I INTRODUCTION

Financing for infrastructure in China is currently in a state of transition from state funding to comprehensive market financing. With the legislative recognition and vigorous promotion of public-private partnerships (PPP), the importance of conventional financing (i.e., governmental financial support and bank loans) is experiencing a drastic downtrend, and PPP financing is, and will continue to be, one of the principal financing modes and topics of focus in the next few years, which brings about unforeseen issues and gives the government reasons to put in place measures to prevent the abuse of PPP financing. Presently, major project financing modes in China include the following.

i PPP financing

PPP financing, which flourished in China in the 1980s and 1990s and became popular again at the turn of the 21st century, had been something of an ongoing experiment until 2014 when a series of laws and policies on PPP were promulgated at an unprecedented rate. PPP financing modes have since become a hot topic and, having been extensively utilised in the infrastructure sector, are now realising their massive potential.

ii State funds

State funds are invested in infrastructure mainly by being invested directly in project construction, or being used as the registered capital and development funds for most of the investment and financing platforms set up since the 1990s around China for urban infrastructure construction.

iii Bank loans

Bank loans are obtained mainly through financing platforms established by local governments. These platforms are backed by government funds and operate with land as the key asset and with land revenues providing the essential collateral. With the extensive weakening of land financing at local levels as a result of central policy, this financing mode is decreasing rapidly.

II THE YEAR IN REVIEW

According to the Report on the Overview of China's PPP Projects in 2017 published by the China Public Private Partnership Centre under the Ministry of Finance, as of the end of December 2017, the National PPP Information Management Platform has recorded 14,424 PPP projects in total, either in the management database or in the candidate list, amounting to an aggregate investment of 18.2 trillion yuan.

PPPs are cooperative arrangements between the government and the private sectors, which enables the capital in private sectors to be mobilised and more fully used. However, the reality is, since the advancement of PPP projects, state-owned companies have remained the principal source of funds, whereas private-owned companies and Sino-foreign joint ventures together represent 46.9 per cent in terms of the number of commenced projects and 32.3 per cent in the total amount of investment. Private enterprises take part in 17 PPP-viable sectors, among which municipal facilities take up the largest portion, followed by eco-construction, elderly care projects, water conservancy projects and public health projects.

As the central government rolled out a spate of laws and regulations in 2016 that cleared the way for the development of PPP financing, China's PPP projects show a certain tendency towards overexpansion and cut-throat competition, and there have even been false PPP projects to cover up companies taking out loans from the government. In response to this, in 2017, the central government promulgated further laws and policies to tighten the grip on PPPs and prevent abuse, including the Circular on the Standardisation of the Administration of the National Public-Private Partnership (PPP) Information Management Platform issued by the Ministry of Finance, and the Circular on the Strengthening of the Risk Management of PPP Business Carried Out by Central Enterprises released by the Stated-owned Assets Supervision and Administration Commission of the State Council. The former expressly stipulates the removal of and ban on projects that are not suitable for PPPs, lacking the proper preparation or without a scheme where payment is made on the basis of the performance of the project, and the latter forbids central enterprises from undertaking or taking part in unprofitable, ill-funded or financially risky projects. Such laws and regulations have changed the PPP landscape and led to the termination of many non-compliant PPP projects.

That being said, the government actively nurtures the PPP ecosystem to render it friendlier to privately owned companies. For example, the Opinions on the Further Improvement of the Mobility of Funds in the Private Sector and the Guidance Opinions on the Further Incentives for the Private Sector to Actively Invest Funds and Keep the Sustainable Development of the Economy stipulate that the infrastructure and public utilities sectors should be more open to investment and cooperation, and that the authorities are strictly forbidden to reject, limit or discriminate against capital from the private sector, so that the privately owned companies may have a fair and even playing field when conducting business with the government.

It is clear that the sole purpose of China's hard line against some of the PPP projects is to prevent PPPs from being abused and to return to the original cooperative model to allow the government and the private sector to work together and benefit from the result of their public service. It is widely recognised that 2017 was the year when China's PPP model became more rational and reasonable, and subject to stricter control.

III DOCUMENTS AND TRANSACTIONAL STRUCTURES

i Transactional structures

In 2017 and 2018, the Chinese government has continued to promote the application of PPP financing modes in public service and infrastructure sectors. Among the various operational modes that have evolved and continue to evolve and diversify under the PPP mechanism, the typical modes include operations and maintenance (O&M), management contract (MC), build-operate-transfer (BOT), build-own-operate-transfer (BOOT), transfer-operate-transfer (TOT), rehabilitate-operate-transfer (ROT) and build-own-operate (BOO). The choice of mode largely depends on such factors as pricing mechanism, level of investment return, basic framework for risk allocation, financing demand, reconstruction and expansion demand, and disposal upon the expiry of the partnership.

Under O&M, MC and BOT, the ownership to project assets is vested in the government and not transferred to private investors during the entire lifetime of project; under BOOT, TOT and ROT, the ownership of project assets is first transferred by the government to private investors and then returned to the government upon the expiry of the partnership; and under BOO, the ownership of project assets is transferred by the government to private investors, and there is normally no transfer back upon the expiry of the partnership.

BOT has a history of over 20 years in China and is the most widely used mode among BOOT, BOT and BOL in the practice of project financing. The Shajiao B Power Plant in Shenzhen, which came into use in 1988, is recognised as the earliest BOT project in China. In 1955, the former State Development Planning Commission labelled the Laibin B Power Plant in Guangxi as the first standardised BOT pilot project approved by the Chinese government. Thereafter, project financing mostly focusing on BOT has achieved a rapid development and extended to power plants, water works, water supply, heating, sewage treatment, waste treatment, expressways, bridges, tunnels and other infrastructure. In comparison, BOOT is less used than BOT for two reasons: state-owned enterprises monopolise the industries involving public interests, and private entities are only able to operate PPP projects through concession and are not allowed to own those projects; and the ownership period for real property is restricted by China's policy that the land must be state or collectively owned and that the property owner must be the same person who uses the land covered by the property. BOL is a variant and development of BOT, but is not explicitly provided for in the current laws and policies and therefore is rarely used in practice.

ii Documentation

Project financing mainly involves the following types of agreement:

    1. cooperation agreements;
    2. operation entrustment agreements;
    3. technical service agreements;
    4. concession agreements; and
    5. consulting agreements for other intermediaries.

Projects usually involve the following agreements:

    1. general contracting agreements;
    2. subcontracting agreements;
    3. survey agreements;
    4. engineering agreements;
    5. procurement agreements;
    6. supervision agreements; and
    7. consulting agreements for cost estimation, project management, etc.

