joint venture agreements in the pharmaceutical industry · joint venture companies are frequently...

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Joint Venture Agreements in the Pharmaceutical Industry Dr. Andreas Respondek 1 , LL.M. and Dr. Johannes M. Respondek 2 1 RESPONDEK & FAN Rechtsanwälte, Singapore and 2 OPTIPHARM Consulting Services, Sailauf Joint venture companies are frequently used in the pharmaceutical industry for various commercial purposes, including joint market development for certain products, conducting joint research efforts and/or clinical trials or simply to create synergies for the joint venture partners. The present article intends to provide a birds eye view of various important aspects when contemplating to enter into a joint venture relationship and to provide practically relevant tips and help with regard to the crucial success factors when drafting and negotiating a joint venture contract. 1. Definition Joint venturesare commonly de- fined as a business arrangement in which two or more parties agree to pool their resources (characterized by shared ownership, shared return and risks) for the purpose of accom- plishing a specific task. The ways in which a joint venture agreement can be structured in the pharmaceutical industry are mani- fold and depend on the specific busi- ness purposes the parties wish to achieve, i. e. whether the parties want to pool their resources for joint research efforts, joint marketing ef- forts or simply for certain specified pre-determined commercial or sci- entific tasks. The following article will highlight some important features of joint ven- ture agreements and how they are ap- plied in the pharmaceutical industry. 2. Joint Ventures as One of Several Possible Cooperation Vehicles company has a broad range of possi- bilities to start and structure the co- operation. These investment alterna- tives should be carefully analyzed be- fore a joint venture contract is agreed upon, in order to find the optimal form for the intended cooperation between the parties. According to the experience of the authors, some- times premature decisions are made in favor of a certain form of a coop- Every company that intends to start business cooperation with another n AUTHOR Dr. Andreas Respondek, LL.M. started his legal career in the US with two (win- ning) precedents from the Louisiana Supreme Court in his own name in 1983. He is a German Rechtsanwalt, an American Attorney at Law as well as a Chartered Arbitrator (FCIArb). After heading the Legal Department of a leading healthcare MNC in Europe, he moved to Asia in 1994 to establish the Asia Pacific Legal Department of a leading international healthcare company. Thereafter he led multinational healthcare com- panies in Asia as Managing Director (Thailand, Greater China) and Regional Managing Director Asia Pacific. He established RESPONDEK & FAN, an international law firm, in 1998 in Singapore and its counterpart in Bangkok in 2000. Andreas is the editor/co-author of the ASIA ARBITRATION GUIDE and numerous other legal related articles. He sits on the panel of arbitration institutions in Austria, China, Hong Kong, Malaysia, Singapore, Thailand and Vietnam and has acted in numerous institutional and ad hoc arbitrations as Chairman, Sole Arbitrator, Emergency Arbitrator, Co-Arbitra- tor as well as Counsel. n AUTHOR Dr. Johannes M. Respondek is a Dipl.-Chemist, who also studied pharmacology and toxicology during his thesis. Before starting OPTIPHARM on January 1st 2004, he gained a solid experience in all phases of the R&D value chain working 23 years in the pharmaceutical and bio- tech industry, including three years in a CRO. He worked in staff and line management functions in mid-size and blue-chip pharmaceutical companies on both sides of the Atlantic (Bristol-Myers-Squibb, Degussa Pharma/ASTA Medica, Novartis, ICON, Boehringer-Ingelheim, november AG). He is deputy chairman of the SANOCHEMIA supervisory board in Vienna (Austria). His special expertise includes general management and operations, R&D, project management and controlling, business develop- ment, diverse indications with particular experi- ence in oncology. He mainly works as an interim manager. Arzneimittelwesen • Gesundheitspolitik • Industrie und Gesellschaft Fachthemen 494 Respondek und Respondek Joint Venture Agreements Pharm. Ind. 80, Nr. 4, 494–499 (2018) © ECV Editio Cantor Verlag, Aulendorf (Germany)

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Page 1: Joint Venture Agreements in the Pharmaceutical Industry · Joint venture companies are frequently used in the pharmaceutical industry for various commercial purposes, including joint

Joint Venture Agreements in thePharmaceutical IndustryDr. Andreas Respondek1, LL.M. and Dr. Johannes M. Respondek2

1RESPONDEK & FAN Rechtsanwälte, Singapore and 2OPTIPHARM Consulting Services, Sailauf

Joint venture companies are frequently used in the pharmaceuticalindustry for various commercial purposes, including joint marketdevelopment for certain products, conducting joint research effortsand/or clinical trials or simply to create synergies for the jointventure partners. The present article intends to provide a bird’s eyeview of various important aspects when contemplating to enterinto a joint venture relationship and to provide practically relevanttips and help with regard to the crucial success factors whendrafting and negotiating a joint venture contract.

