Jeremy Saw is Director and General Counsel of InfraCo Asia. In this interview with Asia Law Portal, he explains the organization’s work, the current state of infrastructure development in Asia, the development of his career and the unique nature of his work as an infrastructure lawyer, and how law students might pursue a career in infrastructure law.
What is InfraCo Asia and how are you helping to develop infrastructure in the Asia-Pacific Region – in south and south east Asia?
InfraCo Asia is a company of the Private Infrastructure Development Group (PIDG) that aims to stimulate and catalyse greater private sector investment in infrastructure in south and south east Asia. We are funded by four governments – the UK, Netherlands, Switzerland, and Australia. InfraCo Asia invests in infrastructure projects with high commercial and developmental impact potential across south and south east Asia that may be initially considered too risky for private sector investors.
Our goal is to create valuable assets that are commercial and profitable, while also helping to bring about developmental impacts to their communities and stakeholders.
This means that the projects can become sustainable. If they are sustainable, that means the project will continue, and someone else – a private sector participant (like investors, banks, etc) or a government participant (like a state-owned enterprise) – can have the confidence to also invest capital and continue investment in, and expansion of, the project. As a result, the developmental impact of the project will also continue in a sustainable manner.
Once InfraCo Asia is able to divest our shareholding or investment in the project, we create a return for the investment (capital) that the shareholders have put in. Additional investment is attracted in relation to the projects, which attracts further economic activity. On InfraCo Asia’s part, we are then able recycle our proceeds and re-invest it somewhere else to catalyse another project.
InfraCo Asia’s existence and our funders’ involvement is based on the thesis that infrastructure as a whole brings about economic growth which then brings about a reduction in poverty. We see our role as a catalyst for infrastructure development in the companies and sectors in which we work, and we aim for our projects to create a ‘demonstration effect’ that encourages other developers, investors and funders to enter the markets and sectors where we operate. It is a true private-public-partnership and ‘blended-finance’ approach – one that I am excited to be able to play a part in developing further.
What are Asia’s current infrastructure needs, how are they currently being met, and what more needs to be done?
The ADB has calculated that USD 26 trillion worth of infrastructure capital needs to be invested across 2016-2030 in Asia is to maintain its growth momentum, alleviate poverty, and respond to climate change.
Singapore is an outlier in the region. The city-state has excellent infrastructure facilities and its population has access to inputs and connectivity (reliable and clean water, electricity, ports, transportation routes, telecommunications, housing and more). This in turn has enabled Singapore to develop.
For many other countries in south and south east Asia, geographies and political situations have made it much more difficult for them to follow the same path through the development cycle. Yet, the need for infrastructure (and access to infrastructure) by populations and economies in this region is still there, and becoming more pressing. It is clear that there is a ‘gap’ in capacity and investment into infrastructure – but how to go about addressing it?
I see a need for clear strategy, development-friendly policies, and government and private sector decision making aimed at creating pathways towards development. I would imagine that most economists would agree with this view, but as well all know, the road to implementation is full of complex obstacles to overcome.
Every country is different – it could be land mass, population size or locations, government focus, natural disasters, unwillingness by business to invest or take commercial risk, or many other factors that come into confluence to make sustainable infrastructure difficult to develop.
At InfraCo Asia, we assess and mitigate our own risks by maintaining a nimble approach in deciding where to best place our efforts – whether that’s in the identification of local partners, the assessment of infrastructure-friendly policies and local government capacity, or matching projects to the natural resources at hand.
Infrastructure development is an activity that is collaborative by nature — we cannot do it alone. We rely heavily on the help of all stakeholders, including governments, the local community, the private sector and other participants in this market to work with us to set a realistic vision for success, and work hand in hand to achieve it.
You began your legal career at Baker McKenzie, and later had a stint as regionally focused counsel for BP. How have these roles helped prepare you for your current role at InfraCo Asia?
I think I have been very fortunate because my career to date has essentially been focused around infrastructure and emerging markets. With Baker McKenzie and BP, and more recently InfraCo Asia, I’ve had the opportunity to live, work in and been closely involved in businesses and projects across Australia, Singapore, Malaysia, Indonesia, Vietnam, Thailand, Myanmar, the Philippines, Cambodia, South Asia (India, Pakistan, Bangladesh, Sri Lanka and Nepal), China and Africa. The sectors I’ve worked in span infrastructure, energy, and mining.
From very early on in my career, I was acutely aware of the difficulties that each of these projects face during their development – but also, once they are built and operational, the tangible and real asset that my efforts helped (in some small way) to create.
That has been the driving force of my career – to help to develop, invest in, finance and build these assets that contribute positively to countries’ development and people’s lives, and I have found great satisfaction out of that.
At InfraCo Asia, because we work in very high-risk markets, I’m able to go a level deeper, to apply my skills to projects that otherwise wouldn’t get off the ground. The work we do helps create projects with the potential to serve as a benchmarks and catalysts for future private sector investment. It is a privilege to be able to not only watch projects develop, but to also have a role in helping infrastructure ecosystems mature and economic activity increase.
What advice would you give law students interested in developing a legal career in infrastructure-related legal work?
Seek to find out what you are interested in. That means trying as many things as possible, working hard, and saying yes more often than not. If you don’t find out what you really like or can draw inspiration from, a career in law can be very boring and dry. Rather, try and understand the context of what you are trying to achieve so you can appreciate what you are working towards.
And then, once you are out in the field, perspective is the key. At InfraCo Asia, everything we do is always with that goal in mind. For example, when we set off negotiating building a solar plant it starts with an idea and then a piece of paper, but what we actually mean to do is to see that plant through the process of design and planning, raising finance and investment to be able to commence construction, and finally into operation and beyond. Being able to understand what developing the plant is going to entail is important – everything from looking at the local community that you are going to affect, to the actual engineering capacity that you are going to need.
This approach is opposed to looking at things in black and white, in a legal way, only on paper. Staying in the office and thinking through things from a theoretical perspective may give you a good result for an individual contract, but you may not be working in service of the ultimate goal. I think that is probably the key thing that I’ve learned through my experiences in this field.
What are some of the challenges and interesting aspects of working as a counsel on infrastructure projects?
As an infrastructure lawyer, you basically need to have a good sense of every area of law. If you look at a typical project there are so many areas it touches: property, access rights, environmental, community or native title aspects, construction and other commercial contracting, finance, and government relations. Beyond that, there are the cross-border elements, meaning you need to understand different countries’ laws and international treaties.
There’s more – you’ll rely on your knowledge of different tax implications, as well as import and export implications, and on the construction side, you look to understand how things are built and run. Then you need to develop your toolkit for assessing aspects such as stakeholder rights or intellectual property implications. For any disputes between parties, dispute resolution mechanisms will be key, and even more importantly, you’ll want to utilize tools to avoid dispute in the first place.
As an infrastructure lawyer, there is no way you will be an expert at everything. Cultivating a big-picture view of a project is important, and to do that, you’ll want to seek to develop familiarity with every aspect of the development process.
What is the future for infrastructure law?
I hope we won’t be taken over by robots (smiles). But truly, infrastructure law relies on the higher-level thinking needed to align the many diverse aspects of project development. The good thing about practicing law in the infrastructure sector is that because it is so complex and has so many areas to it, there will always be a need for good and practical businesspeople, and good and practical counsel as well. We have to be able to calmly and rationally understand and guide our way through all the project development aspects in order to get the project done and to keep it viable.
Sometimes there will not be a completely legal answer, as in the answer will not always be based on the law. But there will always need to be a basis of knowing how to do things practically, and using the law in the right manner.