The Operational Guidelines for Public-Private Partnership (for Trial Implementation) issued by the Ministry of Finance specify a contract system for project financing transactions, which mainly incorporates the project contract, shareholders' agreement, financing agreement, contracting agreement, operation service agreement, raw material supply agreement, product purchase agreement and insurance agreement. Among these contracts and agreements, the project contract is the most essential legal document, as evidenced by the Circular on the standardisation of administration of PPP contracts released by the Ministry of Finance in December 2014, under which the main content of project contracts is laid down in the Guidelines for PPP project contracts. At present, the Guidelines for Work Relating to Public-Private Partnerships issued by the National Development and Reform Commission (NDRC) provide for the general conditions of project contracts in the Guidelines for General Contracts for PPP Projects.

iii Delivery methods and standard forms

In China, common commercial projects usually adopt the traditional design–bid–build mode, and energy and petrochemical projects usually adopt general project contracting, including the engineering–procurement–construction (EPC) mode and the design–build mode.

Over the past few years, the Chinese government has ramped up the efforts to push forward general project contracting. In May 2016, the Ministry of Housing and Urban-Rural Development published Several Opinions on the Further Promotion of General Project Contracting, which clearly defined the major mode, qualification requirements and subcontracting methods of general project contracting, and stated that government-invested projects and fabricated buildings shall actively adopt general project contracting. In February 2017, the General Office of the State Council released the Opinions of the General Office of the State Council on Promoting the Sustainable and Healthy Development of the Construction Industry, which further emphasised the policy of prompt implementation of general project contracting and the requirement for the prompt improvement of general project contracting-related rules, and regulations concerning bidding, construction permits, completion and inspection. The Ministry of Housing and Urban-Rural Development promulgated the Administration Measures on the General Project Contracting of Building Construction and Municipal Infrastructure Projects (public comment draft) on 26 December 2017, and on 1 January 2018 the new Administrative Rules on the General Project Contracting of Construction Projects took effect. Along these lines, local authorities have published their own guidance opinions or implementing measures, and some regions, such as Shanghai, Jiangsu and Shaanxi, have commenced pilot projects of general project contracting. It is believed that the general project contracting mode will be extensively utilised in the Chinese construction project market for the foreseeable future, which will present a key opportunity for growth.

The EPC management mode is uncommon in practice because of its strict requirements regarding the management and technical abilities of project managers, and because of the lack of explicit provisions in Chinese law on the qualification of project managers. Alliance contracting (where one party provides land, the other provides funds and they are jointly responsible for the construction and share the revenues), once popular in urban real estate development and industrial projects, is now rarely used in infrastructure investment and financing.

According to the Implementation Rules for the Bidding and Bid Law, a project that must undergo a bidding procedure must use the standard documents formulated by the NDRC together with related regulatory departments. In practice, however, Chinese central and local governments have formulated and issued a number of model and standard construction contract documents, and in order to meet the filing requirements parties usually select the model and standard documents issued by the authorities that govern where the projects are located. In addition, because many quantity surveyors retained by employers of construction projects are companies or their branches located in Hong Kong, the United Kingdom or Singapore, where regulation is less onerous, FIDIC or JCT forms of contract, especially FIDIC forms, are commonly used in those projects, while AIA and NEC standard documents are less used in practice. The latest 2017 version of FIDIC contracts will be closely studied and compared with older versions, and will be applied in Chinese markets.

IV RISK ALLOCATION AND MANAGEMENT

i Major risks of PPP projects

As mentioned in Section II, PPP has become the most important project financing mode in China. To promote a reasonable allocation of risks among contracting parties in PPP projects, the Ministry of Finance has provided basic principles for risk allocation in its contract guidance:

    1. the party bearing the risk shall have the capacity to control the risk;
    2. the party bearing the risk shall have the capacity to reasonably transfer the risk;
    3. the party bearing the risk has greater economic interest or incentives in controlling the risk;
    4. the party bearing the risk has a greater degree of efficiency; and
    5. should the risk eventually materialise, the party bearing the risk shall not transfer the costs or losses incurred therefrom to the other party.

Major risks and common risk-allocation arrangements in PPP projects:

Major risks

Risk-bearing party

Risk type

Specification

Content

Legal risks

Law and regulatory risk

The variation of laws, regulations and other regulatory documents

The government

Administration risks

Land acquisition risk

Whether land use rights can be granted via transfer or allocation

The government

Project approval risk

Whether project can obtain relevant administrative approvals

The government

Commercial risks

Project-financing risk

Whether project financing can be granted in a timely manner

Project company

Project design risk

Risks that might emerge during project design phase

Project company

Project construction risk

Risks that might emerge during project construction phase

Project company

Project operation risk

Risks that might emerge during project operation phase

Project company

Project maintenance risk

Risks that might emerge during project maintenance phase

Project company

Demand risks

Government payment

Direct payment made by government for public goods and services

The government

User charges

Direct payment made by the ultimate consumers for public goods and services

Project company

Viability gap funding

Provided that user charges are insufficient for the project company's cost recovery and reasonable return, the government offers the project company certain economic subsidies to make up for the gap

Risk-sharing between the parties

Other risks

Force majeure

Risk-sharing between the parties

The above-mentioned risk-allocation arrangements are commonly found in practice and may vary depending on the specific circumstances and risk-bearing capacities of each party in different PPP projects.

ii Major risks of construction projects

According to whether the risks are caused by human elements, risks in the construction projects may be classified as either subjective or objective.

Subjective risks mainly refer to those caused by negligence or mistakes by the parties to the relevant contract during its performance, such as defects in the engineering design, absence of substantial contract clauses and disqualification of materials or equipment. Objective risks mainly refer to those that are uncontrollable or insurmountable by the parties to the relevant contract and caused by events not attributable to the parties, including:

    1. natural risks, including natural disasters;
    2. political and social risks;
    3. economic risks, such as a downturn in the economic environment; and
    4. other risks, mainly referring to the impact arising from the discovery of items with archeological or geological significance, and from the neighbouring buildings.

The construction market in China is dominated by owners, and contractors are intensely competitive with each other. For this reason, owners predominantly allocate risk. The Chinese construction authorities are, however, intervening in this imbalance in project risk allocation by formulating and announcing standard documents, and strengthening the compulsory application of these documents and any corresponding examination and review.

According to Chinese law, most construction projects, other than those legally authorised (which account for a quite small portion), are subject to bidding procedures, and are required by law to apply the standard documents issued by competent authorities. The standard documents afford more importance to the parity and reasonableness of risk allocation, and – taking into account the strengths of the owners compared with the contractors – to the protection of the contractors' interests. Meanwhile, the construction authorities will review the project contracts between parties by requiring the parties to file records of the contracts and requiring them to amend any obviously unfair provisions, thus effectively allocating the risks.

As the foregoing filing and review requirement is inconsistent with the realities of the Chinese construction project market, in practice, many owners and contractors execute 'disguised contracts' (which have the same subject matter but different provisions) to avoid review by the construction authorities. According to the relevant Chinese judicial interpretations currently in force, contracts already filed are the basis for the final settlement of project price if the parties separately execute another contract for the same project that differs from the filed contract in content.

