论PPP及BOT合同权利义务与争议仲裁——以我国台湾地区为视角

Discussion on Right and Duty of PPP and BOT Contract with Arbitration--From the Perspective of Taiwan

我国台湾地区近年来陆续有PPP或BOT项目之履约争议发生。例如,台湾地区高铁案、台北市大巨蛋案;而投资合同上的当事人权利义务是纠纷解决依据。因PPP或BOT合同履行期通常长达数十年,风险自是比传统的政府采购合同大许多,尤其常发生公共服务与投资商之财产权保障冲突时之当事人权利义务的合同解释问题。基于“促参法”第12条之规定,将PPP或BOT合同定性为私法合同,但不得违反公共利益之立法目的,即于PPP或BOT合同履行,双方应遵守合同自治原则。PPP或BOT合同当事人的权利义务,于不违反强行规定下,优先依合同约定,无规定时则由法律加以补充,也不排除以情势变更或不可抗力为由,声请调整当事人的权利义务。本文除了对于依据“促参法”及BOT合同范本介绍主办机关与民间机构的权利义务款之解释外,也以实务见解作论证,尤其强调法律风险之责任分担于合同变更的适用。最后,本文对于投资契约争议之仲裁机制予以分析,认为PPP及BOT合同之各面向当事人间若生争议,必属十分专业甚至复杂的法律关系,有待迅速解决,委之于仲裁,相对于民事法院,争议解决可能较迅速、专业判断与法律公正性。

There are many disputes in PPP and BOT contracts, such as the cases of Taiwan High Speed Rail and Taipei Arena. The dispute resolution is based the rights and duties of the parties on the investment contract. Because PPP and BOT contract performance period is usually for decades that have more and larger risks than traditional government procurement contracts. However, the conflicts issues of public interest property conflicts often occur in contract interpretation for the rights and duties of parties. Although based on article 12 of ＂Act for Promotion of Private Participation in Infrastructure Projects＂, PPP and BOT investment contract classified in private law, but not in violation of legislative intent from public interest. In performance of PPP and BOT contract, the parties should abide by the principle of autonomy of the contract. It does not violate the provisions in force, contractual rights and duties of the parties, according to the contract intention. When there is no provision contract or law supplemented by predetermined, does not rule out changes in circumstances or force majeure as a reason to adjust legal effect. In this paper, according PPP and BOT model contracts introduced explain the right and duty of the competent authorities versus civil institutions. Furthermore, Court decisions ideas for feasibility studies and emphasized risk of legal liability sharing applied to the contract changes. Finally, the arbitration mechanism of investment contract dispute resolution is analyzed, because that will be very professional, complex of legal relationship and to be quickly resolved. Then, the arbitration commission of the relative civil court dispute resolution may be more prompt, professional judgment and legal justice.