New Delhi: The Centre is rewriting rules for private highway developers, giving them an easier exit from troubled build-operate-transfer (BOT) projects and lenders greater protection against losses, as the government tries to revive private investment in a model weighed down by delays and disputes.
Under the revised model concession agreement (MCA), a concessionaire or private developer can trigger termination compensation during construction once a project has achieved at least 20% physical progress, according to two officials from the ministry of road transport and highways (MoRTH) aware of the development.
The framework also allows a financially stressed developer to be replaced, creating a defined exit route instead of leaving an unfinished project tied up in disputes.
The decision could improve the bankability of BOT projects by putting a floor under losses when a project goes wrong before it starts generating revenue. This matters in a sector where hundreds of highway projects have missed deadlines and National Highways Authority of India (NHAI) is facing more than ₹1.2 trillion in arbitration claims.
NHAI had 147 arbitration cases pending at the end of FY25 involving contractor and concessionaire claims of about ₹1.2 trillion, apart from 59 court cases involving another ₹14,138 crore.
Separately, as many as 629 of 1,191 under-construction national highway projects awarded over the last five to six years, have missed their original completion schedule, according to data from the MoRTH. The delayed projects, several of which are locked in disputes, have a cumulative cost of more than ₹4.1 trillion.
Queries mailed to MoRTH remained unanswered till press time.
“The construction phase is the most uncertain part of any BOT project, and providing termination compensation once a project has achieved 20% physical progress significantly reduces this risk for both concessionaires and lenders,” said Kushal Kumar Singh, partner at Deloitte India.
For lenders, the change could be particularly significant. The revised framework provides that debt covered by the termination payment can be treated as secured, improving the visibility of recovery if a project fails during construction, Singh said.
Resolving disputes
The government is also seeking to cut the time and complexity involved in resolving disputes. The revised BOT documents do away with the Dispute Resolution Board and provide for arbitration for claims below ₹10 crore, while larger disputes are to go through conciliation or mediation.
That is significant in a sector where disputes over delays, changes in project scope, traffic shortfalls and termination payments have tied up capital for years. NHAI had 142 ongoing cases involving contractor claims of ₹1.24 trillion and counterclaims of ₹0.64 trillion.
The revised MCA also seeks to remove uncertainty regarding the calculation of “debt due”, another contentious issue in termination settlements, while modifying provisions addressing changes in ownership, target traffic, force majeure, construction support, and compensation for changes in project scope.
The changes come as the government is attempting to shift the highway construction cycle back towards private capital. BOT projects had largely fallen out of favour after the previous investment cycle was hit by aggressive bidding, traffic-risk miscalculations, financing constraints and prolonged disputes.
The government is trying to make the model more bankable without shifting all the risk back to the public balance sheet. But industry executives caution that a clearer exit mechanism may not, by itself, be enough to revive investor appetite.
“Projects which get terminated post initial construction are few and hence, this step on its own, may not have a significant impact on investor interest in BOT projects,” said Kuljit Singh, partner and national infrastructure leader at EY India.
That distinction is important. The revised termination provision addresses the downside risk for developers and lenders, but investor appetite will ultimately depend on whether BOT projects offer adequate returns after accounting for construction costs, traffic risk and financing costs.
Still, the government is effectively trying to change the bargain at the heart of the BOT model: private investors should take commercial risk, but should not be locked indefinitely into projects that become unviable because of circumstances beyond their control.
By allowing an earlier, more predictable exit while protecting lenders, the government is seeking to address one of the key weaknesses that had contributed to the earlier BOT cycle ending in a large dispute and litigation overhang.