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JOINT VENTURES vol 19(2)

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JOINT VENTURES vol 19(2)

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About this title—authors, overview

Commentary

2 Reasons for co-operation

5 Disadvantages of a contractual joint venture

6 Common types of contractual joint venture

7.1 Company or partnership?

7.2 Forms of partnership

7.3 European Economic Interest Groupings (‘EEIGs’)

9 Disadvantages of a partnership joint venture

10 Advantages of a limited liability partnership joint venture

11 Disadvantages of a limited liability partnership joint venture

12 Advantages of a corporate joint venture

14.1 Decision making

14.2 Directors

14.3 Company formation and constitutions

14.5 Keeping the law up to date

15 Key issues for all joint venture agreements

16 Specific considerations for contractual joint ventures

17 Specific considerations for structural joint ventures

18 Subsidiary agreements

19 The significance of the tax position

20 Main tax advantages of the different types of joint venture

21 The overseas element

22 Anti-competitive agreements

23 Abuse of a dominant position

25 Market investigations

26 The purpose and scope of a contractual joint venture

27 The duration of a contractual joint venture

28.1 Consortium bids

28.2 Project agreements

28.3 Research and development agreements

28.4 Specialisation agreements

29.1 Consortium bids

29.2 Project agreements

29.3 Specialisation agreements

29.4 Research and development agreements

30 The ownership of any assets used in a contractual joint venture

31.1 The general rule—no allocation

31.2 An example of separate and independent profits

31.3 Research and development agreements

32 Tax

33 Deadlock provisions

34 Breach, termination and dispute resolution provisions

35 Retirement from the project

38 Reasons for avoiding a partnership

40.1 Separate and independent businesses

40.2 Separate accrual of profits

41 Restricting the participants’ authority

42 Separate taxation in relation to profits of a contractual joint venture

43 Loss relief

44 Commencement of a contractual joint venture

45 Termination of a contractual joint venture

46 Competition law post Brexit

47.1 General

47.3 Arrangements which ‘may affect trade between member states’

48.1 The effect on the agreement itself

48.2 Possible claims by injured parties before the national court

48.3 Fines and penalties

49.2 Invoking the de minimis rule

49.3 Individual exemption

51 Introduction to the horizontal co-operation block exemptions

52.2 The scope of the specialisation agreements block exemption

52.4 Hardcore restrictions

52.5 Withdrawal of the benefit of the block exemption

53.1 Overview of the research and development block exemption

53.2 Scope of the research and development block exemption

53.3 Conditions for exemption

53.4 Market share threshold and duration of exemption

53.5 Hardcore restrictions

53.6 Excluded restrictions

54 Purpose of the guidelines

55.1 The types of agreement covered

55.2 Combined agreements

55.3 Vertical agreements

57.1 General

57.2 The nature of the agreement

58.1 General

58.2 Efficiency gains

58.3 Fair share for consumers

58.4 Indispensability

58.5 No elimination of competition

59 The remaining chapters of the horizontal co-operation guidelines

60 Introduction to the Competition Act 1998

61.1 Contravention of the Chapter I prohibition

61.2 Exclusions from the Chapter I prohibition

61.4 Chapter I prohibition-exemptions

61.5 The Chapter I prohibition and joint ventures

61.7 Disqualification of directors under the Enterprise Act 2002

63.2 Relevant factors in assessing dominance

63.3 The relevant market

63.4 An illustration of dominance

64.1 General

64.2 The Article 102 list

65 Abuses which ‘may affect trade between member states’

67 Contravention of the Chapter II prohibition

68 Exclusions from the Chapter II prohibition

69 The effect of contravening the Chapter II prohibition

71 Effect of the articles of association of a corporate joint venture company

73.1 The parties’ expectations

74.1 Common amendments

74.2 Invalid amendments

74.3 Other limitations on amending the articles

75.1 General

75.3 Impact on the drafting of a shareholders’ agreement

76.1 General

76.2 Inconsistent articles’ impact on pre-existing shareholders’ agreements

76.3 The significance of the Duomatic decision

76.4 The combined effect of Duomatic and Russell

78.1 General

78.2 Main categories of subsidiary agreement

78.3 General principles relating to subsidiary agreements

80.1 Premises

80.2 Other tangible assets

81.2 Ownership of rights

81.3 Assignment or licence

81.4 Registration of an assignment or licence

81.5 Main terms of a typical licence

81.6 Ownership and exploitation of intellectual property created by the corporate joint venture

82 Purchase of an existing business

84.1 General

85 Recitals

86 Definitions

87 The shelf company

88.1 Board appointments

89.1 Decisions relating to the company’s capital

89.2 Other changes to the company’s articles

90 Incorporation of resolutions into the shareholders’ agreement

91.1 Initial commitment

91.2 Further finance from the joint venture shareholders

92 Distribution policy

93.1 General

93.11 Restrictions that may be accepted by the shareholders and the company: transactions involving directors, employees and consultants