1. Definit ion

“Joint ventures” are commonly de-fined as a business arrangement inwhich two or more parties agree topool their resources (characterizedby shared ownership, shared returnand risks) for the purpose of accom-plishing a specific task.

The ways in which a joint ventureagreement can be structured in thepharmaceutical industry are mani-fold and depend on the specific busi-ness purposes the parties wish toachieve, i. e. whether the partieswant to pool their resources for jointresearch efforts, joint marketing ef-forts or simply for certain specifiedpre-determined commercial or sci-entific tasks.

The following article will highlightsome important features of joint ven-ture agreements and how they are ap-plied in the pharmaceutical industry.

2. Joint Ventures as One ofSeveral Possible Cooperation

Vehicles

company has a broad range of possi-bilities to start and structure the co-operation. These investment alterna-tives should be carefully analyzed be-fore a joint venture contract is agreedupon, in order to find the optimalform for the intended cooperationbetween the parties. According tothe experience of the authors, some-times premature decisions are madein favor of a certain form of a coop-

Every company that intends to startbusiness cooperation with another

n AUTHOR

Dr. Andreas Respondek, LL.M.started his legal career in the US with two (win-ning) precedents from the Louisiana SupremeCourt in his own name in 1983. He is a German“Rechtsanwalt”, an American Attorney at Law aswell as a Chartered Arbitrator (FCIArb). Afterheading the Legal Department of a leadinghealthcare MNC in Europe, he moved to Asia in1994 to establish the Asia Pacific Legal Departmentof a leading international healthcare company.Thereafter he led multinational healthcare com-panies in Asia as Managing Director (Thailand,Greater China) and Regional Managing DirectorAsia Pacific. He established RESPONDEK & FAN,an international law firm, in 1998 in Singapore andits counterpart in Bangkok in 2000. Andreas is theeditor/co-author of the ASIA ARBITRATIONGUIDE and numerous other legal related articles.He sits on the panel of arbitration institutions inAustria, China, Hong Kong, Malaysia, Singapore,Thailand and Vietnam and has acted in numerousinstitutional and ad hoc arbitrations as Chairman,Sole Arbitrator, Emergency Arbitrator, Co-Arbitra-tor as well as Counsel.

n AUTHOR

Dr. Johannes M. Respondekis a Dipl.-Chemist, who also studied pharmacologyand toxicology during his thesis. Before startingOPTIPHARM on January 1st 2004, he gained a solidexperience in all phases of the R&D value chainworking 23 years in the pharmaceutical and bio-tech industry, including three years in a CRO. Heworked in staff and line management functions inmid-size and blue-chip pharmaceutical companieson both sides of the Atlantic (Bristol-Myers-Squibb,Degussa Pharma/ASTA Medica, Novartis, ICON,Boehringer-Ingelheim, november AG). He is deputychairman of the SANOCHEMIA supervisory boardin Vienna (Austria). His special expertise includesgeneral management and operations, R&D, projectmanagement and controlling, business develop-ment, diverse indications with particular experi-ence in oncology. He mainly works as an interimmanager.

Arzneimittelwesen • Gesundheitspolitik • Industrie und Gesellschaft

Fachthemen

494 Respondek und Respondek • Joint Venture AgreementsPharm. Ind. 80, Nr. 4, 494–499 (2018)

© ECV • Editio Cantor Verlag, Aulendorf (Germany)

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eration, without having consideredin-depth the pros and cons of thevarious cooperation alternativesavailable.

To begin with, parties could startto cooperate without tying up in aseparate legal entity and could sim-ply start on the basis of a mere con-tractual cooperation arrangement.An example for such a contractualcooperation arrangement is a distri-bution agreement, where one firmoffers their products to the otherfirm (often in another country) formarketing purposes and physical dis-tribution. In such scenario both com-panies stay completely independentand a cancellation of the contract ispossible at all times (depending onthe details of the respective distribu-tion agreement). However, in somecountries and jurisdictions such con-tracts can only be terminated if apayment of a compensation fee ismade to the distributor.

