论BOT特许协议争端的解决途径

The Dispute Settlement for the BOT Concession

由BOT特许协议产生的争端通常会涉及到一些在其他合同中不常见的问题,因而具有鲜明的特点。为了妥善解决BOT特许协议争端,世界各国通过各种形式对BOT特许协议争端的解决途径作了规定。在我国关于BOT特许协议争端的解决途径的立法中,应遵循维护国家主权和公共利益、保护投资者利益、国民待遇以及国内解决与国外解决相结合原则,消除各种阻碍,将协商、调解、行政复议、仲裁以及司法程序等方式规定为BOT特许协议争端的解决途径,以保证BOT方式在我国的顺利推广实行。

the disputes arising from the BOT concession usually involve some kinds of problems, which do not usually occur in the other contract disputes. By different causes, these disputes can be categorized as follows:(1) Disputes caused by 'emergency risks', which, known as acts of God, may cause an interruption of the project execution or the operation of the facility. (2) Disputes caused by 'political risks', which refer to some negative influence the contracting authorities, a government agency or the legislative body the host country may exert upon the project.(3) Disputes caused by risks occurring in construction and operation. The construction risks involve failure to start construction, to turn in the facilities on schedule, to control construction cost as agreed upon, or to meet the designing requirements by the time that facilities are completed. The operation risks refer to the completed facilities that cannot operate or be maintained so effectively as not to achieve the expected output efficiency and the operating cost that exceeds the original estimate.(4) Disputes caused by commercial risks, which will make the investor unable to achieve the expected interest due to a change in market price and service. (5) Disputes caused by financial risks, which mainly refer to foreign exchange risks and interest rate risks.In order to settle all the abovementioned disputes in BOT concession, approaches usually taken in different countries' practices are provided here for reference: negotiation, mediation, reference to the dispute review board, administrative review, arbitration and judicial remedy. Because of the different legal systems and constitutional structures, however, the settlement of BOT concession disputes differs tremendously from country to country.In China's future BOT law, we should prescribe these most suitable dispute settlements for the BOT concession, which can guarantee the procession of the BOT projects. Before that, it is necessary to make some problems clear. First, the BOTconcession should be considered as a domestic contract rather than a 'state contract' and its governing law should be the domestic law of the local country. Second, it is better to consider the BOT concession as a special administrative contract. Thereby, not only the administrative law but also some civil regulations are applicable because of its specialty. However, arbitration, which is the traditional civil settlement, should be included in the settlement of BOT concession disputes since it can encourage the investors and reduce the costs of dispute settlement. It is believed that negotiation, mediation, administrative review, arbitration and judicial remedy are the suitable ways to settle the BOT concession disputes in China. Actually, China can establish arbitration as an effective way to solve the BOT concession disputes according to the contract law and the CIETAC rule. What is more, the CIETAC could play an important role in arbitration. Finally, when we recognize and implement the arbitral decisions, it is important to avoid enlarging the scope of the assets of the target of execution.