Definition and legal nature of concession agreements

The concession agreement is a form of public-private partnership which nowadays has the leading role in attracting investments into the economy of the country. The definition of the concession agreement is not new for Russian law. The concession agreement originated from a lease of the tsarist Russia. Concessions were also applied in pre-revolutionary Russia and Soviet Russia during the new economic policy. Foreign concessions had a special importance for the development of the country economy. Concession agreements have been actively used in the modern Russian law since the federal law on concession agreements was adopted. Under the concession agreement, the concessionaire (private investor) constructs or reconstructs at their expense the infrastructure object which belongs (will belong) to the grantor (state, municipality). Meanwhile the concessionaire gets the right to operate this object within a certain period of time. The concession agreement is a contract containing elements of different contracts. However, there is no list of any types of such contracts in the legislation. This article is concerned with the contracts whose elements are included in concession agreements at different stages of their implementation. Special attention is given to work contracts and those of tenancy. At the stage of creation and (or) reconstruction of the concession agreement object the rules of the civil law on a work contract shall be used. During the operation phase of the concession agreement object the rules of the civil law on the lease shall be used. Concession agreements are compared with mixed ones. As a result, it is concluded that a concession agreement is not a mixed one, but it is an independent type of contract, while the combination of the components of other types of contracts is the hallmark of any concession agreement. The legal characteristics of the concession agreement are defined as consensual, urgent, mutual, reimbursable and bilateral. Some legal problems encountered in the definition of concession agreement legal nature are examined in this article, and three basic relevant theories are covered. According to these theories, the legal nature of concession agreements is defined as: (1) a mixed public-private contract (the contract of a special kind); (2) a public (an administrative) contract; (3) a civil contract. The definition of the legal nature of concession agreements has a great practical importance, for instance, when determining how to protect the violated rights of the parties to the agreement. That is why in the article special attention is paid to the study of this issue. The concession agreement has both civil law and public law features. These characteristics are also analyzed in the article. Thus, the author comes to a conclusion concerning the civil-legal nature of concession agreements. The author's arguments are based on the law in force and the current enforcement practice. According to the results of the research some proposals to improve concession legislation are formed. They are as follows: to complete the approximate concession agreement; to secure the independence of the concession agreement as a form of contract; to determine its civil legal nature.

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