| Introduction |
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3 | (1) |
| Part One |
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3 | (14) |
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The nature of international joint venture: theory, practice, and power |
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3 | (14) |
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Definition of an international joint venture |
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6 | (2) |
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Synonyms for an international joint venture |
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8 | (2) |
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Why companies choose international joint ventures for doing business |
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10 | (1) |
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10 | (1) |
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Capital structure and negotiations |
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11 | (1) |
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Documentation, including the shareholders' agreement |
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11 | (1) |
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12 | (1) |
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The protection of ownership rights, including management functions |
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13 | (1) |
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Dispute resolution and termination |
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14 | (1) |
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15 | (1) |
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16 | (1) |
| Part Two |
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17 | (3) |
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17 | (3) |
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Foreign investor, home jurisdiction, foreign jurisdiction, host country, and national or local investor |
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17 | (1) |
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Venture party, partners, and owners |
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18 | (1) |
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Operating company, local company, object corporation, target corporation, joint venture vehicle, or joint venture form |
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18 | (2) |
| 1 The Commercial Aspects of the International Joint Venture |
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20 | (1) |
| Part One |
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20 | (5) |
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Why companies establish themselves in foreign markets |
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20 | (5) |
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21 | (1) |
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New economic zones as future markets |
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22 | (1) |
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22 | (1) |
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Product image and technical assistance |
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23 | (1) |
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New products, new ideas, and technology transfer |
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24 | (1) |
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Miscellaneous reasons: from resources to capital |
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25 | (1) |
| Part Two |
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25 | (14) |
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Why choose an international joint venture as a form for doing business? |
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25 | (14) |
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27 | (1) |
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Capital flexibility: increasing and decreasing the joint venture capital |
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27 | (1) |
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Return on capital, interest reductions, and tax exemptions |
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28 | (1) |
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Organizational flexibility |
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29 | (2) |
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31 | (1) |
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32 | (1) |
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Cultural aptitude, knowledge of local business, and moral customs |
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33 | (1) |
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Complementary knowledge creates economies of goods and services |
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34 | (1) |
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35 | (1) |
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36 | (1) |
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37 | (1) |
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Requirements for international joint venture by host countries |
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37 | (1) |
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37 | (1) |
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38 | (1) |
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Realization of capital gains |
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38 | (1) |
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Avoidance of multiple fractional interests because of inheritance |
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39 | (1) |
| Part Three |
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39 | (15) |
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The characteristics of an international joint venture |
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39 | (15) |
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Diversity of legal methods |
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42 | (3) |
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45 | (1) |
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Convergence of legal methods and legal forms |
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45 | (1) |
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International joint ventures raise specific problems of documentation |
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46 | (1) |
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Contractual joint ventures, also known as the unincorporated joint venture |
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47 | (1) |
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Contractual joint venture definition |
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48 | (1) |
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Partnership: contractual or equity joint venture? |
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48 | (1) |
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49 | (1) |
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Equity joint venture definition |
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50 | (1) |
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Particular legal issues may alter general definition |
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50 | (1) |
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Management rights as property rights |
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51 | (1) |
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Summary of characteristics of equity joint ventures |
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52 | (2) |
| Part Four |
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54 | (1) |
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Foreign regulation of international joint ventures |
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54 | (1) |
| 2 The International Joint Venture: Method |
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55 | (1) |
| Part One |
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55 | (5) |
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Various methods and possible commercial alliances |
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55 | (5) |
| Part Two |
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60 | (7) |
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60 | (7) |
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60 | (1) |
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61 | (1) |
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61 | (2) |
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63 | (1) |
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Unincorporated joint ventures also denominated consortiums |
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63 | (1) |
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64 | (3) |
| Part Three |
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67 | (7) |
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Technology licensing: routes of collision and avoidance with the joint venture |
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67 | (7) |
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Licensing of technology: patents, copyright, trademarks, trade secrets, and know-how |
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68 | (1) |
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Why technology licenses are often associated with joint ventures |
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69 | (2) |
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Technology licenses and joint ventures: legal precautions |
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71 | (1) |
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72 | (1) |
