Joint Venture Agreement British

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					Lawyers · Patent and Trade-mark Agents




                                         Most Current Legal Issues



                                         Presented at the 90th Annual CCA Conference
                                                     Monday, March 3rd, 2008
                                                    Victoria, British Columbia



                                                                       Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership
Lawyers · Patent and Trade-mark Agents




                                         Dirk H. Laudan
                                         BLG Vancouver Office
                                         (604) 640-4154
                                         dlaudan@blgcanada.com




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Lawyers · Patent and Trade-mark Agents




                                          Public Policy Issues in
                                         Government Procurement


                                                 By Dirk H. Laudan

                                               90th Annual CCA Conference
                                                 Monday, March 3rd, 2008
                                                Victoria, British Columbia

                                                                             3
Lawyers · Patent and Trade-mark Agents   Values in public procurement


                                            More than bottom line
                                            Transparency
                                            Trade issues (liberalization vrs.
                                             protectionism / local preference)




                                                                                 4
Lawyers · Patent and Trade-mark Agents   Values in public procurement (cont’)


                                            Competition
                                            Demand aggregation
                                            Value for money
                                            Transparency
                                            Accountability
                                            Fairness




                                                                                5
Lawyers · Patent and Trade-mark Agents   Transparency


                                           Open procurement
                                            process
                                           More process
                                            oriented
                                           Tension with
                                            commercial
                                            secrecy
                                           Debates within
                                            public entities

                                                               6
Lawyers · Patent and Trade-mark Agents   Transparency (cont’)


                                            Interrelation with public policy
                                             debates
                                            Secret = suspicious
                                            Access to information
                                            What should remain private




                                                                                7
Lawyers · Patent and Trade-mark Agents   Trade issues


                                           Trade
                                            liberalization
                                           Protectionism /
                                            local preference
                                            (e.g. “buy
                                            Canadian”)
                                           Interprovincial and
                                            international
                                            agreements

                                                                  8
Lawyers · Patent and Trade-mark Agents   Trade agreements


                                           Agreement on Internal Trade (free
                                            trade among provinces)
                                           BC – Alberta Trade, Investment and
                                            Labour Mobility Agreement (TILMA)
                                           NAFTA
                                           WTO-AGP
                                           Other agreements



                                                                                 9
Lawyers · Patent and Trade-mark Agents   Legal issues in trade policy


                                            Contract A / Contract B
                                            Prohibition against secret
                                             preferences in Contract A
                                            Whether contract A formed in RFP
                                             procurement
                                            Implications of the Tercon decision




                                                                                   10
Lawyers · Patent and Trade-mark Agents   Agreement on Internal Trade (AIT)


                                            Applies to procurement above a
                                             threshold
                                            Applies to Ministries of the BC
                                             Government
                                            Since April 2002, applies to
                                             municipalities, school boards, health
                                             and social services
                                            Crown corporations


                                                                                     11
Lawyers · Patent and Trade-mark Agents   North American Free Trade Agreement
                                         (NAFTA)

                                           National
                                            treatment
                                           Monetary
                                            thresholds
                                           Exclusions




                                                                               12
Lawyers · Patent and Trade-mark Agents   World Trade Organization – Agreement
                                         on Government Procurement

                                             Similar to NAFTA
                                             Membership
                                             Exclusions
                                             Other treaties




                                                                                13
Lawyers · Patent and Trade-mark Agents   Government relations and
                                         communications

                                           Not a questions of lobbying for
                                            contracts (any more)
                                           Gomery Commission
                                           Containing risks of problems arising
                                            with projects




                                                                                   14
Lawyers · Patent and Trade-mark Agents   Risks


                                           Public procurement is newsworthy
                                            (even for modest contracts)
                                           Contractors or proponents come
                                            under minute scrutiny
                                           Some government procurement is
                                            inherently controversial (e.g. P3s)
                                           Viability can be jeopardized



                                                                                  15
Lawyers · Patent and Trade-mark Agents   Communications strategies


                                           Advice and
                                            planning
                                           Media training
                                            where necessary
                                           Crisis
                                            preparedness
                                           Get help



                                                                     16
Lawyers · Patent and Trade-mark Agents   Government relations today


                                           Smoky backrooms gone
                                           Highly regulated environment
                                           Registration and filing requirements,
                                            ongoing, significant penalties for
                                            noncompliance.
                                           Transparency – implications




                                                                                    17
Lawyers · Patent and Trade-mark Agents   Questions or comments?


                                                             Experience in
                                                              public procurement
                                                              policy
                                                             Other questions or
                                                              comments




                                                                                   18
Lawyers · Patent and Trade-mark Agents




                                         Thank You!




