亚投行贷款协议的法律适用研究

发布时间：2018-03-29 22:23

本文选题：亚投行　切入点：贷款协议　出处：《大连海事大学》2017年硕士论文

【摘要】：亚投行在开展贷款业务时,会与借款人签订贷款协议,围绕借贷事宜明确各方的权利与义务。可见,贷款协议是亚投行在贷款程序中缔结的重要法律文件。与普通的国际借贷协议一样,亚投行贷款协议也涉及法律适用问题,需要将协议适用的法律加以明确,以便解决贷款相关问题和争议。但由于亚投行是特殊的国际法主体,银行开展的贷款业务种类繁多,借贷对象也比较多元,因此亚投行贷款协议的法律适用问题要较一般国际借贷协议复杂。本文将从国际法学角度聚焦这一问题,在介绍亚投行现行贷款协议及法律适用条款的基础上,探讨银行法律适用条款的规则设置、适用风险,并给出完善亚投行法律适用问题的合理建议。文章分为六个章节。第一章分为两部分,首先是对亚投行贷款协议进行介绍,探讨协议的性质与分类,其次是围绕亚投行贷款协议法律适用的一般与特殊理论展开的讨论,为之后的论述奠定理论基础。第二章聚焦亚投行贷款协议法律适用的意思自治问题,以亚投行贷款规则为切入点,横向比较三类贷款协议法律选择时对意思自治原则的限制,以及这样做的深层次原因。第三章围绕最密切联系原则在亚投行贷款协议法律适用中的作用展开,探讨与银行贷款协议有最密切联系法律的判断标准,并关注运用最密切联系、特征履行推定法律时应注意的特殊问题。第四章也分为两个部分,首先介绍亚投行联合贷款协议的基本内容,分析这类协议法律适用的兼容性问题,其次聚焦亚投行债券筹资贷款协议,讨论该贷款协议法律适用的特殊性、重要性,以及现存的问题。第五章论述亚投行贷款协议法律适用的强行法问题,主要围绕外汇管制法对贷款协议的不利影响展开,分析外汇管制法得以适用的渠道以及影响贷款协议的方式。第六章则基于前五章探讨的内容,为银行改善法律适用问题逐一给出合理化建议。最后,本文的得出以下结论:银行应在坚持适用国际法为原则的基础上,根据实际情况放宽对意思自治的限制,考虑适用与协议有最密切联系的内国法。此外,须完善对联合贷款协议、债券贷款协议法律适用的规则设计,采取有效措施规避强行法带来的法律适用风险,同时适当补充和完善我国相关涉外法律。
[Abstract]:When the AIIB starts its lending business, it will sign loan agreements with borrowers, clarifying the rights and obligations of all parties around the issue of lending. Loan agreements are important legal documents concluded by the AIIB in its lending procedures. Like ordinary international lending agreements, AIIB loan agreements involve the application of the law, which needs to be clarified. In order to resolve the loan-related problems and disputes. However, as the AIIB is a special subject of international law, the types of loans banks carry out are various, and the recipients of loans are also quite diverse. Therefore, the legal application of AIIB loan agreements is more complicated than that of general international lending agreements. This paper will focus on this issue from the perspective of international law, on the basis of introducing the current AIIB loan agreements and applicable terms of law. The article is divided into six chapters. The first chapter is divided into two parts. Firstly, the loan agreement of the AIIB is introduced. This paper discusses the nature and classification of the agreements, followed by a discussion on the general and special theories of the application of the AIIB loan agreements. The second chapter focuses on the autonomy of interest in the application of AIIB's loan agreement, taking the AIIB's loan rules as the starting point to compare the restrictions on the principle of autonomy of will in the selection of the three kinds of loan agreements. Chapter three focuses on the role of the closest link principle in the legal application of the AIIB loan agreement, and discusses the judgment criteria that have the closest connection with the bank loan agreement, and pays close attention to the application of the closest link. The fourth chapter is also divided into two parts. First, the basic content of AIIB Joint loan Agreement is introduced, and the compatibility of the application of such agreements is analyzed. Secondly, focusing on the AIIB bond financing loan agreement, discussing the particularity, importance and existing problems of the law application of the loan agreement. Chapter five discusses the jus cogens of the law application of the AIIB loan agreement. Focusing on the adverse effects of foreign exchange control law on loan agreements, this paper analyzes the channels through which foreign exchange control laws can be applied and the ways in which they affect loan agreements. The sixth chapter is based on the contents discussed in the first five chapters. Finally, the paper draws the following conclusions: banks should relax the restrictions on autonomy of will on the basis of the principle of applying international law. Consideration should be given to the application of the domestic law which is most closely related to the agreement. In addition, it is necessary to improve the design of the rules applicable to the joint loan agreement and the bond loan agreement, and to take effective measures to avoid the risk of the application of the law brought about by the mandatory law. At the same time, appropriate complement and improve our relevant foreign-related laws.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D996.2

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