WINNING

LEGAL

STRATEGIES

International Joint Venture Law

A Country-by-Country Look at Joint Venture Regulations and Best Practices in Major Markets around the Globe

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United States
Mark E. Thompson
Partner

C. William Baxley
Partner

King & Spalding LLP

International Joint Venture Law

Geography and the Law As a general rule, all corporate entities in the United States are regulated at the state level. With the exception of certain federally chartered banks and other financial institutions, there generally are no federal or nationally created corporate entities. As a result, every corporate entity, whether it is a corporation, limited liability company, or partnership, must be formed under the laws of a particular state. While the laws affecting entities in each state are similar and, in fact, the American Bar Association promulgates various model codes, the statutes in each state do vary, sometimes substantially. Furthermore, since entities are regulated at a state level, the courts of each state can and do come to different conclusions, creating further discrepancies. Although each state has its own system, state courts will honor the entity laws of the state of formation for the entity in question. For example, a court sitting in California would apply Delaware law to a matter relating to a corporation formed in Delaware. In order to gain greater clarity and uniformity across the country, business entities frequently turn to Delaware. The laws regulating entities in Delaware are well tested and, as a result, legal practitioners have a good idea how courts in Delaware will interpret corporate issues. In addition, courts in many states will look to Delaware, and to some extent New York, in interpreting issues that have not yet been decided by courts in those states. The prominence of Delaware law is not an accident. The Delaware court system, particularly the Delaware Chancery Court, is designed to produce judicial experts in the corporate area, and is considered by many to be the preeminent U.S. court system when it comes to matters of corporate law. As a result, people frequently view Delaware law as the default. Many international and cross-border joint ventures also turn to U.S. law, that of Delaware and New York in particular, because of the confidence the parties have in the legal system, as well as in how the laws relating to the structure will be interpreted. As a general rule, Delaware and New York will honor the choice of law in those states, even if the constituent parties have no real connection to them.

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International companies and individuals can form corporate entities in the United States relatively easily, and, with the exception of a few industries that are viewed as critical to U.S. strategic interests (such as the defense industry), there are no legal structural barriers making it more difficult for foreign entities to form a U.S. company. The primary caveat, however, when considering forming a joint venture in the United States is that U.S. entities can be tax-inefficient if most of the activities of the venture are conducted outside of the United States. Consequently, it is important to receive experienced tax advice when forming a joint venture. Key Aspects of Joint Ventures Joint ventures, or strategic alliances, can take several forms, regardless of where they are formed. The parties must first determine whether the alliance will involve the formation of a separate entity or instead be a contractual venture. Either way, the parties will need to determine the purpose of the venture, each sides contributions, the operation and governance of the venture, and when and what happens if the venture is terminated. The answers to such questions determine the form the alliance takes. Contractual Joint Venture Contractual joint ventures are usually less complex than the creation of a separate entity and are frequently used for alliances with a limited time period or formed to complete a specific project. They are often used for construction projects, technology development, pharmaceutical alliances, and manufacturing arrangements. In some cases, a contractual joint venture is another way to describe many types of services, supply agreements, or outsourcing arrangements. In a contractual joint venture, the parties negotiate their contractual arrangements among themselves and do not rely on any body of law concerning the creation of an entity. Since there is no statutory overlay, the parties must agree upon all of the governance and operational issues in the contract and rely on ordinary principles of contract law to resolve any disputes.

