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International Joint Venture Agreements in South Korea | Atlas Legal







Real Case: Companies from Country A, Country B, and South Korea agreed to establish a joint venture in Songdo, Incheon to commercialize a specific new technology domestically. Partners with different legal systems, languages, and business cultures came together, and the initial draft agreement exceeded 200 pages. Atlas Legal successfully completed an agreement satisfying all parties after six months of negotiations. How was this possible?

Key Answer: International Joint Venture Agreements (JVA) must center on governance structure, share transfer restrictions, exit strategies, and governing law and dispute resolution clauses, while reflecting differences in legal systems and cultural characteristics of each country. Without clear decision-making mechanisms and Buy-Sell provisions, serious disputes may arise during operations. Atlas Legal recently successfully drafted a joint venture agreement among companies from three countries, integrating JVA, shareholders’ agreements, and technology transfer agreements to establish a foundation for a long-term stable partnership.

Three Countries, Three Legal Systems, One Vision

※ This case is based on an actual project, but some facts have been adapted to aid understanding, and party information has been protected.

Company A possessed innovative technology but had no experience entering the Asian market. Company B had substantial capital but was unfamiliar with the technology field. The Korean company had domestic market networks and manufacturing infrastructure. The synergy was clear if they combined their respective strengths, but the question was “how to work together.” Country A follows a Common Law system, Country B follows a Civil Law system, and Korea also follows Civil Law but has unique Commercial Act provisions. Contract interpretation methods, negotiation styles, and even email response times differed. Atlas Legal participated from the initial Term Sheet stage, working closely with legal experts from each country. We designed not just a list of legal clauses, but governance structures and dispute prevention mechanisms that actually work. We will now share in detail the core principles and practical know-how learned through this process.

1. What is a Joint Venture and Why Choose It?

Concept and Nature of Joint Ventures

A Joint Venture (JV) is a form of business combination where two or more independent companies combine capital, technology, personnel, etc. for a common business purpose. It is a middle ground between simple contractual cooperation and complete merger and acquisition (M&A), characterized by each party maintaining independence while deeply cooperating in specific business areas.

Based on Atlas Legal’s recent project experience and numerous joint venture advisory engagements, joint ventures are broadly divided into two types.

Types of Joint Ventures

Equity Joint Venture

This involves establishing a separate legal entity with each party holding rights and obligations as shareholders. This is the most common and stable structure, and the three-country project handled by Atlas Legal adopted this method. It is established as a stock corporation or limited liability company, with the Commercial Act and articles of incorporation applying. Liability is limited to capital contributions, and with independent legal personality, tax treatment and contract execution are clear.

Contractual Joint Venture

This establishes relationships solely through contracts without establishing a separate legal entity. Forms include consortiums and partnerships, suitable for temporary or project-based cooperation. Commonly used in construction joint ventures, R&D consortiums, etc. However, liability issues may be unclear, and tax treatment can be complex.

Classification by Ownership Structure

Ownership Structure Characteristics Advantages Disadvantages
50:50 Joint Venture Equal partnership Fair decision-making, mutual checks possible High risk of deadlock
Majority-Minority Structure Clear controlling shareholder exists Quick decision-making, operational efficiency Minority shareholder protection needed
Multiple Partner Structure Three or more parties participating Combines diverse resources and expertise Complex coordination and consensus

The case handled by Atlas Legal was a multiple partner structure, with ownership stakes set at 40%, 35%, and 25% respectively, creating a clear leadership structure while ensuring meaningful minority shareholder participation.

Why Do Companies Choose Joint Ventures?

Risk Distribution

In large investments or entering new markets, sharing risks among multiple parties reduces individual company burden. Even in case of failure, losses are distributed, and each party’s expertise helps identify and manage risk factors in advance.

Resource Combination Synergy

Combining each partner’s strengths such as technology, capital, and market access can achieve results impossible alone. In the Atlas Legal project, the combination of Country A’s technology, Country B’s capital, and the Korean company’s local market network enabled rapid market entry.

