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Business Structures. in New Caledonia. 6th Australia New Caledonia Business Forum Brisbane 18 June 2010. Practical tips to set up your business in New Caledonia with a local partner with your own employees Choice of a structure Non- incorporated Incorporated. Key points.

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Business Structures

in New Caledonia

6th Australia New Caledonia Business Forum

Brisbane 18 June 2010


Practical tips to set up your business in New Caledonia

with a local partner

with your own employees

Choice of a structure

Non- incorporated

Incorporated

Key points


Protecting your assets overseas

Managing the local team

Managing shareholders relations

Overseas joint ventures: issues


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

Protecting your business overseas


Protecting your business overseas II

  • 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


Sale of goods or equipment

Dispute resolution clause:

Avoid cost of international litigation

Internal process / Mediation / Conciliation

Retention of title clause:

Easier reclaim of unpaid goods or equipment

Must be express

Only applies to identifiable goods/equipment

Protecting your business overseas III


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

Managing your local team


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

Managing shareholders relations



Tax representative

Representation desk

Branch

Company

Structuring your overseas business


Temporary or permanent

Direct implantation on local market

Direct control by head office

Direct profit/loss

Unlimited liability

Overseas branch


Advantages

Cheap to set up / run

Local knowledge

Temporary or permanent

Confidence with clients and authorities

IP remains with Australian entity

Disadvantages

Direct commercial and legal risk

Management of double taxation impact on local profits

No local partner other than as employee

Overseas branch II


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

Corporate structures


Corporate structures II

  • No limitation on nationality of shareholders

  • French particularities:

    • Share capital:

      • Minimum amount, obligation to pay up at incorporation

      • Contributions: cash / assets / labour

    • Cumulating directorship and employment contract

    • “Must be allowed to trade”

    • Company tax or shareholder taxation


Limited liability companies

For convenience, amounts are converted into Australian dollars



Limited liability companies III

For convenience, amounts are converted into Australian dollars



Other joint venture companies

For convenience, amounts are converted into Australian dollars


Other joint venture companies II

For convenience, amounts are converted into Australian dollars



Different legal system:

Forget your assumptions

Reporting:

Ensure good communication

Assets and goodwill:

Protect your business

Conclusion


Contacts

  • Véronique Morgan-Smith

  • Special Counsel

  • Solicitor – NSW

  • Avocat – France

  • NAATI Translator

  • Practice areas

    Commercial and Corporate

    Corporate Governance

    Mergers & Acquisitions

    Resources and Energy

    IT

  • Sydney

  • +61 (0) 423 191 723

  • veronique.morgansmith@oceanie.com.au


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