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关于外商投资电力项目的若干规定 Foreign Investment in Power Projects Several Provisions

2006-05-15 19:43   我要纠错 | 打印 | 收藏 | | |

电政法[1997]155号
(Promulgated by the Ministry of Power Industry on, and became effective as of, 20 March 1997.)
颁布日期:19970320  实施日期:19970320  颁布单位:电力部

  PART ONE GENERAL PRINCIPLES

  Article 1 These Provisions have been formulated in accordance with the laws and regulations of the People's Republic of China in order to actively, rationally and effectively make use of foreign investment, to speed up the development of the power industry, to protect investors' legal rights and interests, and to guide and standardize work on foreign investment in power projects.

  Article 2 These Provisions apply to investment within China in the development and construction of power supplies by all economic organizations and individuals from outside China (hereafter referred to as foreign investors)。

  Article 3 Use of foreign investment in power supply development and construction projects (hereafter referred to as power projects) must follow the principles of equal and mutual benefit, joint enjoyment of profit, joint bearing of risk and reciprocal rights and obligations.

  Article 4 Foreign investment power projects must abide by China's laws and regulations and be in accord with national policy on industry and with power development plans. They should be examined and approved in accordance with the procedure for reporting and approving foreign investment power projects.

  Article 5 Use of foreign investment in power projects should take into consideration the following factors, plus others as necessary:

  1. the power required for regional development;

  2. financial costs on the international capital market;

  3. the ability of the area to be supplied to bear the cost of the electricity;

  4. the financial structure of the project; and

  5. the plan for balancing foreign exchange.

  Article 6 An economic evaluation of foreign investment power projects should be carried out in accordance with the relevant provisions of the related guiding opinions and implementing rules on strengthening economic evaluation of power foreign investment projects.

  Article 7 Foreign investment power projects should be subordinate to the principle of implementation by the State of unified planning, unified construction, unified management and unified administration of the power grid.

  PART TWO THE SCOPE AND METHOD OF FOREIGN INVESTMENT

  Article 8 The scope of foreign investment:

  1. new thermal power stations (including joint production of heat and electricity);

  2. new hydroelectric power stations (including pumped energy storage power plants);

  3. new nuclear power stations (or plants);

  4. new energy source or new technology electricity generating projects; and

  5. expansion and technical upgrading of old power stations.

  Article 9 Foreign investment can take the following forms:

  1. joint equity with a Chinese partner to form a Sino-foreign equity joint venture;

  2. co-operation with a Chinese partner to form a Sino-foreign co-operative joint venture;

  3. independent foreign investment to form a wholly foreign-owned enterprise, except in the case of nuclear power projects and hydroelectric projects involving over 250,000 kilowatts;

  4. purchase of shares issued by the Chinese partner outside China or of B-shares inside China;

  5. make an account of inventoried assets at hand of a power station, purchase of part of the Chinese partner's existing shareholding to the power station, and to form an equity or co-operative joint venture with the Chinese partner;

  6. establishment of a project company through the signing of a franchise agreement with the government to invest in a build-and-operate power project (hereafter referred to as franchise BOT investment); and

  7. other forms approved by the government.

  Article 10 The State shall encourage foreign investment in hydroelectric, nuclear, new energy source, new technology and water-pumped energy storage power projects, in technical upgrading of old power station projects and in power supply projects in the central and western regions within China. The State requires that new thermal power stations must in general use high parameter, high efficiency generators with unit capacity of over 300,000 kilowatts. The State shall severely restrict condenser-type thermal generators and conventional oil-fired generators of under 25,000 kilowatts, together with other high energy consumption and highly polluting projects.

  Article 11 The Chinese side, holding State-owned assets, must have the controlling shareholding in or control over nuclear power plants or hydroelectric plants with total installed capacity of over 250,000 kilowatts, which are constructed and operated by Sino-foreign equity and co-operative joint ventures.

  Article 12 The commercial operating term (co-operative operating term) for Sino-foreign equity or co-operative joint venture power projects shall in general not exceed 20 years for thermal power stations, not exceed 30 years for hydroelectric power stations and not exceed 25 years for nuclear power stations (or plants)。 The term for equity or co-operative joint venture operating projects involving use of a power station's inventoried assets can be decided in accordance with the results of the asset evaluation and with the actual circumstances, but must not exceed the limits stated above.

  The situation regarding accounts settlement and transfer at the conclusion of an equity or co-operative joint venture term, and any accounts settlement and transfer necessitated by termination of the contract during the joint operating term, should be clearly stipulated in the company contract and articles of association in accordance with the relevant Chinese laws and regulations.

  The operating term, accounts settlement and transfer of power stations constructed wholly by foreign investment shall be carried out in accordance with the provisions of the preceding paragraph.

  Article 13 The registered capital of and proportion of total investment in Sino-foreign equity and co-operative joint venture power stations, and the proportion and method of capital contribution by the Chinese and foreign partners, should be specified in the contract in accordance with the relevant laws and regulations.