Regulatory Compliance

Some countries or industries have restrictions on foreign investment or require joint ventures with local companies for government-supported projects. Joint ventures effectively address such regulations.

Rapid Market Entry

Leveraging local partners’ networks and experience saves significant time and costs compared to pioneering markets independently from scratch.

Risk Factors and Countermeasures in Joint Ventures

Through numerous joint venture advisory experiences, Atlas Legal has identified the following risk factors.

Management Rights Disputes: Decision-making delays or deadlocks may occur, and disagreements on strategic direction may intensify. Clear voting requirements must be included in contracts to prepare for this.

Cultural Differences: In international joint ventures, differences in management style, communication methods, and time perception are pronounced. Even in our project, everything from email response time expectations to meeting management styles differed. An attitude of acknowledging and mutually respecting cultural differences is essential.

Profit Distribution Conflicts: Differences in perspective between short-term profit maximization and long-term investment, and disagreements on dividend policy may arise. Clear dividend policies and reinvestment principles must be agreed upon at the contract stage.

Technology Leakage Risk: Core technologies or trade secrets may be inappropriately shared, or competitive relationships may form after joint venture termination. Strict confidentiality clauses, non-compete provisions, and separate technology transfer agreements must establish protective measures.

2. What Essential Clauses Must Be Included in a JVA?

Definition of Contracting Parties and Joint Venture Company

The first part of the agreement must clearly state each party’s exact legal status and authority. Corporate registration numbers, representatives, and head office locations must be accurately recorded, and authority to enter into contracts must be verified. Atlas Legal always secures authorization documents (board resolutions, powers of attorney, etc.) according to each country’s laws in international joint ventures.

For the joint venture company to be established, the name, location, legal form (stock corporation, limited liability company, etc.), and business purpose must be specifically defined. Business purposes that are too narrow may constrain future expansion, while those too broad may cause conflicts of interest among partners, requiring careful drafting.

Design of Capital Structure

Paid-in Capital and Ownership Percentages

Total capital scale is determined and each party’s ownership percentage clearly established. Ownership percentage is not merely the contribution ratio but also becomes the basis for future decision-making rights, dividend rights, and residual asset distribution rights, requiring careful determination.

In the Atlas Legal project, we designed an ownership structure of 40%, 35%, and 25%. This established a clear primary shareholder while requiring agreement between the primary and secondary shareholders on important matters, achieving checks and balances.

Contribution Methods

Cash contribution is most common, but in-kind contribution is also possible. In-kind contributions can include not only real estate, equipment, vehicles, and inventory, but also intellectual property rights such as patents and trademarks. In our case, we considered having Company A contribute licenses for core technology as in-kind contribution, but difficulty in ensuring objective valuation led to choosing cash contribution followed by a separate technology transfer agreement.

Critical considerations for in-kind contributions:

  • Fair valuation method (using independent appraisal agencies)
  • Ownership transfer procedures and timing
  • Liability in case of defect discovery
  • Tax issues (gift tax, capital gains tax, etc.)

Additional Capital Contribution Provisions

Procedures for additional capital contributions needed for business expansion or loss coverage must be specified. Whether it is mandatory proportional contribution, optional contribution, and whether dilution occurs for non-contribution must be clarified.

Core Elements of Governance Structure

Board Composition

Total number of directors is determined (usually odd numbers: 3, 5, 7), and the number of directors each shareholder can appoint is allocated according to ownership percentage. In the Atlas Legal project, we structured a board of 7 directors, with the 40% shareholder appointing 3, the 35% shareholder appointing 2, and the 25% shareholder appointing 2.

Director terms and removal procedures are also important. While the Commercial Act limits director terms to within 3 years, joint venture agreements usually set 1-year terms to ensure flexibility. Removal can be done unilaterally by the appointing shareholder, but liability for damages is specified for removal without just cause.

Decision-Making Structure

General matters and important matters are distinguished with different voting requirements.

