joint venture agreement

16
Ujian Akhir Semester Nama : Ferdy Achmad Razzaaq NPM : 110111100067 Dosen : Prof.Huala Adolf, S.H, LL.M., Ph.D Mata Kuliah : Perancangan Kontrak Internasional Soal 1. Dari kasus yang telah di ilustrasikan apabila saya dalam posisi tersebut bertindak sebagai lawyer PT. Fesma hal yang saya lakukan adalah menentukan bentuk kontrak internasional yang cocok dengan karakteristik perjanjian yang akan dilakukan oleh PT. Fesma tersebut yang dalam hal ini telah di ilustrasikan bentuknya merupakan kerjasama antara PT Fesma dengan PT Selma yang dimana kedua perusaan ini berbeda negara namun memiliki tujuan yang sama yaitu mengembangkan perusaaanya dan berencana untuk melebur kedua perusaan itu menjadi satu Perseroan terbatas. Dan saya sebagai lwayer memutuskan bahwa bentuk kontrak yang harus dibuat merupakan kontrak internasional yang dimana bentuk dan jenisnya adalah Join Venture. Joint venture merupakan salah satu bentuk kegiatan menanam modal yang dilakukan oleh penanam modal dalam negeri dan penanam modal asing melalui usaha patungan untuk melakukan usaha di wilayah negara Republik Indonesia. Joint venture atau usaha patungan ini dikategorikan sebagai kegiatan penanaman modal asing (“PMA”) sebagaimana didefinisikan dalam Pasal 1 huruf (c) UU No. 25 Tahun 2007 tentang Penanaman Modal (“UU Penanaman Modal”). Join Venture merupakan bentuk kerjasama yang paling cocok karakteristiknya dipakai dalam transaksi bisnis internasional baik dalam perdagangan barang maupun jasa. Join Venture juga merupakan wadah bagi kerjasama antara perusaan dengan perusahaan dalam bentuk ini yaitu antara PT Fesma dengan PT Selma untuk melakukan perdagangan ,mengembangkan produk baru,dan menyediakan pelayanan atau membuat pasar baru. Dari pertimbangan yang telah saya jelaskan diatas maka bentuk perjanjian yang dibuat merupakan perjanjian internasional yaitu Joint Venture Agreement,adapun Joint Venture

Upload: ferdy-achmad-razzaaq

Post on 04-Nov-2014

223 views

Category:

Law


0 download

DESCRIPTION

 

TRANSCRIPT

Page 1: Joint venture agreement

Ujian Akhir Semester

Nama : Ferdy Achmad RazzaaqNPM : 110111100067Dosen : Prof.Huala Adolf, S.H, LL.M., Ph.DMata Kuliah : Perancangan Kontrak Internasional

Soal 1.

Dari kasus yang telah di ilustrasikan apabila saya dalam posisi tersebut bertindak sebagai lawyer PT. Fesma hal yang saya lakukan adalah menentukan bentuk kontrak internasional yang cocok dengan karakteristik perjanjian yang akan dilakukan oleh PT. Fesma tersebut yang dalam hal ini telah di ilustrasikan bentuknya merupakan kerjasama antara PT Fesma dengan PT Selma yang dimana kedua perusaan ini berbeda negara namun memiliki tujuan yang sama yaitu mengembangkan perusaaanya dan berencana untuk melebur kedua perusaan itu menjadi satu Perseroan terbatas. Dan saya sebagai lwayer memutuskan bahwa bentuk kontrak yang harus dibuat merupakan kontrak internasional yang dimana bentuk dan jenisnya adalah Join Venture.

Joint venture merupakan salah satu bentuk kegiatan menanam modal yang dilakukan oleh penanam modal dalam negeri dan penanam modal asing melalui usaha patungan untuk melakukan usaha di wilayah negara Republik Indonesia.

Joint venture atau usaha patungan ini dikategorikan sebagai kegiatan penanaman modal asing (“PMA”) sebagaimana didefinisikan dalam Pasal 1 huruf (c) UU No. 25 Tahun 2007 tentang Penanaman Modal (“UU Penanaman Modal”).

