Guidelines for. Directors of incorporated joint ventures

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1 Guidelines for Directors of incorporated joint ventures November 2014

2 The context Introduction Joint ventures are formal legal agreements where parties come together to develop a particular business or a project. They may have differing corporate and shareholding arrangements, with not all joint ventures resulting in entities having equal holdings. Joint ventures may be in existence for a finite period or be of an enduring nature, and this will be reflected in the shareholder agreement. Directors of joint ventures A joint venture is a separate legal entity distinct from the legal entities of the individual parties which created it. The director of a joint venture is often an executive in one of the nominating shareholding companies. Notwithstanding this, in their role as a director, they should be aware that their duty to act in the best interests of the joint venture entity overrides any duty to the entity that nominated them to the board. Different shareholders can have conflicting interests. Those interests do not override the duty of the director to the joint venture entity. Directors of all joint ventures, as in any company, should be aware that it is their responsibility to ensure that they understand all of their legal obligations as a director. They also need to understand that, while there is provision in the Corporations Act for directors of wholly-owned subsidiaries to act in the best interests of the shareholding company in certain circumstances, this provision does not apply to joint ventures. Directors of joint ventures must continue to act in the best interests of the joint venture entity. They can take into account the interests of the shareholding company as long as it is in the best interests of the joint venture entity. Directors should be aware that they may be held liable for the joint venture s breach of obligations in a variety of legal and operational areas. Directors should also appreciate that there may be penalties involved for a failure to meet their directors duties and obligations as required by law. These guidelines do not set out all of the different legal obligations that might apply to joint venture directors. These obligations vary across industries, sectors and the different jurisdictions in which each joint venture enterprise operates. It should be noted that there may be variations and different legal definitions of joint ventures across other jurisdictions and that these guidelines focus on the role of directors in incorporated joint ventures in Australia. A shareholder agreement will usually cover: board composition the number of directors the position of the chair of the board voting rights what matters can be dealt with by the board and what matters need to go to members what matters require unanimous approval by the board or majority approval. Control is an important consideration in joint ventures. Control spread evenly will operate differently from control vested in a majority shareholder and also has different accounting consequences attached to it. A shareholder agreement where control vests in a majority shareholder may also cover how any potential oppression of minority shareholder issues will be dealt with. In the event of a dispute or inability to make decisions, the shareholder agreement is likely to direct which action should be taken. Any new director of a joint venture not only needs to be familiar as to how the shareholder agreement operates, but should also consider taking legal advice prior to joining the board, for instance, seeking a summary of the shareholder agreement. Strategic or business plan A joint venture will usually have a strategic or business plan. This will set out the strategic and financial priorities for the entity and each of the contributions that each shareholder may make. Directors need to be familiar with the joint venture s strategic or business plan. Employer s nominee director policy Any director of a joint venture should be familiar with their employer s policy on how it manages nominee directors. It may be useful for a director of a joint venture entity to refer to Governance Institute s Good Governance Guide: Issues to consider when developing a policy on nominee directors. Shareholder agreement The shareholder agreement is a prescriptive agreement and, prior to joining the board, new directors should become familiar with how the shareholder agreement operates. It is frequently the constitution of the joint venture entity. 2 Governance Institute of Australia 2014

3 The role of the director of an incorporated joint venture Generally, the role of a director is to oversee the management of the company on behalf of its shareholders. For a joint venture, the power to manage the company is given to the directors by the joint venture s constitution and/or shareholder agreement. The shareholders are often one or more other companies that have combined for a particular commercial enterprise while retaining their distinct corporate identities. This structure may be very different to that of a shareholding company which, if a publicly listed entity, may have thousands of external shareholders. It is important for directors to also have a clear understanding of the strategy behind the joint venture and the shareholding company s reasons for being involved. However, directors must remain active and diligent in performing their roles, and not simply act as a rubber stamp, ratifying the decisions of their appointing shareholders. Regardless of the arrangement of shareholders, directors of joint ventures must perform their roles in compliance with all of their legal obligations. In particular, this means understanding that the director s duty to the joint venture will override the interests of shareholders to the joint venture. Governance Institute of Australia