General matters (majority resolution):

  • Approval of annual business plans
  • Expenditures within budget
  • Routine contract execution
  • Personnel management

Important matters (special resolution, e.g., 3/4 or more, or unanimous):

  • Amendment of articles of incorporation
  • Capital increase or decrease
  • Merger, split, dissolution
  • Acquisition or disposal of major assets (e.g., 20% or more of total assets)
  • Large-scale borrowing (e.g., 50% or more of capital)
  • Changes to dividend policy
  • Investment in other companies

Atlas Legal frequently employs granting veto rights to specific shareholders on certain matters. For example, requiring consent of the technology-providing shareholder for decisions related to core technology, or requiring consent of the capital-providing shareholder for expenditures above a certain amount.

Management Composition

Methods for appointing the CEO (Representative Director) and key officers (CFO, CTO, COO, etc.) are determined. Generally, the largest shareholder nominates the CEO and the board approves, but in 50:50 joint ventures, alternating CEO appointments or co-CEO systems may operate.

The scope of day-to-day management authority is clarified, distinguishing matters the CEO can independently decide without board approval from those requiring board reporting or approval. Atlas Legal pursues balanced design, considering that overly restricting management authority reduces operational efficiency, while granting too broad authority makes oversight difficult.

Importance of Share Transfer Restrictions

In joint ventures, share transfer restrictions are key mechanisms for maintaining partnership stability. In joint ventures based on trust, suddenly admitting third parties can fundamentally change relationships.

Lock-up Period

A clause completely prohibiting share transfers for a certain period (usually 3-5 years) after contract execution. During this period, partners can focus on business and build trust. The Atlas Legal project set a 3-year lock-up period.

Right of First Refusal (ROFR)

A clause giving other shareholders the opportunity to purchase under the same terms when a shareholder wishes to sell their stake to a third party.

Procedure:

  1. Selling shareholder receives purchase offer from third party
  2. Notifies other shareholders specifying purchase price and terms
  3. Other shareholders express purchase intent within 30 days (or agreed period) from notification
  4. If multiple shareholders express purchase intent, allocated proportionally to ownership stakes
  5. If no purchase intent, sale to third party permitted

Tag-Along Right

When a majority shareholder sells their stake to a third party, this is the right of minority shareholders to sell their stakes under the same terms. This is a mechanism protecting minority shareholders, meaning “if the majority shareholder exits on good terms, I’ll exit too.”

Drag-Along Right

A clause requiring minority shareholders to participate when majority shareholders wish to sell the entire company to a third party. As buyers usually want 100% ownership in M&A, transactions may fall through if minority shareholders oppose. Drag-Along prevents this.

Atlas Legal designs these three clauses in balance to maintain equity among shareholders while enabling flexible exit strategies.

3. How Do International Joint Ventures Differ from Domestic Ones?

Fundamental Differences in Legal Systems

The first challenge faced in international joint ventures is harmonizing different legal systems. Common Law countries (USA, UK, Singapore, etc.) and Civil Law countries (Korea, Japan, Germany, France, etc.) differ fundamentally from contract interpretation methods.

Common Law Characteristics

Case law-centered, with matters not specified in contracts interpreted by courts based on past precedents and circumstances. Therefore, contracts tend to be very detailed and lengthy (usually over 100 pages), attempting to anticipate and stipulate all possible situations. Unique clauses such as “Representations and Warranties” and “Indemnification” have developed.

Civil Law Characteristics

Statute-centered, with provisions in civil and commercial codes taking precedence. Matters not specified in contracts are interpreted according to general principles of law (good faith, public order and morals, etc.). Contracts tend to be relatively concise, containing only principled content.

In Atlas Legal’s three-country project, Country A was a Common Law country, while Country B and Korea were Civil Law countries. Country A’s lawyer presented a 200-page draft agreement, while the Korean side responded “too complex and lengthy.” We performed the work of understanding both sides’ legal thinking and finding a middle ground. The key was balancing detailed provisions with concise principles.

Practical Solutions to Language Issues

Necessity of Bilingual Agreements

In international joint ventures, agreements are usually drafted in both English and the local language (Korean). This is for each party to accurately understand in their own language and submit to domestic courts or arbitration bodies in case of future disputes.