Another form of cooperation be-tween pharmaceutical parties con-sists in entering into a license agree-ment. Under a licensing arrange-ment, one party offers to the otherparty a certain right (Latin: „licet“)to use patents, trademarks and insome cases know-how compensatedvia license fees for a fixed time frame.Since the licensor gives the licenseethe right to use patents and otherintellectual property rights (e.g.trademarks etc.), the cooperationreaches a higher degree of interac-tion between the parties than amere distribution agreement. Incomparison to a mere distributionagreement, the risk for the licensoris significantly higher, as the licensorhas to make sure that the licenseeworks according to his quality andother technical standards and thatthe licensee does not transfer the li-censed technology to a non-author-ized third party.

A special kind of license agree-ment is the “Know-How LicensingAgreement”, which is often usedwhen a product is already off patent,e.g. Aspirin, and the life cycle of suchproducts still continues. The com-

mercial rationale for such Know-How Licensing Agreements for offpatent products is that the licenseewants to avoid costs and time thatwould otherwise have to be spent forproduct registration.

An even more intense form of co-operation is the joint venture that isdiscussed in detail in this article. Theintensity of this form of cooperationis significantly higher in comparisonto other forms of cooperation, asthere is not only a contractual en-gagement between the parties butalso a joint investment and usuallyalso a jointly established legal entity.

3. Reasons for Start ing a JointVenture

The reasons for entering into jointventure contracts are manifold. Themost obvious one is in countrieswhere mandatory local laws exist,where foreign investment participa-tion is only possible via a joint ven-ture (e.g. Thailand). This used to bethe case in China up to the end of the90 s. Joint venture companies havebeen the classical form of the marketentry into China.

Regardless of legal restrictionsthat exist for foreign investment invarious countries, there are a numberof compelling commercial reasonsthat are in favor of setting up a jointventure company. First and fore-most, a joint venture provides imme-diate access to local know-how andlocal resources and speeds up thetime to market a product.

By engaging a local partner, theimmediate access to local know-how – e.g., developing a biologicalproduct and the country specific cir-cumstances – will be adequatelytaken into account in a specific mar-ket. Another reason for the engage-ment in joint venture companiesoften lies in the immediate accessto local distribution channels. Theestablishment of these channelsoften takes several years and some-times seems to work according to theprinciples of trial and error. Last but

not least, investors also cite a dimin-ished entrepreneurial risk for settingup a joint venture company, becausein view of the participation of an-other partner a smaller capital in-volvement is required. Furthermore,there is a second legal entity withlegal responsibility involved.

According to the experience of theauthors, joint ventures are also usedwhen an investor plans to acquire acompany: Firstly a certain equity per-centage of the target company is ac-quired, combined with the option forthe acquiring company to purchasethe majority of the shares of the localtarget company after a certain timeperiod or after fulfillment of certaincommercial milestones. The advan-tage for the acquiring company isnot only a guaranteed continuity ofthe company’s management but alsothe opportunity to familiarize itselfin-depth with all business details ofthe target company. The authors dis-covered (more than once) that dur-ing the course of the joint venturecooperation between the parties var-ious deal breakers were discovered(e.g., “creative” accounting practices,etc.) of the company to be acquiredleading to a complete new evaluationof the target company.

Whether and to what extent theabove-mentioned reasons are ulti-mately convincing really is a matterof personal experience and belief. Itcould be argued for instance thatnowadays local know-how could bepurchased in most markets via hiringexperienced local staff, without theneed of establishing a joint venturecompany. Moreover, the argument of“shared risks” is usually becomingless convincing once one of the part-ners runs into financial difficulties,so that the remaining partner hasto absorb all entrepreneurial risksalone. However, it is not the mainpurpose of this article to evaluateand finally judge the pros and consof joint venture companies. The fo-cus of this summary rather lies in theimportant aspects and legal consid-erations of setting up joint venturecompanies.

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4. Important Topics WhichShould be Clari f ied BeforeClosing a Joint Venture

Agreement

clearly separated but are intertwined,having the effect that the strategy isconsidered the goal. Such conceptualmistakes may inevitably lead towrong entrepreneurial decisions onthe level of the joint venture com-pany.