Join Venture merupakan bentuk kerjasama yang paling cocok karakteristiknya dipakai dalam transaksi bisnis internasional baik dalam perdagangan barang maupun jasa. Join Venture juga merupakan wadah bagi kerjasama antara perusaan dengan perusahaan dalam bentuk ini yaitu antara PT Fesma dengan PT Selma untuk melakukan perdagangan ,mengembangkan produk baru,dan menyediakan pelayanan atau membuat pasar baru. Dari pertimbangan yang telah saya jelaskan diatas maka bentuk perjanjian yang dibuat merupakan perjanjian internasional yaitu Joint Venture Agreement,adapun Joint Venture Agrement tersebut berbentuk Joint Enterprise yang merupakan para pihaknya disini PT Fesma dan PT Selma membentuk suatu perusahaan baru untuk melaksanakan suatu usaha patungan (Incorporated Joint Venture Contract).

Page 2: Joint venture agreement

Soal 2.Joint Venture Agreement

BetweenSelma Malaysia LTD

WithPT. Indonesian Fesma

This agreement was signed on 01 February 2014, between:

1. Mr. A.. Robby Darwis, 44 Years, President Director of PT. Fesma Indonesia, which was established under the laws of the Republic of Indonesia, TIN 1993841933, which is located on Jl. Diponegoro 24, Bandung, West Java, Indonesia. In his position is entitled to represent the company entered into an agreement by Decree No. Directors. 223/2014. Hereinafter referred to as the FIRST PARTY.

2. Mr. B.. Safee Sali, the president director, Selma Malaysia LTD, which was established under the laws of Malaysia, located on Jl. Rimau, Malaysia. In his position as President Director is authorized to represent the company signed the agreement. Hereinafter referred to as the SECOND PARTY.

The FIRST and SECOND PARTY hereinafter jointly referred to as the Parties.

Considering that:

SECOND PARTY has a good reputation in the business of making women's clothing.SECOND PARTY has experience against the selection of women's clothing.SECOND PARTY has the technology in the manufacturing process of women's underwear.FIRST PARTY has experience producing women's clothing.FIRST PARTY has a factory as well as a strategic network in Indonesia.FIRST PARTY has a high reputation in Indonesia.

Given:

MoU between PT. Indonesia and Malaysia Fesma Selma LTD.

THE PARTIES hereby agree to establish a joint venture agreement. Furthermore, this agreement is called the "Joint Venture Agreement".

THE PARTIES shall establish a Limited Liability Company under the laws of the Republic of Indonesia to set up factories chopsticks, bamboo supply, supply of raw materials for chopsticks, machines - machines, packaging and marketing of chopsticks for export abroad. Where the chopsticks factory establishment is not against the law in Indonesia and the existing legislation. Limited Company established by PT. Fesma Indonesia - Malaysia LTD Selma named PT. Selma Fesma. Hereinafter referred to as "PT. BAROKAH JAYA ".

That PT. Fesma Indonesia (hereinafter referred to as "FIRST PARTY") with Selma Malaysia LTD (hereinafter referred to as "SECOND PARTY") agree and bind themselves mutually agreed to form and establish a legal entity to conduct business cooperation (hereinafter referred to as "BAROKAH Company") with the principle of equality and mutual benefit based on Legislation of the Republic of Indonesia, which governs the Joint Venture as well as legislation related, with the following provisions;

Article 1Definition

Indonesian language as the main language used in this Agreement.

Page 3: Joint venture agreement

The termination of the Agreement A condition that causes the overall agreement is no longer executed by the Parties for some reason.

Applicable Law The legal system in a country that is chosen and agreed upon by the Parties and subject to the legal system.

Board of Directors Organs Joint Venture Company which has the authority and is responsible for the management of the Joint Venture Company designated by the Parties.

Duration of the Joint Venture certain timeframe agreed by the Parties to execute the Joint Venture.

Joint Venture A cooperative venture between the First Party to the Second Party with equity participation in the form of money or land in the management of Strata Title in Business Location.

Circumstances Forced A condition where one of the parties and / or the Parties are not able to perform its obligations and / or not in the specified time as set forth in this Agreement.

Bankruptcy Dissolution of Joint Venturesebagai legal entity governed by the Law on Bankruptcy in the Republic of Indonesia.

Finance, Accounting and Auditing Methods and procedures for recording and reporting financial information to the accounting system that is guided by the general accounting and inspection / audits of various aspects of the environment in the Joint Venture Company.

