BILL OF COSTS: STEP BY STEP GUIDE ON DRAFTING A BILL OF COSTS

What is it?

Generally, the party who is successful in a High/Subordinate Court proceeding may ask the court for an order that the unsuccessful party pay their costs. These costs are commonly referred to as “party/party” costs. The “costs” are to partially indemnify a person for the legal costs incurred by them or the time spent prosecuting or defending a court proceeding. The costs are then, based on the tariff set out in the Advocates (Remuneration) (Amendment) Order, (specific Year)
All court related civil matters are said to be litigation matters and the law sets the minimum fees. The mechanism of charging fees is different in the High Court with subordinate courts having a separate scale of fees. In civil litigation, there are two distinct methods of determining fees and these are said to be ‘party and party’ fees and ‘advocate and client’ fees.
 

Before the hearing
The party who was awarded costs will prepare their bill following regulations of each set of rules under the advocates remuneration order of a specified year. The Tariff sets out items involved in prosecuting/defending a proceeding and assigns a number of units or sets a prescribed amount of costs for each of these events. In civil matters, some of the items show a range of units; others are fixed depending on how long the event took. If there is a range, the number of units awarded is based on the work done within the description of the items covered under a particular tariff item. The bill will also include a list of disbursements. A copy of the bill is served on all affected parties. If a party does not agree with the amount of the bill, a hearing to assess the costs must be arranged before a registrar. A date for the hearing is obtained from Supreme Court Scheduling in the court registry where the proceeding originated or the registry where all parties have agreed the costs assessment should take place.

At the hearing
The onus is on the party who was awarded costs to prove their bill. This means they must produce proof of work done and disbursements incurred. If proof is not given, the items may be disallowed. This is often done by producing at the hearing copies of the pleadings, any interim orders made, notices to admit and the like. The party presenting the bill of costs for assessment may make an affidavit setting out the work done, as well as an affidavit of disbursements. Sometimes, a party testifies in court, at the assessment hearing itself. The opposing party must be prepared to tell the registrar why they object to disputed items and disbursements on the bill. The assessment is conducted like any other court hearing. The person presenting the bill of costs goes first, the opposing party then makes their objections and then the party awarded costs has a right of reply. Sometimes the registrar will rule on the tariff items before turning to the disbursements but usually, the registrar will deal with all matters and provide their decision at the conclusion of the hearing. If the opposing party does not appear, proof of service of the appointment (i.e. an affidavit of service) is required.
 

Mode of charging
Party and party’ costs are based on the principle that the unsuccessful party in any case must, unless the court otherwise orders for good reason, pay the successful party. After a matter is finalized, the successful party and the losing party may agree on the costs to be paid. Failure to this, a Resident Magistrate of any designation who has been gazetted as a Registrar or Deputy Registrar of the High Court can adjudicate upon the quantum of fees between opposing parties or between an advocate and client.
The Magistrate (in his capacity as Taxing Officer), decides on all matters of fees. The taxing officer’s decision is appealable to the High Court and the Court of Appeal. And what are ‘advocate and client fees? In a concluded matter, the minimum advocate/client fees is that assessed by the taxing officer increased by one half. An unsuccessful litigant pays the opposing side and his own lawyers’ costs and in the same breath the winning side’s lawyer gets fees from the losing party and his own client. Every single aspect of costing is provided for by law, from writing a letter, perusing it to appearances in court. But the ‘instruction fees’ are based on the value of the subject matter, and whether the matter is defended or undefended.
For step by step guidance on preparation of a Bill of costs in Kenya and samples please consult through the mail.

