A study on the Dispute Settlement of the Private Participation in Infrastructure Projects-The construction and operation of water supply facilities

• Main Authors: MAI, CHING FEN, 麥靜芬
• Other Authors: Fu, Hung-der
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/36452727039138877947

碩士 === 東海大學 === 公共事務碩士在職專班 === 102 === The introduction of private capital into the development of emerging water resources has become the future trend of development, regeneration, and management of water resources. However, the promotion of private participation in public infrastructure project is usually equipped with significant relevance to people’s lives and public interest, together with the features of long construction period, large scale, complicated interface, and high risk, which often lead to various disputes. If these disputes cannot be effectively resolved, the provision of public service will certainly be affected. Therefore, it has become a subject of concern to establish a proper, legal, and effective mechanism for resolving these disputes. In this study the causes, types, settlement models, and subsequent effects of disputes during the selection stage and contract fulfillment stage of seawater desalination plant and advanced water purification plant built as public infrastructure projects based on private participation have been investigated from the theoretical and practical perspectives by using literature analysis and case comparison approaches in order to analyze and understand the real problems. Due to the different types and causes of disputes at selection stage and contract fulfillment stage of public infrastructure project based on private participation found in this study, different settlement mechanisms may lead to different results. The dispute settlement terms in general contracts of promotion of private participation are mostly based on the mechanisms of negotiation and coordination committee as the alternative to litigation, and the results do show partial effectiveness of dispute resolution. However, the organizer may also prefer solving these disputes by litigation considering various factors such as 1) to avoid the suspicion of profiting, 2) distrust toward arbitration system, 3) the coordination by coordination committee becomes nothing more than formality, 4) exclusion of arbitration terms, and 5) long and complicated preliminary procedure of arbitration. If the disputes cannot be resolved after a lengthy period, it may also lead to severe impact on construction progress and concerns by administrative, legislative, and audit authorities. In this study it is suggested that the mediation by private participation complaint committee of competent authority and the provision of “mediation before arbitration” to be added to the dispute settlement mechanism of public infrastructure project based on private participation. In addition, the dispute settlement terms should also be added to the investment contract to shorten the bilateral negotiation period, the resolution of coordination committee shall not have the effect of compulsory arbitration, and there should not be any preliminary procedure of coordination or mediation before arbitration or litigation. All these suggestions are for enhancing the fairness and efficiency of dispute settlement and as the reference for water facilities based on private participation and the design of dispute settlement mechanism for other public infrastructure projects. Keywords: dispute settlement, Act for Promotion of Private Participation in Infrastructure Projects, BOT, seawater desalination plant.