In addition, an initial discussiontopic between the parties should fo-cus on the correct legal vehicle theparties wish to use for their joint ven-ture. Which legal entity would be themost suitable for the parties’ com-mercial purposes? Usually this willbe a limited liability company underthe respective jurisdiction to bechosen. Concerning this importantitem, a consensus with the partnershould be reached early on duringthe negotiations.

Another crucial topic where a con-sensus should be reached prior tosigning the joint venture agreementis the determination of the profit andloss sharing between the parties. Incase no common understanding isreached before a joint venture con-tract is signed, a possibility of a con-flict between the parties is alreadypreprogrammed.

The initial discussions of the jointventure are usually considered as the“honey moon period” of the joint ven-ture and for understandable reasonsthe parties are not inclined or neglectto discuss the outlining of an exitstrategy for the joint venture. How-ever, parties should take a realisticview of their intended commercialset-up up-front. According to the ex-perience of the authors not all jointcompanies have a long period of ex-istence and in some cases the jointventure’s duration lasted only a rela-tively short period of between 5 to10 years. Therefore, in order to avoidprotracted discussions in case the“going should get tough”, it is advis-able to consider all eventualitiesfrom the outset.

In the framework of an exit strat-egy, it should be clearly laid down,what has to be done in case of atermination/liquidation of the jointventure in all details. That means incase of winding down the company,

what will be the fate of the intellec-tual property, what happens with theassets of the company, what shallhappen to the employees, how aboutany non-compete undertakings, etc.Instead of liquidation should eachpartner have a right to acquire theshares of the other company?

Another practically very impor-tant point is the valuation of the jointventure’s shares. Of course, duringthe winding up of a joint venture, aprofessional accounting firm can al-ways be hired to assess the value ofthe joint venture company’s shares.But to avoid time and cost for suchvaluation exercise, it seems prefera-ble that the parties already agree intheir joint venture agreement up-front what type of evaluation formulafor the share price they will follow incase of a dissolution of the joint ven-ture.

5. The Importance of theHuman Resource Factor

A frequent reason why some jointventures fail is a lack of proper atten-tion to the human resources factors.When working out the future com-pany’s business strategy, the strategyfor key employees should also be es-tablished between the parties.

First a competence profile for fu-ture key employees in the joint ven-ture should be set up and the maincomponents of this strategy shouldbe attached in an appendix to thejoint venture contract. In this respectit is most important to lay down allskill sets that the joint venture keyemployees should possess, in orderto enable the company to achieveits milestones and business goals. Incase the joint venture is establishedin a foreign country, interculturalcompetences and sensitivity to thecorresponding business environmentare also key aspects and very impor-tant. In this context it is good thatincreasing value is put on the knowl-edge of the respective language spo-ken in the country. Of course, almosteverybody will speak/understand

It may sound trivial but the impor-tance of screening the future jointventure partner cannot be empha-sized enough. More often than not,the screening of the target companyis not carried out in sufficient detailor sufficient depth. In performing adue diligence not only for objectivityreasons, one should not merely relyon in-house specialists but also en-gage the assistance of independentexperts. The partner “in spe” shouldbe especially scrutinized regardingthe real ability to provide the localknow-how and enhance the jointventure’s mid-term and long-termgoals. To merely have an inactive lo-cal partner as joint venture Partnerwould not justify the negotiation andadministration work involved in thisprocess.

Before starting the negotiationswith the potential partner, the com-mercial milestones which should bereached, should be fixed in the draftagreement and quantitative as wellas, qualitative key performance indi-cators should be agreed in every de-tail. Before signing the contract itshould be stated very clearly, atwhat time which goals have to bereached by the joint venture com-pany in order to provide a rationalbasis for the parties to measure andverify the success of the joint venturecompany.

After agreeing on the milestonesin very concrete terms – i. e., “what”the joint venture has to achieve ex-actly –, the second most importantissue is to discuss and agree on “how”and in which manner these commer-cial goals should be achieved in detailby the joint venture company. Thismeans how and by which meansthe business and commercial goalsof the company can be reached indetail? Ultimately, this comes downto outlining the business strategy ofthe joint venture company. Some-times strategy and goals are not

Arzneimittelwesen • Gesundheitspolitik • Industrie und Gesellschaft

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© ECV • Editio Cantor Verlag, Aulendorf (Germany)

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English, but English on its own oftenkeeps business contacts on a surfacelevel or even an artificial level. Obvi-ously not every CEO will have theability to talk fluently in the languageof the host country. However, theknowledge of some foundations willfacilitate the entrance to the hostcountry’s culture and business envi-ronment tremendously.