Priority in Case of Language Discrepancies

The following clause must be included in agreements:

“This Agreement is executed in both English and Korean. In case of any inconsistency or conflict between the English version and the Korean version, the English version shall prevail. However, for matters governed by Korean law, the Korean version shall be referred to for interpretation.”

Atlas Legal uses the following methods to ensure translation accuracy:

  • Creating and attaching a glossary of key terms as an appendix
  • Using specialized legal translators
  • Cross-review by lawyers from each country
  • Listing key clauses in both languages to minimize misunderstanding

Foreign Exchange and Remittance Regulations

Currency Risk Management

In international joint ventures, exchange rate fluctuation risk exists in all transactions including capital contribution remittances, dividend receipts, and technology fee payments. Exchange rate application standards (e.g., remittance date rate, bank announced rate, etc.) must be specified in contracts, and currency hedge plans should be discussed if necessary.

Capital Remittance Restrictions

Some countries restrict capital outflows or require prior approval. In Korea, procedures such as foreign investment notification and foreign-invested company registration are required under the Foreign Exchange Transaction Act, and procedures must also be followed when remitting dividends. Atlas Legal thoroughly reviews foreign exchange regulations of each country early in projects to prevent delays in remittance procedures or unexpected cost occurrences.

Foreign Exchange Transaction Act Compliance

When receiving foreign investment in Korea:

  • Foreign investment notification (Ministry of Trade, Industry and Energy or foreign exchange bank)
  • Foreign-invested company registration
  • Introduction of investment funds (remittance or in-kind import)
  • Share acquisition and registration
  • Issuance of foreign-invested company registration certificate

Failure to properly execute these procedures may cause problems with future dividend remittances, share sale proceeds remittances, etc.

Importance of Cultural Considerations

In Atlas Legal’s three-country project, the most unexpected difficulties arose from cultural differences. Even with legally perfect agreements, if cultural conflicts occur during actual operations, partnerships can be shaken.

Communication Styles

Western cultures prefer direct and explicit communication, while Eastern cultures prefer indirect and contextual communication. Korean culture of not directly saying “No” but expressing it as “It would be difficult” or “We’ll review it” is often misunderstood by Western partners as “under positive consideration.”

Decision-Making Styles

American companies prefer quick and bold decision-making, while Korean companies emphasize thorough review and consensus. Japanese companies are even more cautious, going through “Nemawashi (根回し, prior consultation)” at all stages. Without understanding these differences, complaints accumulate such as “Korean partners are too slow” or “American partners are too hasty.”

Trust-Building Methods

Western cultures build trust through contracts and systems, while Eastern cultures emphasize relationships and human bonds. Atlas Legal attaches importance not only to official meetings but also to informal gatherings and meals during contract negotiations. Human trust formed in such settings plays a major role in concluding difficult negotiations later.

Time Perception

Countries like Germany emphasize precise time adherence, while some countries have flexible time perceptions. Differences in expectations regarding meeting start times, report submission deadlines, etc. can cause conflicts.

Atlas Legal explains these cultural differences to parties from the early stages of contract negotiation, recommending workshops or orientations to promote mutual understanding. Sometimes cultural differences are reflected in contracts. For example, setting generous notice periods for board meetings or stipulating important decisions only in face-to-face meetings.

4. What Were the Key Challenges in the Three-Country Project?

Project Overview

This project handled by Atlas Legal aimed to establish a joint venture in South Korea combining Company A’s innovative technology, Company B’s capital strength, and the Korean company’s market network to commercialize a specific new technology. Each partner’s ownership stake was 40%, 35%, and 25% respectively, with total investment scale reaching tens of billions of won.

Legal Complexity of Multinational Joint Ventures

Coordination of Three Legal Systems

While Korean Commercial Act basically applies as the joint venture is established in Korea, each shareholder company had to receive internal approval according to their own country’s laws. Company A was subject to a Common Law country’s Companies Act, Company B to a Civil Law country’s commercial code, and the Korean company to Korean Commercial Act.