Business location plot area ......... Office Management System thorough management activities kegiataan Office Setup

Joint Administration of Ventureyang associated with implementation.Labor Management Systems comprehensive management of the activities of human resources working in the Joint Venture Company.

The Parties First Party and Second Party mentioned together. Dispute Resolution Procedures and the appointment of judicial bodies agreed upon

by the Parties if any dispute arises between the Parties relating to this Agreement. Agreement commitments undertaken by the Parties governing the rights and

obligations of each party as well as those involved in running the Joint Venture. Change Treaty A situation in which the contents of this Agreement is no longer equal

to the original state due to the agreement of the Parties. A Joint Venture Company Limited Persereoan established by the Parties to execute

the Joint Venture. Strata Title Hotel, Condominium and Office Building and Housing is located in the

Business Location. Purpose and Scope A specific condition to be reached by the Parties and set forth in

this Agreement and restrictions in the Joint Venture. Default A situation where one of the parties and / or the Parties do not carry out its

obligations under this Agreement.

Article 2Parties In The Joint Venture

2.1 The Parties to this Agreement are as follows;

First Party is a Limited Liability Fesma Indonesia established under the laws of the Republic of Indonesia, TIN 1993841933, which is based in Bandung and is located at Jl. Diponegoro No. 24, Bandung, West Java, Indonesia, and in this case represented by Mr. Robby Darwis as Managing Director.

And

Page 4: Joint venture agreement

Both parties are Selma Malaysia LTD established under the laws of Malaysia, located in Malaysia is located at Jl. Rimau No. 31B Kav, 4D, Malaysia. and in this case represented by Mr. Safee Sali as President Director.

2.2 Either party shall notify the other party of any change in the information mentioned in Article 2.1 and if no notification of changes in the information referred to, then the other party is not legally responsible for the consequences caused by changes.

Article 3Joint Venture Company

3.1 The Parties agree and have agreed to form and establish a Joint Venture Company under the name BAROKAH Kab.Bandung domiciled and located at Business Locations.

3.2 Joint Venture Company incorporated in Indonesia and all the activities of the Joint Venture Company is governed by the legislation of the Republic of Indonesia as well as the legal rights and interests of the Joint Venture Company under the protection of the Unitary Republic of Indonesia.

3.3 Joint Venture Company incorporated limited liability company and each party is responsible in accordance with the paid-up capital. Profits, risks and losses of the Joint Venture Company will be distributed to the Parties in proportion sesaui with the contribution of each of the paid-up capital as well as the Joint Venture Company is responsible for its assets.

Article 4Objectives, and Scope of Work

4.1 The purpose of the Joint Venture Company is to increase economic growth and improve the quality of Indonesian Garment products, develop new products, and improve competitiveness in the world market in quality and price by adopting advanced and applicable technology and scientific management methods, so as to improve economic outcomes and ensure satisfactory economic benefits for every investor.

4.2 The scope of business of the Company is a Joint Venture Women's Apparel, including covering Shirt, Dress, Underwear, Pants and Dress Office and other accessories.

Article 5Value of Total Investment and Registered Capital

5.1 The total value of the investment company to manage the Joint Venture Joint Venture amounted Rp.1.000.000.000.000, - (one trillion dollars).

5.2 Capital deposited by the Parties to the joint account is Rp. 500,000,000,000, - (five hundred billion dollars).

5.3 Each Party shall provide to depositing the contribution of capital was calculated as follows:

a. Both sides of Rp. 670 000 000 000, - (six hundred and fifty billion dollars heading) is equivalent to U.S. $ 67,000,000, - (sixty tenor million United States dollars);

b. First Party of Rp. 330 000 000 000, - (thirty-three billion dollars), equivalent to U.S. $ 33,000,000, - (thirty three million U.S. dollars) as well as investment in land used as a Business Location value equivalent to Rp. 330 000 000 000, - (thirty-three billion dollars), equivalent to U.S. $ 33,000,000, - (thirty three million U.S. dollars);

Page 5: Joint venture agreement

        5.4 If there is a proprietary technology that is used by one of the Parties and / or the Parties and considered the equivalent of investment capital for the Joint Venture, the Parties shall make and sign a separate agreement to become an integral part of this Agreement.                                                                                                                              5.5 The registered capital into the bank account Joint Venture Company will be settled by the Parties in proportion to the registered capital of each party, the settlement system as follows:

a. The parties settled all capital within twelve months after the issuance of a business license.

b. Capital contribution of each party shall be converted in accordance with the value of the Bank Indonesia.

c. Capital contribution in the form of proprietary technology will be recognized as the capital investment at the time of the Joint Venture Company to obtain evidence of intellectual property rights.