  PART THREE EXAMINATION OF PROJECTS

  Article 14 When reporting a foreign investment power project, notarized legal documents and evidence reflecting the foreign company's legal status and capital creditworthiness should be submitted.

  Article 15 The Ministry of Power Industry shall be responsible for examining or examining and approving the following:

  1. proposal documents and feasibility studies for Sino-foreign equity and co-operative joint venture projects (including purchase of part of shareholding in the Chinese partner's power station);

  2. reports on wholly foreign-owned projects;

  3. contracts for Sino-foreign equity and co-operative joint veutures, and the articles of association of jointly-operated companies and of wholly foreign-owned enterprises;

  4. power purchase contracts; and

  5. other agreements that must be examined or examined and approved.

  Article 16 Once the Ministry of Power Industry has examined the documents relevant to the application for approval it should decide whether or not to agree to report those which according to the relevant provisions should be reported to the relevant departments for approval. Those which it agrees to report should be reported in writing to the relevant departments for approval. If it decides not to agree to report, it should notify the work unit applying for the project.

  Article 17 The points in the project proposal document to be examined by the Ministry of Power Industry shall include: whether or not the project is in accord with State policy on industry; whether or not it is in accord with plans for power development; whether or not it is in accord with the distribution of production capacity of the area in which the project is situated; whether or not it is in accord with the requirements for environmental protection; the foreign company's legal status, funds and creditworthiness; and the operating method, the total investment, the circumstances of all parties, the financial structure and the method and conditions of financing etc.

  The points in the feasibility study to be examined by the Ministry of Power Industry shall include: the technical, economic and commercial basis for a power construction project; whether or not the project funding and main construction conditions are practicable; the economic evaluation of the project; whether or not the loan repayment capability and responsibilities are workable; the technical standard of the equipment and the supply capability; the project's forecast electricity price; comparison and overall analysis of the project's key elements; and the scientific nature, rationality and feasibility of each element of the project.

  The points in the contract to be examined by the Ministry of Power Industry shall include: whether or not it is in accord with the relevant laws and regulations; whether or not it is in accord with contents of the feasibility study and requirements stipulated in the approved documents; whether or not it is in accord with the principles of equal and mutual benefit, joint enjoyment of profit, joint bearing of risk and reciprocal rights and obligations; and whether or not the necessary clauses are detailed, clear and complete.

  PART FOUR PURCHASE OF EQUIPMENT AND FOREIGN EXCHANGE

  Article 18 Foreign investment power projects should in general put purchase of their main equipment to tender in accordance with the principles of advanced technical and economic standards, safety reliability and reasonable price.

  The State shall encourage the use of domestically-produced equipment.

  Purchase of equipment within China should be carried out in accordance with the relevant provisions on the invitation and submission of tenders for power project equipment. Purchase of equipment internationally should be carried out in accordance with the relevant provisions on international tender for purchase of foreign investment power project equipment.

  Article 19 Balance of foreign exchange for the project shall be done in accordance with the relevant State provisions on foreign exchange control.

  All circumstances being equal, the State shall give preference to the approval of projects which settle accounts in Renminbi.

  PART FIVE PRICE AND QUANTITY OF ELECTRICITY ENTERING THE GRID

  Article 20 The price of electricity entering the grid from power projects utilizing foreign investment shall be set in accordance with the PRC, Electric Power Law and other relevant laws and regulations.

  The price set for electricity entering the grid should be in accord with the principles of rational recompense for costs, rational setting of profits, legal tax payments and fair burden, and should encourage a higher standard of project management, control of project cost and a lowering of production costs.

  Article 21 The price of electricity entering the grid can be structured on the two systems of capacity price and electricity price. Capacity price shall reflect the capacity cost and electricity price shall reflect the electricity cost. Electricity price should adopt a pricing for both peak and trough times.

  Article 22 The price of electricity entering the grid shall, be in line with the principles for examination and approval stipulated in the PRC, Electric Power Law, be reported for examination and approval to the authorities in charge once the project company and the grid operating enterprise have discussed and proposed a plan.

  Article 23 The annual average number of utilization hours for thermal power station equipment shall be set by the grid operating enterprise in the area in which the station is located on the basis of the estimated future load on the area grid. This shall form the basis of the project feasibility study and the quantity of electricity purchased.

  The annual average number of utilization hours for hydroelectric and nuclear power station (or plant) equipment should be set in accordance with the specific circumstances of the project and the area.

  PART SIX CONTRACTS AND THEIR MAIN CONTENT

  Article 24 All parties involved in foreign investment power projects should sign a Sino-foreign equity or co-operative joint venture contract in accordance with the method of investment. The project company should sign with the relevant legal person legal documents related to the project such as electricity purchase contracts, construction contracting contracts, loan contracts, management agreements, fuel supply contracts and operation maintenance contracts.

