Implementing the “Belt and Road Initiative”, an increasing number of Chinese companies are participating in cross-border EPC (Engineering, Procurement, and Construction) projects. Such projects typically involve complex international legal systems, and diverse cultures, which can lead to numerous legal risks during the project.
Major Legal Risks:
Contract Performance Risk
The contract terms of cross-border EPC projects are often highly complex, covering various aspects such as project duration, payment terms, material procurement, and project acceptance. If the contract terms do not sufficiently address potential risks or if the content is ambiguous, performance disputes may arise during project execution. Therefore, enterprises should conduct a comprehensive legal and risk assessment before signing the contract and adopt internationally recognized FIDIC terms to reduce the risk of disputes due to differing interpretations of the contract.
Tax and Foreign Exchange Risk
Cross-border projects typically involve substantial capital flows, and different countries’ tax policies and foreign exchange regulations can have a significant impact on the project. For example, if the host country imposes strict controls on foreign exchange transactions, it may result in delayed receipt of project payments, affecting the stability of the enterprise’s cash flow. Enterprises should understand the tax and foreign exchange policies of the target country before signing the contract and design reasonable payment and foreign exchange hedging strategies, such as using forward exchange contracts and currency swap agreements, to mitigate potential losses from exchange rate fluctuations and restricted capital flows.
Delays and Force Majeure Risk
Cross-border EPC projects are typically long-term and are often affected by external factors. Project delays are one of the most common legal risks. Enterprises should clearly define Exceptional Events or Force Majeure clauses and specific applicable circumstances in the contract. In the event of a force majeure incident, the contractor should notify the Employer and the insurance company as soon as possible to protect its rights and interests.
Environmental Legal and Compliance Risk
Environmental laws in the host country may differ significantly from domestic regulations. If enterprises are not familiar with local environmental regulations, they may face heavy fines or even project suspension. Before entering the overseas market, enterprises should assess the potential environmental impact of the project and ensure that all construction activities comply with local environmental laws and regulations to avoid legal penalties related to environmental issues.
Intellectual Property and Technology Transfer Risk
In cross-border EPC projects, particularly those involving high technology and engineering expertise, intellectual property (IP) protection and technology transfer risks are critical. According to Article 10 of China’s Patent Law: Chinese entities or individuals transferring patent rights or patent application rights to foreigners, foreign enterprises, or other foreign organizations must comply with relevant laws and administrative regulations; and Article 19 states: Any entity or individual who intends to file a patent application abroad for an invention or utility model completed in China must first undergo a confidentiality review by the administrative department for patents under the State Council. Enterprises should clearly define the mechanisms for IP use, transfer, and protection in the contract, and conduct a legal review before signing to prevent future legal disputes related to IP rights.
