| Summary: | 碩士 === 國立臺灣大學 === 商學組 === 106 === The continuous investment in public infrastructure projects is an important indicator of national competitiveness and leads the development of domestic economy. However, it is increasingly difficult to raise funds for public infrastructures. Thus, introducing private funds to invest in public infrastructures may help to boost the domestic investment market and also effectively utilize the idle lands and facilities owned by the local counties and municipalities. The collaboration between the public and private sectors creates mutual benefits and improves public finance. Therefore, such partnership, that plays a crucial role in our economy, should be encouraged.
The timeliness, effectiveness and professionalism involved upon solving disputes and promoting private participation for investment contracts such as BOT, Reconstruction-Operation-Transfer (ROT), Operation-Transfer (OT) and Build-Operation-Own (BOO) projects within the public-private partnerships, impacts not only the continuity of the contracts, but also the willingness of future private participations. In the light of the current laws and regulations as well as judicial opinions, BOT performance disputes are deemed civil rather than criminal; where adopting arbitration procedures to settle performance disputes of the investment contracts is much more effective and faster than pursuing litigation procedures.
However, upon performance disputes, the current common practice for all promotional private participation project is to have the dispute resolution clause stipulates that the chartered corporation requires to obtain a written approval from the authority-in-charge before submitting for arbitration. Thus renders the substance of arbitration null and void in practice.
This article is based on the author''s actual handling of the dispute arising from adjusting the royalty fee based on operation of the M Hydroelectric Power Plant BOT project. The author proposed recommendations based on referring to other performance dispute cases that pursued litigation in practice and questioning the common practice of refusing arbitration by the authorities-in-charge. This article wishes to raise the attention and encourage the authorities-in-charge to adopt arbitration by amending the relevant clauses in the investment contracts.
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