  Wholly foreign-owned power projects and BOT projects should abide by the preceding paragraph.

  The Chinese partner in equity and co-operative joint venture projects must not undertake by itself to guarantee the return on the foreign partner's investment.

  Article 25 Power equity joint venture contracts should contain, but are not limited to, the following contents:

  1. aim, scope and scale of the joint venture;

  2. total investment, the registered capital and the amount of funds contributed by each equity partner plus the method of provision and the plan for raising funds;

  3. purchase of equipment;

  4. purchase and sale of electricity, method of accounts settlement and currency to be used;

  5. method of distributing profits;

  6. arrangements for balancing foreign exchange;

  7. construction (including auxiliary project construction given out by power stations) and construction period, including handling of early or delayed project completion;

  8. operation maintenance and fuel purchase and sale; and

  9. co-operation term and handling of assets upon completion of the term.

  Article 26 Power co-operative joint venture contracts should contain, but are not limited to, the following contents:

  1. aim, scope and scale of the co-operative joint venture;

  2. registered capital and conditions on co-operation;

  3. responsibilities of each party;

  4. purchase of equipment;

  5. purchase and sale of electricity, method of accounts settlement, and the currency to be used;

  6. construction (including auxiliary project construction given out by power stations) and construction period, including handling of early or delayed project completion;

  7. operation maintenance and fuel purchase and sale;

  8. distribution of profits and sharing of loss and risk (expenses);

  9. arrangements for balancing foreign exchange; and

  10. co-operation term, termination and accounts settlement (or transfer)。

  Article 27 Electricity purchase contracts should contain, but are not limited to, the following contents:

  1. prerequisite conditions (including parallel grid technical conditions, power station auxiliary projects etc);

  2. amount and voltage of electricity entering the grid;

  3. electricity price, power rate computation, method and currency used to settle accounts;

  4. electricity generating plan, over and under-generation of electricity;

  5. management and administration; and

  6. handling of counter-transmission of electricity and accidents.

  Article 28 Management and administration agreements should contain, but are not limited to, the following contents:

  1. parallel grid technology conditions;

  2. the power station's preparations for peak regulation, frequency regulation, voltage regulation and accidents; technical capability, daily load pattern and peak regulation capacity; and monthly generation plan;

  3. inspection and repair plan and energy measurement;

  4. scope of management and administration;

  5. parallel grid points and disconnection points;

  6. electricity grid safety measures and handling of accidents;

  7. basis, standard and payment method of charges; and

  8. personnel training, assessment and authentication.

  Article 29 Operation maintenance contracts should contain, but are not limited to, the following contents:

  1. scope and content of operation maintenance;

  2. operation regulations and operation standards;

  3. annual operation and maintenance plan;

  4. cost of operation maintenance, charges for operation maintenance, and method of accounts settlement and currency to be used;

  5. accidents handling, inspection and repairs;

  6. staff training; and

  7. rights and obligations of the appointee and the appointor.

  Article 30 Fuel purchase and sale contracts should contain, but are not limited to, the following contents:

  1. type of fuel, unit, quantity and quality of measurement, and coal quality analysis requirements;

  2. annual purchase and sale plan;

  3. price, method of accounts settlement and method of payment;

  4. method of transport and responsibility for risk; and

  5. checking and accepting.

  Article 31 The principle clauses in loan contracts and construction contracting contracts shall be in accordance with the relevant national regulations and with international practice.

  Co-operative companies must select a suitably qualified Chinese power construction enterprise through tender to build power projects.

  PART SEVEN CONTRACT LAW AND RESOLUTION OF DISPUTES

  Article 32 The laws of the People's Republic of China shall apply to foreign investment power project contracts.

  Disputes should in the first instance be resolved through discussion between the parties concerned. If this proves unsuccessful then arbitration or ligitatiion stipulated in the contract can be selected.

  Article 33 If any foreign investors or Chinese economic organizations or individuals refuse to accept as final specific administrative actions by Chinese administrative authorities, they can in accordance with the Administrative Litigation Law and the Administrative Review Regulations apply to the immediately superior authority for an administrative review or initiate administrative ligitation in the people's court which has jurisdiction.

  PART EIGHT SUPERVISION AND ADMINISTRATION

  Article 34 The project legal person work unit should provide the relevant department in charge with accurate and timely information on the project loan agreements signed, the way the project is being implemented, the progress chart, loans and repayment of capital and interest etc.

  Article 35 The Ministry of Power Industry shall supervise, investigate and co-ordinate progress on projects and shall assess them once they are completed.

  PART NINE SUPPLEMENTARY

  Article 36 Other Chinese laws, regulations and provisions shall apply in the case of points not stipulated in these Provisions.

  Article 37 These Provisions shall be interpreted by the Ministry of Power Industry.

  Article 38 These Provisions shall be effective as of the date of promulgation. The Using Foreign Investment in Electric Power Construction Tentative Provisions shall be repealed as of that date.

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