Looking at the joint venture staff’sremuneration level, almost alwaysdifferent salary- and award systemsare in place between two joint ven-ture partners, which – if not properlyaddressed – can easily lead to dissat-isfaction among the joint venture’semployees. Therefore, the creationof a common salary and award sys-tem within the joint venture is essen-tial. Hiding the existence of differentsalary and award systems might bepossible for a certain (short) periodof time. However, in all likelihoodthis is bound to surface sooner orlater. This is not only true for themere remuneration, but also forother perks and benefits. The overallworking atmosphere can easily bepoisoned once an employee discov-ers that the other joint venture part-ner’s employees have for instance amore generous pension plan.

Sometimes it proves to be cum-bersome to find competent key em-ployees for a joint venture in a com-pany, as employees might fear thatsecondment to the joint venturecould lead to a break in the personnelcareer path or even a dead-endstreet. Such obstacles can easily becircumvented if a return to themother company is already ad-dressed in the respective employ-ment contract.

An important success factor for alljoint venture companies is the estab-lishment of good institutionalizedcommunication channels betweenthe joint venture company and theirrespective shareholder companies.Laying down the structure of deci-sion processes in writing is a firststep but will only lead to successwhen procedures are not only writ-ten on a piece of paper, but will be

realized in daily life. The best Em-ployee Handbook will not replaceverbal communication, which hasthe role of an early warning systemrecognizing potentially unwanteddevelopments in the joint venturecompany.

6. Detai ls of Joint VentureAgreements

The first important aspect to be ad-dressed is whether the joint venturecontract will be drafted for a legalsystem that belongs to the so-called„civil law“ jurisdiction or for a „com-mon law“ jurisdiction. This differen-tiation is of crucial importance forthe way in which the joint ventureagreement will be drafted. As a gen-eral rule, a joint venture contract fora common law jurisdiction will bedrafted in a more detailed mannerthan a joint venture agreement thatis drafted under a civil law system.The degree of detail (which trans-lates directly into more or less pagesfor the joint venture draft) is due tothe fact that the common law is ingeneral less abstract than a civil lawsystem, i. e., focusing more on cases(“precedents”) than on statutory pro-visions. Therefore, more eventual-ities have to be addressed in a jointventure contract under a commonlaw system than would be the casein a civil law system. This is also dueto the fact that common law judgesare more hesitant in filling contractgaps through interpretation thancivil law judges, requiring a joint ven-ture agreement in a common law ju-risdiction to go into more detail. Civillaw systems do not need that as theypossess detailed codifications thatcan always be used as a fallback po-sition.

One question, which alwayscomes up before negotiations start,is whether it is recommendable tofirst start with a “Letter of Intent”,which is sometimes also called a“Memorandum of Understanding”.The typical answer of a seasonedlawyer will always be „It depends.”

Generally speaking, even a Letter ofIntent requires quite some time to bediscussed/drafted and even moretime for the parties to agree on thecontent. Considering the time factor,whenever possible it seems prefera-ble to start with a draft of a detailedjoint venture agreement right away.

In case there should be already acommon understanding with regardto the economic projections and keyindicators for the joint company up-front, the establishment of a shortterm sheet is justified. This sheetcontains all economical key perfor-mance figures of the future joint ven-ture company and may enhance thenegotiation results.

Following international practice,each joint venture contract shouldstart off with a “Preamble” (alsocalled “Whereas Clauses”). For thispart of the contract, it is recom-mended to clearly refer to and sum-marize all essential key presump-tions and foundations for the jointventure – just in case the contractwill ever become the object of a legaldispute. The underlying assumptionsof the joint venture company are ofessential importance in case a legaldispute should ever start. After read-ing the joint venture contract’s pre-amble, it should be clear to an unin-itiated reader, who is not really in-volved into this matter, why the par-ties wanted to engage in a joint com-pany in the first place and which eco-nomical interest they had in mind forforming a joint venture company.

The next important item concernsthe equity involvement of the parties:Which party owns howmany percentof the joint venture company’s capi-tal? Unfortunately, a misconceived“equality thinking” is often foundhere, leading into a joint venturewhere each party owns a 50 % shareportion. This might be attractivefrom an equality point of view. How-ever, in view of practical experiencesa 50/50 joint venture should gener-ally be avoided if at all possible. In a50/50 joint venture, both parties willhave exactly the same voting rights.Once the first major difference be-

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ing vote in case of a dead-lock in thecompany’s board.

