residential project, a national community developer and Public Investment Fund project focused on responding to homeownership demands across the Kingdom.
The budget deficit remains under control and is projected to be approximately 1.6 per cent of GDP in 2022 (in 2020, the expected budget deficit was 298 billion Saudi riyals, which is approximately 12 per cent of GDP). Revenues in 2022 are expected to reach 903 billion Saudi riyals, which is a decrease of 2.9 per cent from the projected figure in the 2021 financial year. This reflects a conservative and precautionary approach in budgeting oil and non-oil revenues, taking into account the risk of a resurgence of covid-19. These revenues are projected to grow to 992 billion Saudi riyals in 2024, fuelled by the recovery of economic activities.
Total expenditure is estimated to drop from 1.015 trillion Saudi riyals to 955 billion Saudi riyals, which represents 30.2 per cent of GDP. These numbers reflect the government's commitment to continue spending on its megaprojects while increasing the efficiency of spending and achieving the targets of the Saudi Vision 2030.
The Saudi Vision 2030 continues to be a significant transformation of the whole Saudi economy, especially with the efforts the government has put in place to implement it through the vision realisation programme initiatives, and structural, economic and fiscal reforms to diversify the economic base. These initiatives have proven to be of significant value, as they achieved major technological transformations in government operations that allowed a smooth transition for employees to work remotely during the lockdown period of the pandemic, which significantly minimised the overall impact of the pandemic on the economy.
Moreover, non-oil revenue development initiatives that were implemented during past years compensated for the lost oil revenue that the Kingdom experienced in 2020 as a result of the significant drop in oil prices during the pandemic, as well as the significant drop in oil production during that period. These initiatives have also prepared Saudi Arabia for a more agile future that is not dependent on the performance of oil revenues. The financial policy implemented by Saudi Arabia in the past few years has been a significant contributor to enabling the country to efficiently manage the covid-19 pandemic and provide the stimulus to preserve its economic outlook.
Documents and transactional structures
i Transactional structures
The launch of the National Centre for Privatisation (NCP) in 2017 and the privatisation drive that was reflected in the National Transformation Programme 2020 (NTP 2020) shifted the model for spending and project construction in Saudi Arabia. That said, and while change is noticeable through the implementation of privatisation goals, it is difficult to say whether, on the whole, there was a significant shift in the type of project financing or contracting and use models in projects in Saudi Arabia. Contractor balance sheet financing continued to be the prevailing method of project finance, with secured project financing remaining within the realm of only a handful of megaprojects. However, since 2017, there has been a resumption of equity financed constructions, mostly within the residential sector, by raising capital through publicly listed and private investment funds.
This traditional construction model was deployed across the spectrum of local and foreign contractors. In 2015, the Ministry of Investment of Saudi Arabia (MISA) implemented a fast-track system to license foreign investors in the country, including issuing temporary foreign investment licences to firms engaged in public work.5 The requirements for foreign investment licences were further eased by MISA in February 2016 with a significant reduction in the required documentary submissions.6 In 2017, MISA published a revision to various capital requirements for foreign investments in the country, including with respect to engineering, procurement and construction licensing.7
While Saudi Arabia has, for some years, seen deployment of construction and use models for public–private partnerships (PPPs), the use of these models increased significantly in the wake of the prolonged period of low oil revenues and the increasing government spending deficit. This is in line with the NTP 2020, which calls for an increase in privatisation and private sector participation in the GDP by shouldering 40 per cent of the funding burden,8 and was further accelerated by the launch of the NCP, one aim of which is to accelerate the deployment of PPP in Saudi projects through effective project management, building the regulatory framework and providing advisory services. PPP models commonly deployed in Saudi Arabia include build-own-operate-transfer, build-operate-transfer and build-own-leaseback.