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Loss of expansion in market |
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72 | (1) |
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73 | (1) |
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License termination, consequences, and avoidance |
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73 | (1) |
| Part Four |
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74 | (8) |
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74 | (8) |
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75 | (1) |
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Distributorships, agency contracts, and sales representation |
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76 | (3) |
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Sale of assets or a division |
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79 | (1) |
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80 | (2) |
| Part Five |
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82 | (15) |
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Various methods for forming international joint ventures |
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82 | (15) |
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Advantages of acquisition as a method |
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82 | (2) |
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Disadvantages of acquisition as a method |
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84 | (2) |
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Summary of advantages and disadvantages of the method of acquisition |
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86 | (1) |
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Advantages of method of forming a subsidiary |
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87 | (2) |
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Disadvantages of the method of forming a subsidiary |
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89 | (1) |
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Summary of advantages and disadvantages of method of forming a subsidiary |
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89 | (1) |
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Advantages of the method of merger |
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90 | (2) |
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Disadvantages of the method of merger |
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92 | (1) |
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Advantages of the method of forming a partnership |
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93 | (1) |
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Disadvantages of the method of forming a partnership |
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94 | (1) |
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Advantages and disadvantages of the method of forming an unincorporated joint venture |
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95 | (1) |
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Profit-sharing management contract: advantages and disadvantages as a method |
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95 | (2) |
| Part Six |
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97 | (20) |
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Time, simplicity, cost, and management objectives |
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97 | (20) |
| 3 The Various Forms of The International Joint Venture Shelter |
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117 | (1) |
| Part One |
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117 | (12) |
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Essential joint venture characteristics for review by owners and managers |
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117 | (12) |
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Thirteen essential joint venture characteristics |
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119 | (9) |
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128 | (1) |
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Advantages and disadvantages to various forms regarding the thirteen characteristics |
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128 | (1) |
| Part Two |
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129 | (14) |
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Thirteen characteristics of a share corporation |
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129 | (14) |
| Part Three |
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143 | (13) |
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Thirteen characteristics of a private limited liability company |
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143 | (13) |
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146 | (1) |
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146 | (1) |
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147 | (1) |
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148 | (1) |
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Effect on private agreement of form chosen |
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149 | (1) |
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Restriction on sale of ownership interests |
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150 | (1) |
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Financial engineering flexibility |
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150 | (1) |
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How ownership interests are represented and transferred |
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151 | (1) |
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Formalities of formation and subsequent reporting requirements |
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152 | (1) |
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153 | (1) |
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153 | (1) |
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Monitoring the investment |
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153 | (1) |
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154 | (1) |
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Summary of advantages and disadvantages in the private limited liability company as a legal form |
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155 | (1) |
| Part Four |
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156 | (7) |
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Thirteen characteristics of a general partnership |
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156 | (7) |
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157 | (1) |
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158 | (1) |
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158 | (1) |
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158 | (1) |
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Effect on private agreement of form chosen |
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159 | (1) |
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Restriction on sale of ownership interests |
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160 | (1) |
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Financial engineering flexibility |
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160 | (1) |
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How ownership is represented and transferred |
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160 | (1) |
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Formalities of formation and subsequent reporting requirements |
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160 | (1) |
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161 | (1) |
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161 | (1) |
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Monitoring the investment |
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161 | (1) |
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162 | (1) |
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Summary of advantages and disadvantages of general partnership as a legal form |
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162 | (1) |
| Part Five |
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163 | (6) |
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Thirteen characteristics of an unincorporated joint venture |
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163 | (6) |
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165 | (1) |
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165 | (1) |
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165 | (1) |
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166 | (1) |
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Effect on private agreement of form chosen |
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166 | (1) |
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Restriction on sale of ownership interests |
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166 | (1) |
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Financial engineering flexibility |
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166 | (1) |
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How ownership is represented and transferred |
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167 | (1) |
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Formalities of formation and subsequent reporting requirements |
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167 | (1) |
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167 | (1) |
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167 | (1) |
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Monitoring the investment |
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168 | (1) |