93.12 Restrictions that may be accepted by the shareholders and the company: litigation

93.13 Ensuring that the shareholders have adequate information to make decisions

93.2 Directors’ statutory duties

93.4 No fiduciary duty between shareholders

93.5 Derivative claims under the Companies Act 2006

93.6 The need for written consent in relation to certain decisions

93.7 Restrictions that should be accepted by the shareholders alone

93.8 Restrictions that may be accepted by the shareholders and the company: general principles

95 The aim of deadlock provisions

96.1 Types of dispute to which the deadlock provisions are to apply

96.3 Escalation clauses

96.4 Russian roulette

96.5 Termination of a joint venture agreement

97 Damages, specific performance and injunctions

98 Termination of the shareholders’ agreement for breach and on other grounds

99 Dispute resolution

100 The need for restrictions on transfer

101.1 The transfer notice

101.2 Valuation of the shares

101.3 Notification and offers

101.4 Completion

102 Location of pre-emption procedures

103.2 Types of agreement and public policy considerations

104 Termination of a corporate joint venture

105 Winding up of a joint venture company

106 The main remedies for breach of a shareholders’ agreement

107.1 Damages

107.2 Equitable remedies

108 Leaving a corporate joint venture

109.1 Companies Act 2006 Section 994

109.2 The meaning of unfair prejudice

109.3 Unfair prejudice in the context of a shareholders’ agreement

109.5 Remedies for unfair prejudice

109.7 Discounts and premiums

110 Petitioning for the winding up of a company

111 Transfers into a corporate joint venture—general principles

112 Availability of roll-over relief

114 Stamp duty, stamp duty land tax and VAT

115 Taxation of trading profits

116 Payment of dividends and interest

119.2 ‘Consortium claims’

120 Chargeable gains and losses

121 Exemption for disposals of substantial shareholdings

122 Pre-sale dividends

123 Equity or loan capital

124 Transfer pricing

125 Trading through a permanent establishment

126 The objectives of anti-avoidance provisions

127 Controlled foreign companies

128 Capital gains of non-resident close companies

129 Double taxation relief

130 Overview

131 The general application of the anti-trust rules to corporate joint ventures

132.4 Hardcore restrictions

132.5 Excluded restrictions

132.6 Withdrawal of the block exemption

132.7 Non-application of the block exemption

132.8 Transitional period and period of validity

133 The distinction between co-operation and concentration

134 The requirement of a ‘Community dimension’

135 Jurisdiction of the European Commission

136 Notification

137 European Commission’s decision

138.2 Definition of ‘joint venture’

138.4 ‘On a lasting basis’

138.5 Ancillary restrictions

138.6 Co-ordination of competition as a direct consequence of the joint venture

140.1 Jurisdictional matters

141 The role of the Competition and Markets Authority Panel

143 Appeals

144 Special cases

145 UK market investigations under the Enterprise Act 2002

149 The default code in the Partnership Act 1890

150 Proposed changes

151 The importance of subsidiary agreements

152 The underlying duty

153.1 Relevant sections

153.2 Duty to render true accounts

153.3 Duty to account for private profit

153.4 Duty not to compete

154 Good faith clauses

155 Debts and obligations incurred while it is a partner

156 Debts and obligations incurred after a partner leaves the partnership

157 Impact on the drafting of the joint venture partnership agreement

158 The common law background

160 Other cases in which the firm is liable

163 Fixed or indefinite term?

164.1 Initial commitment

164.2 Further finance from the joint venture partners

165.1 Income profits and losses

165.2 Drawings of partnership money

166 The provisions of the Partnership Act 1890

168 Decisions that may be taken by one partner alone

169 Decisions that require a majority

171 Recording decisions

172 The aim of deadlock provisions

174 Retirement

177 Buying out the outgoing partner

178.2 Legitimate business interests of the business

179 Situations in which a partnership will be dissolved

181 Insolvent partnerships

182 Transfers into the joint venture partnership—general principles

184 Taxation of trading profits

185 Disposal by the joint venture partnership of a chargeable asset

186 Chargeable gains and losses

187 Deferment of gains

188 Trading through a permanent establishment

189 The general application of the anti-trust rules to joint venture partnerships

190 Bribery Act 2010

191 The impact on joint ventures

Stop drafting from scratch and work more productively.

Offering an unrivalled collection of non-litigation precedents for everything specialist and generalist practitioners are likely to encounter.

TAKE A FREE TRIAL