Project financing in Saudi Arabia remains within the realm of megaprojects, deployed following both conventional and shariah-compliant structures. Conventional project finance follows the form of secured lending with pledges over project land, assets and proceeds. It is commonly used in financing by Saudi government entities such as the Public Investment Fund and the Saudi Industrial Development Fund, and by foreign banks and export credit agencies. Shariah-compliant (or Islamic) financing is deployed more commonly through Gulf-based shariah-compliant banks, local mutual funds and publicly listed debt instruments, and while it can follow a number of structures, the mudarabah structure is emerging as the most common in such transactions.
Direct construction contracts continue to be the most widely used in Saudi Arabia. Based on the requirements of Article 29 of the Government Tenders and Procurement Law9 and Article 32 of its Implementing Regulations, government contracts use specific contract forms prepared by the Ministry of Finance and approved by the Council of Ministers. Government contract forms are available for a range of project-related services, including public works, operation and maintenance, design and project management.10 Variants of government contract forms may be permitted in exceptional circumstances, such as large complex projects, but require approval from the King.11
Private-party construction and projects works commonly employ a direct contracting structure. Construction contracts are typically between the employer (i.e., the owner or developer) and the contractor, and the International Federation of Consulting Engineers (FIDIC) contract forms are commonly deployed for large and medium-sized projects.
Aside from construction, project documents commonly include offtake agreements, supply agreements and intellectual property licensing agreements. If a project calls for the creation of an incorporated joint venture in the country, the parties to the joint venture commonly enter into a shareholders' agreement to further articulate and regulate the relationship beyond what is commonly listed in a company's articles of association.
iii Delivery methods and standard forms
Public project delivery follows the contract forms provided by the Ministry of Finance, which are structured according to the requirements of the Government Tenders and Procurement Law and its Implementing Regulations. Project delivery in private projects reflects international practices, with design-build, construction and turnkey projects being the most common. The engineering, procurement and construction (EPC) method of contracting is also commonly deployed in larger projects, including the use of FIDIC Silver Book EPC/Turnkey conditions of contract.
With the increase in PPP projects, we are also witnessing an increase in design-build-operate, especially in relation to revenue-generating infrastructure, such as airports. The NCP additionally sets the stage for an increase in the use of such contracts in roads, railways and ports.12
Risk allocation and management
i Management of risks
Against the background of an overarching requirement for fairness in contracts, Saudi law, based on shariah and enacted legislation, enforces the terms of contracts agreed by the contracting parties. Contracted project risk allocation and security provisions are therefore commonly viewed as enforceable pursuant to the laws of the country. This includes design assumption provisions, work guarantees, delay damages, and parent company and bank performance guarantees. This is, of course, to the extent that the provisions are not unfair or unjust in application.
Fairness elements in projects and construction are commonly examined in situations where one of the parties lacks the contractual control over triggers to its financial or performance liability. Examining tribunals applying the laws of the country may therefore invalidate on the grounds of a violation of the shariah principle requiring fairness-in-dealings provisions relating to liability against a party that does not control the triggers to the liability. An example of this is commonly seen in the enforceability of delay damages in a contract in which the causes of the delay were beyond the control of the contract.
ii Limitation of liability
Contractual provisions providing for limitation of liability between the contracting parties are generally enforceable pursuant to the general shariah principle of freedom of contract. In projects and construction, liability is commonly limited by contract to the contract value or 110 per cent of the contract value. The parties also commonly exclude by contract any liability for indirect or consequential losses, including losses of profit or business. This exclusion is additionally provided by law through the shariah principles against uncertainty (gharar), whereby a claim for indirect or consequential losses will be subject to challenge on the grounds that the claim was based on uncertain determinations at the time of drawing up a contract.
iii Political risks
Private property is protected from usurpation or trespass by law. Article 18 of the Basic Governing Law13 provides that property shall not be usurped or taken in the absence of a court judgment. This protection is identical for both local and foreign-owned property, and is reflected in Article 11 of the Foreign Investment Law.14 The Regulations for the Expropriation of Real Estate for the Public Benefit and the Temporary Acquisition of Real Estate Law15 regulate the requirements and applicable compensation for the expropriation of real property for public benefit, and further provide for protection of private property from public expropriation.