International Joint Venture Law

Since contractual joint ventures are not actual entities, the venture cannot own property or enter into any contracts directly. Any such activities must be entered into by the contracting parties. As a result, it is difficult for a contractual joint venture to operate as a standalone business. Entity Joint Venture Entity joint ventures, on the other hand, offer the parties the ability to form a new entity that is capable of operating independently of its owners. In the United States, entity joint ventures can take a number of forms, including those of a corporation, a partnership (both general and limited), and a limited liability company. In the United States, in addition to choosing the actual entity to be used, the parties must agree upon the applicable state law. Each state has its own corporate law, but Delaware is the most frequently used for the creation of strategic alliances, as explained above. Historically, the most common form of joint venture in the United States has been a corporation. This is true for a number of reasons, including a large and understood body of law governing the corporate structure. A corporate joint venture also allows for more complicated governance and financing structures, permitting greater financing opportunities and greater liquidity through the transferability of shares. Characteristic features of a corporation include limited investor liability, centralized management, fiduciary obligations on the part of directors, and, usually, double taxation (tax on income at the corporate level as well as shareholders tax on any distributed income), except in the case of so-called Subchapter S corporations, which are privately held and subject only to a single level of tax. Corporations are the vehicle of choice if the parties expect the company to become publicly traded in the near future, as they are by far the most widely accepted vehicle for a public flotation. Generally, the governing documents of a corporation include either the certificate or articles of incorporation (depending on the state) and the bylaws. Joint venture investors commonly have further agreements among themselves in a shareholders contract. Unlike in many other jurisdictions around the world, only the certificate or articles of incorporation are

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publicly filed. The bylaws and shareholders agreement are not in the public domain. In addition, state law does not require the shareholders or finances to be publicly available. The second common form of entity joint venture structure is the partnership. In the United States, each state has two primary types of partnerships: general and limited. The general partnership exposes all the partners to general liability, while, in a limited partnership, only the general partner is subject to liability, and the limited partners liability depends on, and is limited to, their investment in the partnership. In either form, however, at least one partner will bear unlimited liability, sharing the risks and the rewards unequally. A partnership allows for more flexibility in structure than a corporation, permitting the partners to govern their relationship in almost any manner they choose. As a result, the partnership structure is often more documentintensive. As is the case with those of a corporation, however, the constituent partnership documents are not publicly filed. Unlike corporations, partnerships are also generally pass-through vehicles for tax purposes. This means that, unlike a corporation, the partnerships earnings are not subject to taxation at the entity or partnership level. Instead, only the partners are responsible for taxes on the earnings of the partnership. This avoids the double level of taxation usually associated with a corporation. This result can often prove to be advantageous depending on the desired structure. In contrast to partnership structures around the world, partnerships in the United States can own property in their own name and are considered actual entities. By comparison, partnerships as a general rule in England do not have the ability to own property in their own name directly, but rather hold property through their partners individually. The newest entity structure is the limited liability company. Although relatively new, such companies have become increasingly common over the last decade and are accepted throughout the United States. Limited liability companies combine the structure and limited liability of a corporation with

International Joint Venture Law

the flexibility and pass-through tax treatment of a partnership, making them a desirable choice. As in corporations, only the certificate of formation is publicly filed, while the operating agreement and names of the investors are not publicly available. Fiduciary Duties When making a determination as to whether to form an entity joint venture in the United States, it is important for the investors to understand the duties of an entitys manager to its stakeholders. An entitys managersa board of directors for a corporation, the managers of a limited liability company, or a general partner in a partnershiphave a duty to act in good faith and in the best interests of the entity and its stakeholders as a whole rather than for themselves or any particular stakeholder. In partnerships and limited liability companies, however, the parties have more flexibility to alter these duties by contract than is possible in a corporation. In limited liability companies, for example, the governing documents may even state that the managers are permitted to act in the best interests of a particular investor as opposed to the best interests of the entity itself. Duty of Care The Delaware formulation of the fiduciary duty of care states that directors have a duty to inform themselves, prior to making a business decision, of all material information reasonably available to them and [h]aving become so informed, they must then act with requisite care in the discharge of their duties. Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984). Managers or directors of an entity are generally responsible for obtaining all information they believe relevant, including information supplied by management and generated by independent experts. The board members or managers are entitled to good faith reliance, not blind reliance on the reports of advisors and management. As a result, they need to make diligent inquiries about advisors or management presenting information and evaluate the source, relevance, and credibility of such information.

