PPP协议中仲裁条款的效力问题

On the Legal Effect of an Arbitration Clause in a PPP Agreement

从《最高人民法院关于审理行政协议案件若干问题的规定》中并不能推导出所有的PPP协议中的仲裁条款均属无效的结论。PPP协议中的特许经营协议因具有明显的行政属性,因而属于行政协议;某些PPP协议并不直接涉及行政法上的权利的行使或处分,因而,不应被认定为行政协议;PPP协议的从协议的属性应取决于主协议的属性;PPP协议的关联协议,即使是基于特许经营而产生,基本上都是民事合同,而不应被轻易认定为行政协议。对于其他PPP协议属性的认定,应坚持缩限解释的原则,尽量将其认定为民商事合同。

From the wording of the"Regulations on Some Issues Relating to the Trial of Administrative Agreement Cases"promulgated by Supreme People’s Court of China,it can’t be concluded that all arbitration clauses in PPP agreements are invalid.Among the various PPP agreements,franchising agreement due to its obvious administrative attribute should be classified as administrative agreement,meanwhile the others without disposing administrative powers shall not be regarded as administrative agreements.The characters of a subsidiary agreement shall be the same as that of the principal PPP agreement,and a related agreement of a PPP agreement even based on a franchising agreement is usually a commercial agreement.A"Limitation Principle"should be applicable when identifying the characteristics of PPP agreements,in order to classify as more as possible PPP agreements as commercial ones.