These property protections apply similarly in relation to government interference in private contracts, with contracts generally considered enforceable to the extent that they do not violate shariah principles. That said, a force majeure provision suspending or excusing the performance of contracts is implied by law. This provision may be relied on, where applicable, to affect offtake or supply agreements to the extent that government policy requires the cessation of offtake or supply.
Saudi Arabia does not apply any currency exchange or fund transfer restrictions aside from those relating to money laundering.
Finally, as a member of the Multilateral Investment Guarantee Agency (MIGA), investors and project financiers may obtain political risk insurance for investment, including project financing, in the country. MIGA extends insurance for losses relating to currency inconvertibility and transfer restriction, expropriation, war, terrorism and civil disturbance, breach of contract and not honouring financial obligations.
Security and collateral
Contractor balance sheet financing has been the main method of funding projects in Saudi Arabia. With the Saudi riyal exchange rate fixed against the US dollar, borrowers in Saudi Arabia have benefited from a prolonged period of low interest rates that has facilitated balance sheet financing. Bank lenders commonly require borrowers in construction to forward security in the form of pledges over real estate or stock. Security interest in real property is acquired through a contractual pledge perfected through the registration of the security interest on the property title deed through the office of a notary public. Security interest in stock or other movable assets, such as shares or physical assets, is perfected through registration at the Unified Centre for Lien Registration maintained at MISA and governed by the Commercial Pledge Law.16
In project financing, project sponsors are commonly requested to provide completion guarantees to fund project cost overruns. The creditworthiness of project offtakers is also commonly examined, and financiers are likely to require offtaker payment guarantees from large affiliates of offtaker special purpose vehicles or trading companies. Security commonly includes project assets and floating liens over project receivables. Security pledges in contracts, including loan agreements, are commonly recognisable and enforceable pursuant to the laws of the country.
Floating liens over receivables are commonly achieved through obtaining security interest on designated bank accounts opened and maintained at a pledgee bank as security agent.
Step-in rights with respect to projects are legally enforceable but are not commonly exercised. Lenders generally prefer to enforce security over assets they may transfer quickly and at low cost.
Bonds and insurance
Construction contracts, both public and private, commonly include a requirement on the contractor to post a performance guarantee in the form of a bond callable on a local bank in Saudi Arabia. Contractors also commonly post bonds to secure advance payments made by the employer or owner to the contractor. Bank bonds are generally issued by banks, following standardised language resembling a form published by the bank regulator, the Saudi Arabian Monetary Authority.
Insurance for property, general liability, workers' compensation and health are readily available through insurers in Saudi Arabia, and are commonly required by employers in significant construction contracts. Project and construction insurance is also commonly obtained in large projects, but mainly through foreign insurers or reinsurers working through insurance brokers.
Enforcement of security and bankruptcy proceedings
Outside bankruptcy proceedings, and with respect to most types of collateral, the secured lender's enforcement of a pledge over collateral requires the lender to make an application to the general court of applicable jurisdiction to force the sale of collateral and payment of the amount of the loan. The procedures for the enforcement of a security interest given in publicly listed stocks, however, may vary depending on the authority contractually granted to the portfolio custodian.