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168 | (1) |
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Summary of advantages and disadvantages in the unincorporated joint venture as a legal form |
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168 | (1) |
| Part Six |
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169 | (3) |
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Final practical considerations concerning joint venture formation |
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169 | (3) |
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Acquisition or formation of a subsidiary? |
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170 | (2) |
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The preferred legal form of the international joint venture |
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172 | (1) |
| Part Seven |
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172 | (5) |
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Summary of distinguishing aspects of an international joint venture |
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172 | (5) |
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174 | (1) |
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175 | (2) |
| 4 Capital Structure and Negotiations |
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177 | (1) |
| Part One |
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177 | (23) |
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Introduction to capital structure and negotiations |
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177 | (23) |
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Capital structure: cash, assets, agreed contributions, loans, and guarantees |
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178 | (3) |
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Capital structure and consolidated accounts |
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181 | (2) |
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Capital control without a majority interest |
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183 | (2) |
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Capital control and threshold requirements |
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185 | (3) |
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Threshold requirements and the articles of the company |
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188 | (1) |
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Threshold requirements and the shareholders' agreement |
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188 | (2) |
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Capital control and corporate division of power |
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190 | (1) |
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Capital structure and accounting rules for profit determination |
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191 | (2) |
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Capital structure and financing |
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193 | (2) |
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Capital structure and long-term debt |
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195 | (2) |
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Capital structure and all debt |
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197 | (1) |
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Capital structure and alternatives to equity contribution |
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198 | (1) |
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Capital structure and competition law: the problem of control |
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199 | (1) |
| Part Two |
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200 | (13) |
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Introduction to negotiations |
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200 | (13) |
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The cultural and political environment |
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202 | (1) |
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General foreign investment considerations |
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203 | (1) |
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Basic information about target company or partners |
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204 | (1) |
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Suggestions as to general rules of conduct during negotiations |
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205 | (2) |
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Determination of the scope of the joint venture |
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207 | (2) |
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Assets and financing of the joint venture |
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209 | (1) |
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Legal structure of the joint venture |
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209 | (1) |
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Operational issues of management and control |
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210 | (1) |
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Relationship between the joint venture company and the partners |
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211 | (1) |
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212 | (1) |
| 5 Documentation, Ownership, and Management |
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213 | (1) |
| Part One |
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213 | (10) |
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213 | (10) |
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215 | (1) |
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216 | (1) |
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The confidentiality agreement |
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217 | (1) |
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The joint venture agreement |
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218 | (1) |
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Agreed due diligence procedures |
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218 | (1) |
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The shareholders' agreement |
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218 | (1) |
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The board of directors' agreement |
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219 | (1) |
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219 | (1) |
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220 | (1) |
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Agreed budget and operating plan for a specified period, for example 3 to 5 years |
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220 | (1) |
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Confirmation of events leading to the closing |
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220 | (3) |
| Part Two |
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223 | (7) |
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How documents contribute toward effective ownership and management |
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223 | (7) |
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Preliminary documents: the negotiations phase |
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226 | (1) |
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227 | (1) |
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Declaration of informality |
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228 | (1) |
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228 | (1) |
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Form of the letter of intent and its function |
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228 | (1) |
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Advantages and disadvantages of the letter of intent |
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229 | (1) |
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The letter of intent is not a contract |
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229 | (1) |
| Part Three |
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230 | (3) |
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The confidentiality agreement |
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230 | (3) |
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Defining the subject matter of confidential information |
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231 | (1) |
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Management of confidential information |
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231 | (2) |
| Part Four |
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233 | (27) |
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The joint venture agreement |
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233 | (27) |
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Withdrawal from the joint venture |
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234 | (1) |
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Interpretation source for ownership rights and management functions |
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234 | (1) |
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Survival of the joint venture agreement |
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235 | (2) |
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The basic clauses of a joint venture agreement: purpose and drafting |
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237 | (23) |
| Part Five |
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260 | (16) |