Nevertheless, the country has been modifying its current policies, with a view to narrowing the scope of projects that require compulsory bidding by law, and differentiating the requirement for and degree of supervision between projects funded by state-owned entities and projects funded by non-state-owned entities. The bidding monitoring and management of projects funded by state-owned entities has been further enhanced, while for projects funded by non-state-owned entities, a regime allowing construction-project employers to decide themselves whether to go through a bidding and tendering process is in trial implementation, and the standards for contract record-filing and corresponding review have been gradually eased. Therefore, for projects funded by non-state-owned entities, the number of 'hidden contracts' might be gradually reduced.

iii Limitation of liability

Current Chinese law has no specific requirements on whether the parties may agree on the limitation of liability. The predominant theory deems that parties may stipulate exemption clauses in their contract to exclude compensation for certain losses. But exemption clauses that excuse a party from liability for personal injury or property loss caused by its intentional act or gross negligence in relation to the other party are invalid. In practice, the parties usually agree to a capped limit for compensation or liquidated damages to excuse a party from liability beyond that limit. For example, in a construction contract, the parties may agree that the liquidated damages payable by the contractor for delay should not exceed a certain percentage, say 5 per cent of the contract price. The court tends to hold that such clauses are the outcome of consensus and that, upon conclusion of the contract, the parties have foreseen and agreed to take the risk of bearing loss beyond the capped limit, and therefore, the validity of the disclaimer clauses should be respected.

The law currently in force prescribes that in the absence of any specific requirements in law and of any separate agreement between the parties, the losses to be compensated or indemnified for include indirect as well as direct losses, provided that the claiming party abides by the principles of objective certainty and foreseeability when claiming against indirect losses, and bears the burden of proof. The heavy burden of proof makes it hard in practice to obtain a favourable decision from the judiciary relating to such claims.

As to the losses arising from force majeure events, the law currently provides that a party unable to perform a contract because of a force majeure event may be released from its responsibilities in whole or in part based on the impact of such an event; however, it is not entitled to this release if the force majeure event occurs after a delay in its performance. The law also prescribes that a party must take proper measures to prevent further losses if the other party breaches the contract, and may not claim any compensation for further such losses in the event of failure to take the proper measures.

iv Political risks

Under Chinese property law, the state owns the land, mineral resources, rivers and sea in China, and may expropriate individuals' chattels or real property, and thus, the modes of project financing are restricted. This must be taken into consideration before investment is made in construction projects in China.

China entered into and approved the Convention Establishing the Multilateral Investment Guarantee Agency (MIGA) in April 1988 and became a founding member. MIGA can help investors and lenders deal with risks by insuring eligible projects against losses relating to: currency inconvertibility and transfer restriction; expropriation; war; terrorism; civil disturbance; breach of contract; and non-honouring of financial obligations. And the projects that MIGA has supported in China are mainly in the urban water, wastewater and solid waste management sectors.

V SECURITY AND COLLATERAL

The following means are often used in China to mitigate the possible risks of investment projects and protect the interests of investors:

    1. security: the five methods of security are guarantee or surety, mortgage, pledge, lien and deposit. Real estate mortgage, pledge of equity interests and receivables, and joint and several surety are frequently used in project-financing transactions;
    2. insurance;
    3. promise of equity buy-back or of purchase by a third party: in project-financing transactions, if an investor invests through equity, the parties to the transaction may execute a series of investment framework agreements under which the original shareholder or a third party undertakes to the investor that they will buy back the project or take it over; and
    4. equity control in project companies and supervision of bank accounts.

The following security methods are commonly used in project financing transactions. An agreement on such security takes effect from the date of execution. The security interests involved must be registered before coming into being or, specifically, real estate mortgages must be registered with the real estate registration authorities; a pledge of equity interests must be registered with the securities registration and clearance institutions in the case of equity interests registered with the same institutions, or with the administration for industry and commerce in the case of other equity interests; and a pledge of receivables must be registered with the credit information service.

  1. Real estate mortgage: according to the Property Law, any property not forbidden by relevant laws or administrative regulations from being mortgaged may be put under mortgage, and the mortgage of real estate is the most common way. Further to this:
    • land ownership, the right to the use of collectively owned land (as in most cases), and teaching and medical facilities and other public facilities of government-sponsored institutions, such as schools and hospitals, and of public interest societies, may not be mortgaged;
    • the land-use right and the buildings on the corresponding land plot must be jointly and undividedly put under mortgage; and
    • the precedence of a relevant party's right to the mortgage generally depends on the time of registration, and the parties may enter into an agreement to change it.
  2. Pledge of equity interests (including stocks), especially in the following aspects:
    • where the equity interests in a limited liability company are pledged to a party outside the company, the registration authority may require that a resolution of the company's shareholders on approval of the pledge be submitted;
    • where the equity interests in a foreign-funded enterprise are pledged, the pledge is subject to the prior approval of the examining and approving authority governing the establishment of such enterprises; and
    • Chinese law has no specific rules on whether the remaining value of any pledged equity interests may be pledged for a second time, but this is rare in practice, and the industrial and commercial administrations in most areas of China expressly refuse to accept applications for such pledges.
  3. Pledge of receivables: this is a good financing channel for large infrastructure construction enterprises.

In China, banks and other lenders often care more about whether mortgages and other types of security provided in project financing are sufficient. They seldom claim step-in rights as a condition for granting loans. But in the PPP projects developed in recent years, lenders normally require their step-in rights to be expressly stipulated in PPP project contracts or in the step-in agreements executed by them with the government and project companies.

VI BONDS AND INSURANCE

Bonds and insurance are widely used in investment projects and construction project contracts in China. Bonds used in investment projects, such as PPP projects, are mainly for bidding, contract performance, maintenance or post-transfer maintenance, while bonds used under construction contracts mainly cover bidding, performance, advance payment, project quality and payment of project price, among which performance bonds are most commonly used. In China, bonds are mainly issued by banks or bonding companies, and, in a few cases, by insurance companies. For a long time, the effectiveness of independent letters of guarantee had been the subject of intense debate, until explicit confirmation of their effectiveness in domestic transactions was given by the judicial interpretation titled Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Cases of Independent Letters of Guarantee, officially implemented in December 2016. In the construction field, the government has been pushing hard for a noteworthy bilateral security mechanism for construction projects. For example, in Beijing if the owner of a construction project requires the contractor of the project to provide a performance bond in favour of the owner, the owner must provide a payment bond in favour of the contractor at the same time, otherwise the project will not be allowed to be filed with the government and therefore will not proceed. In addition, as per the provisions under the Administrative Measures on the Quality Assurance Deposits for Construction released in 2017 by the Ministry of Housing and Urban-Rural Development and the Ministry of Finance, in some parts of the country, Beijing included, the employers are not allowed to ask the contractors for performance bonds (including performance guarantees) and quality assurance deposits for construction (including quality guarantees) at the same time, or else the relevant construction will risk failure of record-keeping with the competent authorities.

