Using Dispute Resolution Mechanisms in the Management of Legal Risk Associated with International Project Finance in Mainland China
Date Issued
2009
Date
2009
Author(s)
Fox, Kyle
Abstract
Since Deng Xiaoping’s Open Door Policy reforms were implemented in mainland China, Chinese and foreign businesses as well as Chinese government bodies have used a variety of project finance methods to carry out different types of projects in China. Project finance is a way of organizing a particular venture which aims to allow participants to apportion project risk amongst project participants, and through rational distribution of this risk, reduce the total level of risk faced by the project. The law of any given project’s host jurisdiction will present primary legal risks which need to be apportioned amongst participants, but just as importantly, provides the legal tools which participants use to apportion all project risks (including legal risks). The effectiveness of these legal tools are integral to the success of any given project finance venture. These legal tools are different in each jurisdiction, and as the law of the jurisdiction develops over time, the legal tools available to project finance participants also change. his thesis examines the theory and practice of international project finance and isolates what is required of a legal system in order to support project finance. Particular attention is paid to the risk factors associated with project finance and some of the ways in which projects are structured to apportion and reduce these risks.egal risk is an important factor in project risk but it is a type of risk which is not widely understood. This thesis examines the concept of legal risk and some of the current ideas regarding its definition, sources, evaluation and management. ased on a firmer understanding of modern international project finance and conceptions of legal risk, attention is turned to the law and practice of project finance in mainland China. An assessment of projects throughout the 1990’s and the first decade of the 21st century shows how innovative structures have been used to carry out project finance in a legal environment which was never initially designed to cope with this type of commercial activity. A study of a number of new laws at the national level also reveals that the legal system is quickly responding to the needs of project finance, albeit with limitations. his study would not be complete without special attention being paid to dispute resolution in Chinese project finance. Project finance is complex, it involves an intricate web of relationships between different participants with some common, and some competing interests. International project finance in China involves foreign businesses and businesspeople, Chinese businesses and businesspeople and Chinese government bodies in high-stakes, large-scale projects, and as such involves a huge potential for disputes. This thesis stresses the need for a comprehensive strategy regarding dispute management in China based international projects and evaluates some of the available strategies involving appropriate use of negotiation, mediation, arbitration and litigation.
Subjects
Dispute Resolution
Project Finance
Mainland Chinese Legal System
China
Type
thesis
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