4 The duties and obligations of the director of an incorporated joint venture Directors owe a number of duties and obligations. These duties may vary across the different jurisdictions in which the joint venture operates, but can generally be summarised as follows: the duty to act in good faith the duty to exercise skill and care, and the duty not to trade while insolvent. The duty to act in good faith The duty to act in good faith requires directors to make decisions in the best interests of the company and for a proper purpose. Directors should: always act in good faith in the best interests of the company act honestly and make decisions for a proper purpose not abuse their position or seek to profit personally from it not use the company s information for personal gain or in a way that could harm the company, and avoid conflicts of interest wherever possible, and disclose all conflicts if they have any. The duty to act in good faith requires that a director satisfy themselves that decisions are made in the best interests of the joint venture. Generally, acting in the best interests of the joint venture will align with the best interests of its shareholders. Instances may arise, however, where the best interests of the joint venture entity differ from the best interests of one or some of the shareholding companies. Directors may consider: absenting themselves from the board s discussions on those particular matters, or asking for a board meeting to be adjourned while the interests of the joint venture entity and shareholding company are further clarified. Directors may need to consider resigning from the board if they are not able to act in the best interests of the joint venture entity. However, it is likely that the shareholding company will be unable to appoint another director who does not have the same conflict of interest as the resigning director. It may be useful therefore for the constitution of the joint venture entity to confirm that directors of the joint venture entity can take into account the interests of the shareholding company as long as it is in the best interests of the joint venture entity. The shareholder agreement and/or constitution may need to clarify that a director of a joint venture entity may share confidential information with the shareholding company which appointed the director. Directors should also be aware that they may have conflicts of interest which may arise not only because of their own interests, but because of the interests of others such as immediate family members (for example, spouse, parents, or children) and any companies of which they are also directors, or companies in which they have a significant interest (for example, a family company). All conflicts of Tips on duty to act in good faith Some ways in which you can demonstrate that you have acted in good faith might include: recognising that there is a conflict of interest where you, your direct family members or a company you control has business dealings with the joint venture. In such instances you should disclose your interest in writing to the company secretary or equivalent. If you are in any doubt about an interest you have, you should err on the side of caution and disclose it making appropriate disclosures and not participating in board discussions where you, your direct family members or a company you control stands to gain from a proposed transaction the directors are considering. This should be recorded in the minutes satisfying yourself that a potential transaction that affects the joint venture is in its best interests. In such instances you should not approve the transaction if you are not comfortable with it, and you may wish to seek supporting information if necessary. Ask yourself whether you would approve the transaction if you owned the company ensuring that you always act in the joint venture s best interests, and never put your own interests ahead of the joint ventures interests. Never act in a way that harms the joint venture ensuring that you do not reveal confidential information about the joint venture to anybody if you don t need to, or if you think they might use it to harm the venture, or acting honestly in all matters, and considering, if in doubt, asking yourself how you would feel if your actions were reported in the media. 4 Governance Institute of Australia 2014

