“一带一路”建设背景下PPP项目中融资机构介入权法律问题研究

A Study on the Legal Issues of Lender Step-in Rights in PPP Project under the Background of the Belt and Road Initiative

PPP项目融资协议或者其他相关协议中往往会包括这样一个条款,即当PPP项目遇到问题,政府在处理合同终止及其后果之前,融资机构享有直接干预项目,参与进来挽救PPP合同的权利,这样的协议通常被称为直接协议,这样的权利被称为融资机构介入权。融资机构介入权设置的目的旨在担保融资机构贷款的偿还和保护资金安全。为了让介入权更具可行性和操作性,相关协议中往往具体规定了该项权利具体的内容,如补救权、介入权以及债务更替或者替代等,同时也规定了权利行使的条件和程序。融资机构介入权本质上是一种合同权利,该权利的有效性备受质疑,这皆因PPP合同的可转让性问题所引发,目前尚未有一致的定论,几乎没有在任何司法管辖区的法庭上得到过合适的检验,但是,对于融资机构而言,介入权可能是一种有效的保护机制。

A PPP project financing agreement or other related agreement often includes such a clause that when the PPP project encounters problems, the lender can directly intervene in the project and participate in the project to save the PPP contract before the government handles the termination of the contract and its con- sequences. Such an agreement is often referred to as a direct agreement, and such rights are referred to as the lender step - in rights. The purpose of the lender step - in rights is to guarantee the repayment of the loans and the protection of the security of the funds. In order to make it more feasible and operational for lender step - in rights, the relevant agreements often specify the specific content of the right, such as cure rights, stepin rights, novation or substitution, as well as the conditions for the exercise of rights and procedures. Lender step - in rights are essentially a kind of contractual rights. The validity of this rights are highly questioned, which are caused by the problem of transferability of PPP contracts. At present, there is no consensus, few have been properly tested in courts in any jurisdiction, however, lender step - in rights may be an effective protection mechanism for lenders.