Doing Business in New Caledonia

Download Report

Transcript Doing Business in New Caledonia

7th Australia New Caledonia Business Forum Brisbane 8 July 2011

•

Know your partner

•

Protect your assets

•

Manage the relationship

•

Certificate of registration:

–

Type of entity

–

Management

–

Solvency

•

Choose your structure:

–

Branch/ company

•

Advantages

– Cheap to set up / run – Local knowledge – Confidence with clients and authorities – IP remains with Australian entity – Direct control by head office •

Disadvantages

– Direct commercial and legal risk – Management of double taxation impact on local profits – No local partner other than as employee

•

Advantages

– More permanent – More confidence with local clients and authorities – Local partner possible – Liability limited to local market •

Disadvantages

– More expensive to run – Statutory regime to comply with – More complex contractual set-up with mother company

• • •

No limitation on nationality of shareholders No limit on foreign investment French particularities:

– Share capital: • Minimum amount, obligation to pay up at incorporation • Contributions: cash / assets / labour – Company tax or shareholder taxation

Full name Equivalent in Australia Members Liability of members Share capital requirement SARL

Société à responsabilité limitée Pty Ltd Min.1 and max.100

Individuals Corporate entities Limited Min. $ 1

SAS

Société par actions simplifiée Simplified Ltd Min. 1 Individuals Corporate entities Limited Min. $ 1

Société anonyme Ltd Min. 7 Individuals Corporate entities Limited Min. $ 54,000

Contributions

One or more managers Director(s) incl. “President” Choice of management structure Board of directors Chairman of Board General Director (executive) For convenience, amounts are converted into Australian dollars

•

Protecting your assets overseas

•

Managing your overseas team

•

Managing shareholders relations

•

Industrial/Intellectual property

– Key asset – Register trademarks/ logo/ patents/ designs/ domain names etc. over the territory – Ascertain which entity is the owner of the IP – Set up a licence contract with local entity

•

No compete clause

– Local joint venture partner: • In a shareholders’ agreement • In a management agreement – Local staff: • In employment contracts – Must be reasonable and limited as to area, duration and type of activity

•

Retention of title clause:

– Easier reclaim of unpaid goods or equipment – Must be express – Only applies to identifiable goods/equipment

• • • •

Confidentiality clause No compete clause Reporting Scope and limits of authority

– In employment contract – In constitution of local company • Assumption of broadest authority with third parties • Joint managers • If exceeds authority: remedies

•

Key clauses

– In shareholders’ agreement, constitution or in management agreement – Clauses: • Duties, scope of authority • Reporting • Sale of shares, change of control • No compete • Confidentiality

Constitution

Statutory regime Less flexible Easy to enforce Damages / Injunction / Specific performance Not confidential Heavy process to amend

Shareholders’ agreement

Contractual Very flexible More difficult to enforce Damages Confidential Easy to amend or to join

•

Suppliers and clients

•

Employment contracts

•

Joint venture issues

•

Clients and suppliers

–

Term: fixed/ indefinite / auto renewal

–

Termination: notice

–

Default: insolvency etc

–

Force majeure

–

Hardship

–

Dispute resolution

•

Employees

–

Contract

–

The law prevails

–

Compliance with due process

–

Factor in the risk at the start: consultant or employee?

•

Joint venture

–

Default

–

Sole risk project

–

Pre-emption rights

–

Tag-along/drag-along

•

Application of Australian laws:

–

Consumer Law (formerly Trade Practices Act)

–

Jurisdiction clause

–

Restricted to cross-border relationships

•

Different legal system:

 Check the local environment and your partner •

Assets and goodwill:

 Protect your business •

Manage the relationship:

 Respect the local process and legal constraints

Julie Miehe

Managing Director

Solicitor - NSW & QLD Juriste – France

Practice areas

Commercial and Corporate Mergers & Acquisitions Corporate Governance Resources and Energy Tourism Brisbane +61 (0) 423 298 007 [email protected]

Véronique Morgan-Smith

Director

Solicitor – NSW Avocat – France NAATI Translator