UK: Specialized Arbitration Centre Launched In Response To Rising Prominence Of PPP In China (Chinese)

Last Updated: 12 July 2017
Article by Richard Bell

2017年5月16日,中国国际经济贸易仲裁委员会("贸仲")在北京为其政府与社会资本合作争议仲裁中心举行了揭牌仪式。这是中国第一个致力于解决政府与社会资本合作(PPP)项目争端的仲裁机构。截至本报告撰写之日,实际案件处理工作尚未开始。贸仲秘书长王承杰在《中国贸易报》(一家由贸仲上级机构中国国际贸易促进委员会运营的媒体)的一次访谈中提到,PPP仲裁中心将使用贸仲规则而非另立规则,但中心将拥有一支专门的仲裁员队伍,由精于PPP、建筑和项目管理相关争议解决的国内外专家组成。可以看出,贸仲在新仲裁中心的设置上兼顾了业务专门化和对已有规则下操作经验的传承。

基建开发的巨大资金需求和日益紧张的地方财政正在给中国带来双重挑战,为此中央政府在近几年加强了社会资本的动员。政府在2014年出台了一系列法规,鼓励公共设施和服务项目利用PPP模式。其中比较重要的包括国务院出台的《关于加强地方政府性债务管理的意见》、发改委出台的《关于开展政府和社会资本合作的指导意见》以及财政部的多项规定,如《关于推广运用政府和社会资本合作模式有关问题的通知》和《政府和社会资本合作模式操作指南(试行)》等。

随着PPP的重要性日渐凸显,贸仲PPP仲裁中心应运而生。争议解决是私营企业参与或提出PPP项目时的一大顾虑。与普通的商业合同不一样,PPP合同各方并不完全平等。PPP项目(例如运输、住房、教育和医疗)通常带有强烈的公共特性,这意味着政府经常扮演参与者和监管者的双重角色。需要的时候,政府有可能会利用广泛的市场监管权力间接阻碍项目实现,从而规避PPP合同项下义务、免于违约责任。裁判者是否敢于认定政府直接或间接的违约行为,能否缓解政府与私营企业之间必然存在的失衡,对PPP在中国的成功至关重要。由专注于PPP争议解决的专家机构进行仲裁在这方面有其优势。比起法院,仲裁机构与政府机构的关系相对较远,较少受到外部压力和地方保护主义的影响(这些问题在中国地方法院仍然广泛存在)。与此相关,仲裁员的专业经验帮助他们更加深刻地理解PPP项目的规律,对公平参与、维护私营企业的必要性有更多认同。

尽管现在下定论还为时过早,我们建议有关行业密切关注PPP仲裁中心的表现(例如工作效率、收费和裁决质量等)。PPP纠纷的可仲裁性也是一个需要关注的问题。对于是否所有因PPP项目引发的纠纷都能提交仲裁,司法实践目前存在不同做法。虽然认可所有PPP争议的可仲裁性是发展趋势,某些法院仍然认为特许经营关系(相对于政府采购私人商品和服务)只能由法院管辖。随着更多PPP仲裁裁决进入撤裁和不予执行仲裁裁决程序,中国法院可能会在几年内发展出一套更加一致的做法。

2017年6月《中国法律快讯》的完整链接和其他文章的链接如下:

Specialized Arbitration Centre Launched In Response To Rising Prominence Of PPP In China (Chinese)

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