5 interest must be disclosed, and it is important to get advice on any conflicts that may exist to make sure that they are managed appropriately. The duty to exercise skill and care The duty to exercise skill and care requires each director to take care and be proactive in performing their role. Directors should: act diligently and with reasonable skill and care perform their role to the best of their ability based on their knowledge and experience familiarise themselves with the company and its activities, and monitor the company s financial and commercial performance. Directors are expected to perform their role with a degree of diligence that a reasonable person in a similar position would exercise in similar circumstances. This will depend on the size and activities of the joint venture. Directors must understand the joint venture and its activities and actively monitor its performance. Directors are not expected to make a detailed inspection of the day-today activities of the joint venture, but must monitor them generally, and ensure that there are processes in place that allow them to appropriately monitor the ongoing activities. As many directors will also likely be executives with either the joint venture or one of the shareholding companies, they will also likely have a good knowledge of the operations of the joint venture. When considering a potential transaction involving the joint venture, directors must apply their own special skills and knowledge and exercise independent judgment. They must satisfy themselves that the transaction is in the best interests of the joint venture, which may be different to the interests of the shareholding company. If a director is not satisfied with the level of information or assurance provided, they should refuse to make a decision on the matter until appropriate information is available. The duty not to trade while insolvent The duty not to trade while insolvent is a specific requirement which is usually classified as a subset of the duty to exercise care and skill, because it requires directors to turn their minds and apply their skills to assessing the financial position of the joint venture. A company is considered insolvent if it cannot pay its debts when they fall due. If a company becomes insolvent and continues to trade, the directors can be held personally liable for debts incurred. To protect themselves, and meet their obligations, directors should satisfy themselves at all times that the joint venture is able to pay its debts as they fall due. In Australia, directors are required to make a declaration that the company is solvent at least once each year. Directors should not make a solvency declaration until they have made proper inquiries and satisfied themselves that the company is indeed solvent. The joint venture must keep adequate financial records to correctly record and explain transactions and the joint venture s financial position and performance. A director who fails to take all reasonable steps to ensure that the company fulfills this requirement may be in breach of their directors duties. Tips on duty to exercise skill and care Some ways in which you can demonstrate that you have exercised skill and care might include: asking upon your appointment as a director for information about the joint venture, including: - about its activities and assets - what the risks are that you need to focus on as a director - the most recent accounts, including a balance sheet, profit and loss statement and cashflow statement to assess the solvency and financial strength of the entity, and - the legal structure, constitution and/or shareholder agreement, country of incorporation, other directors, key assets and liabilities etc. reviewing regular operational reports monitoring the financial performance and position of the joint venture, including asking for copies of the company s management accounts, where appropriate to be provided on a regular basis, and at least annually reviewing and assessing the material contracts the joint venture has entered into, and understanding the contract approval request process satisfying yourself that the joint venture has appropriate processes in place to manage risks and report its performance and position, and ensuring that your knowledge of the joint venture and its activities remains current. Governance Institute of Australia

6 Tips on the duty not to trade while insolvent Some ways in which you can demonstrate that you have exercised skill and care to ensure that the joint venture is not trading while insolvent might include: monitoring the joint venture s assets and liabilities, in particular its current (liquid) assets and current (short-term) liabilities, and finding out when its debts are due for repayment, especially any large debts finding out whether the joint venture s liabilities are guaranteed by other companies in the corporate group, or vice versa. This might include, for example, a deed of cross-guarantee finding out if the joint venture receives funding support (debt or equity) from other companies such as a shareholding company and the basis of that funding seeking a letter of support from one of the shareholding companies, or taking immediate action to prevent the joint venture trading while insolvent, where the entity is not able to pay its debts as they fall due. This might include seeking financial support from a shareholding company, or ceasing all trading activity. 6 Governance Institute of Australia 2014