Insurance relating to construction projects mainly includes construction (contractor's) all-risks insurance or erection all-risks insurance (including third-party liability insurance), work-related injury insurance for migrant workers, accident insurance for personnel dealing with dangerous operations, professional liability insurance, 10-year or two-year liability insurance, cargo transportation insurance and stored goods insurance. Among them, work-related injury insurance and accident insurance for personnel dealing with dangerous operations are compulsory under law. Moreover, most of the above-mentioned insurance, such as the third-party liability insurance and professional liability insurance, is required by the legislation of local people's congresses or the regulations and other regulatory documents issued by local governments with respect to construction projects. In addition to the insurance required by laws and local regulations, the construction (contractor's) all-risks insurance or erection all-risks insurance, cargo transportation insurance and stored goods insurance are also commonly used in construction projects.

The Chinese bond market consists of three sub-markets: the interbank market, the exchange market and the commercial bank over-the-counter market. The main bond issuers include the Ministry of Finance, the People's Bank of China, local governments, policy-related banks, commercial banks, finance corporations and other non-banking financial institutions, securities companies, non-financial enterprises or companies.

Since 2014, because of the vigorous encouragement and promotion of PPP modes, as well as credit financing modes such as government bonds, corporate bonds or debentures, medium-term notes and short-term financing bills, the Chinese government has also begun to foster the issuance of project revenue bonds and project revenue notes as common financing modes for PPP. In July 2014, the National Association of Financial Market Institutional Investors published the Guidelines for the Issuance of Project Revenue Notes for Non-financial Enterprises; in April 2015, the NDRC published the Guidelines for the Issuance of Special Bonds for Pension Industry, the Guidelines for the Issuance of Special Bonds for Strategic Emerging Industries, the Guidelines for the Issuance of Special Bonds for the Construction of Parking Lots in Urban Areas, and the Guidelines for the Issuance of Special Bonds for the Construction of Utility Tunnels in Urban Areas; and the NDRC published the Interim Measures for the Administration of Project Revenue Bonds in August 2015 and the Guidelines for the Issuance of Special Bonds for Public-Private Partnership (PPP) Projects in May 2017. As a result of the promulgation of the series of supporting documents, China is seeing a growing number of project revenue bonds and project revenue notes. In addition, the Notice of the National Development and Reform Commission and the China Securities Regulatory Commission on Relevant Work of Promoting the Asset Securitisation of Public-Private Partnership (PPP) Projects in the Traditional Infrastructures Field, released in December 2016, has encouraged asset securitisation of PPP projects. On 10 March 2017, the first batch of four asset securitisation projects was approved for release by the Shanghai Stock Exchange and the Shenzhen Stock Exchange.

VII ENFORCEMENT OF SECURITY AND BANKRUPTCY PROCEEDINGS

Article 170 of the Property Law provides that parties may agree on other causes that authorise the obligee to exercise its right to relevant security interests, apart from the obligor's failure to fulfil its debts. As to a pledge of equity interests and receivables, according to Article 216, where the damage to or apparent depreciation of the pledged property not attributable to the pledgee is sufficient to impair the pledgee's rights, the pledgee has the right to request the pledgor to provide a corresponding security, guarantee or surety; where the pledgor fails to do so, the pledgee may auction or sell the relevant pledged property, and the funds so obtained will be used to settle the debt in advance or be escrowed or consigned to a competent institution, as agreed by the pledgee and the pledgor.

According to Article 195 of the Property Law, the mortgagee of a real estate mortgage may enter into an agreement with the mortgagor to directly use the mortgaged property at an agreed valuation, or use the funds obtained from the auction or sale of the property, to be repaid under priority. Where the mortgagee and the mortgagor fail to reach an agreement on the exercise of the right to the mortgaged property, the mortgagee may petition the competent people's court to auction or sell the property. Article 202 provides that the mortgagee may exercise its right to the mortgaged property within the limitations of relevant action over the principal debt, otherwise, the right will not be protected by the people's court. In addition, according to the Written Reply on the Priority in the Repayment of Construction Project Price issued by the Supreme People's Court in June 2002, the contractor's right to repayment of the construction project price is superior to repayment of the real estate mortgage. Investors should consider such risks in their provision of financing for real estate projects (including infrastructure construction projects).

According to Articles 219, 220 and 229 of the Property Law, a pledgor of equity interests and receivables may use the pledged property to repay its debts at an agreed valuation, and the pledgee may also be repaid under priority from the funds obtained from the auction or sale of such property. The pledgor may request that the pledgee exercise its right to pledge upon the expiration of the debt performance period in a timely fashion, and if the pledgee fails to do so, the pledgor may petition the competent people's court to auction or sell the pledged property.

Moreover, according to Articles 196 and 197 under the Civil Procedure Law amended in 2012, the people's court may decide to auction or sell any relevant collateral upon a petition from an obligee of a security interest or other entitled parties if it finds the petition legitimate upon review; the party involved may petition the people's court for enforcement based on the ruling. The people's court will reject the petition if it does not find it legitimate, and the party involved may initiate an action before the competent people's court.

According to the Enterprise Bankruptcy Law and the Provisions II of the Supreme People's Court on Issues Relating to the Application of the Enterprise Bankruptcy Law, after the people's court has accepted a bankruptcy petition, the preservative measure then existing on the debtor's property will be released and its enforcement suspended. However, if, after the bankruptcy court accepts the bankruptcy petition, there is a possibility that the bankruptcy proceeding will be impeded because of any reason in connection with any act of the interested party or because of any other reason, the bankruptcy court may take a preservative measure against all or part of the debtor's property upon application by the administrator or ex officio, If the bankruptcy court rejects the bankruptcy petition or rules to terminate the bankruptcy proceeding, it shall notify the original court (which took the original preservative measure that was later legally released by the bankruptcy court) to resume the preservative measure in the original preservation order, provided that before it is so resumed or the original court indicates that it will not resume it, the bankruptcy court may not release the preservative measure that it has imposed on the debtor's property. During restructuring, while the right to the security interest in a debtor's specific property is suspended, related debts will be repaid in full from the specific property. If, however, there is any possibility of damage to or apparent depreciation of the collateral to the extent that the obligee's right will be impaired, the obligee may petition the people's court to resume its exercise of the right to the collateral. During a composition in bankruptcy, an obligee with a right to the security interest in the debtor's specific property may exercise its right from the day the people's court makes a ruling of composition. During liquidation, the obligee with the right to the security interest in the bankrupt's specific property has a priority right to the property.