The nomination of the Board ofDirectors of the joint venture com-pany is also of crucial importance.An attempt should always be madeto place trusted and experienced em-ployees of a shareholder’s own com-pany into key positions, e.g., Financeor HR. In addition, the joint venturecontract should address, what kindof votes is required for what type ofdecisions, i. e., simple majority, quali-fied majority, or unanimous vote. Inorder to avoid that corporate meet-ings are called where just one party ispresent and to prevent the jointventure partner from carrying outany decisions on their own, theArticles of Incorporation/Constitu-tion should always address the ques-tion, when a quorum is present andto make sure that a quorum is onlypresent provided a minimum num-ber of both parties is present at anymeeting.

It should be regulated as well,what happens in case of disputes be-tween the parties. It is strongly ad-vised, that the contract contains adetailed mechanism on how to han-dle dispute resolution. In order toavoid that each dispute is put in frontof a court or an arbitration tribunal,the introduction of a dispute resolu-tion steering committee has provento be very helpful. The steering com-mittee is an institutionalized board,with delegates from both parties, notinvolved in the daily business of thejoint ventures that always keepssome distance to the day-to-day busi-ness of the joint venture company.The steering committee shouldmeet on a regular basis or at leastwhenever critical topics need to bediscussed between the joint venturepartners. Due to the fact that mem-bers of the steering committee arenot involved in the company’s day-to-day business, it is often easier forthe members of the steering commit-tee to find appropriate solutions andsee a whole range of possible solu-tions, instead of viewing a singleproblem.

As last resort the dispute resolu-tion clause may include one or sev-eral alternative dispute resolutionmechanisms, including mediation.Especially if the parties wish to avoidthat the details and contents of thedispute should be discussed in publicin state court proceedings (which arealways open to the general public),then arbitration should be seriouslyconsidered. With regard to arbitra-tion, the parties should consider up-front whether they wish to have aninstitutional arbitration with one ofthe generally recognized arbitrationinstitutions (e.g., ICC, LCIA, HKIA,etc.) or whether the arbitrationshould be conducted without institu-tion on a so-called “ad hoc” basis.

As already mentioned above, themodalities of a dispute in case ofliquidation should be clearly ad-dressed in the joint venture contract.In case the joint ventures is liqui-dated, it should be laid down in thecontract, which price is due for theshares of the joint ventures (in caseone party wants to sell/acquire allshares), but it should be also laiddown upfront, how the price-findingfor the share is done. Such a valua-tion clause often helps to avoid atough and costly dispute on howthe value of the shares of the jointventure company should be deter-mined and which procedure for thedetermination of the value should bechosen. The ways in which a valua-tion clause can be drafted are almostunlimited. The most important itemfor such valuation clauses is to makeany chosen valuation proceduretransparent and verifiable. In addi-tion, the parameters used for the val-uation should be acceptable for bothparties and that these criteria – ifrequired – could be verified by anexternal valuation body.

In case certain products are givento the joint venture company on alicense basis, it is very important todefine in the Joint Venture contract,which kind of license rights are givento the joint venture company, i. e.,should these rights be exclusive,non-exclusive or just semi-exclusive.

tween the parties occurs regardingthe course of the joint venture’s busi-ness, which cannot be settled amica-bly between the parties, the joint ven-ture is immediately deadlocked andblocked, since no party has a chanceto overrule the other party. Becauseof this reason, it is advisable that oneparty should always hold the major-ity of the joint venture company’sshares, i. e., at least a minimum of50,1 % of the company’s shares, inorder to avoid a deadlock of the jointcompany that under a worst casescenario might ultimately lead tothe joint venture’s dissolution.

Another point that is often hotlycontested between the negotiatingparties is the contribution in-kindto the joint venture, i. e., intellectualproperty rights, production facilitiesetc. Contribution “in-kind” into thejoint venture is generally connectedwith special difficulties, as moreoften than not there are no generallyrecognized and generally acceptedprinciples how such in-kind contri-butions are to be valued. In order toavoid endless back and forth discus-sions between the parties with differ-ent valuation ideas, it is recom-mended that an expert should under-take a binding determination of anycontributions that are made in-kind.Once a value is established by thisprocedure, both parties should thenaccept such valuation as being bind-ing for both parties.

