isk of government’s guarantee



3.1 law conflict of government’s guarantee



government’s guarantee is limited according to Chinese law . First , government pledge to investor by contract between them ,but in principle ,Chinese government can not directly contract with foreign investor . the Guarantee Law states “government organization can not be warrantor ,except loaned by foreign government or international organization which accredited by the central government .” According to Notice of Some Problem on the Issue of BOT Investment (Notice of Problem for short) , which published by the foreign trade department in 1995 states “government organization commonly can not guarantee in any way ,such as foreign currency exchange guarantee and loan guarantee .unless approved correlation government organization ,can pledge to foreign investor if it is necessary .”the People’s Bank of China also states similarly regulates in sep 1996 . while contrary to the Notice of Problem , Plan Committee ,Electricity Department and Communication Department in 1995 published the file——Notice on License of Examine and Approve of Foreign Investor (Notice on License for short) , states government organization can guarantee fund ,corpus ,interest can be feely exchange with foreign currency .



　



Guarantee Law has the most authority compared to other law files , thus , some scholars concluded that in BOT item government can not guarantee to foreign investor in any way . But others consider the Guarantee Law concerns civilly , while the guarantee of government in BOT item such as operation time and logistics are actually reaffirm of our law and international accord , then it is not law guarantee of government . some even consider government’s guarantee is public law and action which belong to law of nations .



　



In my view , government’s guarantee in BOT item is government’s assure to carry out the contract , bear the politics risk , renounce it’s given immunity , thus , he disobey of assuring could cause diplomatism protect of international protect . In other words , government’s guarantee is to make sure of the complete ,operation and transfer the BOT item smoothly , then , write down the law stated parts on the concession agreement , as to the issue not stated by law , then by the agreement to make sure investor’s interest . Therefore , our government’s guarantee is actually assure it’s politics and give up it’s given immunity in reasonable scope .The disobey would results government’s relevant law responsibility ,which can increase foreign investor’s confidence consequently .



　



The carry out of BOT item needs many departments’ assort with each other well , but China still has not a organization to harmonize all kinds of departments , which make their own files can not assort with each other , some even conflict each other . For example , Notice On Licenses states government can directly guarantee foreign currency exchange . But to their legal responsibility , Plan Committee is not in charge of foreign currency exchange ,which is in charge of People’s Bank of China and Foreign Currency Management Department , thus ,&nb sp;Plan Committee can not publish files about foreign currency exchange . But there is no files about government’s guarantee in BOT item in the files of People’s Bank of China and Foreign Currency Management Department .



　



Based on these discussion as above ,in BOT item ,government’s guarantee would conflict with current law . First , current law does not state government’s guarantee , which make government’s guarantee uncertainly and hard to solve once disputed arised during the course of BOT item . China usually contract with foreign investor by state owned corporations . But the states corporations only assume economic responsibility , not assume politics responsibility . second , it is unclearly to solve the conflict between government and foreign investor . In principle , it s hould through bilateral agreement of

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