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Duty of Loyalty The duty of loyalty requires that managers or directors have no material personal interest in the action or transaction that is the subject of their decision-making. Managers and directors should neither appear on both sides of a transaction nor expect to derive any personal financial benefit from the transaction in the sense of self-dealing, as opposed to a benefit that devolves upon the corporation or all stockholders generally. See, e.g., Cede & Co. v. Technicolor Inc., 634 A.2d 345, 361 (Del. 1993); David J. Green & Co. v. Dunhill International Inc., 249 A.2d 427 (Del. Ch. 1968). In some states, courts have also equated the duty of good faith with the duty of loyalty. Delaware courts will scrutinize self-dealing transactions under an intrinsic fairness test. When any directors or managers are on both sides of a given transaction, according to the Delaware courts, presumption of and deference to sound business judgment are no longer present. The intrinsic fairness test has two components: fair dealing and fair price. Fair dealing focuses on questions relating to timing, structure, negotiations, disclosure, and how approvals were obtained. Fair price relates to the economic and financial considerations of the transaction. Despite this distinction, courts tend to examine the question as a whole, as the issues are not easily separable. Business Judgment Rule Except for self-dealing transactions and in certain other specified circumstances, mostly dealing with change of control transactions, the directors of an entity will usually be entitled to the protection of the business judgment rule, which insulates their business decisions from challenge or second-guessing. Under Delaware law, the business judgment rule is, in effect, a rebuttable presumption that in making a business decision the directors of the corporation act on an informed basis, in good faith, and in the honest belief that the action was taken in the best interest of the company. Aronson, 473 A.2d at 812 (Del. 1984). The effect is that, a court will not substitute its judgment for that of the board if the latters decision can be attributed to any rational purpose. Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 954 (Del. 1985). Where an affirmative business

International Joint Venture Law

decision is made pursuant to statutory or charter authority by disinterested directors, the burden is on the plaintiff to come forward with evidence establishing a breach of the directors duty of care or duty of loyalty. As a prerequisite to reliance on the business judgment rule, the managers or directors of an entity must fulfill their fiduciary duties of loyalty and care to the stakeholders. As a result, the business judgment rule presumption may only be invoked by directors who are found to be not only disinterested directors, but directors who have both adequately informed themselves before voting on the business transaction at hand and acted with the requisite care. Cede & Co., 634 A.2d at 367. Common Legal Issues When contemplating a joint venture, there are ten important categories of issues that must be addressed from the outset. These include: 1. Purpose and scope 2. Form of joint venture Contractual joint venture Entity joint venture Corporation Partnership Limited liability company 3. Ownership 4. Governance 5. Liquidity 6. Capital requirements 7. Non-competition or exclusivity 8. Access to intellectual property 9. Dispute resolution/remedies on default 10. Termination These categories are common to joint ventures regardless of the location. The issues within each category, however, can change dramatically due to the state or country in which the venture is located. As a result, when

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negotiating a cross-border joint venture, it is important to understand how the local laws affect the freedom of the parties to agree upon the structure of their choosing. For example, except in certain limited industries, foreign entities can freely own shares of a company in the United States, but China strictly limits such ownership. Purpose and Scope The singlemost important thing parties need to consider when forming a venture is its purpose and scope. If the parties do not agree about purpose and scope, it will be impossible for the legal advisors to craft a suitable joint venture that will be satisfactory to the parties. In addressing purpose and scope, the parties need to determine the following clearly: What they expect the joint venture to do, and often more importantly, what they expect the venture not to do. It is often recommended that this be spelled out in the documentation itself. How long they expect it to last. Some ventures are anticipated to be perpetual, while others are for a finite duration. Where they expect the joint venture to do business, and where it will not. What the end game is for the parties (e.g., sale, initial public offering, permanent investment). How the investors will interact with the venture. Will there be any restrictions on competition? Affiliate arrangements?

Form of Joint Venture The form of the joint venture should be determined early in the negotiation process. Although a variety of factors go into choosing the appropriate structure, the choice is largely driven by the purpose and scope, discussed above, the governance structure desired by the parties, and tax considerations.