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Representations and warranties: warranties assign risk |
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260 | (16) |
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General warranties of particular interest to management |
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266 | (1) |
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Warranties concerning trading terms |
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266 | (1) |
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Warranties concerning preclosing business practices |
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267 | (1) |
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Warranties concerning assets |
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268 | (1) |
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Warranties concerning the accounts |
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268 | (1) |
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Warranties concerning employees |
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269 | (1) |
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Warranties concerning insurance |
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270 | (1) |
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Warranties concerning the environment |
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270 | (1) |
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Warranties of a legal nature |
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271 | (1) |
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Warranties of a financial nature |
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271 | (1) |
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272 | (2) |
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Due diligence procedures: the discovery of risk |
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274 | (1) |
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Termination of the joint venture and dispute resolution |
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274 | (2) |
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276 | (1) |
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Miscellaneous clauses: assignment, expenses, notices, and brokers |
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276 | (1) |
| Part Six |
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276 | (7) |
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Recommended, optional documentation |
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276 | (7) |
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Board of directors' agreement |
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278 | (1) |
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279 | (1) |
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280 | (1) |
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Joint venture agreement: conclusions |
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281 | (2) |
| 6 The Shareholders' Agreement |
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283 | (1) |
| Part One |
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283 | (15) |
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The shareholders' agreement: a primary tool for management |
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283 | (15) |
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286 | (1) |
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286 | (1) |
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Irrevocable power of attorney |
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287 | (1) |
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The traditional private use of the shareholders' agreement |
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287 | (4) |
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The characteristics of the shareholders' agreement |
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291 | (2) |
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293 | (1) |
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Formalities: deposit requirements |
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294 | (1) |
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295 | (1) |
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Prohibited aspects of the shareholders' agreement |
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295 | (1) |
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The theory of the self-enforcing, no-exit legal circuit |
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296 | (1) |
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The ownership and managerial effectiveness of a shareholders' agreement |
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297 | (1) |
| Part Two |
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298 | (17) |
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Protection against unfair tactics and push-out attempts: a general view |
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298 | (17) |
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Amendments to the company articles |
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299 | (1) |
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Name of the joint venture company |
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299 | (1) |
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300 | (1) |
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Distribution of dividends |
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300 | (1) |
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Nomination to board of directors |
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301 | (1) |
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Voting on the board of directors |
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301 | (1) |
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Location of board meetings, nonvoting observers, and technical committees |
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302 | (1) |
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Secret purchase of majority shares |
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303 | (1) |
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One partner buys equity interests and does not inform the other partners |
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304 | (1) |
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Annual budget, capital expenditures, expansion plans, and disposal of assets |
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304 | (1) |
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Loan provisions, guarantees, and encumbrances |
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305 | (1) |
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Purchase or disposal of equity interests |
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305 | (1) |
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306 | (1) |
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Litigation authorized by the board of directors |
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306 | (1) |
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307 | (1) |
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Providing additional capital |
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307 | (1) |
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Augments of capital, issuance of authorized shares, and stock dividends |
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307 | (1) |
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308 | (1) |
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Exorbitant salaries: contracts |
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308 | (1) |
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Appropriation of corporate assets |
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309 | (1) |
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Sale of corporate assets or contracts with third parties |
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309 | (1) |
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Profiting from insider information or other opportunities |
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309 | (1) |
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Material contracts above a certain amount |
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309 | (1) |
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Placement of key personnel |
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310 | (1) |
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Language ability of personnel |
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310 | (1) |
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310 | (1) |
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Prohibition on dismissed employees working for one of the partners |
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311 | (1) |
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Change of control, decease of a partner, or prolonged illness |
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311 | (1) |
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Termination of the joint venture |
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311 | (2) |
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Continuation of business after the joint venture has been terminated |
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313 | (1) |
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Disposal of assets after the joint venture has been terminated |
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313 | (1) |
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Post-termination obligations |
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314 | (1) |
| Part Three |
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315 | (2) |
