Setting up a joint venture between two or more companies from different countries is becoming increasingly popular in today’s globalised world. The goal of a cross-border joint venture is to combine resources, knowledge, and expertise from different regions and companies in order to create a mutually beneficial partnership and achieve shared business objectives.
In this note, we will discuss some of the more common issues that our clients have encountered when structuring a joint venture between parties based in different jurisdictions.
Structure for the joint venture
In determining the structure of the joint venture, certain considerations should be taken into account to ensure that the joint venture is legally sound and compliant with the local and international laws and regulations. Set out below are some of the key considerations in determining the form of the joint venture:
- Limit liability to the joint venture itself and to the parties to the joint venture
- A structure that are welcomed by finance providers and service providers
- Consideration to be given to employees, in particular, whether any options or units would be granted to attract and retain employees
- Clear delineation of rights and liabilities
- Ability to avoid unnecessary tax, and have the flexibility to enjoy preferential tax treatments
Corporate vehicle is the generally preferred structure. However, there may be disadvantages, such as tax leakage on distribution of profits.
For a cross-border joint venture to succeed, it is important for both parties to clearly define their objectives, roles, and responsibilities in a detailed joint venture agreement. The agreement should cover the following:
- The objectives and term of the joint venture
- The formation and governance of the joint venture
- Funding of the joint venture as well as the financial contributions of each party
- How profits will be shared and be extracted from the joint venture
- Management structure and decision-making processes
- Protection of intellectual property developed by the joint venture and/or contributed by the parties to the joint venture partners
- Treatment of personal data and transfer of data across the border
- Exit strategies and dispute resolution processes
When considering the commercial matrix of the joint venture, the parties should also consider regulatory issues, such as:
- Whether there are any restrictions (industry, scale and percentage of ownership) on foreign ownership
- Anti-trust and competition restrictions
- Foreign exchange controls
- Investment treaties between the joint venture entity and partners of the joint venture entity
Choice of law and forum for resolution of disputes
Generally speaking, parties would agree to use the law and forum where the joint venture is established for the resolution of disputes. However, this should not be agreed upon without considering the potential implications and seeking legal advice.
In determining the governing law, one should consider:
- The preferred mode of dispute resolution (for instances, efficiency, recognition of judgments, independence)
- The type of remedies available both interim and final
- Language of the documents
If you wish to find out how we can help, please contact:
YTL LLP is a law firm headquartered in Hong Kong, China. This article is general in nature is not intended to constitute legal advice.