VIII SOCIO-ENVIRONMENTAL ISSUES

i Licensing and permits

China has enacted a number of laws and regulations on environmental protection and management of construction projects. Of these, the most important are:

    1. the Environmental Protection Law, implemented from 26 December 1989 and amended in 2014;
    2. the Environmental Protection Tax Law, which took effect on 1 January 2018;
    3. the Law on the Prevention and Control of Atmospheric Pollution, implemented from 1 June 1988 and amended in 2015;
    4. the Cleaner Production Promotion Law, implemented from 1 January 2003;
    5. the Environmental Impact Assessment Law, implemented from 1 September 2003 and amended in 2016;
    6. the Energy Conservation Law, implemented from 1 April 2008 and amended in 2016;
    7. the Circular Economy Promotion Law, implemented from 1 January 2009;
    8. the Urban Afforestation Rules, implemented from 1 August 1992;
    9. the Administration Rules on the Environmental Protection Regarding Construction Projects, implemented from 29 November 1998;
    10. the Rules on the Energy Conservation of Public Institutions, implemented from 1 October 2008; and
    11. the Rules on the Energy Conservation in Civil Buildings, implemented from 1 October 2008.

According to the amended Environmental Protection Law and the Environmental Impact Assessment Law, if a construction project has an impact on the environment, the owner of the project should prepare environmental impact assessment (EIA) documents in accordance with the law. The competent environmental authority has responsibility for classified management of the EIA. The EIA documents, which were previously all subject to approval by the competent environmental authority, now may be subject to either approval or record-filing formalities, according to their impact on the environment. The owner is also required to organise an EIA inspection after the project is completed, and may only settle the completion acceptance formalities for the finished project after the project has passed the EIA inspection.

If the EIA documents fail the approval, the owner may not commence the construction. If the owner commences the project without conducting the required EIA, the competent authorities will order the owner to stop construction or to restore the site to its original state, or impose on the owner a fine of between 1 and 5 per cent of the total investment amount of the project; furthermore, the employees or agents of the owner who are responsible may be held personally liable.

Apart from the EIA mechanism, the amended Environmental Protection Law also emphasises enterprises' responsibilities for the prevention of environmental pollution by introducing such mechanisms as pollutant emission permits, an environmental protection tax, an information disclosure system and an environmental protection responsibility system; the Law also introduces tougher punishments for environmental pollution.

The issue of a pollution discharge permit has long been carried out only at local level, and the issuance authority of this permit has previously caused confusion. The current laws and regulations provide consistent requirements for the pollution discharge permit. These requirements act as the legal basis for the companies' discharge during production and operation. Together with the project environment access-threshold EIA, the current requirements will be beneficial in achieving whole-process management, from pollution prevention to pollution discharge. Furthermore, as China's first-ever tax law was tailored to implement 'green taxation', the newly promulgated Environmental Protection Tax Law further improves the comprehensive regulation on emission control of companies and construction projects by imposing environmental taxes on companies responsible for emissions. Pollution charges existed previously but were not enforced and were subject to much interference by the local authorities; now environment taxes are legitimate and may serve as a better leverage to motivate individuals to reduce their emissions and help restore the ecosystem.

Whether a project is in compliance with the requirements set out in the environmental protection regulations and policies not only affects the commencement, inspection and usage of the project, but also may impact the financing for the project. The Opinions on Implementation of Environmental Protection Policies and Regulations and Prevention of Credit Risks released in 2007 explicitly presents a 'green credit' policy, also called the Green Credit Guidelines, which, in accordance with relevant industrial policies, encourages financial institutions to give priority to projects that comply with environmental protection laws and regulations. Moreover, whether a company adheres to environmental protection regulations and policies will be one of the factors that the financial institutions will take into consideration when acting on the Green Credit Guidelines. With the implementation of the Guiding Opinions on Strengthening the Construction of Enterprise Environmental Credit System from November 2015, the company environmental credit assessment system will be further improved, which means that a company's performance regarding adherence to the environmental protection regulations and policies will have a more profound impact on its project financing. On 31 August 2016, the People's Bank of China, the Ministry of Finance, the National Development and Reform Commission, the China Banking Regulatory Commission and three other authorities jointly issued the Guiding Opinions on Building a Green Financial System, proposing a series of incentive measures to support and encourage green investment and financing, including allowing financial discounts for projects supported by green credit, establishing green development funds and other measures. These measures will greatly promote an environment-friendly transformation of the development of construction projects. In furtherance of the green financial system, some local governments have set up pilot zones for the green financial campaign and have actively undertaken the development of green credit products, green bonds, green insurance, etc. The measures also enhance the rules of internal reporting and accountability rules for material environmental risks caused by companies, and clearly define the standards and requirements for access to the credit markets. PPPs will see wider and more in-depth application in green infrastructure, pollution treatment, efficient use of resources and other public services. As of the end of June 2017, 7,826 of the PPP projects recorded in the national database are green and low-carbon, with an aggregated investment of 6.4 trillion yuan, representing 57.7 per cent in terms of the total number of projects entered in the database and 39.3 per cent in terms of the total amount of investment.

Furthermore, in case of infringing on any environmental laws and regulations, the company or project may face not only strict administrative punishment, but also substantial liability for civil compensation. The General Rules of the Civil Law newly promulgated in 2017 include a noteworthy Green Principle as a fundamental civil principle, which both implements green development and provides an explicit legal basis for judicial review. On 17 December, 2017, the General Office of the Communist Party of China and the General Office of the State Council officially published their joint decision as the Reform Plan for the Compensation Scheme for Environmental Damage, which stipulates a pilot compensation scheme where any person or entity polluting the environment or damaging the ecosystem shall be held accountable for relevant compensation arising therefrom via the resolutions for civil disputes.

In addition to the foregoing laws and administrative regulations at the state level, local governments have also enacted localised ordinances, regulations and rules relating to environmental protection and management of construction projects. Generally, local ordinances, regulations and rules are not as detailed as state laws and administrative regulations, but in some cases they may be stricter. For instance, the local governments of many Chinese cities exemplified by the Beijing-Tianjin-Hebei circle, impose limitations on, or even cessation of, urban construction works based on the severity of air pollution.

ii Equator Principles

Most policy-related banks and commercial banks in China apply the foregoing Green Credit Guidelines, while only a few banks, such as the Industrial Bank, adopt the Equator Principles.

In contrast to the Equator Principles, China's Green Credit Guidelines are compulsory. The Green Credit Guidelines highlight the standards for environmental protection and energy conservation and emission reduction, while the Equator Principles focus on social development and ecological systems.

iii Responsibility of financial institutions

According to the Commercial Bank Law and other laws and regulations on financial administration, financial institutions must assume civil liability if they cause damage to the property of depositors or other clients. They must also assume administrative liability if they violate the compulsory or prohibitive provisions of state laws or administrative regulations (such as illegally collecting deposits from the public, making investments in violation of state policy on the development of industry, or illegally settling and selling foreign currencies), and will be held criminally liable if the misconduct is serious enough to constitute a crime.

Further, according to the Opinions on the Implementation of Environmental Protection Policies and Regulations and Prevention of Credit Risk, where commercial banks extend loans to projects that violate the environmental protection laws or regulations, those banks and relevant responsible persons shall assume the corresponding liability. The Guiding Opinions on Building a Green Financial System repeatedly propose accelerating research into the clarification of the environmental liability of lenders.

