On The Government Guarantee Of BOT Investment

Since the 1980s, in order to solve the infrastructure funding shortfalls of government, many states have begun to explore a new infrastructure mode that let the private capital participate in international infrastructure construction. Under this background BOT investment came into being, and quickly received the favor of all countries and became the indispensable accelerator of world's economic development. Our country got a late start on the application of BOT investment and there is a big gap between our country and many other countries both in theoretical study and application. This gap is particularly prominent in the government guarantee. The lack of government guarantee system and the confusion in actual operation has seriously hindered the development of BOT investment in our country, which has aroused a great concern of scholars. This paper insisted the principle of proceeding from reality, adopted the methods of practice analysis and comparative analysis, combined the theory and practice of domestic and foreign BOT government guarantee, and analyzed the main problem of government guarantee in BOT investment from an objective, legal and international perspective. Finally on the basis of the shortage of the BOT government guarantee system, it makes recommendations on improving the BOT government guarantee system to promote the development of BOT investment and let it better serve for the economic development of China.This paper is divided into five chapters:In the first chapter, it summarized the government guarantee in BOT investment. It stared with the general meaning of the assurance, lucubrates the scope of BOT government guarantee and the attitude of the host country to the BOT government guarantee. And then it discussed the risk including commercial risk and political risk in the BOT investment faced by all the investors, so as to educe the need for the BOT government guarantee. Finally, based on the practice in BOT government guarantee of some countries, it analyzed the main content of BOT government guarantee.In the second chapter, it discussed the legal nature of the government guarantee in BOT investment. Since the legal nature of the government guarantee in a large extent is determined by the legal nature of the BOT concession agreement, the author firstly analyzed the legal nature of the concession agreement to educe the independent contract knowing from the administrative contracts and civil contracts. Then the paper based its discussion on the misunderstanding of the majority of people and compared the BOT government guarantee and general civil claims security guarantee. Finally, the author determined the BOT government guarantee as the governments' self-limiting and self-restraint for the favoring operation of the BOT investment -a public act of the government.The 3rd part starts from two layers: the domestic and the international law, elaborated the evidence of the host government's assurance to the BOT government, and then lead naturally to the legal effect of the government guarantee in the domestic and the international law, which efficiently bind the host government.Taking Australia, Hong Kong, France, Turkey, the Philippine, Malaysia as examples, the 4th Chapter separately analyzed the government guarantee to law practice in the developed and developing countries and districts' BOT investment way. It also compared their differences, which are significant and useful for our BOT government guarantee's development.In the 5th chapter, the discussion came back to our BOT government guarantee. At the first it took the Shajiao B Power Plant in Guangdong and Laibin B Power Plant in Guangxi as examples to introduce the practice of BOT government guarantee in our country. It then analyzed the current laws for the government guarantee. On this basis it educed the legal obstacles in actualization of our government guarantee. And finally it put forward specific proposal for the legislation on government guarantee in BOT investment from the aspects of legislative principles and legislative content.To consummate the government guarantee system of BOT investment to effectively reduce the investment risks has a strategic significance for attracting foreign capital to infrastructure construction in China. Therefore it has become the urgent affairs in implementation of BOT investment in China to eliminate the obstruction in practice of BOT government guarantee as soon as possible and establish a complete set of the BOT government guarantee system.