本文拟以某案例为切入点，揭示及探讨政府和社会资本合作（Public-Private Partnership，下称PPP）项目中社会资本方因项目合同主体问题而面临的潜在风险及可能的风险防范措施。

1. 案例情况简述

项目投资人A公司（外国公司）与B政府签订某项目投资框架协议，约定由A公司设立项目公司C以负责建设、运营某污水处理厂特许经营项目，并在对项目建设时间、技术要求、费用确认机制等关键条件做出约定的同时，明确“详细条款在正式合同中约定”。

随后，B政府作为甲方与A公司作为乙方签订PPP项目合同，约定项目按照合同要求建设并投入运营后，由B政府承担向乙方支付污水处理费的义务（最终用户向B政府付费），并且“当项目公司成立后，乙方在本协议项下的所有权利和义务自动转让给项目公司”。

根据前述协议，A公司设立由其100%控股的项目公司C，由C公司承继PPP项目合同中与建设、运营项目相关的所有权利义务。C公司主要通过向当地银行贷款的方式进行项目融资，以完成项目建设并将污水处理厂投入运营。

In bankruptcy as in federal jurisprudence generally, to characterize something with the near-epithet of “federal common law” virtually dooms it to rejection.

In January 2020 we reported that, after the reconsideration suggested by two Supreme Court justices and revisions to account for the Supreme Court’s Merit Management decision,[1] the Court of Appeals for the Second Circuit stood by its origina

It seems to be a common misunderstanding, even among lawyers who are not bankruptcy lawyers, that litigation in federal bankruptcy court consists largely or even exclusively of disputes about the avoidance of transactions as preferential or fraudulent, the allowance of claims and the confirmation of plans of reorganization. However, with a jurisdictional reach that encompasses “all civil proceedings . . .

I don’t know if Congress foresaw, when it enacted new Subchapter V of Chapter 11 of the Code[1] in the Small Business Reorganization Act of 2019 (“SBRA”), that debtors in pending cases would seek to convert or redesignate their cases as Subchapter V cases when SBRA became effective on February 19, 2020, but it was foreseeable.

Our February 26 post [1] reported on the first case dealing with the question whether a debtor in a pending Chapter 11 case may redesignate it as a case under Subchapter V, [2] the new subchapter of Chapter 11 adopted by the Small Business Reorganization Act of 2019 (“SBRA”), which became effective on February 19.

Our February 26 post entitled “SBRA Springs to Life”^[1] reported on the first case known to me that dealt with the issue whether a debtor in a pending Chapter 11 case should be permitted to amend its petition to designate it as a case under Subchapter V,^[2] the new subchapter of Chapter 11 adopted by

State governments can be creditors of individuals, businesses and institutions that are debtors in bankruptcy in a variety of ways, most notably as tax and fine collectors but also as lenders. They can also be debtors of debtors, in their role, for example, as the purchasers of vast quantities of goods and services on credit. And they can also be transferees of a debtor’s property in (at least) every role in which they can be creditors.

We have noodled on the impact that the Supreme Court’s decision in Merit Management Group, LP v.

Whether because of, or in spite of, the proliferating case law it is hard to say, but the issues in, underlying and surrounding third-party releases in Chapter 11 plans just continue to arise with incessant regularity, albeit without a marked increase in clarity. We have posted about those issues here six times in little more than two years,[1] and it is fair to assume that this post will not be the last.