On the Optimization of Judicial Review Path for China's PPP Arbitration Agreement

다국어 초록 (Multilingual Abstract)

In China, PPP agreements involve two k inds of administrative and civil and commercial legal relations. Different courts have different understandings of the nature of PPP arbitration agreement, the arbitrability of the agreement, and whether the agreement is against the social public interest, and have different review results, which have a certain negative impact on the credibility of arbitration and judicial authority. With the increasing participation of foreign enterprises in China's domestic PPP projects, especially the increasing participation of PPP projects along the "One Belt and One Road", and the steady progress of the Supreme People's Court in issuing the Provisions on Several Issues concerning the Trial of Administrative Agreement Cases, it is particularly important and urgent to focus on the judicial review of China's PPP arbitration agreements.
To this end, the core of PPP agreement is the perspective of social capital participation, the characteristics of commercial contracts in PPP agreement and the perspective of PPP protocol practice, on the basis of analyzing the PPP arbitration agreement as a civil and commercial contract, to clarify the essential attributes of civil and commercial contracts in the PPP arbitration agreement, from the equality of the subject status of the agreement, the purpose of the agreement is to realize their own rights and interests, the content of the agreement is civil rights and civil obligations, and the agreement of the parties in the agreement, to determine the arbitrability of the PPP agreement. At the same time, it is clear that the content of the arbitration award shall not violate social public order, good customs and the common interests of all members of society, And the basic systems and principles of our law, the basic principles of social and economic life. In addition, the "change of situation" provisions in the agreement and the laws, regulations and rules involved in the agreement also need to be paid close attention to, so as to bring the PPP arbitration agreement into the scientific, standardized and orderly judicial review track, and boost the modernization of the arbitration system and arbitration governance capacity.