Atlas Legal collaborated with local law firms in each country to verify:

  • Each company’s overseas investment authority and procedures
  • Whether board or shareholder meeting resolutions required
  • Government approval or notification obligations
  • Foreign exchange regulation compliance matters

Completing required approval procedures in each country alone took about 2 months, which we reflected and managed in the contract schedule.

Selection of Governing Law and Jurisdiction

The governing law of the joint venture agreement was determined to be the laws of the Republic of Korea. This was a natural choice as the joint venture is established in Korea and Korean Commercial Act applies. However, international arbitration was chosen instead of Korean court litigation for dispute resolution.

Dispute resolution clause:

“Any dispute arising out of or in connection with this Agreement shall be finally settled by arbitration in accordance with the Rules of the ICC International Court of Arbitration. The place of arbitration shall be Singapore. The language of arbitration shall be English. The arbitral tribunal shall consist of three arbitrators.”

Singapore was chosen as the arbitration venue because it is neutral to all three countries, Singapore has developed as an international arbitration hub, and it has an arbitration-friendly legal system.

Specific Solutions to Language Issues

The agreement was drafted in both English and Korean. Atlas Legal went through the following procedures:

  1. Country A lawyer drafts English initial version
  2. Atlas Legal reviews and revises from Korean law perspective
  3. Country B lawyer provides additional review and comments
  4. Three-country lawyer video conferences to coordinate issues (over 10 times total)
  5. Final English version confirmed
  6. Atlas Legal prepares Korean translation
  7. Cross-review by specialized legal translator
  8. Glossary of key terms created and attached

Particular attention was paid to accurately expressing Korean Commercial Act-specific concepts like “Director,” “Representative Director,” and “Auditor” in English. For example, clarifying differences between “Representative Director” and “CEO,” and between “Auditor” and “Audit Committee.”

Integrated Design with Technology Transfer Agreement

For the joint venture to use core technology held by Company A, a separate Technology License Agreement was needed. While the joint venture agreement and technology transfer agreement are separate, they are closely related, requiring integrated design.

Scope of Exclusivity

The joint venture received exclusive rights to use the technology within South Korea. However, Company A was permitted to license the same technology in other countries or conduct business directly. This was a balance point respecting Company A’s global business strategy while guaranteeing the joint venture’s exclusive Korean market rights.

Royalty Structure

Royalties consisted of upfront fee and running royalty:

  • Upfront fee: Lump sum payment at technology transfer time
  • Running royalty: Certain percentage of joint venture’s annual sales (e.g., 3%) paid quarterly
  • Minimum royalty: Certain amount paid even if no sales occur

This structure guaranteed stable income for Company A while distributing burden for the joint venture in proportion to sales.

Technology Improvements and Intellectual Property Rights

When the joint venture improves licensed technology or develops new technology, intellectual property rights ownership must be clarified. We agreed as follows:

  • Improvements to original technology: Joint ownership by Company A and joint venture
  • Completely new technology: Sole ownership by joint venture
  • In all cases, Company A retains non-exclusive usage rights

Atlas Legal detailed patent application procedures, cost sharing, and rights exercise methods to prevent future disputes over technology development outcomes.

5. How Do You Structure Governance?

Practical Principles of Board Composition

In Atlas Legal’s three-country project, the board was composed of 7 directors. According to ownership percentage, the 40% shareholder appoints 3, the 35% shareholder appoints 2, and the 25% shareholder appoints 2. The odd number composition ensures clear majority decisions.

CEO (Representative Director) Appointment

The largest shareholder (40%) nominates the representative director and the board appoints. The representative director represents the company and handles day-to-day management, but important matters require board approval.

Use of Outside Directors

Having one outside director for balance of interests was considered, but in the early joint venture stage, building trust among partners was deemed priority, so all directors were appointed by shareholders. However, we established grounds in articles of incorporation for appointing outside directors if needed in the future.

Design of Decision-Making Mechanisms

Atlas Legal classified decision-making into three stages, applying different voting requirements for each.