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Ten practical considerations |
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315 | (2) |
| Part Four |
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317 | (14) |
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Amendments to the company articles |
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317 | (14) |
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Name of the joint venture company |
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318 | (1) |
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318 | (1) |
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Distribution of dividends |
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319 | (1) |
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Nomination to the board of directors |
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319 | (1) |
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Voting on the board of directors |
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319 | (1) |
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Location of board meetings, nonvoting observers, and technical committees |
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320 | (1) |
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Secret purchase of majority shares |
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320 | (1) |
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One party buys equity interests and does not inform the other partners |
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321 | (1) |
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Annual budget, capital expenditures, expansion plans, and disposal of assets |
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321 | (1) |
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Loan provisions, guarantees, and encumbrances |
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321 | (1) |
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Purchase or disposal of equity interests |
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321 | (1) |
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322 | (1) |
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Litigation authorized by the board of directors |
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322 | (1) |
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322 | (1) |
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Providing additional capital |
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322 | (1) |
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Augments of capital, issuance of authorized shares, and stock dividends |
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323 | (1) |
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323 | (1) |
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Exorbitant salaries: contracts |
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324 | (1) |
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Appropriation of corporate assets |
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325 | (1) |
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Sale of corporate assets or contracts with third parties |
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325 | (1) |
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Profiting from insider information and other opportunities |
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325 | (1) |
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Material contracts above a certain amount |
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326 | (1) |
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Placement of key personnel |
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326 | (1) |
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Language ability of key personnel |
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327 | (1) |
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327 | (1) |
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Prohibition on dismissed employees working for one of the partners |
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327 | (1) |
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Change of control, decease of a partner, or prolonged illness |
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328 | (1) |
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Termination of the joint venture |
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329 | (1) |
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Continuation of business after the joint venture has been terminated |
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329 | (1) |
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Disposal of assets after the joint venture has been terminated |
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330 | (1) |
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The shareholders' agreement: the kingpin of conflict resolution |
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330 | (1) |
| 7 Due Diligence Procedures: Commercial, Legal, and Financial |
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331 | (1) |
| Part One |
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331 | (8) |
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331 | (8) |
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Applications of due diligence procedures other than in joint ventures |
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334 | (1) |
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The proper place and time in which to conduct due diligence procedures |
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335 | (1) |
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Classification of due diligence procedures |
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336 | (2) |
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Seller: warranties that should not have been made |
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338 | (1) |
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Seller: business is not as good as represented |
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338 | (1) |
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Seller and buyer: revelation of potential sale |
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338 | (1) |
| Part Two |
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339 | (21) |
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Commercial due diligence procedures: general objectives |
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339 | (21) |
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Commercial due diligence: common problems |
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341 | (1) |
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Other joint ventures: relevance |
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342 | (1) |
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Other joint ventures: risk |
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342 | (1) |
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Other joint ventures: resolution |
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343 | (1) |
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Organization chart: relevance |
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343 | (1) |
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344 | (1) |
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Organization chart: resolution |
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344 | (2) |
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346 | (1) |
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347 | (1) |
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347 | (1) |
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Employee benefits: relevance |
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348 | (1) |
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348 | (1) |
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Employee benefits: resolution |
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349 | (1) |
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349 | (1) |
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350 | (1) |
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350 | (1) |
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Harmonization of departments through knowledge management: relevance |
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351 | (1) |
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Harmonization of departments through knowledge management: risk |
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352 | (1) |
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Harmonization of departments through knowledge management: resolution |
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352 | (1) |
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Worker organizations with management functions or powers: relevance |
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353 | (1) |
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Worker organizations with management functions or powers: risk |
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354 | (1) |
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Worker organizations with management functions or powers: resolution |
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354 | (1) |
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Expatriate laws: relevance |
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354 | (1) |
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355 | (1) |
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Expatriate laws: resolution |
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355 | (1) |
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Compensation of directors, officers, and shareholders: relevance |
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356 | (1) |
