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国家计委、电力部、交通部关于试办外商投资特许权项目审批管理有关问题的通知 Several Issues Concerning the Examination, Approval and Administration of Experimental Foreign-invested Concession Projects Circular

2006-05-16 15:20   我要纠错 | 打印 | 收藏 | | |

颁布日期:19950821  实施日期:19950821  颁布单位:国家计委、 电力部、 交通部

  To: Planning Commissions (Planning and Economic Commissions), Power Bureaux and Communications Offices (Bureaux) of all provinces, autonomous regions, centrally-governed municipalities and municipalities with an independent development plan:

  For a long time, infrastructure facilities and primary industries such as communications and energy have been the bottleneck of the national economic development of our country. To improve this situation, it is necessary to actively direct foreign investments, in line with the State's industrial policies, towards our infrastructure facilities and primary industries for urgent development. For this purpose, apart from the State's continued encouragement of foreign businessmen in the setting up and operation of infrastructure facilities and primary industrial projects in our country in the form of Sino-foreign equity joint ventures, Sino-foreign co-operative joint ventures and wholly foreign-owned enterprises, the State is intended to try out foreign-invested infrastructure projects, from the experience of foreign countries, in the investment form of building-operation-transfer (generally known as “BOT”)。 In order to do a better job for the experiment, we hereby inform you of the following relevant matters:

  1. Foreign-invested concession projects referred to herein shall mean foreign-invested infrastructure projects in the form of building-operation-transfer. The governmental department shall award, by way of a concession agreement and within the prescribed period, the project to the project company established for the concession project by the foreign company. The project company shall be responsible for the investment, financing, construction, operation and maintenance of the project. Upon expiration of the concession period, the project company shall transfer the facilities of the concession project to the governmental department without compensation.

  2. During the concession period, the project company shall hold the ownership of the facilities of the concession project and the rights in respect of investment, financing, project design, construction, equipment procurement, operation and management of, and reasonable charging for, the concession project and shall undertake the obligations in respect of repair and maintenance of the facilities of the concession project. The governmental department shall have the right to supervise, inspect and audit the concession project and require the project company to make rectification and impose a penalty in accordance with the law in the event that the project company is found to have acted in violation of the provisions of the concession agreement.

  3. To ensure the smooth implementation of concession projects in our country, in the event that a project company suffers serious economic losses due to the change of our country's policies during the concession period, the project company shall be allowed to reasonably increase the charging standards or to extend the concession period. The State shall guarantee the conversion of foreign exchange required for the project company for repaying principal and interest on loans and remitting bonuses out of China. However, the project company shall bear risks in respect of investment, financing, construction, procurement, operation and maintenance. The government shall not provide guarantee for any fixed returns on investments. Neither Chinese domestic financial institutions nor non-financial institutions in the country shall provide security for its financing.

  4. Considering that setting up concession projects is a new task in our country, it is necessary to carry out the task in an active and steady manner. To avoid rushing headlong into concession projects, it is necessary to carry out an experiment first and to extend such experiment gradually until experience is gained. During the experimental period, the area of experiment shall cover for the time being projects such as: coal-fired power plants with a capacity of 2 x 300,000 kilowatts and above, hydraulic power plants with a capacity of less than 250,000 kilowatts, 30 to 80-kilometre highways of a high grade, separate bridges with a length of more than 1,000 metres, separate tunnels and urban water supply plants.

  5. Selection of pilot concession projects shall start from the regional level up to the central level. In principle, such pilot concession projects shall be those projects that fall within the medium- and long-term plans of the State. An initial feasibility study report on the selected pilot project shall be prepared by the planning department of the province (district or municipality) of the place where the project is located, in conjunction with the department in charge of the industry in accordance with the current planning administrative system. The initial feasibility study report shall be examined and approved by the State Planning Commission upon preliminary examination by the department in charge of the industry. When necessary, the report shall be reported to the State Council for examination and approval upon preliminary examination by the State Planning Commission. Apart from particulars such as project details, engineering, technology and environmental protection, an initial feasibility study report on a concession project shall specifically describe the following particulars: analysis of market demand, total investment amount, fulfilment of external conditions, economic and financial analysis, initial charging standards, principles of price adjustment, term of concession, principles of risk sharing, associated facilities to be supplied by the government and obligations to be assumed by the government.

  6. Upon approval of the initial feasibility study report on the pilot concession project, the local government shall be responsible for preparing documents on qualification pre-assessment and tender proposals so that foreign investor shall be selected by way of open tender. The State Planning Commission shall organize a tender appraisal committee comprising the department in charge of the industry, local government department as well as technical, economic and legal advisors, responsible for examination of tender proposals, pre-assessment of the qualifications of investors, tender appraisal, tender determination and awarding.

  7. Provincial (district or municipal) government of the place where the pilot concession project is located shall assist the successful tenderer in applying for, on the strength of the tender winning approval document, handling procedures for approving the articles of association of the project company at the Ministry of Foreign Trade and Economic Co-operation, and procedures for registration with the administration for industry and commerce.

  8. Upon approval of the concession agreement (when necessary, the State Planning Commission shall report such agreement to the State Council for approval), the State Planning Commission shall authorize provincial (district or municipal) government or the department of the industry to officially sign the concession agreement with the project company, and such agreement shall take into effect from the date of signing.

  9. For the purpose of smooth implementation of the experiment of concession projects, the State Planning Commission shall set up a permanent organisation responsible for organising, daily liaison, co-ordination, etc. in respect of the experiment of concession project.

  At present, the State Planning Commission is taking the lead in formulating the Foreign-invested Concession Projects Tentative Provisions which will be promulgated for implementation upon approval by the State Council.

  All local and relevant departments of the State Council will be required to do the tasks conscientiously in respect of the experiment of foreign-invested concession projects in accordance with the specific requirements of this Circular and in the light of the actual situation of the localities and industries.

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