IX PPP AND OTHER GOVERNMENT PROCUREMENT METHODS

i PPP

On 1 May 2004, the Ministry of Construction's Measures for the Administration of Municipal Public Utility Concessions (Order No. 126 of the Ministry of Construction) took effect, regulating the selection, through market competition, of investors or operators of municipal public utilities, such as supply of gas and heat, public transportation, sewage treatment and waste treatment. In addition, Beijing and other local governments also enacted similar local ordinances and regulations.

These regulations, ordinances and rules of concessions establish the legal basis for the application of PPP in China.

Since the State Council promulgated the Measures for the Administration of Infrastructure and Public Utility Concession in 2015, the central and local governments have issued a series of PPP supporting laws and policies, which as a whole construct the current legislative framework for PPP modes to be operated in China. However, from a legal prospective, no top-level design for PPP has been developed. In July 2017, the Legislative Affairs Office of the State Council released the Ordinance on the Public-Private Partnership in Infrastructure and Public Service Sectors (public comment draft), which is included in the 2018 Legislative Working Plan of the State Council as one piece of legislation to be reviewed and discussed by the Standing Committee of the National People's Congress and can be expected to take effect soon. In the past year, and continuing into this year, the authorities have rolled out a number of policies to regulate financing management, database management, private-owned investor management and other aspects of PPP projects, which is a clear demonstration of how China's PPP model is entering a much calmer phase of sustainable development.

According to these regulatory documents and the practice of PPP projects, China's PPP modes have the following features:

    1. Scope of application: PPP modes are mainly applicable to public service or infrastructure projects that are part of the governments' responsibilities and suitable to be carried out on a market-oriented basis in the form of concession, purchase service, equity cooperation, etc.
    2. Work division between private and public participants: the private investor of a project shoulders a substantial part of financing, design, construction, operation and maintenance of the project, enjoys full autonomy in its operation, assumes all responsibilities for its profits and losses, and makes returns on its investment; while the government is responsible for the supervision of prices and the quality of the project and may facilitate private investors in its financing and construction management by, for example, offering preferential tax rates.
    3. Allocation of risks: the commercial risks arising from design, construction, finance, operation and maintenance of a project are borne by its private investor, and the risks pertaining to policies and laws are borne by the government. Force majeure risks are borne by both parties.
    4. Project stages: a PPP project normally undergoes the following stages: identification (early-stage assessment, including value for money assessment and financial capacity evaluation), preparation (preparation and review of a project plan), procurement (selection of partners), implementation (execution of the project-related contracts, organisation and implementation of the project), and transfer (transfer of the project upon expiry of the partnership).
    5. The term of a PPP project: determined based on, among other factors, the characteristics of the industry concerned and the scale and operational mode of the project, up to a maximum of 30 years.
    6. Dispute resolution: a PPP contract possesses the characteristics of both a civil contract and an administrative contract. According to the Administrative Procedure Law, the government's failure to act in compliance with the concession agreement for a PPP project conducted by means of concession falls within the jurisdiction of administrative cases. A dispute over a PPP contract that involves only the parties' civil rights and obligations is subject to civil litigation or arbitration, while a dispute over the government's infringement upon the legitimate interest of private capital during its performance of planning, supervision or other administrative functions in the capacity of administrator of public affairs should be resolved through administrative litigation.
    7. The leading role of recommended projects: from 2014 to 2018, the competent financial authority issued four batches of recommended projects, and after the year-on-year increase of the previous three, the number of projects has fallen for the fourth batch, whereas the administration of the database is continuously enhanced. Recommended projects obtain professional guidance and policy preference from the competent authority and play a leading and demonstration role in all industries.
    8. Practical effect: according to the National PPP Information Management Platform, as of the end of 2017, the database has recorded 7,138 projects, representing an aggregated investment amounting to 10.8 trillion yuan, covering energy, transportation, water conservancy, environmental protection, municipal works, integrated urban and township development, agriculture, forestry, technology, affordable housing projects, tourism, healthcare, elderly care, education, culture, sports, social security and other major economic and social areas. After four years of evolvement, China has become the world's largest PPP market. The development of these PPP projects promotes further government developments and market competition and revives otherwise dormant private-owned capital, making great achievements in the relevant sectors. However, given the relatively low status in the legal hierarchy of the existing PPP regulatory documents, the possible conflicts among those documents, the complexity of the legal relationships involved, the unbalanced development between areas and industries, and other relevant factors, the social and comprehensive effects of PPP projects will only be seen once they have been established in the market for some time.

The selection of investors for a PPP project normally requires a bidding or other competitive processes. A typical procurement procedure goes as follows: pre-qualification examination, preparation of procurement documents, review of response documents, and negotiation on and execution of contracts.

The following is a comparison of the essential features of the typical operational modes used in PPP projects:

Operational mode

Investor's rights and responsibilities (private capital or project company)

Term of partnership

Scope of responsibility

Will the investor obtain the ownership to project assets?

Return on investment

O&M

Operation and maintenance of public stock assets

No

Government pays for the operations and maintenance

No more than eight years

MC

Operation and maintenance of public stock assets, and provision of related user service

No

Government pays for the management

No more than three years

BOT

Design and financing for and construction, operation and maintenance of a new project, and provision of related user service

No

User pays/government provides viability gap funding (VGF)

20–30 years

BOOT

Design and financing for and construction, operation and maintenance of a new project, and provision of related user service

Yes (within a certain period)

User pays/government provides VGF

20–30 years

TOT

Operation and maintenance of public stock assets, and provision of related user service

Yes (within a certain period)

User pays/government provides VGF

20–30 years

ROT

Reconstruction, operation and maintenance of public stock assets, and provision of related user service

Yes (within a certain period)

User pays/government provides VGF

20–30 years

BOO

Design and financing for and construction, operation and maintenance of a new project, and provision of related user service

Yes

User pays/government provides VGF/government pays

No transfer in the entire lifetime of the project

In addition to the above-described typical modes, PPP projects have developed into other modes in practice, such as build-transfer-operate, design-build-finance-operate, buy-build-operate and design-build-operate. Furthermore, regarding return on investment, apart from direct payment, the following methods of 'government payment' included in the above table may also be adopted in practice: contribution of capital, financial discount interest, substituting subsidies with rewards, granting subsidies after construction, providing building materials free of charge, etc.

Chinese authorities have encouraged and recommend diversifying the modes of PPP projects and vigorously promoted the securitisation of PPP projects from 2017 to 2018. As an emerging mode of financing, securitisation offers privately owned companies new exits from the PPP projects and reduces the costs of financing, which proves to be instrumental in mobilising inventory assets, curtailing financial leverage and preventing financial risks.

