法律翻译 - 合资企业的组织、经营和管理 ation, operation and management of joint venture.doc

100 1 formation, operation and management of jointventure under Ethiopias new joint venture law.on 22 January 1983 the Provisional MilitaryAdministrative Council (PMAC) passed the new lawon joint ventures using Ethiopian state capital andforeign state or private capital.1983122(PMAC)the joint venture law went into effect on the date ofits publication.it is widely believed to be the first practical steptaken by the PMAC to establish a frame work forthe formation, operation, and establishment of jointventures between the Ethiopian government and itspara statal bodies on one hand and foreign privateor state capital on the other.PMACthe joint venture law does not govern all aspects offoreign investment in Ethiopia.it is merely designed to regulate joint ventureproblems and other forms of investment that arenot covered by the joint venture law.many other detailed laws applicable to jointventures are bound to be published as a result ofthe lacunae of the present law. 100 2 the promulgation of the new joint venture law isimportant for many reasons.first, it indicates how the government intends toaccommodate foreign state or private investment.secondly, it forms the basis of encouraging directforeign investment and risk and profit sharing.thirdly, it can be used to help train Ethiopiantechnicians and management personnel andtherefore can facilitate the transfer and diffusion oftechnology.but practice alone will be the criterion to judgewhether such a joint venture law has been good orbad.this is because the joint venture law is only a guide. much depends on how the joint ventureagreements are negotiated and whether the finalnet result protects national interests or foreigninterests.the Preamble of the Joint Venture EstablishmentProclamation no. 235/1983 states that: the primaryobjective of the Ethiopian Revolution is the allrounddevelopment of the national economy and achieve235/1983 100 3 a higher standard of living for the broad masses.the PMAC acknowledges in the same Preamblethat in order to build a strong national economy andachieve a high standard of living, it is necessary todevelop the natural resources of the country.PMACit seems that more emphasis will be given to theexploration and exploitation of the countrys richmineral and oil resources.according to the Preamble, the objective of the jointventure law is to establish a basis of participation offoreign capital with Ethiopian public capital in jointventures and the transfer of foreign technologythrough such participation.these are expected to facilitate the realization of theabove objectives.a joint venture may be formed jointly by Ethiopianpublic (which in actual fact is state) capital andforeign private or public capital.the National Revolutionary Development Campaignand Central Planning Supreme Council, which theProclamation calls the Supreme Council, isresponsible for appointing the competent 100 4 government organ to be a party to a joint ventureagreement representing the Ethiopian Government.an application for the registration of a joint venturemust be made to the Ministry of Domestic Trade inthe form prescribed by the same Ministry.the joint venture agreement and other necessarydocuments as well as a letter issued by theSupreme Council endorsing the joint ventureagreement must be submitted together with theapplication for registration.any changes in the particulars contained in the formof application and in the joint venture agreementmade subsequent to registration must also beregistered.a joint venture registered in accordance with thejoint venture law is issued a certificate ofregistration from the Ministry of Domestic Trade.any investment application for participation in jointventures must be submitted to the SupremeCouncil in the form prescribed by the latter.the Supreme Council must act upon the applicationwithin a reasonable period of time. 100 5 a joint venture shall have legal personality and takethe form of a limited liability company.the joint venture will have legal existence after theabove mentioned procedural formalities relating tosubmission of application, registration, andapprovals have been satisfied.the maximum liability of the shareholders of a jointventure is to the extent of their shareholdings orcontribution to the joint venture.the joint venture itself is liable only to the extent ofits assets.contributions to an Ethiopian joint venture may bemade in cash or in kind.cash contributions by the foreign partner mustalways be in freely convertible currency.the type of contribution in kind, the currency and themethod of valuation thereof must be agreed upon inthe joint venture agreement.one of the major loopholes with respect to such lawis that it does not specify what items constitutecontribution in kind.this is important because it is not clear whether 100 6 technology, industrial, and intellectual propertyrights such as patent, the contribution of capitalgoods, and intermediate products constitutecontribution in kind.if so there is a need to have a detailedinterpretation to explain the aim of such provision inthe context of the preamble.no mention is made, for example, of the questionwhether the technology should be appropriate ornot, and whether the plant, machinery, andequipment contributed must be up-to-date, newand advanced, or may even be second hand.if raw materials or finished products arecontributed, it is important to agree on the qualityand the terms of delivery and so forth.it is also not clear what the Ethiopian Governmentintends to contribute to a joint venture?it may consist mostly of the right to use land, labor,raw materials, or semi-finished products, etc.the question of valuation and assessment ofcontribution in kind is surely a crucial questionwhich the joint venture law does not seem to give 100 7 much attention to.nor does the joint venture law spell out the amountof capital needed to form a joint venture.it appears that the Ethiopian joint venture law doesnot adhere to the concept of actual capital,meaning that all the registered capital must be paidin full upon the establishment of a joint venture.this is because the joint venture can be registeredeven if 25% of the share capital is paid up, but theperiod for the payment of the remaining part mustbe determined in the joint venture agreement.25%the valuation of capital contribution is a crucialquestion in every negotiation.it is not however clear from the law when thecontribution is to be made and how it is to bevalued.nor is it specified how the choice of hard currency ismade in order to provide protection againstcurrency fluctuations.the law is silent on how to evaluate technology,fixed assets such as plant and machinery, as wellas the value of land and the site. 100 8 the Board of Directors is the main managementorgan of the joint venture.it is composed of such number of directors as maybe agreed upon in the joint venture agreement.membership of the Board of Directors depends onthe basis of shareholding in the joint venture.the Board of Directors shall have a chairman whomay be elected by the shareholders.where no chairman is elected by them, the Board ofDirectors must elect a chairman from among itsmembers.in addition to the powers and duties provided in thejoint venture agreement, the Board of Directorsshall:(1) present to the shareholders meeting a draftpolicy and a work program of the joint venture forapproval;(1)(2) approve the loans and credits of the jointventure;(2)(3) prepare and submit to the shareholdersmeeting the budget of the joint venture for approval;(3)(4) establish branches of the joint venture; (4) 100 9 (5) approve the appointment and dismissal ofdepartment heads and agents of the joint ventureand define their responsibilities;(5)(6) approve the internal regulations of the jointventure;(6)(7) approve the sale of fixed assets of the jointventure;(7)(8) establish its own rules of procedure; (8)(9) delegate some of its powers to any member ofthe Board or to the General Manager of the jointventure, and(9)(10) discharge such other duties as are assigned toit by the shareholders meeting.(10)the shareholders meeting is the highest body ofany joint venture.no decision to dissolve a joint venture or to amenda joint venture agreement shall be effective unlessshareholders representing at least 75% of theshares have voted in favor of it.75%a foreign shareholder who wants to transfer hisshares must first make his offer to the Ethiopianshareholder to buy such shares. 100 10 transfer of shares to any foreign natural or juridicalperson is possible only if the Ethiopian shareholderdeclines to buy the said shares or fails to respondto such offer within 90 calender days after receipt ofthe offer.90the prices of the shares must be mutually agreedupon.it is important to stress that the Ethiopianstate-owned enterprise does not have to seekinstructions from the supreme Council for such atransfer.at least the law does not req