                                                 Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership
Lawyers · Patent and Trade-mark Agents




                                         James W. MacLellan
                                         BLG Toronto Office
                                         (416) 367-6592
                                         jmaclellan@blgcanada.com




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Lawyers · Patent and Trade-mark Agents




                                         Joint Ventures – A Primer

                                               By James W. MacLellan

                                               90th Annual CCA Conference
                                                 Monday, March 3rd, 2008
                                                 Victoria, British Columbia
Lawyers · Patent and Trade-mark Agents   Joint Ventures- A Primer


                                            What is a Joint Venture?
                                                   A Joint Venture is an association of
                                                    persons, natural or corporate, who agree
                                                    by contract to engage in some common,
                                                    usually ad hoc, undertaking for joint profit
                                                    by combining their respective resources,
                                                    without forming a partnership …
                                                         • Williston on Contracts (3rd)




                                                                                                   22
Lawyers · Patent and Trade-mark Agents   Joint Ventures- A Primer

                                            Elements of Joint Venture
                                                 Need to have a contractual foundation
                                                 Contribution of money, effort, knowledge

                                                  or assets to common undertaking
                                                 Joint interest in the subject matter of

                                                  venture
                                                 Right of mutual control

                                                 Expectation of profit and right to

                                                  participate in profit
                                                      • Blue Line vs. Orca Bay [2008] B.C.J. No.24



                                                                                                     23
Lawyers · Patent and Trade-mark Agents   Joint Ventures- A Primer


                                            Three Types of Joint Ventures

                                                   Joint Ventures – Create new company
                                                      Shareholders Agreement
                                                   Joint Ventures – Create a partnership,
                                                      Partnership Agreement
                                                   Joint Ventures –Contractual arrangement
                                                      Joint Venture Agreement




                                                                                              24
Lawyers · Patent and Trade-mark Agents   Joint Ventures- A Primer


                                            Finding a Partner
                                                 Character Due Diligence (reputation,
                                                  corporate culture references, litigation)
                                                 Credit Due Diligence (bankers,

                                                  accountants, surety)
                                                 Contribution to the Relationship

                                                  (accounting, project, design)
                                                 Complementary skill test

                                                 Common goals




                                                                                              25
Lawyers · Patent and Trade-mark Agents   Joint Ventures- A Primer

                                            Joint Venture Agreement – Discussion
                                             Points
                                                   Structure of Joint Venture (50/50)
                                                   Contribution of Partners (funding, resources)
                                                   Who has control (management committee, Voting rights,
                                                    deadlocks)
                                                   Profit distribution
                                                   Liability apportionment (joint, several, limited)
                                                   Responsibilities of Partners
                                                   Change of Control
                                                   Non-Compete
                                                   Assignment
                                                   Termination of Joint Venture
                                                   Default by Partner
                                                   Dispute Resolution
                                                   Exit Strategy


                                                                                                            26
Lawyers · Patent and Trade-mark Agents   Joint Ventures- A Primer

                                            Joint Venture Gone Bad
                                                   Three businessmen (A, B and C) get together to try
                                                    and buy Vancouver Canucks. Initial efforts didn’t
                                                    succeed.
                                                   One of the businessmen (A) breaks away and
                                                    purchases the Canucks on his own.
                                                   Partners B and C argue that Partner A bought the
                                                    Canucks on behalf of the joint venture and held the
                                                    Canucks in a constructive trust for the joint venture.
                                                   Court didn’t agree
                                                       Found no joint venture was formed as no agreement
                                                        to govern the parties rights or obligations
                                                       Partner A owed no further obligations to the others
                                                        after he told them he was leaving the group
                                                       Partner A was not required to disclose negotiations
                                                        directly with Canucks owner – he owed no fiduciary
                                                        duty

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Lawyers · Patent and Trade-mark Agents




                                         Thank You!