One of the most notable PPP projects in the nascent phase of the development of PPP in China is the Philips solar-energy LED street-lighting project in Guiyang, Guizhou Province, which has been selected as one of the 10 global representative cases of the UNFCCC Momentum for Change initiative. As PPP projects keep evolving, many other high-profile projects have emerged, including the Beijing Metro Line 4 – the first PPP project in China's urban rail transit sector. This metro line has an overall length of about 28.2km and a total investment of around 15.3 billion yuan, of which 4.6 billion yuan was used by private investors to set up a concession company to invest in and construct the project. The project has so far produced a good return on investment. Another example is CFLD Gu'an New Industry City, a PPP project considered the most exemplary of its kind in China and praised by the General Office of the State Council. It is among the first batch of PPP securitisation projects to be approved in China and has been hailed as a paradigm of China's 'new urbanisation' campaign that is widely imitated and studied by other participants in similar projects.

ii Government procurement

Government procurement is regulated by the Government Procurement Law, the Bidding and Bid Law, and their supporting regulations and other regulatory documents. Specifically, construction projects involving government procurement in the form of bidding, including projects and their closely related goods and services are governed by the Bidding and Bid Law and its implementation rules; construction projects involving government procurement in forms other than bidding or non-construction projects involving government procurement are governed by the Government Procurement Law and its supporting implementation rules. Government procurement may be conducted through open bidding, selected bidding, competitive negotiation, competitive consultation, procurement from a sole source, inquiry, and other procurement methods approved by the procurement supervision and administration office of the State Council, but open bidding must be given priority.

Government procurement is conducted both in the forms of centralised and decentralised procurement. The people's governments at or above the provincial level periodically publishes the centralised procurement catalogue. For example, the current centralised procurement catalogue for the government procurement items under the central budget is the 2017–2018 Catalogue and Standards of Government Centralised Procurement by Central Budget Entities. The governments at various levels have agencies that deal with procurement matters under the centralised procurement catalogue, provided that government procurement outside the centralised procurement catalogue may be conducted by the government itself, or by the said agencies as authorised by the government.

The Government Procurement Law expressly provides that government procurement shall adhere to the principles of openness, transparency, fair competition, impartiality and good faith. The Bidding and Bid Law also lays down a similar provision, which requires that bidding and bid activities shall follow the principles of openness, fairness, impartiality and good faith.

The financial authorities are the regulatory bodies of government procurement. Other relevant government departments perform their respective functions to regulate government procurement in accordance with the law based on the types of procurement and the industries involved. For example, common commercial and residential buildings and other construction projects, or municipal projects, are regulated by the construction authorities, and roads and other transportation projects are regulated by the communications and transportation authorities. Suppliers may legally make inquires or queries to the procuring entities, make complaints to the regulatory authorities, and initiate administrative re-examination proceedings or administrative actions with respect to issues regarding government procurement procedures. Specifically, if an inquiry or query may affect the bidding outcome or the successful procurement, the procuring entity shall suspend the execution of the contract; or if the contract has been executed, the performance shall be suspended. Under specific circumstances, a regulatory authority, may, during the period in which it is dealing with a complaint, notify in writing the procuring entity to suspend its procurement activities, provided that the period of suspension may not exceed a maximum of 30 days. If the regulatory authority discovers that government procurement is in violation of the legal procedure, it may, according to the severity of the violation, order the violator to make rectification within a given period or may stop providing funds. If the violation affects or may affect the bidding outcome or successful procurement, the regulatory authority may order a termination of the procurement activities or invalidate the winning bid or successful procurement, and require another round of procurement to be conducted.

X FOREIGN INVESTMENT AND CROSS-BORDER ISSUES

China permits foreign investors to establish enterprises, purchase company equity interests and carry out other investment in China in accordance with the applicable laws and regulations and without prejudice to the public interest. In recent years, China has rolled out regulatory documents to relax the grip on inbound investment and expand the access to domestic markets for foreign investors, and the key changes are the following:

    1. The 2017 Catalogue for the Guidance of Foreign Investment Industries (the 2017 Catalogue) of the NDRC and Ministry of Commerce for the first time implements nationwide a negative list of foreign investment (the negative list), and sectors or businesses not on the list, in principle, are subject to no limitation on foreign-backed investment. The construction and operation of large theme parks, and the construction of golf courses and villas have been removed from the list of sectors that are not accessible by foreign investors under the 2017 Catalogue, after which, theoretically, for investment in these sectors, foreign investors will not be discriminated against and will receive the same treatment as their domestic counterparts, but there are still valid restraints on inbound investments in real estate business (e.g., the requirements of a commercial presence for foreign investors contemplating purchasing properties for purposes other than self-use, or the requirement of securing the land use right before a foreign investor may invest in a real estate project) and should be adhered to.
    2. According to the latest regulation published by the Ministry of Commerce, the incorporation of and change to a foreign-backed business that does not involve any element on the negative list shall be filed for record-keeping with the competent authorities, but is no longer subject to case-by-case approval. Additionally, the filing for record-keeping shall not be a prerequisite for completing the registration with the industrial and commercial authorities or the foreign exchange authorities. This new regulation where the 'national treatment before entrance plus negative list' administrative model substitutes the previous model of 'review and approval' has largely streamlined the formalities a foreign investor has to go through to make investment in China so as to build a more friendly environment for inbound capital.
    3. This year, as President Xi Jinping has pointed out in multiple keynote speeches, China will launch significant measures to further open up the country's markets and build a more facilitative investment ecosystem. In respond to President Xi's calling, the Standing Committee of the National People's Congress promptly set about integrating the Law on Foreign-Capital Enterprises, the Law on Sino-Foreign Equity Joint Ventures and the Law on Sino-Foreign Joint Cooperative Ventures into a new Foreign Investment Law to serve as the foundation of laws that encourage and protect inbound investment, with a view to widening the access to China's domestic markets, and building a transparent and stable environment to attract foreign funds and safeguard lawful rights and interests of the overseas investors. Once adopted, the Foreign Investment Law will unite and integrate China's three main pieces of legislation on inbound investment, ushering in a new era of foreign-backed investment for China.

i Removal of profits and investment

The receipts, disbursements and operations of foreign exchange by foreign entities and individuals in China are under a certain degree of control. China requires in its foreign exchange administration laws and regulations that an investor's purchase and remittance of foreign exchange and collection of investment earnings are subject to the approval of the competent foreign exchange authority. The foreign exchange authority will check that:

    1. the funds for foreign exchange settlement have been used as permitted;
    2. the foreign exchange receipts and disbursements are based on genuine legal transactions; and
    3. the investors or investment projects have abided by the relevant Chinese requirements for settlement and tax payment.