Prior to the passage of the new Bankruptcy Law, bankruptcy proceedings were simplified and had the aim of administering a guided settlement of a debtor's obligations. Pursuant to the Bankruptcy Preventive Settlement Law,17 the process for settlement may be initiated by the debtor18 and is guided by designated committees at local chambers of commerce.19 Secured lenders may be exempted from settlement proceedings to the extent of their preference with relation to the collateral.20 A more detailed bankruptcy law that sets out procedures for liquidation and reorganisation has been finalised and approved by King Salman bin Abdulaziz Al Saud pursuant to Royal Decree No. M/05 dated 28/05.1439 H (corresponding to 13 February 2018 G), which was thereafter published in the Official Gazette (Um Al-Quraa) on 06/06/1439 H (corresponding to 21 February 2018 G).
i Licensing and permits
The General Environmental Law21 requires government bodies overseeing the permitting of projects in Saudi Arabia to require project owners to undertake an environmental impact assessment during the feasibility study phase for all projects that may yield a negative environmental impact.22 The guidelines for impact assessments are set out in Appendix 2 (Standards and Procedures for Assessing Environmental Impact for Industrial and Development Projects) of the Law's Implementation Rules. An environmental impact assessment is subject to the approval of the General Authority of Meteorology and Environment Protection.23 In addition, persons overseeing projects with negative environmental impact are required to put in place contingency plans to prevent or mitigate negative environmental impact and to ensure their ability to execute these plans where needed.24
ii Equator Principles
We are not aware of any rules or guidance from a relevant Saudi government body relating to the Equator Principles. Our search of the list of members did not yield any financial institutions in Saudi Arabia that have adopted the Equator Principles.25
iii Responsibility of financial institutions
Generally, project lenders are not considered entities that are responsible for a project being in compliance with applicable regulations, including social or environmental regulations. We are not aware of any instances in which financing parties were found responsible for project performance or impact.
PPP and other public procurement methods
Saudi Arabia does not have a specific law governing PPPs, which are further restricted because of the requirements of the Government Tenders and Procurement Law that mandate the use of Ministry of Finance-approved contract forms in government contracting.26 As stated in Section III.i, however, a number of PPP models have been deployed in the country, and it is expected that the use of these models will accelerate in the future as a result moving away from dependence on oil revenues. In addition, and with the launch of the NCP, it is highly anticipated that the legal frameworks for PPP models will be defined and shaped.
Existing PPP transactions have used a number of structures to navigate the requirements of the Government Tenders and Procurement Law. An imperative consideration regarding these structures is the government body's authority to enter into contracts or carry out work beyond the reach of the Government Tenders and Procurement Law. This authority may be pursuant to an express exemption granted based on Article 79 of the Law, or pursuant to alternative contracting arrangements, such as contracting through an independent and exempt government authority or through a government-owned company. In the past few years, we have witnessed a rise in the use of the latter of these approaches in relation to the execution of PPP in the energy, healthcare and housing sectors. However, a case-by-case review of the proposed PPP structure and the legal authority it relies on is commonly undertaken by project stakeholders.
ii Public procurement
The Government Tenders and Procurement Law regulates the government's procurement of products and services. Two aims of this Law are to curtail corruption and personal influence, and to administer public spending effectively through competition and equal opportunity.27 Thus, the Law requires government entities to procure goods and services through a public bid process, save for certain express exceptions.28 It mandates the publication of tenders29 and the equal treatment of qualified bidders.30
The Law gives preference to goods and services produced in Saudi Arabia.31 The bidding procedures mandated by the Law reflect common corporate practices, including the submission of sealed bids for opening on a specified date,32 the submission of bid bonds33 and review by a specialised review committee.34 Submitted bids must be valid for 90 days.35 The tendering government body must consider the review committee's considerations and award the tendered contract within the bid validity period.36
Foreign investment and cross-border issues
Saudi Arabia is a member of the World Trade Organization and has a generally permissive cross-border trade regime. Investors seeking to establish a permanent presence in Saudi Arabia must be licensed by MISA.37 The relevant Saudi investment laws allow 100 per cent foreign ownership of foreign investment in most sectors, including contracting services and EPC.38 Of relevance is the exclusion from the foreign investment allowance of real estate investment in the holy cities of Mecca and Medina. Foreign investors in Saudi Arabia may conduct business using any one of the following forms of entity:
- a limited liability company;
- a branch;
- a joint stock company (open or closed);
- a temporary commercial registration;
- a professional company; and
- a technical scientific services office.
