所谓PPP 模式即公私合营模式(public-private partnership)，是指政府与私人组织之间以特许权协议为基础而形成的一种伙伴式合作关系，旨在提供某种公共物品和服务。合作各方通过签署合同来明确各自的权利和义务，以确保合作的顺利完成，最终达到比单独行动更为有利的结果。
2004 年4 月14 日，新疆某公司与新疆某市人民政府就天然气利用项目工程的投资建设签订《天然气利用项目合同》，约定该公司投资建设该市的天然气管道及调压门站等供气设施，项目正式投产后由该公司自主经营20 年，此后天然气项目工程所有权全部交与市政府；市政府取得对该工程所有权后如需对外承包或出租经营，在同等条件下，该公司有优先承包或租赁经营权。
The public-private partnership (PPP) model refers to a cooperative partnership relationship between a government and a private entity based on a concession agreement in order to provide a certain public good or service. The parties clarify their rights and obligations in executing the contract so as to ensure smooth completion of the project–and ultimately achieve a more beneficial result than if they had acted separately.
Concession agreement disputesConcession agreements are the foundation of the PPP model and are instrumental to regulating the rights and obligations of the government and the private entity. As the target project involves a public product or service, the agreement pertains to the government, private entity and the public. If a dispute arises, the question is how to resolve it.
Tian Yuan previously acted as counsel for a Xinjiang municipal government in a dispute with a Xinjiang-based company over a natural gas utilization project contract. In the dispute, we looked into dispute resolution in relation to concession agreements. In the end, our efforts were endorsed by the Supreme People’s Court (SPC).
To give a background of the case, on 14 April 2004, a Xinjiangbased company executed a contract for a natural gas utilization project with a municipal government in Xinjiang. The contract concerned the investment and construction of a natural gas utilization project. It set out that the company would invest in supply facilities such as a natural gas pipeline and pressure regulating stations for the municipality and construct them in addition. Once the project officially commenced, the company would operate it at its own discretion for 20 years, following which ownership of the project would pass to the municipal government in its entirety. Once the municipal government secured ownership, if it needed to contract out or lease the operation to a third party, all things being equal, the company would have a priority right to contract or lease the operation.
After executing the contract, the company experienced a cash shortfall. This resulted in a slowdown in construction and failure to pay wages among other problems. There were also numerous operational problems, including conflicts with users over an interruption in the heating gas supply. The interruption affected a vast area and seriously influenced people’s daily lives.
Under this circumstance, the municipal government issued the company a contract termination notice. The notice set out that the municipal government had determined to terminate the contract it had executed with the company in accordance with the law, pursuant to regulations including the Measures for the Administration of Public Utilities, the Regulations of the Xinjiang Uighur Autonomous Region on Concessions for Public Utilities and the Measures for the Administration of Urban Gas. Soon thereafter, pursuant to an application by the company, the municipal construction bureau held a hearing in respect of the takeover notice by the government. In the hearing, the bureau decided to assign bureau personnel to fully take over the gas supply operated by the company as well as the company’s operating rights.
Following the hearing, the municipal court rendered a civil pretrial property preservation ruling pursuant to an application by the bureau, ordering that the company’s gas sales system and user information be sealed. The municipal government then took the company to court, requesting that the executed contract be terminated. Shortly thereafter, the company instituted a legal action against the municipal government in the Xinjiang high court, requesting continued performance of the contract.
Determining the nature of the disputeAfter being engaged by the municipal government as counsel, Tian Yuan discovered that both the parties as well as the court at first instance had mistaken conceptions of the nature of the contract in the case. The parties viewed the contract as a civil contract between equal entities, requesting property preservation and instituting the legal actions per the procedures for civil actions. The court, meanwhile, tried the case as it would for joint operations contracts.
We immediately submitted a legal opinion to the court asserting that the contract was not a simple contract between equal entities disposing of their civil rights and obligations. Rather, we argued, it had been executed by the municipal government in its capacity as an administrative authority for fulfilling its function of managing public affairs. The contract was conditioned on the necessary fact that the municipal government had granted the company a concession to engage in the supply of natural gas. The dispute therefore was over a concession contract with certain administrative attributes, not over a joint operations contract.
We asserted that the case should be deemed an administrative contract dispute and dealt with in an administrative action. However, the court did not concur. It continued to treat the contract as a civil contract and rendered a judgment to the effect that the termination of the contract was invalid.
Support from the highest court
Tian Yuan continued to act as counsel for the municipal government after the first instance judgment and filed an appeal with SPC. We again argued that the court had been in error to not handle the case as an administrative contract dispute. SPC concurred with our opinion, holding: “While there were certain civil elements in the contract involved and the legal relationship between the parties in the action, the relationship between the parties was not a civil law relationship arising between equal entities. Therefore the case did not fall within the scope of civil cases to be accepted by the courts, and the parties could separately institute an administrative action in accordance with administrative regulations.”
This case makes it evident that concession agreements are not ordinary civil contracts, regardless of whether they are considered from the perspective of subject matter, entities, objectives or provisions. Rather, concession agreements are administrative contracts executed by governments with third parties in the interests of the public with the purpose of fulfilling its administrative functions in accordance with the law. Concession agreements should thus be regulated by the administrative authorities’ special legal provisions.