International Joint Venture Law

Ownership The question of ownership will be used to determine the profits attributed to each party as well as usually the relative governance and liquidation rights the parties will enjoy. If the relative value of contributions is not established, it will be impossible for the parties to determine how the joint venture will be managed. Although the ownership of a joint venture seems a relatively straightforward matter to determine, it often proves to be difficult. The difficulty arises due to questions over valuation. Although cash is easy to value, parties frequently disagree over how to value assets and liabilities, particularly such matters as client lists, business goodwill, or trademarks. Governance The manner in which a joint venture is to be governed and operated is often the most difficult part of the negotiation. In a corporation, as a matter of state law, the board of directors will have the power to manage the entity. Partnerships, on the other hand, are managed by the general partner or by partners based on their percentage interests. Limited liability companies are a hybrid of the two. They can be managed either directly by their members or by a board of managers. In both a corporation and a limited liability company, the parties will need to agree on the number of directors, how they are elected, and how they are to be removed and replaced. When creating a governance structure, the parties will need to determine the role of the directors, the matters that will be governed by a shareholder or member vote, whether certain matters will require a supermajority vote, how many directors each investor can elect, what powers the officers will have, and how the directors will operate. Included within these issues are questions over term of office, resignations, removals, vacancies, and other administrative issues. Voting rights in a joint venture are typically proportionate to ownership interests. In a corporate joint venture, unless the organizational documents provide otherwise, the voting rights are determined by state law. These

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rights, however, can be modified through a variety of mechanisms including different classes of stock, supermajority voting provisions, rights to vote that arise only following the occurrence or non-occurrence of certain events, change of control procedures, and voting agreements. A major topic in governance is the right to approve certain significant events. Common approval rights that often require the consent of all or a supermajority of the investors include: Approval of the business plan and annual budget and departures therefrom Changes in the business purpose or strategic direction Mergers, acquisitions, sales of substantially all of the assets, joint ventures, consolidations, recapitalizations, or reclassifications Acquisitions of other companies or assets Dispositions Equity issuances Requirement of additional capital contributions and the valuation of the equity interests received for such contributions Admission of new partners Public offering Changes in organizational structure Incurrence of indebtedness in excess of certain limits Declaration of dividends Capital expenditures and investments Off-balance sheet liabilities Appointment, compensation, and dismissal of officers Material contracts and contracts with affiliates Bankruptcy, liquidations, and so on Redemption of securities

In addition to provisions requiring approval of certain corporate actions, a well-drafted joint venture structure will provide for what happens in case of a deadlock. The parties will generally need a structure to turn to when disagreements become severe enough that the venture is too paralyzed to

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operate effectively. There are two important components to a deadlock structure. First, the parties need to be clear about how a deadlock is defined. Second, they need to determine how a deadlock would be resolved. Not all disagreements in a joint venture are deadlocks. In fact, most issues can be resolved internally without a need to put the joint venture in jeopardy. Often, parties will provide for issues to be escalated up the internal chain of command or for mediation or arbitration. However, some issues, if resolved adversely to a party, may cause that party to want to terminate the venture, resulting in a deadlock. Put/call or buy/sell procedures are often the most effective way to resolve deadlocked issues (see Liquidity below). The key when negotiating these procedures is to remember that they need to be the option of last resort. By definition, the implementation of a put/call or buy/sell mechanism will end the joint venture. As a result, the joint venture should place a strong emphasis on resolving any issues amicably before such procedures are enacted. Liquidity All investors in a joint venture will want to understand the liquidity of their investment. This is not necessarily an issue of termination, described below, in which the venture falls apart, but rather the ability of investors to exit from their investment with an appropriate return. Transfers of joint venture interests involve carefully negotiated provisions including, for example, admission of new members, restrictions or prohibitions on transfer, and buy/sell arrangements. As a result, the investors will need to determine what transfer restrictions will be imposed on the parties, and if so, for what period. If one party wants to transfer its shares in the joint venture, there are a variety of common mechanisms included in joint ventures to address such a situation.