Classification Voting Requirement Examples
General Matters Majority of attending directors Annual business plans, contracts within budget, routine personnel
Important Matters 2/3 or more of all directors Over-budget expenditures (20%+), large borrowing, new business entry
Special Matters Unanimous Articles amendment, capital increase/decrease, merger/split, dissolution, major asset disposal

Unanimous matters were carefully selected. Too many can paralyze decision-making, while too few make minority shareholder protection difficult.

Granting Veto Rights

We effectively granted veto rights to Company A (technology provider) on technology-related decisions. For example:

  • Sub-licensing of technology licenses to third parties
  • External disclosure of technology improvement results
  • Introduction of competing technology

Such matters require consent of at least one director appointed by Company A to be resolved.

Management Authority and Responsibilities

The representative director can independently decide on the following without board approval:

  • Expenditures within approved budget
  • Contract execution below certain amount (e.g., under 500 million won)
  • Personnel below department head level
  • Routine work instructions

The following require board reporting:

  • Monthly business performance
  • Status of major contracts executed
  • Employee status
  • Occurrence of legal disputes

The following require prior board approval:

  • Over-budget expenditures
  • Contracts above certain amount (e.g., over 500 million won)
  • Executive personnel
  • New borrowing
  • Filing lawsuits or settlements

Atlas Legal designed to secure operational efficiency by clarifying representative director authority while maintaining board control over important matters.

6. Why Are Share Transfer Restrictions Important?

Reasons for Setting Lock-up Periods

Joint ventures presuppose long-term partnerships. If one partner takes only short-term profits and exits, remaining partners suffer major damage. In Atlas Legal’s three-country project, we set a 3-year lock-up period.

Lock-up clause:

“For three years from the contract execution date (Lock-up Period), shareholders cannot transfer, provide as collateral, or otherwise dispose of all or part of their shares to third parties without prior written board approval.”

Exceptions:

  • Transfer to affiliates or 100% subsidiaries (when shareholder’s governance structure unchanged)
  • When all shareholders consent in writing
  • Forced disposal by court order or law

Practical Design of Right of First Refusal (ROFR)

Even after the lock-up period expires, we granted ROFR to prevent indiscriminate share transfers. The procedure designed by Atlas Legal is as follows:

Stage 1: Sale Intent Notice

When a shareholder wishing to sell (Selling Shareholder) receives a purchase offer from a third party, they provide written notice to other shareholders including:

  • Number of shares to be sold
  • Purchase price per share
  • Payment terms (lump sum, installments, etc.)
  • Other conditions (warranties, indemnification, etc.)
  • Identity of prospective buyer (third party)

Stage 2: Expression of Purchase Intent

Notified shareholders must express purchase intent in writing under the same terms within 30 days. No expression is deemed waiver of ROFR.

Stage 3: Handling Multiple Purchase Candidates

When two or more shareholders express purchase intent, allocation is proportional to their existing ownership stakes. For example, if both 40% and 35% shareholders express purchase intent, allocation is 40:35 ratio.

Stage 4: Sale to Third Party

If no shareholder expresses purchase intent, the Selling Shareholder may sell to third party under notified terms within 90 days from notice date. However, if terms change (price reduction, payment term relaxation, etc.), ROFR procedure must be repeated.

Balance of Tag-Along and Drag-Along

Tag-Along Right

In the Atlas Legal project, we granted Tag-Along Rights to protect minority shareholders (25% shareholder).

Clause content:

“When the 40% or 35% shareholder intends to sell 50% or more of their shares to a third party, the 25% shareholder has the right to sell all or part of their shares to the same buyer under the same terms (price per share, payment terms, etc.).”

Exercise procedure:

  1. Selling shareholder notifies Tag-Along Right holder of sale plan (at least 30 days prior)
  2. Tag-Along Right holder expresses participation intent within 20 days
  3. Selling shareholder ensures buyer also purchases Tag-Along shareholder’s shares
  4. If buyer refuses, entire transaction cancelled

Drag-Along Right

Conversely, we granted Drag-Along Rights to prevent minority shareholders from obstructing whole company sales.

Clause content:

“When the 40% shareholder and 35% shareholder agree to sell 100% of company shares to a third party, the 25% shareholder is obligated to sell their shares to the same buyer under the same terms.”