MISA licensing procedures classify foreign contractors according to their size and capabilities, and this classification determines the contractors' public tender participation. Upon obtaining a foreign investment licence, a foreign investor proceeds to form the commercial entity in the same manner as any local investor. The Foreign Investment Law provides that foreign-owned entities shall receive the same benefits, incentives and guarantees that are enjoyed by nationally owned entities pursuant to applicable regulations.39
Removal of profits and investment
The Saudi riyal exchange rate with the US dollar is fixed and maintained by the Saudi government, providing for ease of cross-border transfers, liquidity and exchange rate stability. This also allows for holding and transacting in foreign currencies in the country, and local banks commonly maintain bank accounts in a number of major currencies such as the US dollar, euro and British pound. Foreign investors are free to repatriate all profits, capital gains, distributions and proceeds or use them as they see fit.40 However, distributions of profits to a foreign party are subject to withholding tax.
In addition, Saudi Arabia has signed more than 30 double taxation treaties that may provide for lowering the effective tax rate with respect to distributed profits.41
i Special jurisdiction
Construction and contractual disputes are considered commercial disputes within the general jurisdictions of the commercial courts of Saudi Arabia (currently under the Board of Grievances).42 The foregoing notwithstanding, the competent body to hear any dispute relating to banking activities by or against banks in the country is the Committee for Banking Disputes, which operates under the Saudi Arabian Monetary Agency.43 The Committee holds special jurisdiction to hear disputes relating to bank guarantees or bank collateral enforcement in project financing; however, it does not have jurisdiction to review underlying contracts.44
Parties to large construction projects in Saudi Arabia often prefer to resort to arbitration as the exclusive method of dispute resolution. Such a choice would be binding pursuant to Article 11 of the Arbitration Law.45
ii Arbitration and ADR
Arbitration and alternative dispute resolution procedures are commonly used, especially in large construction and project undertakings for which specialised knowledge and expertise is desired in the adjudicating tribunal. Arbitration clauses in contracts are generally enforceable pursuant to the Arbitration Law.46 However, parties should note that government bodies are restricted from using arbitration as a means to resolve disputes in the absence of approval from the Prime Minister (a position held by the King).47 This restriction can affect any construction and financing projects to which the government is a party.
Saudi Arabia recognises and enforces arbitral awards issued in a country that is a signatory to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention)48 or other countries based on reciprocity principles, including through the GCC Convention on the Enforcement of Judgments and Judicial Representation and Notices49 or the Arab League Convention for the Enforcement of Judgments of 1952. Saudi Arabia is also a contracting state of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention). However, the enforcement of arbitration awards, both foreign and domestic, by Saudi courts is limited to the extent that the awards do not violate shariah principles or public policy.50 In relation to these provisions, parties are commonly advised that an arbitral award of interest, or amounts corresponding to interest, are not likely to be enforceable in Saudi Arabia because the payment of interest violates the shariah principle prohibiting usury.
Outlook and conclusions
Over the short and medium term, the Kingdom is taking significant steps to support the ongoing gradual recovery in economic activity and reducing the impact of covid-19 on the economy. The Kingdom is expected to maintain its commitment to implementing the initiatives that have been in place in recent years, in addition to upholding the commitment to achieving the goals of the Saudi Vision 2030. These goals are intended to reduce the Kingdom's reliance on oil as a primary source of revenue and increase non-oil revenues that will ensure long-term sustainability.
Over the medium and long term, the Kingdom is expected to sustain ongoing economic growth supported by the economic enablers that the government has enacted. These enablers are driven by the projects and programmes of strategic entities such as the Public Investment Fund, the National Development Fund, the National Industrial Development and Logistics Programme, the National Investment Strategy, the Financial Sector Development Programme and privatisation programmes.