5.6 total deposit amount of capital will be paid simultaneously, and the Parties may not refuse or delay payment of the entire capital repayment for any reason, except as stated in Article / Klasula regulating the circumstances forced on this Agreement.

5.7 Payment of capital of the Parties shall be audited by a licensed public accountant appointed by the Joint Venture Company and the capital payment audit reports should be reported by the Joint Venture Company to the Parties within forever 60 (sixty) days after the audit is completed capital payments verified by the designated public accounting firm.

5.8 Adjustment of the registered capital and / or the total investment amount will be agreed and approved by the Parties at a later date. In the event that any party including the Joint Venture Company intends to transfer to a third party all or part of the investment, must obtain the consent of the other party and the agreement will affect investment diversion of this Agreement.

5.9 Joint Venture Company to obtain loans from domestic and foreign investment to balance or as circulating funds for production with the approval of the Parties. In particular, foreign loans can be carried out by foreign investors through loans. The other party can not do the loan, without the written consent of the Parties.

Article 6Responsibilities of Each Party In Joint Venture

6.1 The obligations of each party are as follows:

a. First Party Liability: Handling of applications for approval, registration, business license and other

matters concerning the formation of the Joint Venture Company of relevant agencies;

Handling the permission of the land use of the National Land Agency; Provide equity in accordance with the provisions of Article 5.1 and Article

5.3b Organizing the design and construction of buildings and other engineering

facilities in the Joint Venture; Assisting the Joint Venture Company in the purchase or rental of equipment,

construction materials joint venture, office supplies, transportation and communication facilities;

Assisting the Joint Venture Company for the provision of basic facilities like water, electricity;

Page 6: Joint venture agreement

Assisting the Joint Venture Company in recruiting and human resources both technical, and administrative employees and other personnel as required;

Assisting foreign workers and staff in the filed of entry visas, work permits and procedures for the handling of their journey;

Responsible for handling other matters entrusted by the Joint Venture Company.

         b. Second Party Liability:

Provide equity in accordance with the provisions of Article 5.1 and Article 5.3a;

Purchase machinery, equipment and materials from outside Indonesia; Train technical personnel and workers of the Joint Venture Company; Responsible for other matters entrusted by the Joint Venture Company.

6.2 Upon approval of the Parties, which occurs in the normal cost of setting up a Joint Venture Company will be borne by the Joint Venture Company.

Article 7Governing Council Joint Venture Company

7.1 Date of issuance of the Decree of the Ministry of Justice and Human Rights of the Republic of Indonesia to the ratification of the Joint Venture Company shall be the date of the establishment of the Joint Venture Company's Management.

7.2 Governing Board consists of the Director who is appointed by the Director of the First Party and the Second Party and was appointed Chief Commissioner appointed by the First Party and the Commissioner appointed by the Second Party. The term of office for all Board is four years, and change and / or extension of the term of office of the Board is done through the mechanism of the General Meeting of Shareholders (AGM).

7.3 Joint Venture highest authority to the Board to be related to the Joint Venture Company's main issues with the approval of 50% (fifty percent) of all Board present at any meeting of the Governing Council for a decision on the following matters:

1. Amendment of Articles of Association of the Company Joint Venture;2. Dissolution and / or separation of the Joint Venture Company;3. Adjustment Company registered capital of the Joint Venture;4. The other things can be decided according to the mechanism set out in the Articles of

Association of the Joint Venture Company.

7.4 Managing Director is the legal power of the Joint Venture Company and if the Director is able to carry out their duties for any reason then the Managing Director shall submit to the Director of duties and responsibilities for a while and when in a pinch Director is able to carry out their duties without handing duties and responsibilities to the Director, the Director may exercise the duties and powers on behalf of the Director of.7.5 The Governing Council shall hold at least one meeting each year, led by the Managing Director and the Governing Council may hold an urgent meeting by written agreement made by more than 50% (fifty percent) of the total number of directors and the Executive Council meeting notice must include time, place and agenda of the meeting and shall be given in writing to all the Governing Board no later than 30 (thirty) days before the meeting and one (1) day for an urgent meeting.

