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Joint Venture

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Le droit chinois indique en principe trois formes juridiques aux investisseurs étrangers cherchant à s'installer en Chine : la représentation, la Joint Venture (JV) et les sociétés à capitaux 100% étrangers (WFOE) c'est-à-dire la filiale 100%. Parmi elles, la Joint Venture a longtemps été la première forme d'investissement autorisée et le mode d'opération favorisé par les entreprises étrangères en Chine car il est souvent le seul à être permis.
Les joint ventures dans la création de sociétés en Chine

Aujourd'hui, il existe en Chine un enthousiasme sans précédent pour les joint ventures. Même s'il ne faut pas nier l'existence d'un ralentissement de la croissance du nombre de nouvelles sociétés de ce type, il y a toujours des entreprises étrangères cherchant à s'installer en Chine. Selon M. Yao Shenhong, ancien porte-parole du ministère chinois du Commerce, ce pays a absorbé davantage d'investissements directs étrangers en 2013 que l'année précédente, dépassant les 85 milliards d'euros.

Par contre, il faut prendre conscience qu'aujourd'hui, les mésaventures de certains groupes commencent à faire douter de la pertinence de cette organisation juridique. En ce qui concerne la main d'œuvre, c'est aussi un souci majeur posé par la création de joint ventures, les entreprises étrangères acceptant souvent une main d'œuvre mal qualifiée de la part de leur partenaire. Il faut alors fournir une série de formations coûteuses et longues afin qu'ils soient qualifiés pour leur poste.
Pourquoi avoir recours à une joint venture ?

Malgré tout, le mode joint-venture possède encore des avantages. Il s'agit en effet d'un véritable soutien à l'export, comme le soulignait M. Gérard Dega lorsqu'il présidait la joint venture entre Alcatel et le chinois Shanghai Bell. Cette forme juridique permet ainsi de bénéficier de garanties et privilèges quant au financement mais également d'une aide sur le plan politique. Le partenaire chinois permettait ainsi à Alcatel de profiter « des efforts diplomatiques chinois dans une trentaine de pays ».

L'avocat d'affaires versé dans les problèmes de Droit international est le conseiller incontournable des opérations d'implantation en Chine, à Pékin, Shanghai, Canton ou ailleurs, sachant que les zones géographiques ont une importance capitale, la législation différant de l'une à l'autre.
Comment créer une joint venture ?

Deux formes de joint ventures sont proposées par le droit chinois, à savoir la Coopération Sino-étrangère Joint Venture (CJV) et la Joint Venture Sino-étrangère de capitaux propres (JVCP).

La Coopération Sino-étrangère Joint Venture est une forme juridique dont l'organisation s'avère plus souple qu'une JVCP. Elle peut-être une personne morale de type société commerciale ou une société de personnes ; toutefois cette dernière option est peu choisie car synonyme d'une responsabilité personnelle des partenaires des dettes de l'entreprise. Par ailleurs, il faut avoir un contrat qui stipule la répartition des gains, le nom de la personne pouvant mettre fin au contrat, la répartition des dettes et des risques, etc. Normalement c'est le partenaire chinois qui propose la force de travail, les terres et les usines, alors que l'autre partenaire étranger amène la technologie nécessaire et les équipements clés, en particulier le capital.

La Joint Venture Sino-étrangère de capitaux propres est, quant à elle, le type d'investissement étranger le plus utilisé en Chine. Tout d'abord, elle revêt le statut de personne morale, sous la forme d'une société à responsabilité limitée en Chine. La part de l'investisseur étranger dans le capital enregistré doit être au minimum de 25%. Le partenaire chinois apporte généralement un droit d'utilisation du sol, des salariés, des usines et des matières premières.

La loi ne stipule aucune exigence sur l'investissement de la part du partenaire chinois. Il peut être effectué en argent, par l'apport de droits de propriété intellectuelle, de technologies, de bâtiments, aussi bien que tous les matériaux pouvant être enregistré comme étant des investissements. La direction de la société doit être composée d'au moins trois personnes, chaque partie devant nommer le président et le vice-président. De manière générale, une telle joint venture a une durée de vie comprise entre 30 et 50 ans. Il est également possible de convenir, par accord entre les parties, d'une durée de vie illimitée.

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