                                                 Lawyers • Patent and Trade-mark Agents
Lawyers · Patent and Trade-mark Agents




                                         Kevin P. Nearing
                                         BLG Ottawa Office
                                         (613) 787-3520
                                         knearing@blgcanada.com




                                                                  29
Lawyers · Patent and Trade-mark Agents




                                         The Own Work Exclusion:
                                              Recent Trends

                                             By Kevin P. Nearing

                                             90th Annual CCA Conference
                                               Monday, March 3rd, 2008
                                               Victoria, British Columbia
Lawyers · Patent and Trade-mark Agents   Introduction


                                           1. CGLs are not performance bonds
                                           2. Coverage is for “occurrences” and
                                              “accidents”
                                           3. Faulty work – the own work exclusion – the
                                              cost of repairing your own work is rarely
                                              covered




                                                                                           31
Lawyers · Patent and Trade-mark Agents   1. The Rules of the Game


                                               Policies will be interpreted in accordance
                                                with the ordinary every day meaning of the
                                                words
                                               Courts will attempt to find an interpretation
                                                that makes commercial sense
                                               The reasonable expectations of the parties
                                               Ambiguities will be construed against the
                                                insurer
                                               So will the interpretation of coverages and
                                                exclusions

                                                                                                32
Lawyers · Patent and Trade-mark Agents   2. Recent Cases –
                                            Who Wins? Who Loses?
                                               Ten significant cases in the last 2 years
                                               The score:      insurers - 5
                                                                contractors & other insureds - 5
                                               Three of these decisions have been appealed
                                               One of these cases is currently before the
                                                British Columbia Court of Appeal
                                               In the other two cases, the appellants were
                                                successful
                                               One of these cases is on its way to the Supreme
                                                Court of Canada




                                                                                                   33
Lawyers · Patent and Trade-mark Agents   Has there been an “Occurrence” or an
                                         “Accident”?

                                                “Occurrence” means an accident,
                                                 including continuous or repeated
                                                 exposure to substantially the same
                                                 general harmful conditions

                                                “Accident” has been interpreted to mean
                                                 any unlooked for mishap or occurrence,
                                                 including a mishap that would have been
                                                 avoided by the exercise of greater skill



                                                                                            34
Lawyers · Patent and Trade-mark Agents   3. Has there been an “Occurrence” or
                                            an “Accident”? (cont’d)

                                               The BC Experience –
                                                  Swagger Construction v. ING
                                                  Progressive Homes Ltd. v. Lombard
                                                  GCAN Insurance v. Concord Pacific

                                               Are leaky condos caused by accidents,
                                               bad work or both?




                                                                                        35
Lawyers · Patent and Trade-mark Agents   4. Classifying the Damage

                                                 Own defective work –
                                                    A claim for damages to repair or replace the
                                                     defective work performed by an insured
                                                    Almost never covered

                                                 Resultant damage –
                                                    Damage to property of a third party which is
                                                     caused by the defective work of the insured
                                                    Usually covered

                                                 Own work resultant property damage
                                                    Resultant damage to multiple parts of a
                                                     building caused by the insured’s own
                                                     defective work
                                                    Coverage disputes arise




                                                                                                    36
Lawyers · Patent and Trade-mark Agents   5. The Complex Structure Theory

                                               Damage to one part of a structure caused by a
                                                defect in the other part of the structure
                                               Structural elements in any building form a
                                                single indivisible unit of which the different
                                                parts are essentially inter-dependent
                                               A defect in the structure is a defect in the quality
                                                of the whole
                                               The BC Courts have been against artificially
                                                dividing buildings into different component
                                                parts
                                               Defective construction is not an “accident”
                                                unless there is damage to the property of a third
                                                person

                                                                                                       37
Lawyers · Patent and Trade-mark Agents   6.   Why I listen to Rick Shaban


                                               CNR v. Royal and Sun Alliance
                                                 The Trial Judge concluded that a loss
                                                  involving a TBM machine was covered
                                                  under CN’s Builder Risk Policy
                                                 The Trial Judge was satisfied that the
                                                  design of the TBM was not faulty or
                                                  improper
                                                 In a 2-1 decision, the Ontario Court of
                                                  Appeal overturned the Trial Judge’s
                                                  decision
                                                 The Supreme Court of Canada has granted
                                                  CN Leave to Appeal


                                                                                            38
Lawyers · Patent and Trade-mark Agents   7.   The “Wrap-Up”


                                                 The overriding principle that CGLs are
                                                  not performance bonds will always be in
                                                  the Court’s mind
                                                 Whether or not there has been an
                                                  “occurrence” or “accident” is the first
                                                  step in addressing a coverage dispute
                                                 The BC Courts have tended to take a very
                                                  literal interpretation of “occurrence”




                                                                                             39
Lawyers · Patent and Trade-mark Agents   7.   The “Wrap-Up” (Cont’d)


                                                 Damage to a third party caused by an
                                                  insured’s bad work will usually be
                                                  covered
                                                 The cost of repairing or replacing
                                                  defective work by an insured is virtually
                                                  always excluded
                                                 Damage to multiple parts of a building
                                                  caused by the insured’s own defective
                                                  work can be a controversial coverage
                                                  issue.