7.6 Each Party has the obligation to ensure that the Board is established, must be present at the meeting of the Governing Council as stipulated in Article 7.3 and Article 7.5, in which case the board of one of the Parties and / or the Parties are unable to attend the Governing

Page 7: Joint venture agreement

Board meeting, the Parties managers can not attend must issue a power of attorney to the person designated as the proxy to attend the meeting of the Governing Council and the sound of the Authorized equal in value to the Board are represented.

7.7 Each Governing Council meeting shall be recorded in the minutes of the meeting and signed by all the Board or the endorsee who was present at the meeting and the minutes of the meeting will be put on file.

Article 8Office of Management

8.1 Mandatory Joint Venture Company formed Office of Management who is responsible for day-to-day administration. Office of Management shall appoint a General Ganager recommended by the First Party and Vice General Manager recommended by the Second Party to the Governing Board, General Manager and Vice General Manager was appointed and is responsible for the Board and have a term of 5 (five) years.

8.2 The General Manager is responsible for implementing the Governing Council's decision and to organize and conduct the daily management of the Joint Venture Company. Vice General Manager will assist the General Manager in executing its responsibilities. If the General Manager is not able to carry out its responsibilities, the Vice General Manager to carry out the things that are the responsibility of the General Manager as well as the things that are important in carrying out the management of the Joint Venture Company's office, must be decided upon between the General Manager to Vice General Manager. General Manager may appoint a Manager by the Department that the Company's Joint Venture.

8.3 If the General Manager and / or Vice General Manager of shirking the responsibility of each and have a negative impact on the Company's Joint Venture, the Governing Board may terminate the General Manager and / or Vice General Manager.

Article 9Preparation and Construction

9.1 During the period of preparation of construction Joint Venture, formed the Office of the Governing Council consisting of the Setup Project Leader appointed by the First Party and Deputy Project Manager appointed by the Second Party.

9.2 The Project Manager is assisted Deputy Project Manager is responsible for; project design, construction project contract signing, arranging the purchase and inspection related equipment, materials, plan expenditure, controlling project finances and arrange payment of managerial methods and maintain and archive documents, images, files and materials during construction projects.

9.3 Assisted Deputy Project Leader Project Leader shall establish the technical team responsible for construction inspection, supervision, inspection of construction projects, as well as the quality of the project including equipment, materials and technology located on Jl Katapang No. 131, Soreang, Kab.Bandung, West Java , Indonesia.

9.4 Wages, remuneration, bonuses and other costs associated with Workers in the Construction Works Joint Venture included in the Overall Capital Investment budget.

9.5 After construction is completed, the Preparatory Office was dissolved with the approval of the Board.

Page 8: Joint venture agreement

Article 10Labor Management

10.1 Contract of employment including recruitment, employment, dismissal and resignation, wages, labor insurance, welfare, rewards, sanctions and other matters related to the Joint Venture Company Workers must pass through the Collective Bargaining Agreement between the Board of Trustees with the Trade Union Representatives appointed by a majority of the workers as well as referring to the legislation of the Republic of Indonesia which relate to employment.

10.2 Joint Venture Company shall establish a labor union with the principle of fair, good faith and equity.

Article 11Finance, Accounting and Auditing

11.1 Joint Venture Company should formulate accounting systems and procedures in accordance with company legislation of the Republic of Indonesia on Finance and other related matters

11.2 Joint Venture Company's fiscal year is January 1 to December 31 of each calendar year AD.

11.3 Budget Allocation to reserve fund, fund development Joint Venture Company and welfare funds and bonuses for workers must be determined by the Governing Council at the Annual Budget Allocations in accordance with the business situation and the Joint Venture Company's revenue.

11.4 Joint Venture Company appoint a Public Accountant in the annual audit and submit the results to the Board.

11.5 In the first three months of each fiscal year, the General Manager must prepare prior year balance sheet, income statement and the proposed distribution of profits, and submit them to the Board.