Conditions:

  • Sale price must be at or above fair market value
  • Purchase payment in cash or terms consented to by minority shareholder
  • Buyer must assume all debts and contingent liabilities of joint venture

Atlas Legal balanced Tag-Along and Drag-Along design to protect minority shareholders while enabling smooth progress when whole sale is necessary.

7. How Do You Terminate a Joint Venture?

Grounds for Termination

Atlas Legal specified the following termination grounds in the agreement.

Termination by Mutual Agreement

All shareholders can terminate the joint venture and liquidate the company at any time by written agreement. This is the most ideal and amicable termination method.

Contract Term Expiration

If the joint venture agreement specifies a duration (e.g., 10 years), automatic termination occurs upon expiration. However, extension is possible by shareholder agreement. In the Atlas Legal project, rather than specifying a duration, we made it indefinite but agreed to reevaluate the partnership every 3 years.

Material Breach of Contract

When one shareholder materially breaches the contract and fails to cure despite the other party’s demand (usually 30-day cure period), the other party may terminate the contract.

Examples of material breach:

  • Failure to fulfill agreed capital contribution obligations
  • Violation of non-compete obligations
  • Violation of share transfer restriction clauses
  • Material breach of representations or warranties

Bankruptcy or Dissolution

When one shareholder becomes bankrupt, enters rehabilitation proceedings, liquidates, or dissolves, other shareholders may terminate the contract and purchase that shareholder’s joint venture shares at a pre-agreed price (e.g., book value).

Force Majeure

When business performance becomes impossible for 6 months or more due to force majeure events such as natural disasters, war, or government orders, shareholders may decide termination through consultation.

8. What Practical Considerations Matter When Drafting Agreements?

Importance of Thorough Preparation

In Atlas Legal’s experience, successful joint venture agreements are already 80% determined at the preparation stage.

Careful Partner Selection

No matter how perfect the agreement, choosing the wrong partner leads to failure. The following must be thoroughly reviewed:

  • Financial soundness: Financial statements, credit rating, debt status
  • Business reputation: Past partnership history, legal dispute history
  • Strategic fit: Does it align with our goals?
  • Cultural fit: Can we collaborate organizationally?

Conducting Due Diligence

Due diligence must be conducted before contract execution:

  • Legal Due Diligence: Litigation, regulatory violations, IP disputes
  • Financial Due Diligence: Accuracy of financial statements, hidden debts
  • Technical Due Diligence: Technology originality, patent validity, third-party rights infringement
  • Business Due Diligence: Market prospects, competitive environment, regulatory risks

Atlas Legal conducted patent due diligence on Company A’s technology, confirming all core patents were valid and did not infringe third-party rights.

Confirming Government Policy and Regulations

Joint ventures are subject to various regulations including each country’s foreign investment laws, industry regulations, and tax laws. Regulatory risks must be identified early in projects by consulting relevant government agencies or experts.

Balancing Contract Provisions

Avoiding Excessive Rigidity

Attempting to anticipate all situations in contracts results in documents hundreds of pages long. However, unforeseen situations inevitably occur. Atlas Legal clarifies core principles while granting flexibility for parties to determine details through consultation.

Example: “The Board decides on important company matters. Specific criteria for important matters are determined by the Board considering business environment, but must include matters enumerated in articles of incorporation.”

Clear Definition Clauses

Key terms are clarified with definition clauses at the beginning of agreements. This is especially important in international joint ventures to prevent misunderstandings from cultural and language differences.

Definition examples:

  • “Affiliate”: Company in which 50% or more shares are held directly or indirectly, or authority to appoint majority of directors is held
  • “Material Adverse Effect”: Negative impact equivalent to 10% or more of annual sales on company assets, liabilities, financial condition, or business performance
  • “Confidential Information”: All non-public information including technical, business, and financial information marked “Confidential” or similarly

Ensuring Translation Accuracy

One of the areas Atlas Legal devoted most attention to in the three-country project was translation. Subtle nuances in legal terminology can become seeds of future disputes.