7 What the board of directors of an incorporated joint venture does The role of the board of the joint venture is to provide oversight and ensure that the joint venture achieves the specific purpose for which it has been set up. The directors, who are the board members, exercise their duties when they participate in the board to oversee the operation and strategic direction of the joint venture. The directors are not responsible for the day-to-day operations of the company, but they should bear in mind that the considerations applying to a director role are different to those of management. Nonetheless, directors should understand both the operations of the joint venture, and the areas in which they will be required to participate in board decision-making, as well as understanding the governance processes and practices by which directors exercise their powers. Joint ventures may be created for many purposes and operate in many different ways. What each board does, therefore, in each case will be different, and the operational aspects set out below may not be applicable to all directors. One of the key documents to which a director of a joint venture should refer when trying to understand what the board of directors should do is the shareholder agreement, or the joint venture s constitution. Such documents will usually detail the limits to which decision-making and authority for actions by directors is allowed, and may otherwise contain details relevant to the decision-making powers of the joint venture. Board decision-making powers Directors should be aware before they are appointed to the board of a joint venture of the role which the board is expected to perform. The arrangements, including the amount of influence of shareholding companies will usually be detailed in the shareholder s agreement or the joint venture constitution. The limits of authority of the board of directors may not always be clear, however, it is important that the directors review the terms of the agreement or constitution and delegated authorities to understand the terms of the powers provided to them. The board of directors of joint ventures may be empowered to engage in a range of activities which will vary depending on the size of the joint venture, the shareholder agreement, and the purpose for which the joint venture was established. Such activities might include the ability to budget, plan strategy, and/or approve material transactions. The shareholder agreement or constitution might specify that the board of directors has the power to engage and approve major or material transactions subject to a requirement that any transaction with a material or major impact on a joint venture must be approved by one or all of the shareholding companies before it can proceed. In some instances, however, the shareholder agreement or joint venture constitution may not provide clarity on whether the directors of a joint venture have a right to undertake particular activities. In such cases, directors should seek clarification from their respective shareholding companies. A failure to consider important activities undertaken by the joint venture could potentially place directors in breach of their duty to exercise skill and care. The way in which powers are exercised within the joint venture might also need to take account of different processes that may be in place for each of the joint venture s shareholders, depending on the types of activities which the joint venture plans to undertake. For example, the approval processes for spending may differ between the joint venture and one of the shareholding companies. Or it may be necessary for a joint venture to grant a power of attorney, giving someone authority to do particular things on its behalf. If a power of attorney is required, the joint venture might consider putting some or all of the following processes in place, such as ensuring that the power of attorney: is reviewed and endorsed by a member of the legal team before it is signed is reviewed and approved by the directors of the joint venture is limited to specific acts, which are listed in the power of attorney does not allow the attorney to sub-delegate their power has a fixed duration and automatically expires if the attorney ceases to be an employee of the joint venture, and/or is sent to the relevant officer of the shareholding company for recording in the register and safe keeping after it has been signed. Directors should also be aware that some joint venture arrangements may result in majority and minority shareholders. The uneven nature of a shareholder arrangement in a joint venture may result in diminished rights of minority shareholders, whereby their views and interests are not properly considered at the board table. The board will need to have processes in place to ensure that minority views are appropriately represented. Reference will also need to be made to the shareholder agreement or joint venture constitution to understand how the board of the joint venture is intended to operate. Governance Institute of Australia

8 Financial statements Although joint ventures may differ in size and purpose, many will be required to prepare audited financial statements which must contain prescribed information, be prepared and audited in a certain way, and be lodged with the regulator within a specified timeframe. In those circumstances, the directors are responsible for: reviewing the joint venture s financial statements after they have been prepared and audited and before they are lodged ensuring the financial statements are accurate and comply with applicable regulatory requirements and accounting standards approving the financial statements at a meeting of directors (provided the directors are satisfied the financial statements comply with all applicable requirements), and ensuring the financial statements are lodged on time. Irrespective of whether the joint venture is required to produce audited financial statements, all directors are responsible for: ensuring the company keeps proper accounting records, and monitoring the company s financial performance and position and its solvency. Directors might consider insisting that management accounts are prepared and provided to directors regularly (how often will depend on the company and its operations, although at least annually is advisable), to enable them to monitor the joint venture s performance and meet their responsibilities. Dividends Dividends must be approved by the joint venture s directors, who are responsible for ensuring that the company is able to pay the dividend. Before approving a dividend, directors should review the joint venture s balance sheet and cashflows and satisfy themselves that: the joint venture s assets exceeds its liabilities the payment of the dividend is fair and reasonable, and the payment of the dividend would not materially prejudice the joint venture s ability to pay its creditors. Compliance and risk Directors should be aware of the operational aspects of the company and the subsequent compliance and risks associated with the particular joint venture. The director has a duty to ensure that appropriate systems for managing compliance and risk are in place, and for the monitoring and oversight of those systems. Examples of these are set out below. Work, health and safety (WH&S) Directors of Australian joint ventures have obligations in relation to WH&S obligations to employees, which vary in detail depending on the jurisdiction. In those jurisdictions where the law has been harmonised, the joint venture has Tips on financial statements (where they are required) Some ways in which a director might demonstrate that they have carried out their duties in relation to financial statements include: asking that draft financial statements are considered at a meeting of directors, and not by circular resolution, and asking that the meeting be attended by the internal person who prepared the financial statements and the external person who audited them, where appropriate seeking assurance from the auditor and relevant internal people that the financial statements: - give a true and fair view of the joint venture s performance and position - are accurate and comply with the applicable accounting standards and regulatory requirements - contain all of the necessary disclosures, and - affirm the company s solvency and do not give rise to any concerns or problems considering the joint venture s cashflows, its assets and liabilities, and when its debts fall due for payment, and satisfying yourself that the company is solvent satisfying yourself that the financial statements are accurate and give a true and fair view of the joint venture s performance and position, and asking questions if you are unsure reading and considering closely any declarations required in respect of the financial statements and satisfying yourself that they are totally correct, and considering whether enough time, assurance and information has been provided for you to review the financial statements, and asking for more time to review, where necessary. 8 Governance Institute of Australia 2014

