Dispute Resolution Mechanisms of PPP Agreements in China: A Research Based on Judicial Decisions

Abstract

Based on research on a number of judicial decisions regarding concession and Public–Private Partnership (PPP) agreements, this paper demonstrates the problems and dilemmas of China’s current PPP dispute resolution mechanism and clarifies three fundamental issues: concession≠PPP; concession agreement≠administrative agreement; and disputes related to administrative agreements≠administrative disputes. On the grounds of these conclusions, the paper argues that the logical chain of China’s existing PPP and concession dispute resolution mechanism is untenable. The logic of the current mechanism starts from the definition of an administrative agreement; it then classifies concession agreement as administrative agreement; and finally subjects the disputes over concession agreements to administrative litigation. Yet, this starting point is problematic because the definition of administrative agreement and the distinction between public and private law attributes are difficult to determine precisely, as they lack the necessary theoretical clarity and uniqueness. Overall, the current legal situation of PPP in China is far from being satisfactory because a statutory law on PPP is absent, the existing laws and regulations on administrative agreements are primitive, and the judicial practice has not yet established unified and clear criteria. Against this backdrop, this paper proposes a possible way out. First, we should critically reflect on the current administrative agreement and PPP agreement theory. Then, we should apply the method of legal fact research, adopt doctrinal tools of the legal relationship theory and contract construction theory, and eventually establish a multiple dispute resolution mechanism to resolve disputes effectively.

Key words： public-private partnerships; PPPs; concession agreements; administrative agreement; dispute resolution mechanism; legal relationship theory