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BOT是一种新型的特许权投资方式,其运作基础是一系列复杂的合同安排,其中,最重要的是政府与私人投资者间的特许权协议。在全球化背景下,明确特许权协议的法律性质有助于吸收国际私人资本参与公共设施建设,有助于投资争端公平、合理地解决。由于行政契约理论与立法、司法实践在我国的局限性,我国BOT特许权协议不应定性为行政合同,BOT特许权协议界定为商事契约具有明显的优越性。
BOT is a new form of concession investment that operates on a complex set of contractual arrangements, the most important of which is the concession agreement between the government and private investors. In the context of globalization, clarifying the legal nature of the concession agreement helps to attract international private capital to participate in the construction of public facilities and helps to settle investment disputes fairly and reasonably. Due to the limitation of administrative contract theory and legislation and judicial practice in our country, BOT concession agreement in our country should not be defined as administrative contract. BOT concession agreement has obvious superiority as defined in commercial contract.