Consistent Translation Principles

  • Same legal terms translated identically throughout document
  • Not using one word for multiple meanings
  • Example: “Resolution” consistently translated, not mixing with similar terms

Accurate Correspondence of Legal Terms

Korean English Notes
이사 Director Board member
대표이사 Representative Director or CEO Distinguish by context
감사 Auditor (single) / Audit Committee (committee) Distinction required
정관 Articles of Incorporation Distinguish from By-laws
주주총회 General Meeting of Shareholders
이사회 Board of Directors

9. FAQ

Q1. What are the essential clauses that must be included in a Joint Venture Agreement (JVA)?
A. Essential clauses include governance structure (board composition, voting requirements), share transfer restrictions (right of first refusal, Tag-Along, Drag-Along), Buy-Sell provisions, exit strategies, and governing law and dispute resolution clauses. Without clear provisions in these areas, serious disputes may arise in the future. Atlas Legal has confirmed the importance of these core clauses through numerous project experiences.

Q2. How do you determine the governing law in international joint ventures?
A. Generally, the law of the jurisdiction where the joint venture company is established is chosen as the governing law. In this case where the joint venture was established in South Korea, Korean law was selected as the governing law. Dispute resolution is also possible within Korea if feasible, or third-country arbitration venues (Singapore, Hong Kong) may be used. Atlas Legal works with legal experts from each country to select optimal governing law and arbitration venue.

Q4. What are Buy-Sell provisions and why are they necessary?
A. Buy-Sell provisions are clauses that force one party to either purchase the other’s shares or sell their own shares when disagreements between partners become irresolvable. Methods include Russian Roulette (one party sets the price, the other chooses to buy or sell) and Texas Shootout (both sides submit bids, highest bidder purchases). They serve as the ultimate means to cleanly resolve joint venture relationships.

Q5. Which language takes precedence in international joint venture agreements – Korean or English?
A. To avoid confusion, it’s best to create the agreement in one language. For example, create the joint venture agreement only in English, with the Korean version used only as reference material for Korean companies to understand the English agreement. If the agreement is created in both Korean and English, which language takes precedence must be specified. If Korean law is the governing law and Korean courts will resolve disputes, prioritizing the Korean version facilitates dispute resolution.

Q6. Should technology transfer agreements be executed separately from joint venture agreements?
A. Yes, separate agreements are recommended. Joint venture agreements govern relationships among shareholders, while technology transfer agreements govern licensing relationships between technology providers and the joint venture company. Since the two agreements have different purposes and parties, they should be separated but connected through cross-reference clauses. Atlas Legal designs both agreements comprehensively to ensure no contradictions or gaps.

Q7. Who owns intellectual property rights developed during the joint venture upon termination?
A. This must be clearly determined in advance by contract. Generally: (1) Original technology belongs to the technology provider, (2) Improved technology is jointly owned or allocated according to contribution, (3) Completely new technology belongs to the joint venture or is allocated according to development contribution. Having experienced numerous disputes over IP rights attribution, Atlas Legal specifies this in great detail at the contract stage.

Atlas Legal provides legal services in corporate law, corporate disputes, corporate advisory, and corporate crime (fraud, breach of trust, embezzlement, tax law, customs law) in Songdo, Incheon, South Korea. We recently successfully completed a project drafting international joint venture agreements among companies from Countries A and B and South Korea, with experience in comprehensively designing Joint Venture Agreements (JVA), shareholders’ agreements, and technology transfer agreements. We provide expert advisory and contract drafting services for complex corporate transactions including international joint ventures, foreign investment, technology transfer, M&A, and shareholder disputes.

※ The cases introduced in this article are based on actual projects, but some facts have been adapted to aid understanding, and party information has been protected.

About the Author

Taejin Kim | Managing Attorney
Attorney specializing in Corporate Advisory, Corporate Disputes, and International Transactions
Former Prosecutor | Judicial Research and Training Institute, Class 33
LL.B, LL.M. in Criminal Law, Korea University; LL.M., University of California, Davis

Visit Atlas Legal Website


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