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
SARL
SAS
SA
Full name
Société à
responsabilité limitée
Société par actions
simplifiée
Société anonyme
Equivalent in
Australia
Pty Ltd
Simplified Ltd
Ltd
Members
Min.1 and max.100
Individuals
Corporate entities
Min. 1
Individuals
Corporate entities
Min. 7
Individuals
Corporate entities
Liability of
members
Limited
Limited
Limited
Share capital
requirement
Min. $ 1
Min. $ 1
Min. $ 54,000
One or more managers
Director(s) incl.
“President”
Choice of management
structure
Board of directors
Chairman of Board
General Director
Contributions
For convenience, amounts are converted into Australian dollars
(executive)
• 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
Shareholders’
agreement
Statutory regime
Contractual
Less flexible
Very flexible
Easy to enforce
More difficult to enforce
Damages / Injunction / Specific
performance
Damages
Not confidential
Confidential
Heavy process to amend
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
Véronique Morgan-Smith
Managing Director
Solicitor - NSW & QLD
Juriste – France
Director
Solicitor – NSW
Avocat – France
NAATI Translator
Practice areas
Commercial and Corporate
Mergers & Acquisitions
Corporate Governance
Resources and Energy
Tourism
Practice areas
Commercial and Corporate
Corporate Governance
Mergers & Acquisitions
Resources and Energy
IT
Brisbane
+61 (0) 423 298 007
julie.miehe@oceanie.com.au
Sydney
+61 (0) 423 191 723
veronique.morgansmith@oceanie.com.au