                                                                                              40
Lawyers · Patent and Trade-mark Agents   7.   The “Wrap-Up” (Cont’d)


                                                 The more “distance” there is between the
                                                  defective work and the damage, the more
                                                  likely there will be coverage
                                                 The more the damage is caused by
                                                  someone else’s work, i.e. a
                                                  subcontractor, the more likely the
                                                  damage will be covered




                                                                                             41
Lawyers · Patent and Trade-mark Agents




                                         Thank You!




                                                 Lawyers • Patent and Trade-mark Agents
Lawyers · Patent and Trade-mark Agents




                                         Patricia L. Morrison
                                         BLG Calgary Office
                                         (403) 232-9472
                                         pmorrison@blgcanada.com




                                                                   43
Lawyers · Patent and Trade-mark Agents




                                            Strategies to Avoid and
                                         Manage Construction Disputes

                                                 By Patricia L. Morrison
                                                 90th Annual CCA Conference
                                                   Monday, March 3rd, 2008
                                                   Victoria, British Columbia
Lawyers · Patent and Trade-mark Agents   1.     Early Consideration and Allocation
                                                of Risk

                                               Clearly define risks and
                                                responsibilities in contract
                                               Consider potential causes for
                                                disputes
                                               Proper allocation of risk
                                               Consider means and methods to
                                                avoid those possible disputes



                                                                                     45
Lawyers · Patent and Trade-mark Agents   2.      Early Communication of Problems


                                               Failure to give timely notice may
                                                impede claim
                                               Early notice allows parties to work
                                                together to mitigate impact on costs
                                                and schedule
                                               Implement regular communication
                                                throughout project through site
                                                meetings, progress reports and
                                                weekly change or delay letters

                                                                                       46
Lawyers · Patent and Trade-mark Agents   3.      Realistic Assessment of Claim


                                               Some disputes can be avoided
                                                through the presentation of a realistic
                                                claim, with supporting documents
                                               May avoid necessity of using formal
                                                dispute resolution mechanism in
                                                contract
                                               Legal or technical advice should be
                                                sought early


                                                                                          47
Lawyers · Patent and Trade-mark Agents   4.     Attitude and Commitment


                                               Be creative
                                               Be pro-active
                                               Be open to compromise




                                                                          48
Lawyers · Patent and Trade-mark Agents   5.      Education


                                               Understand your obligations under
                                                the contract
                                               Educate your on-site personnel and
                                                decision-makers




                                                                                     49
Lawyers · Patent and Trade-mark Agents   6.      Negotiations


                                               Can occur at appropriate time during
                                                the contract, when issues arise
                                               Pick the right person, with
                                                appropriate authority, to get the job
                                                done




                                                                                        50
Lawyers · Patent and Trade-mark Agents   7.      Think Outside the Box


                                               Some disputes may not be suited for
                                                the dispute resolution mechanism in
                                                contract
                                               Be open to consider alternative
                                                dispute resolution options




                                                                                      51
Lawyers · Patent and Trade-mark Agents




                                         Thank You!




                                                 Lawyers • Patent and Trade-mark Agents
Lawyers · Patent and Trade-mark Agents




                                         Yvan Houle
                                         BLG Montréal Office
                                         (514) 954-3146
                                         yhoule@blgcanada.com




                                                                53
Lawyers · Patent and Trade-mark Agents




                                         When is a contract not a contract ?
                                           The unilateral resiliation of a
                                             construction contract in
                                                    Quebec Law

                                                       By Yvan Houle
                                                   90th Annual CCA Conference
                                                     Monday, March 3rd, 2008
                                                     Victoria, British Columbia
Lawyers · Patent and Trade-mark Agents   When is a contract not a contract ? The unilateral
                                         resiliation of a construction contract in Quebec Law


                                            The Quebec Civil Code
                                                  Defines and regulates the contract of
                                                   enterprise/service
                                                       Art. 2098
                                                          A contract of enterprise or for services is a
                                                           contract by which a person, the contractor or
                                                           provider of services, as the case may be,
                                                           undertakes to carry out physical or intellectual
                                                           work for another person, the client or to
                                                           provide a service, for a price which the client
                                                           binds himself to pay
                                                  Construction contract as we know them fall
                                                   within this definition
                                                                                                              55
Lawyers · Patent and Trade-mark Agents   When is a contract not a contract ? The unilateral
                                         resiliation of a construction contract in Quebec Law


                                            The Quebec Civil Code
                                                  The contract of enterprise is subject to the client’s
                                                   right to unilaterally resiliate the contract
                                                      Art. 2125. The client may unilaterally resiliate the

                                                       contract even though the or provision of service is
                                                       already in progress
                                                  The contractor’s right is limited
                                                      Art. 2126. The contractor… may not resiliate the

                                                       contract unilaterally except for a serious reason,
                                                       and never at an inopportune moment; otherwise
                                                       he is liable for an injury caused to the client as a
                                                       result of the resiliation.