11.6 Within 4 months after the end of each fiscal year, the Board of Trustees in accordance with the business situation and profit from Joint Venture Company shall take a decision regarding the distribution of profits from net income and profit sharing will not be shared if the losses of the previous fiscal year have not been resolved.

11.7 Joint Venture Company shall supervise workers pay individual income tax in accordance with the legislation of the Republic of Indonesia on Taxation.

11.8 Joint Venture Company shall report and pay to the taxable income of the Indonesian Government agency authorized to levy taxes.

11.9 The insurance policy of the Company Joint Venture with various types of dependents must go through an insurance company or its representatives that are legal defi Indonesia and type, and the value of the insurance period to be decided by the Governing Council meeting in accordance with the provisions of the insurance company.

Article 12Term Joint Venture

Page 9: Joint venture agreement

12.1 Duration of the Joint Venture Company is 15 (fifteen) years from the date of the business license of the Joint Venture Company published.

12.2 Extension of Term Joint Venture Company may be agreed by the Board of Trustees no later than one (1) year prior to Period expires as stipulated in Article 12.1.

Article 13Termination of Agreements and Dissolution

13.1 This Agreement may be terminated and the Company Joint Venture be dissolved for the following reasons:

1. Agreement can not be performed due to force majeure;2. Companies Joint Venture losses that cause no longer operates;3. Either Contracting Party and / or the Parties commit a substantial breach of this

Agreement, which led to the Joint Venture shall be implemented;4. The Parties agreed not to continue this Agreement;5. Due to other matters governing the termination of this Agreement and / or the Joint

Venture set forth in this Agreement and the Articles of Association of the Joint Venture Company.

13.2 Dissolution done through the bankruptcy process in accordance with the legislation of the Republic of Indonesia on Bankruptcy.

Article 14Changes in Agreement

Changes to the Agreement and or upon agreement of the Parties shall

Article 15Sanctions Violations on a deal

15.1 If either party does not pay on schedule as provided for in Article 5 and Article 6 of this Agreement will be subject to disciplinary action as follows;a. If late for 30 (thirty) days to fulfill payment obligations, it will be a penalty of 1% (one percent) of the total payment obligations to other parties per day of delay;b. If late more than 60 (sixty) days to fulfill payment obligations, the Party who did not meet these obligations, considered to break away from the rights and obligation of this Agreement.

15.2 Sanctions referred to override the implementation of Article 15.1 b of Article 1266 and 1267 of the Civil Law Act.

Article 16Necessity

In case of earthquakes, hurricanes, floods, fires, wars, riots, rebellions and other disasters can not be prevented or avoided, which directly affect the fulfillment of the obligations of this Agreement or make it impossible for the agreed obligations, parties who have state of the Forced shall notify the other party by written letter within 15 days after that, giving detailed information about the state of forced, explaining the reason for the inability to carry out all or part of this Agreement. The Parties shall agree to decide the termination of the Agreement and or to liberate part of the obligation and / or to postpone the implementation of the obligations.

Article 17Applicable Law

Page 10: Joint venture agreement

Formation, validity, interpretation, execution and settlement of disputes in respect of this Agreement is subject to the Law of the Republic of Indonesia.

Article 18Settlement of Disputes

Any disputes arising in connection with this Agreement resolved through deliberation and within 14 (fourteen) days there was no agreement in the deliberations finalized the settlement of disputes in the South Jakarta District Court.

Article 19Language

This agreement is made in Indonesian and English. Where there is a difference in interpretation between the Indonesian and the English text prevailing Indonesian.

Article 20Attachment

20.1 Appendix prepared in accordance with the principles of this Agreement and are an integral part of this Agreement and have the same legal force of this Agreement. Appendices include: the Company's Articles Joint Venture.

20.2 This Agreement is made two (2) copies to be stored by each Party and has the same legal effect.

Article 21Notice

21.1 notice with respect to the rights and obligations of each party delivered via a written letter, and / or other media that does not diminish the substance of the notice.

21.2 Notice shall be deemed delivered after notifying party receives a confirmation and / or receipt of the notified Party

21.3 Address of the Parties contained in this Agreement shall be the mailing address.

Similarly, the agreement signed by authorized representatives of each Party on the date indicated above.

First Party Second Party

Mr. Robby Darwis Mr. Safee SaliDirector President Director