A Study On Some Legal Aspects Of BOT

BOT is a new mode of investment and finance in the world which utilizes private capital in public infrastructure construction. With its advantages in respect of strong capability of finance, less hot money, safety for investment returns, it has attracted the intensive attention of governments around the world and has been adopted widely. The initial motive of BOT was to deal with the problem of capital shortage on the part of governments by privatizing some public projects. Its origin may be found in north America in late 19th century- more than one hundred years ago. When it turns into 20th century, infrastructure are mainly undertaken by governments or public undertakings, the funds needed come from sources such as goverment appropiation, issuance of bonds, or sovereign loans from the World Bank or other development banks. After 1980's, however, the existing facilities can no longer meet the need of economic development and people's living demands. At the same time, economic crisis, financial deficit and other factors such as burden of debts reduced greatly the governments' ability to invest and borrow money, private sources funds again were sought to cover up the capital shortage. On the other hand, some international consortia were looking for ways to invest for the purpose of maximum of profit. Hence some international contracting companies and experienced developing countries began their trial to promote private ownership and operation of infrastucture projects, through the way of accession agreement with limited recourse.BOT first emerged in China in early 1980's, since then, more projects has been following suit. With the development of the west region and Beijing's successful application to host the 2008 Olympic Games, together with the accession to the WTO, China is faced with an emergent demand for the construction of energy and other infrastructure projects. So it is wise for China to adopt BOT in infrastructure projects, both for the purpose to modify the pressure on public budget, and for the benefit of importing advanced technology and management methodology.The smooth operation of BOT involves harmonization of laws and regulations in different fields, however, the existing 'provisions constitute hindrance for the development and implementation of BOT projects. A sound legal system concerning BOT is yet to come. It is then of clear importance and value for research work to be conducted in this field. This thesis deals with legal issues concerningBOT from four aspects: The first part devoted to a general analysis of BOT-related legal issues, in particular the legal relationships involved in BOT projects, and the differences between BOT and other investment modes. The second part gives a analysis on the core document-accession agreement and its legal nature-a widely controversial issue. A conclusion is drawn the such agreement falls within the scope of domestic administrative contract. The third part probes into the nature and scope of government guarantee, with the purpose to relieve the misunderstanding on it both from the academic society and from the business circle. The fourth part, based on the detailed examination of existing provisions, put forth concrete suggestions for a seperate act for BOT.