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Compensation of directors, officers, and shareholders: risk |
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356 | (1) |
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Compensation of directors, officers, and shareholders: resolution |
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356 | (1) |
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Resignations and appointments to the board: relevance |
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357 | (1) |
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Resignations and appointments to the board: risk |
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357 | (1) |
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Resignations and appointments to the board: resolution |
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358 | (1) |
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Environmental issues: relevance |
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359 | (1) |
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Environmental issues: risk |
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360 | (1) |
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Environmental issues: resolution |
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360 | (1) |
| Part Three |
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360 | (13) |
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Financial due diligence procedures: general objectives |
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360 | (13) |
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362 | (2) |
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Discretionary items that affect joint venture results |
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364 | (2) |
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366 | (1) |
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367 | (2) |
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369 | (1) |
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370 | (1) |
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371 | (1) |
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Physical inspection of the site |
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372 | (1) |
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372 | (1) |
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373 | (1) |
| Part Four |
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373 | (13) |
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Legal due diligence procedures |
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373 | (13) |
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Review of corporate charter, by-laws, and all amendments |
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375 | (1) |
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376 | (1) |
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377 | (1) |
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378 | (1) |
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379 | (1) |
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List of all directors and term of office |
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380 | (1) |
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Contracts with directors and/or employees |
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380 | (1) |
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381 | (1) |
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Review of all material supply and manufacturing contracts |
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381 | (1) |
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Review of transfers of technology, trade secrets, and know-how |
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382 | (1) |
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382 | (1) |
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Study and review of all litigation records |
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383 | (1) |
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Legal/results of investigation |
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384 | (1) |
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Legal/checklist for managers |
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384 | (2) |
| 8 How to Protect Ownership Rights and Management Functions: Customizing the International Joint Venture |
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386 | (1) |
| Part One |
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386 | (12) |
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The nature of the problem: ownership rights and company structure |
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386 | (12) |
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The natural division of authority in companies |
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391 | (5) |
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Management models: board of directors, general director, and operational manager |
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396 | (2) |
| Part Two |
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398 | (6) |
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The powers of the general assembly |
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398 | (6) |
| Part Three |
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404 | (3) |
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Supermajority vote requirements |
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404 | (3) |
| Part Four |
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407 | (3) |
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Management board composition |
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407 | (3) |
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Management board voting system |
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408 | (2) |
| Part Five |
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410 | (1) |
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Dismissal rights over the board of directors |
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410 | (1) |
| Part Six |
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411 | (4) |
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411 | (4) |
| Part Seven |
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415 | (2) |
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Customizing the international joint venture |
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415 | (2) |
| 9 Dispute Resolution and Terminations |
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417 | (1) |
| Part One |
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417 | (20) |
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Introduction to dispute resolution |
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417 | (20) |
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419 | (2) |
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Introduction to mediation |
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421 | (2) |
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Issues relating to mediation |
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423 | (5) |
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428 | (2) |
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430 | (4) |
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434 | (3) |
| Part Two |
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437 | (6) |
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437 | (6) |
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Termination by failure of a preclosing condition |
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439 | (1) |
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Termination because the term of the joint venture is completed |
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440 | (1) |
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Contractual joint venture: reasons for termination |
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440 | (2) |
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Equity joint venture: reasons for termination |
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442 | (1) |
| Part Three |
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443 | (14) |
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Contractual and equity joint ventures: issues to be considered on termination |
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443 | (5) |
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Post-termination restraints on commercial conduct |
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443 | (1) |
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Termination: continuation of the joint venture |
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444 | (1) |
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Termination: continuation of contractual obligations |
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445 | (1) |
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Termination: existing liabilities of the withdrawing partner |
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446 | (1) |
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Contractual and equity joint ventures: termination issues |
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446 | (2) |
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448 | (9) |
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Overall view of the closing process |
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448 | (8) |
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456 | (1) |
| Select Bibliography |
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457 | (2) |
| Index |
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459 | (18) |
| About the Author |
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477 | |
Lisainfo e-raamatute kohta