9 a primary duty to ensure, so far as reasonably practicable, the health and safety of workers (whether or not they are employees), as well as an obligation to others. Directors must exercise due diligence to make sure that the company has a system of compliance and acts in accordance with its WH&S obligations. In addition, a list of specific obligations are imposed on directors (for example, acquiring a knowledge and understanding of WH&S matters and the operations of the joint venture and associated hazards and risks). Directors are exposed to liability, including criminal liability if they fail to meet their obligations. It is important to get advice on the application of WH&S laws and obligations in the context of the specific joint venture and its operations. In essence, directors are responsible for ensuring that the joint venture s WH&S practices are adequate. For joint ventures that conduct operations or employ people, the risk of harm is usually much higher, and the directors of these joint ventures should: ensure they understand the company s WH&S risks and processes satisfy themselves that the WH&S processes meet the parent company s standards and are appropriately resourced and functioning effectively, and monitor the company s WH&S performance and risks. Directors should review the WH&S risks of the company to ensure that they are satisfied with the approach to managing those risks. Environmental matters Under Australian law, directors may be held personally liable for harm to the environment caused by the joint venture. Directors are responsible for ensuring that the joint venture s environmental practices are adequate, and that the joint venture conducts operations in a way which does not breach their obligations. Some tips appear below to assist the directors of joint ventures to meet their responsibilities in relation to WH&S and environmental matters. Tips on WH&S and environmental matters Some ways in which a director might wish to demonstrate that they have carried out their duties in relation to WH&S and environmental matters includes: visiting any operational sites and meeting with the WH&S and environmental managers to get an overview of the site s risks, performance and processes asking for and reading copies of any site s regular WH&S and environmental reports and any recent audit reports joining the mailing list for WH&S updates from operational sites, or ensuring that information about WH&S or environmental incidents are appropriately collected, addressed and actioned, including making sure that remedial actions are implemented in a timely manner. Governance Institute of Australia

