| Since the reform and opening up,especially with our vigorous promotion of the "One Belt and One Road" construction,the rapid development of Chinese overseas engineering contracting industry has become an important way for our country to implement the "going out" strategy and has played a huge role in boosting Chinese economic growth.In order to break the monopoly position of the contractors of the western developed countries in the international engineering market,Chinese engineering enterprises have more likely chosen to contract projects in Africa and Asia where there are relatively higher risks facing the public security risks such as the armed conflict,turmoil and riots,Terrorist attacks and non-terroristic attacks including kidnapping,armed robbery and other public security risks.Due to its own characteristics,overseas projects have a great vulnerability in the face of public security risks.public security risks not only bring enormous economic losses to the Chinese engineering enterprises,but also bring great threats and even harms to the personal safety of construction workers.How to transfer or derogate the possible losses caused by the public security risks which Chinese engineering enterprises encounter during their contracting overseas engineering projects by law means,that is,how to prevent the public security risks arising in contracting overseas projects of Chinese engineering enterprises has become a very realistic and urgent issue.This paper uses empirical research methods,closely linking to the specific problems of the public security risks arising in contracting overseas projects of Chinese engineering enterprises,from the legal systems that our engineering enterprises can take and our government can provide,including contract legal system,insurance legal system,treaty legal system and diplomatic protection legal system,to analyzes the relevant legal provisions and systems that can transfer or derogate the losses caused by public security risks.This paper analyzes the risk of the employer clauses and force majeure clauses which distribute the risk among the parties involved in the project through the theory of risk burden and points out the key factors in the contract clauses.By analyzing the renegotiation clause,it points out that the clause leads to potential legal risk of indefinite obligation and proposes the precautionary measures that prevent the legal risk.This paper analyzes the model which the overseas investment insurance system of our country should take and the existing problems,andanalyzes the feasibility,necessity,status quo and existing problems concerning Chinese engineering enterprises applying for MIGA and proposes the legal suggestions to promote Chinese engineering enterprises to make better use of the insurance legal system to transfer the risks.This paper analyzes the insufficiencies of the protection and safety clause and the umbrella clause in investment treaties concerning to preventing the loss of public security risks arising in contracting overseas projects of Chinese engineering enterprises.This paper analyzes the practical value of diplomatic protection,legal obstacles to provide diplomatic protection after Chinese engineering enterprises having encountered public security risk,then proposes advice concerning how to build the relevant rules in order to benefit our country in applying diplomatic protection.In addition to the introduction,this paper is divided into five chapters,as follows:The first chapter defines the concept and characteristics of the public security risks arising in contracting overseas projects of Chinese engineering enterprises.Through the analysis of the concept of project,risk and public security,this chapter defines the public security risks arising in contracting overseas projects of Chinese engineering enterprises,analyzes its characteristics and its differences from the concepts of political risk,state risk,war and civil disturbance risk,and points out that it is necessary to prevent the public security risks arising in contracting overseas projects of Chinese engineering enterprises from four aspects: the contract legal system,the insurance legal system,the treaty legal system,and our legal plans which overcome the obstacles in applying diplomatic protection.The second chapter "Contract Legal System preventing Public Security Risks Arising in Contracting Overseas Projects of Chinese Engineering Enterprises",through the sorting up of international project contracting model,a variety of engineering model contracts and provisions of Chinese engineering enterprises signed in practice,the paper finds the key points of preventing public security risks for Chinese engineering enterprises through contract legal system in different international engineering model contract.Through the analysis of risk burden theory and the theoretical analysis of force majeure clause and renegotiation clause,Combined with the common international engineering model contract and the related clauses of international engineering contract in practice,this paper puts forward the suggestion that Chinese engineering enterprises should adopt to prevent public security risk when signing the contract.The third chapter “Insurance Legal System preventing Public Security Risks Arising inContracting Overseas Projects of Chinese Engineering Enterprises”,firstly,through the analysis of definition of the investment in BIT signed by our country,in the domestic laws of each country and in international investment arbitration,clarify the investment nature of contracting overseas projects.Then,comparing the overseas investment insurance system of our country and of other countries,analyzing the insufficiency of our country’s overseas investment insurance system,this chapter put forward the legal suggestions to the construction of this system.Analyzing the feasibility,necessity and the status quo of Chinese engineering enterprises applying for MIGA,this paper puts forward legal suggestions on promoting our country’s engineering enterprises to use MIGA to prevent public security risks.The fourth chapter "the treaty Legal system preventing Public Security Risks Arising in Contracting Overseas Projects of Chinese Engineering Enterprises",through the case analysis method,analyzes and argues the insufficiency of the function of "protection and safety" clause and the "umbrella" clause in investment treaties in protecting investor encountering public security risks,as well as the question of the related clauses in the investment protection treaty signed by our country,puts forward the path that our country can prevent the loss of the public security risks arising in contracting overseas projects of Chinese engineering enterprises through the treaty.The fifth chapter "Legal Plans which Overcome the Obstacles in Applying Diplomatic Protection",analyzes and demonstrates the realistic value of diplomatic protection for the protection of overseas engineering investment and the conditions for applying diplomatic protection.From the national responsibilities of the host country,the nationality requirements of applying diplomatic protection and the principle of exhaustion of local remedies,the paper points out the legal obstacles that our country faces when applying diplomatic protection for the protection of Chinese engineering enterprises encountering the public security risks,then puts forward the countermeasures. |
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