International Joint Ventures Setting Them Up, Taking Them Apart

Transcription

1 International Joint Ventures Setting Them Up, Taking Them Apart Peter D. Ehrenhaft Miller & Chevalier Chartered May 3-5, 04 TABLE OF CONTENTS Page INTRODUCTION.... GENERALLY ENTERING A FOREIGN MARKET Licensing Agreements Exporting Goods or Services Direct Investment JOINT VENTURES GENERALLY...

2 2 3.. Marketing Ventures and the Advantages of a Local Partner... 3 () Generally... 3 (2) Providing a Local Presence... 3 (3) Obtaining Access to Resources and Permits... 4 (4) Providing a Local Endorsement for Foreign Goods or Services Research and Development Ventures Catalyst Ventures Defensive Ventures --Limiting Risk Offensive Ventures MANAGING JOINT VENTURES Generally Negative Controls Positive Controls Managerial Loyalty to the Venture Ventures Dominated by a Single Party REASONS FOR VENTURE BREAKUPS Different Objectives Unperceived Market Changes Different Business Philosophies or Practices Shifts in Decisionmaking Authority Disagreements Over Disposition of Earnings Preference for Greater Integration Outside the Venture Nonmarket Changes THINKING ABOUT BREAKUPS Generally Separation Provisions Protection of Interests GOALS FOR A BREAKUP Joint Ventures with Preplanned Terminations Joint Ventures of Indefinite Duration Restoration of Assets Retreat or Reconstruction Continuation with a New Partner... 5

3 8. THE DAY AFTER THE BREAKUP In General Buy-out Formulas Dissolution Disclosed Knowledge Trademarks and Distribution Channels Noncompetition Covenants R&D Complications ARBITRATION In General Arbitration Clauses CONCLUSION... 2

4 International Joint Ventures Setting Them Up, Taking Them Apart Peter D. Ehrenhaft INTRODUCTION. Generally Almost any business with goods or services to sell should consider entering the international marketplace. But how should it target foreign markets? What avenues of market access are available? And which one is right for the business? Once an access strategy has been selected, what form should the venture take? Entering into a joint venture arrangement may be the best strategy. But how should the venture be managed? Looking down the road, how can the business prepare for a possible breakup of the venture? In the past, these issues were examined primarily from the point of view of a producer of goods for sale. With nearly 80% of U.S. GDP now accounted for by services, the sale of services must also be considered. 2. Entering a Foreign Market There are three principal ways for a business to establish a presence in a foreign marketplace: By licensing a local entity in the foreign country to make the goods there or provide the services for local sale or delivery; By shipping the goods or service directly from the home country for sale or use in the foreign market; or By investing directly in the foreign market, either alone or in some form of partnership with a local entity, for local production and/or sale or delivery. These principal forms of market access also reflect increasing commitments of the seller s resources to the foreign market. 2. Licensing Agreements The license agreement route is likely to be the least expensive at the outset and the one least likely to involve the seller in local problems of the target market. It is also, as a rule, the least likely to generate substantial profits for the seller, or to establish the seller as a presence in the target market. Copyright 04 by Peter D. Ehrenhaft

5 Although there are many sound reasons for licensing local production to an entity wholly owned by someone else in that market, this is not the most typical arrangement for market entry. The route that many Americans find particularly attractive is through a license granted to a joint venture in country A between the licensor in country B and a local business of country A. Although this is a popular arrangement, it may be a road strewn with pitfalls and potholes that are discussed below. 2.2 Exporting Goods or Services Exporting goods or services for distribution or delivery abroad, if done on a systematic basis through distributors or agents established in the foreign country, generally reflects a greater commitment to the foreign market and more of a need to understand the market s problems and personalities than merely licensing the production of those products or the creation and delivery of the services. The failure of American companies to adapt their merchandise or services to local expectations -- whether in sizing men s suits or translating the instructions on hand-held power drills -- is a common story. The same is true with regard to services, be they legal, accounting, teaching, architecture or engineering. Indeed, as services often require personal interaction, an understanding of local culture is necessary for success. Finding distributors for foreign goods in the United States seems to be a relatively easy task --just look at the way that United States distribution networks for automobiles and electronic goods have added models made abroad to their domestic lines. But in some countries (Japan is often cited) U. S. producers have been unable to find willing, nationwide outlets for their goods. To a great extent, cultural factors render distribution in Japan a closed shop to outsiders. Thus, a joint venture to distribute in a country like Japan may be more of a necessity in that market than in many others. However, the advantages of joint venture entry into foreign markets are numerous in many countries. 2.3 Direct Investment Finally, the route that most involves a business in the foreign market is a direct investment in that country for local production of a product or delivery of a service. Many of the problems of direct investment alone are identical to those faced in the creation of a joint venture. However, the joint venture is often properly viewed as a way of reducing some of the problems and risks a stranger assumes in operating in a new market. 3. Joint Ventures Generally Not all joint ventures have similar aims. To understand their utility, function, and special problems, it helps to examine the functional forms they take to select an appropriate model. Legally, joint ventures can be corporations, partnerships, or simply creatures of contract. The legal form of a joint venture is rarely relevant to the potential for the venture s success, although it can have important tax consequences and some other significance, primarily in the area of withdrawing committed assets or personnel. In some countries, local law may require (or prohibit) certain forms of business organization. Professional service providers, for example, may be barred from using corporate forms. 3.. Marketing Ventures and the Advantages of a Local Partner () Generally A marketing joint venture is a traditional use of the form to facilitate direct entry by a producer or service supplier in one country into a foreign market. Joint ventures are useful for market entry principally because a local partner can readily introduce the foreigner (and his goods or services) to the market, its language, customers, suppliers, and regulatory officials. Foreign markets often seem impenetrable to United States firms that rely on wholly locally-owned