Research Of The Exclusivity Clause In Public-private Partnership Concession Agreements

In recent years,under the promotion of supply-side structural reforms,the public-private partnership model has once again set off an upsurge in China.The construction of the legal system for the public-private partnership model is in full swing.Different from the traditional public law and private law,the legal framework of the public-private partnership model breaks through the traditional boundaries and presents the nature of the integration of public and private law.On this basis,many institutional designs must be revisited in a new environment.This article tries to take the exclusivity clause in the public-private partnership concession agreements as the research object,put the exclusivity clause under the framework of the public-private partnership model legal system,and enters into the concept of the exclusivity clause to discuss why the public and private parties in the public-private partnership project must agree on the exclusivity clause.Analyze the advantages of the exclusivity clause under the public-private partnership model,put forward the problems that the exclusivity clause in the public-private partnership model may cause,and provide solutions to the problems.From the microscopic point of view,we hope to clarify how the exclusivity clause can be better used in the public-private partnership model.From the macro perspective,it is hoped that the exclusivity clause in the public-private partnership concession agreements can be taken as a typical example to reflect the thinking path of the public-private partnership model,which is a legal problem in the mixed field of public and private law.The first chapter aims to elicit research objects.Through the introduction of the concept,applicable scope,value(goal)and effect of the exclusivity clause in the public-private partnership concession agreements,it will systematically explain the exclusivity clause in the public-private partnership concession agreements and analyze its essence through the characteristics of the clause.It is concluded that the exclusivity clause in the public-private partnership concession agreements is actually a commitment made by the government to protect the interests of the private in the public-private partnership model because of the long-term nature of the project and capital precipitation.Finally,on the basis of combing the exclusivity clause in the public-private partnership concession agreements in the current legal norms,several specific legal manifestations of the exclusivity clause are integrated to confirm the definition and essence of the exclusivity clause.The second chapter systematically analyzes the necessity of the exclusivity clause in the public-private partnership concession agreements.Because of the non-competitive and non-exclusive of the public goods,coupled with the capital precipitation and public nature of the public-private partnership,the enthusiasm of the private to participate in the operation of the public-private partnership project is not high.In order to promote the enthusiasm of the private,it is necessary to give it a certain amount of exclusive management rights in order to take into account the profit-seeking nature of the private.At the same time,the public-private partnership model has not been practiced in China for a long time,and the various systems are still not perfect.Therefore,in the practice of the public-private partnership project,the demands for the protection of the interests of the private,the lack of the government's commitment,and the improvement of the level of public consumption require the use of exclusivity clause in the public-private partnership concession agreements from three different sides.Exclusivity clause also has the advantages of effectively protecting the interests of the private,strengthening the credibility of government,and providing public goods efficiently.Many factors confirm the justification of the exclusivity clause in the public-private partnership concession agreements.The third chapter emphatically points out the application risk of the exclusivity clause in the public-private partnership concession agreements.Although the exclusivity clause in the public-private partnership concession agreements has its justification,legitimacy and advantages,but everything has two sides.In practice,the improper use of the exclusivity clause sometimes fails to have a positive impact on the project.Through the failures of the British-France Channel Tunnel Project,the US Southern California 91 Highway Project,the Fuzhou Baihuting Toll Station Project,the Wuhan Public Bicycle Project and the Lanzhou Waterworks Project,it can be concluded that the exclusivity clause in the improper use of the public-private partnership concession agreements will reinforce the new monopoly,restricting the government's ability to provide public goods and infringing consumer's choice.The government's breach of agreements during the process will also lead to the failure of the exclusivity clause in the public-private partnership concession agreements.The fourth chapter focuses on the reduction of the applicable risks of exclusivity clause in the public-private partnership concession agreements in order to maximize the benefits of the exclusivity clause in the public-private partnership concession agreements.For the monopolistic problem that the exclusivity clause in the public-private partnership concession agreements may has a negative impact,the principle of project differentiation can be used to resolve what kind of project under the public-private partnership can be adapted to the exclusivity clause.In response to the fixed concession period tends to be rigid,the public goods supply is limited and the consumer's choice is compromised,the flexible concession period can be introduced to solve that problems.For the government's default in the public-private partnership project due to inadequate ability to deal with situational change,the government can design the termination clause in the public-private partnership concession agreements to enhance the government's coordination ability and ensure the effective operation of the public-private partnership project.