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Put/call: The joint venture agreement may provide investors with the opportunity to sell (put) or purchase (call) each others investment in the venture. Typically, put/call arrangements come into effect in the event of a deadlock, the material breach of the agreement by a party, a change of control of one of the partners, or the failure of the venture to meet certain expectations such as profit or revenue targets. Buy/sell: The selling investor informs the other investors of a price at which it would be willing to buy or sell its interest; the other investors have the right to decide whether they would rather buy or sell at that price. Right of first refusal: The seller brings a negotiated price with a third party to the other investors, who have the right to purchase at that price. Right of first offer: The seller has the obligation to negotiate first with the other investors and, if no agreement is reached, the right to sell to third parties at a price higher than the highest price offered by the other investors. Tag-along rights: The non-sellers have the right to sell to the same third party at the same price and on the same terms. Take-along or drag-along rights: The seller has the right to take along the other non-sellers and force them to sell to the same third party at the same price and on the same terms. Registration rights

Other issues to consider when negotiating liquidity rights include: How will interests be valued? Common solutions include either hiring an independent valuation firm or agreeing at the outset on some valuation formula (such as a multiple of earnings before interest, taxes, depreciation, and amortization). How will intellectual property rights be divided, particularly if the selling party contributed the intellectual party to the joint venture? Can interests be sold to a competitor of either the venture or of another joint venture investor?

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Capital Requirements Presumably, each partner will initially contribute cash or other assets equal to its pro rata share of the equity required for the initial investment. Thereafter, the parties must provide a method of providing capital for ongoing operations. Common issues include who determines the method or amount of financing, whether all partners have the right or obligation to participate pro rata in future financings, and whether the partners will commit themselves to ongoing capital requirements in excess of their initial investment. Non-Competition/Exclusivity Investors in a joint venture must determine the boundaries between their activities and the activities of the joint venture. Often, this is based on the ventures business, its geographic scope, or a combination of the two. The purpose and scope of the venture is critical in drafting the non-competition provisions. The investors should also consider how long the noncompetition and exclusivity provisions will last following the exit of one of the parties. Access to Intellectual Property It is common for parties to provide intellectual property to run the venture. In todays environment, this is commonly assumed to be technology, but it can also include trademarks, copyrights, or even client lists and other knowhow. Consequently, investors will need to determine how the joint venture will obtain these intellectual property rights as well as what to do about future intellectual property developed by both the contributing investor and the joint venture itself. These issues can be exacerbated further if the venture operates internationally, as the default rules may be different in each jurisdiction. As mentioned previously, it will be important for the party contributing the intellectual property to have a clear understanding of what will happen to their rights upon termination of the venture or sale of their ownership interests.

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Key issues in negotiating intellectual property issues include whether a license is exclusive, revocable, limited to a given time period, and renewable. Issues of transferability, limits on liability, confidentiality, and quality control are also important, as is whether the licensor has the right to use new intellectual property developed from the license. Finally, exclusivity of use and limits based on geography or other factors must be determined. Dispute Resolution Disputes will inevitably arise among the investors during the life of a joint venture. As a result, the joint venture agreement should contain a mechanism for resolving these disputes beyond termination. The common methods of dispute resolution include escalation to senior officers, mediation, arbitration, and litigation. Often, these are used in conjunction with each other, providing a method of escalating an issue before it can threaten the joint venture itself. Escalation is usually considered to be the first alternative to dispute resolution. The investors state that, if the individuals within the venture cannot resolve a problem, they will take it to their superiors. Often, however, the superiors are not able to resolve the matter, and more formal dispute resolution mechanisms are required, as describe below. For example, mediators are a common resource to reconcile differences between investors. Mediators are often able to work out a compromise that is satisfactory to each. The joint venture agreement should set out provisions establishing how mediators are selected and for what purpose. For example, major accounting firms are often chosen to resolve certain financial disputes. The key aspect of mediation is that it works only as far as both parties are willing to compromise. Arbitration has also become a popular dispute resolution mechanism, particularly in cross-border joint ventures. Arbitration can be particularly useful when the governing law or location of the venture would make litigation potentially subject to bias or simply impracticable. In drafting a proper arbitration provision, the parties must be clear about where the arbitration will take place, how it is to be governed, and its proper subjects.

