June 12, 2010
Mr Suman Sharma
Ministry of Physical Planning and Works
The “normal practice” you have described is very strange to me. I have been practicing as a corporate lawyer (besides being a management professional who is also a chartered accountant) for last 35 years and I haven’t ever come across what you have described as the normal practice; neither in Nepal nor abroad. Instead of boring you with the theory behind it, I will relate here what actually took place in the case of this PPA in question.
The very first PPA was signed between NEA and Himal Power in March 1994, before I joined HPL, and I subsequently learnt from the people involved at that time that the then minister of state for water resources Mr Laxman Ghimire and the secretary Surya Nath Upadhyay deliberated and decided on all the important parameters of the agreement and clerical work was undertaken by top people in NEA. It was signed by Ajit N Thapa on behalf of NEA, who was fully involved in the negotiations. The revised PPA was signed in January 1996 at which time Pashupati Shamsher was minister and Dwarika Nath Dhungel was secretary and the two of them deliberated and decided on all the important issues and was eventually signed by Kirti Chand Thakur on behalf of NEA. One thing that needs to mentioned here that Mr Thakur wasn’t involved in the negotiations and he signed the PPA very next day of his joining NEA (incumbent MD Santa B Pun refused to sign the PPA and he was transferred to the ministry to make way for Mr Thakur). Therefore, unlike Ajit Thapa, Kirti Thakur may not have been aware of what he was signing. However, important revisions to the original PPA were agreed in Manila for the negotiation of which Minster Pradip Nepal and Secretary Surya Nath Upadhyay visited Manila in late 1995. So both of them were deeply involved in what was agreed to with regard to the important issues in the revised PPA. Things weren’t decided at bureaucratic level as you have mentioned as the normal practice.
On the side of Himal Power, the negotiation team comprised of its board members, all Norwegians and the general manager, a British citizen. This team was supplemented by experts from the parent company of HPL called Statkraft SF which held 75% shares in HPL and ABB Energi and Kvæerner Energi, these two held 5% each in HPL (all from Norway). This team was assisted by an American lawyer based in London who used to charge $ 350 per hour and have had experience of executing many PPAs all over the world. Unlike the process you have described, the important people of high level were charged with higher responsibilities.
I wasn’t involved in the negotiations as I was not senior enough in the management hierarchy, nor did I have international experience in PPA (till that time no PPA had ever been executed in Nepal).
In this piece of yellow journalism, Kantipur has gone out of the way to portray certain people as villains selectively. They have left out from the honors list NEA MD Ajit Thapa, Secretary Dwarika Dhugel et al. Nor did the person witnessing on behalf of NEA figure in the honor list. There must be some “consideration” involved in this too. The write up has singled me out for the honors on HPL side; looks like they have an axe to grind against me.
Some journalists do write on the basis of “consideration” received or failed to receive. Bikash Thapa, author of the piece, too seems to be drifting towards that. Meaning if the subject of news is unable to make him happy, then the news will come out in a different light and angle and vice versa. In one of his write ups a few weeks back he unashamedly advocated that Arjun Karki should be given the position of executive chairperson of Upper Tamakoshi project after badmouthing the current incumbent who is there on ex-officio basis from NEA. Without even bothering to establish that the person, on whose behalf he was making a case, is qualified for that position and also ignoring due process which has to be both competitive and transparent, he unfairly criticized Energy Minister for failing to appoint Arjun Karki in that position. Obviously, he was pleading the case for some consideration. He and Kantipur also seem to have forgotten that job of media is to report news, but not to make out a case for appointment of a person to a specific position. The sector seems to be degenerating badly.
With best regards,
Ratna Sansar Shrestha
From: suman sharma [mailto:firstname.lastname@example.org]
Sent: Friday, June 11, 2010 12:54
Subject: RE: ...thought Kantipur didn't indulge in yellow journalism
What is merely witnessing on behalf of Himal Hydro? Isn't the normal practice in signing agreements is that both the heads of the corresponding institutions sign on the accord while those who prepared the actual document, responsible in executing the agreeent sign as witness! Was it different in this case?
Subject: FW: ...thought Kantipur didn't indulge in yellow journalism
Date: Fri, 11 Jun 2010 07:05:32 +0545