The type of co-operation structure or Joint Venture vehicle that should be used in any set of circumstances will usually fall to be decided on the basis of how much risk each party is willing to assume for the Venture, the likely period of the joint venture and whether the proposed structure is tax efficient.
The main types of joint venture vehicles are as follows:
The Joint Company
The jointly owned Company has often been the favourite vehicle for joint ventures, largely because it is simple to set up, easily understood, and provides limited liability and possible accounting benefits. However, the decision as to where to incorporate/establish the Company i.e. in Northern Ireland or Ireland will obviously be based on where the joint venture business will operate and if this is not conclusive then in the most tax advantageous jurisdiction.
Partnerships are becoming increasingly popular vehicles for their flexibility. From a taxation viewpoint, partnerships can often be more straightforward than companies but, on the other hand, the partners in a partnership have joint and several liabilities.
Contractual Joint Ventures
Another mechanism for effecting a joint venture is known as Contractual Joint Ventures. This is a contract that does not amount to a partnership and this is probably the simplest form of Joint Venture from a tax viewpoint. Very often the parties to a Joint Venture may wish to avoid the dangers of joint and several liability that exists in a partnership or sometimes they may wish to avoid certain tax implications that can arise in partnership arrangements. As such, they may wish to opt for a Contractual Joint Venture. This is best explained by an example.
A small chemical manufacturer on one side of the Border agrees to exclusively supply a “pharmaceutical company” on the other side of the Border with certain “know how” and chemicals to allow the pharmaceutical company to develop a new pharmaceutical product e.g. a cold remedy. If the chemical manufacturer were to be entitled to a future share in the profits of the cold remedy, then the arrangement between them would fall to be treated as a Partnership. The parties decide that they do not want to form a partnership e.g. the chemical manufacturer may not want to risk its money on a new pharmaceutical product that may not be a success. As such, the chemical manufacturer agrees to exclusively supply its “know how” and the chemical raw material to its joint venture partner in return for the pharmaceutical company agreeing (a) to spend x amount of money to develop and market the cold remedy, (b) to pay a set royalty for a predetermined time period to use the “know how” and (c) to buy the necessary chemical raw material only from the Chemical manufacturer at a pre-set price for the pre-determined period. In this way if the cold remedy were a success the Chemical manufacturer as supplier of the “know how” and raw material would be ensured of strong demand at pre-agreed prices under the contractual joint venture and the Pharmaceutical Company would not be entitled to threaten to source the raw material or “know how” from some other competitor for the period of the contractual joint venture. In the current example the chemical manufacturer was not prepared to risk its own money in establishing a joint venture but in return for offering to supply their “know how” and raw materials on an exclusive basis they will in turn benefit from increased turnover provided its joint venture partner successfully launches the cold remedy on the market.