1 Ali Al Toukhi is a partner at Hammad & Al-Mehdar Law Firm.
5 Oxford Business Group, 'Real Estate & Construction' in 'The Report: Saudi Arabia 2018', p. 314.
6 Saudi Arabian General Investment Authority (SAGIA) (now the Ministry of Investment of Saudi Arabia), SAGIA Guide, Section 01.03 (publication of March 2015), as revised by SAGIA publication dated 15 February 2016.
7 SAGIA Services Manual 6th Edition (December 2017).
9 Issued pursuant to Royal Decree No. M/58 dated 4/9/1427 H (corresponding to 27 September 2006 G).
10 Ministry of Finance, available in Arabic at https://www.mof.gov.sa/Arabic/Pages/ServicesDirectory.aspx.
11 Government Tenders and Procurement Law, Article 79.
13 Issued pursuant to Royal Order No. A/91 dated 27/01/1412 H (corresponding to 8 August 1992 G).
14 Issued pursuant to Royal Decree No. M/1 dated 5/1/1421 H (corresponding to 10 April 2000 G).
15 Issued pursuant to Royal Decree No. M/15 dated 11/3/1424 H (corresponding to 13 May 2003 G).
16 Issued pursuant to Royal Decree No. M/75 dated 21/11/1424 H (corresponding to 14 January 2004 G).
17 Issued pursuant to Royal Decree No. 16, dated 4/9/1416 H (corresponding to 25 January 1996 G) and its Implementing Regulations issued pursuant to Ministerial Decision No. 12 dated 14/7/1425 H (corresponding to 30 August 2004).
18 Bankruptcy Preventive Settlement Law, Article 1.
19 Bankruptcy Preventive Settlement Law Implementing Regulations, Article 1.
20 Bankruptcy Preventive Settlement Law, Article 9.
21 Issued pursuant to Royal Decree No. M/34 dated 27/8/1422 H (corresponding to 14 November 2001 G).
22 General Environmental Law, Article 5.
23 Implementing Rules of the General Environmental Law, Article 5-4.
24 General Environmental Law, Article 9-3.
26 Government Tenders and Procurement Law, Article 29.
27 ibid., at Article 1.
28 ibid., at Article 6.
29 ibid., at Article 7.
30 ibid., at Article 3.
31 Foreign Investment Law, Article 6.
32 Government Tenders and Procurement Law, Article 10.
33 ibid., at Article 11.
34 ibid., at Article 16.
35 ibid., at Article 12.
36 ibid., at Article 20.
37 Foreign Investment Law, Article 2.
38 Foreign Investment Law, Article 3, and the Negative List, published by MISA.
39 Foreign Investment Law, Article 6.
40 ibid., at Article 7.
41 Published by the General Authority of Zakat and Tax at https://www.gazt.gov.sa/ar/circulars-and-tax-agreements.
42 Article 35 of The Shariah Litigation Law issued by Royal Decree No. M/1 dated 22/1/1435 H (corresponding to 25 November 2013 G).
43 Article 1, 3 of Royal Order No. 729/8 dated 10/07/1407 H (corresponding to 10 March 1987 G).
44 Principle No. 8, 20.7 of Committee for Banking Disputes Principles 1408 H–1424 H (1987 G–2003 G).
45 Issued pursuant to Royal Decree No. M/34 dated 24/5/1433 H (corresponding to 16 April 2012 G).
46 Arbitration Law, Article 11.
47 ibid., at Article 10.
48 Saudi Arabia acceded to the New York Convention by Royal Decree No. M/11 dated 16/7/1414 H (corresponding to 29 December 1993 G).
49 Saudi Arabia acceded to the GCC Convention by Royal Decree No. M/3 dated 28/4/1417 H (corresponding to 11 September 1996 G).
50 Arbitration Law, Article 55; Enforcement Law, Article 9.