10 How the board of the incorporated joint venture operates The board of the joint venture will likely be required to meet at various intervals throughout the year at a pre-determined time and place for board meetings. These meetings will be advised by the company secretary in advance, and directors are usually expected to make themselves available for these meetings except in limited circumstances. Directors meetings are generally to provide oversight over the joint venture and its activities. In advance of the joint venture s board meeting, the company secretary will distribute to the director a copy of the agenda and papers for the meeting. Directors are expected to review and turn their minds to the content of the papers for the meeting. Directors should be aware, however, that annotations to the papers may require explanation should they at any point form evidentiary material, and that it is best practice for directors to return their papers to the company secretary at the conclusion of the meeting. The company secretary will then usually only retain one set of clean papers as a record of the meeting. The directors will also be required to exercise their duties and obligations by voting on matters at board meetings. Decisions of directors may also take place by circular resolutions that record the decision and are signed by all directors without them having to meet (s 248A Corporations Act). Directors should check to see if such actions are allowed by the joint venture s constitution. Important decisions such as major transactions and the audited financial statements should generally only be made at a meeting of directors. Minutes of directors meetings and circular resolutions must be prepared and stored safely by the company secretary. Directors should ensure that the minutes and resolutions are accurate and comply with regulatory requirements. Any change to the joint venture constitution requires the approval of the company s shareholder(s), usually by a special majority and after the change has been recommended by the directors. Each joint venture, and its directors and employees, will usually be expected to comply with any other of the shareholding company s policies and other mandatory requirements (including a code of conduct), and operate under enterprise-wide frameworks (for example, the risk framework). Each joint venture may be asked to formally adopt a shareholding company s policies and delegated authorities, as amended from time to time. Directors must notify the company secretary or relevant officer of any change in their name or home address. Appointment, resignation and access to documents Directors of joint ventures generally hold office until they resign, are removed by the shareholder(s), or cease being employed by a shareholding company. Directors may also resign at any time and are usually expected to resign upon ceasing to be employed by a shareholding company, or if asked to resign by the shareholding company. Resignations should be in writing addressed to the secretary of the joint venture and the shareholding company. Upon ceasing to be a director, the director should return all of the joint venture s property. While directors are entitled to board papers, each board must form a view as to the circumstances in which directors will be permitted to retain board papers beyond the board meeting to which they relate. Joint ventures need to seek legal advice and form their own view as to whether board papers that have been provided to a director become the property of the director or remain the property of the joint venture, and what the joint venture s obligations are regarding the retention of such documents particularly where they include any annotations. Indemnity and insurance Directors of joint ventures should seek a deed of indemnity from both the joint venture and the employer which nominated them to the board. Where a former director and the joint venture have entered into a deed of indemnity, access and insurance, the director will usually be provided, depending on the terms of the deed, with access to the joint venture s documents and records relevant to their period of directorship. A director of a joint venture may inspect the books of the company (other than its financial records) at all reasonable times for the purposes of a legal proceeding. This right continues for up to seven years after ceasing to be director. See Governance Institute of Australia s Good Governance Guide: Director and ex-director access to company information. The shareholder agreement or the joint venture constitution might contain a provision under which the company indemnifies directors for liabilities they incur as a result of performing their role. The indemnity is generally limited to honest mistakes and does not apply if a director has acted dishonestly or to deliberately harm the joint venture. It is also only of use to a director if the statutory contract under s 140 of the Corporations Act applies. Other limitations may also apply. Directors may seek further protection under a separate deed of indemnity, access and insurance with the joint venture. Directors may be covered by a shareholding company s directors and officers liability insurance policy (D&O policy). However, directors should note that this is not always the case, and that the coverage of some D&O policies may not extend to directors of joint ventures. Directors may wish to seek advice or a separate endorsement on the extent of the D&O policy. A director should get written confirmation from the company secretary of the joint venture, and/or the shareholding company that the director will be covered by this policy. If you have any questions about indemnity or the D&O policy, you should contact the shareholding company s general counsel or company secretary. 10 Governance Institute of Australia 2014

11 Summary These guidelines provide a summary only and do not set out all of the different legal obligations that apply for every joint venture, which vary from country to country. Directors are responsible for familiarising themselves with these obligations. It is important that directors are proactive and take their responsibilities seriously. They should always have regard to their responsibilities and legal obligations when acting as a director. Failure to comply with legal obligations could expose a director to personal liability. If directors need advice, or have any questions about their role as a director, they should contact a member of the legal team or the company secretary or relevant officer of the joint venture or shareholding company. Governance Institute of Australia

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