                                                                                                              56
Lawyers · Patent and Trade-mark Agents   When is a contract not a contract ? The unilateral
                                         resiliation of a construction contract in Quebec Law


                                            The unilateral resiliation:
                                                   Client’s right or discretion is unfettered;
                                                   As a right its exercise remains subject to the

                                                    other obligations set out in the Civil Code;
                                                   Subject to the general obligation to exercise

                                                    his rights in good faith and not abusively (Art.
                                                    6 and 7 of the Civil Code);
                                                   Courts have not hesitated in giving this

                                                    provision iits full effect.




                                                                                                       57
Lawyers · Patent and Trade-mark Agents   When is a contract not a contract ? The unilateral
                                         resiliation of a construction contract in Quebec Law


                                            Limitations to the client’s right
                                                     Subject to the general obligation to exercise his
                                                      rights in good faith and not abusively (Art. 6 and 7
                                                      of the Civil Code);
                                                     Court recognize that if the resiliation is exercised
                                                      “abusively” such conduct must be sanctioned;
                                                     Courts will only sanction conduct which is “marked
                                                      departure” from what may be considered
                                                      reasonable;
                                                     Resiliating a contract following its signature where
                                                      it is established that the exercise sought only to
                                                      “test the market” was found to be abusive.


                                                                                                             58
Lawyers · Patent and Trade-mark Agents   When is a contract not a contract ? The unilateral
                                         resiliation of a construction contract in Quebec Law


                                            Limitations of Owner’s right:
                                                  Art. 2125 is not of public order;
                                                  Possible for the Owner to waive his right;
                                                  By contract or actions;
                                                  Any waiver must be clear and unequivocal
                                                  Contractual provisions allowing for
                                                   termination for cause or specific
                                                   circumstances does not constitute a waiver
                                                   of the right;
                                                  Monetary compensation in the event of
                                                   resiliation not always effective

                                                                                                59
Lawyers · Patent and Trade-mark Agents   When is a contract not a contract ? The unilateral
                                         resiliation of a construction contract in Quebec Law


                                            Owner’s obligations:
                                                  Art. 2129. Upon resiliation of the contract, the client is
                                                   bound to pay to the contractor…, in proportion to the
                                                   agreed price, the actual costs and expenses, the
                                                   value of the work performed before the end of the
                                                   contract or before the notice of resiliation and,as the
                                                   case may be, the value of the property furnished,
                                                   where it can returned to him and used by him.

                                                   In either case, each party is liable for any other injury
                                                   that the other party may have suffered;



                                                                                                                60
Lawyers · Patent and Trade-mark Agents   When is a contract not a contract ? The unilateral
                                         resiliation of a construction contract in Quebec Law


                                            Owner’s obligations:

                                                  Payment by the Owner of the work up to the
                                                   date of the resiliation;
                                                  Remains possible for the Owner to set-off
                                                   against any such amount the costs to correct
                                                   deficiencies or,
                                                  costs to complete any work that, at the time
                                                   of the resiliation should have been complete.


                                                                                                   61
Lawyers · Patent and Trade-mark Agents   When is a contract not a contract ? The unilateral
                                         resiliation of a construction contract in Quebec Law


                                            Owner’s obligations:
                                                  Owner must also pay “for any injury that the other
                                                   party may have suffered”
                                                  Does not include the lost or anticipated profit that the
                                                   Contractor expected to obtain or earn as a result of
                                                   the contract;
                                                  Pelouse Agrostis Turf inc. vs. Club de golf Balmoral,
                                                   Quebec Court of Appeal held that to decide otherwise
                                                   would render the client’s ineffectual
                                                  Certain exceptional inroads have been
                                                   made:Compensation for the time it takes the
                                                   Contractor to find another client


                                                                                                              62
Lawyers · Patent and Trade-mark Agents




                                         Thank You!
                                           Merci!



                                                Lawyers • Patent and Trade-mark Agents

				
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Description: Joint Venture Agreement British document sample