THE ARBITRATION VALIDITY OF BOT CONCESSION AGREEMENT IN CHINA

摘要

There are several approaches available to settle disputes in BOT concession, among which arbitration is a commonly used one. But a controversy over a BOT project, which happened in 2005, elicited a legal crisis in arbitration on cases concerning BOT investment under China's current laws. A relevant question is then asked: whether the disputes arising from a BOT concession agreement could be submitted for arbitration? This paper firstly analyzes the relative laws in China, especially the law system of arbitration, the Arbitration Law of P. R. C and some other separate regulations concerned. Based on prudential examination on Article 2 and Article 3 of the Arbitration Law, key provisions related to arbitrability, together with other arbitrational separate regulations, it is concluded that under current Chinese laws the BOT concession agreement disputes cannot be arbitrated. The conclusion above will however, obviously make a-gainst the promotion of infrastructure investments in China. This paper then suggests the areas for improvements to this legal crisis so as to make the investments in China by BOT model go on wheels. One of the most effective ways is to enact a BOT separate regulation, in which the present separate regulations are used for reference. In addition, it is necessary to amend the 1994 Arbitration Law, with consulting the Government Procurement Law, in order to cope with the fast social and economic developments in China.