In order to avoid that the jointventure company develops an un-controlled existence of its own andundertakes business activities with-out coordinating such activitieswith the investors’ shareholders, itis always recommendable to set-upa so-called “negative list” for the jointventure’s management. This list enu-merates the business events whichalways have to be approved by thejoint venture company’s sharehold-ers at all times. In this respect itshould also be recognized, that insome jurisdictions the role of a jointventure company’s chairman is notjust of a ceremonial nature, but thatthe chairman sometimes has a cast-

Arzneimittelwesen • Gesundheitspolitik • Industrie und Gesellschaft

Fachthemen

498 Respondek und Respondek • Joint Venture AgreementsPharm. Ind. 80, Nr. 4, 494–499 (2018)

© ECV • Editio Cantor Verlag, Aulendorf (Germany)

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Should there be certain restrictionsfor such rights, either concerning thetiming or certain geographical re-striction?

Equally important in the joint ven-ture agreement are clauses that ad-dress the question if and underwhich conditions the joint venture’sshareholder are allowed to competewith the business of the joint venturecompany. Such non-compete clausesusually also address the questionwhat rights the shareholders haveto sell their products directly intothe joint venture company’s countryof operation, what shall apply toproduct exports, etc.

Finally, the parties should agreewhich law applies to their joint ven-ture contract. With respect to thisquestion, the authors have experi-enced an “interesting” example ofcontract between a German and aChinese company. Both companiescould not agree on the applicationof either German or Chinese law. Ul-timately and as a compromise, theyagreed on the applicability of Swisslaw, which none of the parties wasfamiliar with and which in the endhad very dramatic and unintendedconsequences for both parties.

In order to generate clear andquantifiable indicators for the per-formance of joint ventures (and ifneeded a right to cancel the con-tract), it is advisable, to agree onclear economic qualitative and quan-titative milestones either directly inthe joint venture agreement or in anamendment to the contract. This is

the only way to have an objectiveyardstick for the joint venture’s per-formance.

Last but not least, one shouldmake sure that all important con-tracts for the joint venture are signedsimultaneously in one batch (e.g., ifthere is also a license involved thenthe licensing agreement should besigned at the same time as the jointventure agreement) in order to avoidthat the parties have reached a con-sensus regarding their joint venturecontract but failed to reach a consen-sus towards other important ancil-lary contracts.

7. Reasons for the Fai lure ofJoint Venture Companies

The most frequent reason for a fail-ure of a joint venture company seemsto be a lack of efficient communica-tion between the involved parties.Furthermore, in case the goals of ajoint venture company are not pre-cisely addressed in writing and arebased on a vague oral understanding,conflicts which could have beenavoided are inevitable. The same istrue, if the expectations of the in-volved parties are not aligned fromthe very beginning or divert duringthe course of the joint venture. Thishappens mostly if one of the involvedpartners asks himself the question,why he would (still) need a joint ven-ture partner and which financial ad-vantage “is in it” for him. Such a con-stellation often arises once the first

hurdles are mastered, the business isrunning reasonably satisfying andthe foreign partner has the feelingof already knowing all peculiaritiesof the country, where they invested.

Further reasons for a “casus belli”are diverting corporate cultures ofthe involved parties, which appearmostly in different remunerationand benefit programs. The businessmodel of a joint venture might be assolid as possible, however, if themanagers running this business aredissatisfied with their status due todiverting corporate cultures in theirremuneration, this will prove as adeal-breaker at least in the long run.

Another cliff that is hard to cir-cumvent could be the decision pro-cesses within the joint venture com-pany. In case there is no real delega-tion of the decisions into the jointventure company and the responsi-ble managers in the joint venturehave no real responsibility and haveto get back and obtain reassurancefrom their respective shareholderseven for minimal investments, thiswill have a negative impact on themotivation of these managers andwould be harming the positive devel-opment of the joint venture companyin the long run.

Correspondence:Dr. Andreas Respondek1 North Bridge Road#16-03 High Street CentreSingapore 179094e-mail: [email protected]

Pharm. Ind. 80, Nr. 4, 494–499 (2018)© ECV • Editio Cantor Verlag, Aulendorf (Germany) Respondek und Respondek • Joint Venture Agreements 499