Research On Law Question Of International BOT Investment Method

BOT, the abbreviated form of"Build-Operate-Transfer", is a new form of international investment and financing. BOT can be defined in such a way: a host nation conclude and sign an agreement of concession in which the state confer the concession of investing, financing, operating and maintaining of a large infrastructure to investors. Investors pay back the debt of the project and recover the investment by their income from operating. When the concession agreement terminates, the investors must transfer the infrastructure to the host nation. From 1980s, BOT as a strategic style of attracting foreign investment, improving the infrastructure and enhancing the economic strength has received great attention of various host countries and investors.BOT first emerged in China in early 1980's, since then, more projects has been following suit. However, the legal system that governs BOT is not quite perfect present and various regulations conflicts with each other in many ways. What's more, the research in this area in our country is very weak. There're still many disagreements on some essential issues, and there doesn't exist a system at theory of BOT. As a result, there is a long way to the systematize of legislations on BOT, which has severe by influenced the implementation and the development of BOT in China. So it is very necessary to do specific research on BOT by learning from external legislative experience, so as to form a new BOT theory system of our country and to accelerate the process of BOT legislation.This article aims to bridge the gap between theory and practice and to help establish a new BOT legal system by making an objective and legal analysis on the domestic and over seas BOT system. Finally,this paper put forward a conclusion that our government should standardize BOT legal relationship though the way of specialized legislation, make it become an operative investment and financing style and promote the development of our infrastructure construction by using the private overseas capital.The thesis, consist of three chapter, focuses on the legal issues of BOT. Firstly this thesis discusses the concept of BOT. After analyzing, the thesis outlines the legal nature of BOT. By analyzing the cases of BOT application, the article point out the difference differences of adopting BOT between the developed county and developing country. Furthermore, the thesis investigates legislations of BOT and its application in china, and confirms the main legislative obstacles in China. Then the article proposes unique opinions on the nature of BOT method.In the first chapter, the article discusses the basic theory of BOT, such as the concept of BOT. Then based on the analysis,of several different opinions on the legal nature of BOT, this thesis points out that legal nature of BOT should be discussed from different aspects, From the aspect of the financial resource of BOT, BOT is a kind of new direct investment way, and concession agreement of BOT, different from traditional concession agreement, is also new. From the aspect of the relation between governments and private investors, BOT is the symbiosis for building and operating infrastructure projects. This chapter provides us necessary backgrounds for further analysis.The second chapter mainly discusses the application cases of BOT projects in the world. By comparing and analyzing BOT projects between in the developed country and area (such as Australia, Hong Kong) and developing country (such as Philippines, Thailand), we are able to find these differences of adopting BOT in deferent country, which are made up of objective, the way of raising capital, exterior environment, the way of sharing project risk and so on. Investigates legislations of BOT and its application in china is the core of this thesis.The last chapter discusses two main problems. First, analyze deeply the legislative obstacle .In China, although many legal experts have given concern to the legislation issues of BOT and there have been a few laws and rules concerned BOT, but there are a lot of legal problems during the utilizing of BOT style. There is no special space for BOT style, which make the practiced operation of BOT style without law to abide by, moreover lack of policy guide and the assurance of law. In detail, there exist the obstruction of law in varying degree, such as, government guarantee, the right of stock, control foreign currency, the enrollment and financing of project corporation, the investing scope of foreign investment, etc.In accordance with the legal problems above mentioned, we should use the experience and lesson of foreign BOT style for reference, in order to look for the plan of solving this legal problem.Perfecting the legislation of BOT style, we should start with macroscopic and microscopic aspect to research. From the macroscopic aspect: we should fix the purpose of BOT legislation from the restrict policy to positive support, BOT legislation should based on the principle of WTO and our promise of entrance to WTO, Maintain our economic sustained development is our guiding principle of BOT legislation.From the microscopic aspect, BOT law should consider emphatically: About the legislative principle: Adhere to maintain national sovereignty as well as protect the legal rights and interests of investors, Respect the fundamental principle of WTO and international practice, Adhere to the equality and mutual benefit principle, Adhere to fair mechanism of allocating risk.About the legislative model: We should adopt unified special legislative model. Because the norm of laws that hinder the development of BOT style are almost the fundamental law made by the National People's Congress or its Standing Committee, it is reliable that the special law of BOT style is made and issued by the National Peoples'Congress or its Standing Committee.About the substantial content: We should make definite that the meaning and nature of BOT style, the investors' qualification, the examine and approving organization of BOT style, the definition and nature of concession and concession agreement, the invest scope of BOT style, government guarantee system, mechanism of allocating risk, national favorable policy, the provision of fight against control, nationalization and imposition and its offset, the modification and termination and transfer of concession agreement, settlement of disputes and the provision of legal application, and so on.As a national law, it is impossible to comprise all content of BOT style. We may only regulate the Common problems of BOT style that our nation has faced, and based on it, as the complement of BOT style law, we also need to draw up other cooperation regulations.