The regulatory documents promulgated last year further improve the regulations regarding the removal of profits, which also bear on the regulatory control of the export of funds. The current regulations explicitly provide that where a bank is requested to transfer profits of a domestic institution equivalent to more than US$50,000 (exclusive), the bank shall, based on the principle of real transaction, review the profit distribution resolution of the board of directors (or profit distribution resolution of partners) relating to the profit remittance, the original tax record form and audited financial statements. The current regulations emphasise that a domestic institution shall firstly recover losses of the previous years in compliance with the law before removal of profits. For profits of less than US$50,000 (inclusive), the previous regulatory documents still apply, namely a bank is not required to review the relevant transaction documents in principle, provided, however, that for funds of an unclear nature, the relevant transaction documents shall be submitted for reasonable examination.

In accordance with the promulgation of the above regulatory documents, the competent tax authorities and banks have reinforced their practices regarding the review and relevant administration of supporting documents for removals of profits equivalent to more than US$50,000 (exclusive), and, in practice, some authorities and banks are even requesting more specific supporting documents. This may increase the difficulty of profits removal to some degree. However, a review of relevant transaction documents is always requested in China. The newly promulgated regulatory documents have not restricted the removal of profits, but further reinforce the review of its authenticity and compliance.

XI DISPUTE RESOLUTION

i Special jurisdiction

China has no courts or other judiciaries specialising in project financing or construction projects, and the disputes relating to such projects are tried before the common civil courts. According to the Civil Procedure Law and the supporting interpretations of the Supreme People's Court, disputes over a construction contract shall be subject to the exclusive jurisdiction of the court of the place where the construction project is located.

Chinese laws and regulations have restrictions on the investment and contracting activities of both foreign investors and foreign construction enterprises. Under the current Chinese judicial system, except for the legal provision that intermediate people's courts have jurisdiction over foreign-related major cases – such as those with a relatively large amount in dispute or with complicated merits – there are no other special dispute resolution rules for foreign investors. In general, foreign investors and Chinese entities enjoy the same rights and assume the same obligations in litigation, subject to the principle of reciprocity that the Chinese courts employ if a foreign court restricts the civil litigation rights of Chinese entities.

ii Arbitration and alternative dispute resolution

Generally, any Chinese arbitration bodies may accept and hear disputes relating to project finance and construction projects. An investor needs to present a definite arbitration agreement should it intend to resolve a dispute through arbitration. The China International Economic and Trade Arbitration Commission,2 the Beijing Arbitration Commission (Beijing International Arbitration Centre),3 the Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Centre),4 and the South China International Economic and Trade Arbitration Commission (Shenzhen Court of International Arbitration)5 are among the common choices for investors. Some investors choose the tribunals in Hong Kong or Singapore for arbitration.

In China, disputes relating to marriage, adoption, custody, succession and other domestic relationships, as well as administrative disputes that are legally required to be administered by the administrative bodies, may not be arbitrated; however, civil disputes in relation to financing and construction can be arbitrated. Arbitral awards take effect from the dates when they are made and may not be appealed, but investors may petition for judicial review of the effectiveness of their arbitration agreements and arbitral awards, requesting the courts to set aside or decide not to enforce the arbitral awards.

At the end of 1996, a dispute review board was formed for the Xiaolangdi Water Conservancy Project, as suggested by the World Bank, and played an independent, fair and authoritative role in managing the dispute resolution process. Alternative dispute resolution (ADR), however, is still not widely used in China.

The Chinese government began to vigorously promote the ADR mechanism in 2007. However, as yet there is no legal framework for ADR and it has not been widely used in practice. In project financing and construction practice, investors mostly use litigation or arbitration to resolve their disputes. The contract templates formulated by the government, such as the Standard Bidding Documents for Construction Projects issued by nine ministries and commissions under the State Council in 2007, the Project Construction Contract (Model) issued by the Ministry of Housing and Urban-Rural Development in 2010, the Project Construction Contract (Model) issued by the Ministry of Housing and Urban-Rural Development in 2013) and the adjudication rules issued by arbitral bodies (such as the Rules for Adjudication of Construction Disputes issued by Beijing Arbitration Commission in 2009, and the Rules for Adjudication of Construction Disputes released by China International Economic and Trade Arbitration Commission in 2015, and the Arbitration Rules formulated by the Shenzhen Court of International Arbitration in 2016), introduced the concepts of 'dispute review board', 'expert review board' and 'mediation centre' into the dispute review and mediation mechanism. Some arbitration commissions have even established specialised agencies to handle disputes. These have facilitated investors' understanding and application of ADR in resolving their construction disputes. However, much still needs to be done for the promotion of ADR in practice.

Regarding the enforcement of awards rendered by foreign arbitral bodies, China joined the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the 1958 New York Convention) in 1987, and also joined in 1993 the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the 1965 Washington Convention, pursuant to which the International Centre for Settlement of Investment Disputes, or ICSID, was established). According to the 1958 New York Convention and relevant Chinese laws, in relation to 'contractual or non-contractual commercial legal relationship', if an arbitral award made by a foreign arbitral body requires acknowledgement and enforcement by a Chinese court, and if the country in which the arbitral body is located is a contracting party to the 1958 New York Convention, this convention shall apply; where the country in which the arbitral body is located is not a contracting party to the convention but has entered into a bilateral agreement on judicial assistance with China, that agreement shall apply; where the country in which the arbitral body is not a contracting party to the convention, nor has it entered into a bilateral agreement on judicial assistance with China, the principle of reciprocity shall apply.

XII OUTLOOK AND CONCLUSIONS

In 2016, PPPs, having been responsible for solving local government debt and other significant financial issues, became the hottest topic and most studied subject not only in the infrastructure sector, but also in China's entire economic realm. With the formation and maturing of new financing models, and the increasing involvement of private investment, there are hopeful prospects for even further expansion of the scale of investment in infrastructure, indicating an unprecedented depth of involvement of private capital. However, current private investment comes mainly from state-owned enterprises, while privately owned enterprises tend to wait and see how projects develop. There is still a long way to go before real in-depth cooperation between public and private capital is achieved, and the overuse and overdevelopment of PPP projects is still a concern for certain industries (e.g., real estate, finance), which prompts the government to take action.

We expect that PPPs will become less popular in future, but will still play an important role in financing infrastructure. At the same time, the process of PPP projects will be more standardised and focus more on controlling risks, with more diverse modes of financing (e.g., securitisation) and investment targets (e.g., education, healthcare and elderly care). The PPP mode will continue to be pivotal for cooperation in China's infrastructure projects.


Footnotes

1 Zhu Maoyuan is a senior partner and Zhang Jiong is a partner at Zhong Lun Law Firm. Zhang Wenjing, Zheng Yongxin, Zhang Lina, Sun Ao, Han Tianji, and Yan Jiaxin, lawyers at the same firm, also contributed to this chapter.

2 Official site of the China International Economic and Trade Arbitration Commission:
www.cietac.org.cn.

3 Official site of the Beijing Arbitration Commission (Beijing International Arbitration Centre):
www.bjac.org.cn.

4 Official site of the Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Centre): www.cietac-sh.org.

5 Official site of the South China International Economic and Trade Arbitration Commission (Shenzhen Court of International Arbitration): www.sccietac.org.