Foreign-invested special rights project agreement (BOT) and Administrative Contract Law

Author: Yu An
Publisher:
Publish Date: 1998-04-01
Features: Guiding foreign investment into the infrastructure urgently needed for national economic construction is an important issue for implementing the "Ninth Five-Year Plan." Government (BOT) is an effective way to attract foreign investment into basic public facilities. The concept of Government involves transferring public infrastructure projects that require government development and construction to a project company through a government mechanism for financing, construction, and operation for a certain period, after which they are transferred back to the government. The government is the core and foundation of this system. The BOT investment model has been practiced in China since the early days of its reform and opening-up, and many successful pilot projects have been completed. However, the implementation of BOT has been very slow, one of the main reasons being that the national macro-regulations need improvement, especially the lack of legal norms and some important legal misunderstandings and obstacles. Therefore, this book aims to provide theoretical reference and support for solving the legal issues faced by China in implementing foreign-invested government project engineering, particularly the legal application issues. It is a theoretical book that seeks to address practical problems. At that time, the core agreement of BOT projects—the Government agreement was treated as a general civil contract and governed by China's civil law. However, China's civil law contains many prohibitive provisions regarding government participation in civil transactions, which created many difficulties for the government when making decisions for BOT Government agreements. The practice in civil law system countries treats BOT Government agreements as administrative contracts. Therefore, this book combines the legal issues of BOT projects with administrative contract law, focusing on the legal nature and application of the Government agreement in BOT projects. Structurally, the book is divided into seven chapters. Chapter 1 is the Introduction. Chapter 2 discusses the legal nature of the Government agreement in BOT projects, covering government agreements under international investment law, BOT agreements as administrative contracts, the scope of China's use of BOT, the nature of foreign BOT agreements, China's legislative status, and foreign legislative models. Chapter 3 covers the rights and obligations of the Government agreement in BOT projects. Chapter 4 addresses specialized issues in BOT government project engineering, including project risks, investment return rates, the role of the government, civil and commercial law issues in BOT projects, administrative law issues in BOT projects, and dispute resolution law issues in BOT projects. Chapter 5 discusses the operational procedures of the Government project, explaining the proposal of the project, the selection of the project sponsor, the Government agreement and the project company, project preparation and construction, project operation, and project transfer. Chapter 6 covers the basic principles of administrative contract law. Chapter 7 discusses administrative agencies and standard contracts.