Exploration On Legalattribute Of Energy Management Contract In China

As a market-based instrument to promote energy-saving mechanism, EnergyPerformance Contract (“EPC”) has been generally adopted in developed countries andhas been actively implemented in China. However, a dilemma appears in this promotionprocess, which is the lack of specialized, specific and operational legal basis for energymanagement contract. As a result, energy consumption units lack their interests in itbecause of their lack of understanding about EPC, and the energy service companies(ESCO) fail to fully get what they have invested due to their lack of considering the risks.The key to solve these problems above is to determine the legal property of energymanagement contract. Understanding and situating the legal attributes of energymanagement contract has always been the focus of related theoretical research, design oflegal system and judicial adjudication. These issues come from the uniqueness of energymanagement contract. Through the comparison of energy management contract andseveral similar named contracts, this paper analyses the obvious differences betweenenergy management contract and other contracts like financing lease contract,commissioned contracts, installment sales contracts and contracts for construction projects.We can refer to the legal rules and regulations of technology contract when it comes toenergy management contract’s disputes. In reality, due to the unequal status of parties ofESCO and energy consumption units, asymmetric information and lack of understandingof the design of the contract, the specific application of innominate contract is uncertain. Itis not wise to define energy management contract as innominate contract. Besides, as anatypical contract, it is not mature although it evolves from its birth to now. It has to beperfected in practice and it is not ready to become a named contract. So the best way is to refer to the most similar legal regulations of technology contract. As to the uncoveredcontent of technology contract, the relevant departments of the nation can specificallydesign different patterns of EPC to guide and standardize the formation andimplementation of EPC jointly with legal service agencies.