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Litigation is the most common method of resolving a dispute in a U.S. joint venture. However, it can often be expensive and time-consuming. In addition, litigation may not always be practical in cross-border joint ventures, where the investors may not trust particular court systems or the relevant court system may not be able to provide a satisfactory resolution. When joint venture agreements provide for litigation as a dispute resolution mechanism, it is important that the agreement provide for the location of the litigation, consent of the investors to appear before such courts, and the governing law to be used. Termination Although nobody wants to think about termination at the formation of a venture, it is an issue that must be addressed from the outset. The parties should be clear about what events will trigger a termination. In some cases, it will be obvious. For example, a venture formed to develop an office building could clearly terminate upon completion of the project. However, most ventures do not have such a clear lifespan. In those cases, the parties must determine what qualifies as a termination event and the appropriate method of termination. Typical triggering events include material breach or default of the joint venture agreement, bankruptcy of an investor or the entity itself, change of control of an investor, significant government action, or failure to receive material approval, and deadlock or impasse about a material issue. In some cases, the investors will want the venture to be dissolved upon termination. This may be because they want their assets returned to them or want to compete with the venture. This can result in complicated termination and winding up provisions. In other cases, an investor may be happy for the venture to continue without its participation. In those cases, the termination can be resolved through the liquidity provisions discussed earlier. It is important that the investors agree upon a well-defined, fair, and effective exit strategy for unwinding the joint venture arrangements. A good exit strategy will significantly enhance the value of the joint venture and the

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liquidity of the interests for each investor. However, the exit strategy needs to balance a number of competing factors, including: Long-term security for the investors as well as the customers and business of the venture Protection from an unwanted investor Maximization of value and ensuring liquidity for the investors Ability to realize value from the venture when it makes sense for the investment

In most joint ventures, no single party has complete control. If one of the investors could have constructed the joint venture on its own, it would not have included the other parties. As a result, control is often a highly negotiated aspect of the joint venture. Unfortunately, however, the negotiators cannot foresee all potential problems. Commonly, if the parties are struggling to agree upon the control provisions during the negotiation phase, it is likely they will face disagreements during the course of the joint venture itself. This is particularly problematic if the scope and purpose of the venture are not clearly defined; disputes can then arise over what are legitimate opportunities for the venture as compared to opportunities for the individual investors.

Mark Thompson is a corporate partner in King & Spaldings London office, where his practice focuses on international and cross-border transactions. He has extensive experience in mergers and acquisitions, leveraged buyouts, contested proxy solicitations, joint ventures, and corporate finance transactions. Mr. Thompsons practice also involves the representation of investment banks in their capacity as financial advisors in merger and acquisition and corporate finance transactions. He has represented clients in a number of industries, including the oil and gas, telecommunications, technology, banking and finance, health care, transportation/logistics, and retail industries.
Mr. Thompson received his J.D., cum laude, from the Harvard Law School in 1995 and graduated Phi Beta Kappa and summa cum laude from Bowdoin College in 1992. Mr. Thompson is a member of the New York State Bar, the State Bar of Georgia, and the District of Columbia Bar.

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Bill Baxley is a corporate partner in King & Spaldings Atlanta office. His primary
practice areas include mergers and acquisitions, joint ventures, and corporate governance. Mr. Baxley has extensive experience in the full range of merger and acquisition transactions, including public company mergers, private company acquisitions and dispositions, joint ventures, strategic investments, going private transactions, special committee representations, tender offers, and proxy contests. His practice involves a number of industries including banking and finance, consumer products, telecom, insurance, biotech, transportation, retail, and restaurants. Mr. Baxley is a member of the firms policy committee and has served in various other leadership roles within the firm, including as co-head of the merger and acquisition practice group. Mr. Baxley graduated, summa cum laude, from the University of Alabama in 1986 and received his J.D., magna cum laude, from Harvard Law School in 1989.

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