Termination of a Contract, Benefits and Wages (Labour Law)

1.0 Key Areas

• Termination of a Contract
• Termination of a Contract and Benefits and Wages
• Termination of a Contract and Labour Laws in Kenya

2.0 Introduction

Termination of employment can be initiated by either of the parties to a contract of employment (Employment Act, section 35 (1)). Lawful termination of employment under common law includes:

• Termination of employment by agreement: When the employer and employee agree to bring a contract of employment to an end following an agreement. This may be in case of terminating a contract of apprenticeship; where the period of training expires then the contract will obviously come to an end.
• Automatic termination: A contract of employment may be terminated automatically in circumstances such as death or loss of business of the employer.
• Termination of employment by the employee/resignation: This happens when an employee due to material breach of the contract by the employer decides to resign from his/her employment.
• Termination of employment by an employer: An employer may also terminate the employment of an employee but there is a need to comply with the provisions of the law and contract relating to termination. 

3.0 On what grounds can a contract of employment be terminated by an employer?

A contract of employment may be terminated by an employer on the following grounds:

• By mutual agreement between the employer and the worker (Industrial Training Act, section 13 (1) (a)).
• By the employer when the employee dies before the expiration of the period of employment.
• By the employer, if the worker is found by a medical examination to be unfit for employment. Due to sickness or accident, the employee becomes unable to carry out his or her work (Employment Act, section 41(1)).
• By the employer based on the misconduct of employee (Employment Act, section 44 (3)) 

4.0 What should an employer do if he or she wants to terminate a contract of employment?

A contract of employment may be terminated at any time by an employer who must give the employee a period of notice of termination (e.g. at the close of day in case of a contract for daily wages, one month or more in case of monthly pay contracts). 

5.0 What form of notice should I give as an employer?

A termination notice shall be in writing. In case the employee does not understand the notice, the employer is responsible to ensure that the notice is explained orally to the worker in a language he/she understands (section 35 (2) (3)).  

• If the employee is employed on a daily wage contract, the notice is given at the close of any day without notice. 
• If the employee is employed on a weekly pay or two-week basis the notice period shall be one week or two weeks respectively, given in writing or payment of one week’s salary in place of notice.
• If the employee is employed every month the notice period shall be 28 days and in writing or payment of one month’s salary in lieu of notice.
• In the case where a contract of employment provides that the notice of termination be given for a greater period than one month, then there will be agreed in writing between employer and employee for a longer notice and the agreed notice period shall be of equal duration for both employer and the employee (section 35 (2)). 

6.0 Can an employer terminate an employee immediately without allowing them to work during the notice period? Does the law allow this?

In the event, the employer wants to terminate an employee without allowing her/him to serve the notice period the employer will be required to pay the employee the amount that an employee would have received if she/he had worked during the notice period. This is what is usually referred to as payment in lieu of notice (section 36) also (section 38). 

Section 36 provides for payment of equivalent salary in place of notice instead of serving the notice. The length of notice will depend on the interval at which the salary is paid.

7.0 What happens if an employee is terminated but they have outstanding leave they have not taken?

In the case of accrued leave upon termination the employer shall pay an employee on a pro-rata basis an amount in cash for the accrued annual leave to which that employee is entitled (section 40 (1) (e)) - provided that it is taken not later than six months after the end of leave cycle or twelve months after the end of leave cycle if (if the employee consented or extension is justified by operational requirements) (section 28(4)). 

8.0 Can an employer terminate a contract of employment without notice?

Yes. Either party to a contract of employment may terminate the contract without notice if that party pays the other party a sum equal to the amount of remuneration which would have accrued to the worker during the period of the notice (section 36).

9.0 Is a certificate of service and notice mandatory even when terminated on misconduct?

Yes. Both are mandatory regardless of the reason for termination unless the period of service of the employee to the employer has lasted less than four weeks (section 51). 

10.0 Four grounds that justify termination of the employment by the employer

• Misconduct.
• Physical incapacity.
• Poor performance.
• Employer’s operational requirements/retrenchment. 

An employer may also terminate an employee due to participation in an illegal strike. Therefore for an employer to terminate an employee he/she should have a genuine reason as specified in section 45 (2) and section 46. An employee cannot be fired because an employer does not like them - unless the grounds for this dislike are based on the above-mentioned factors.

11.0 What amounts to fair terms termination of employment?

For termination to be fair in the eyes of the law, it has to be both substantively and procedurally fair. The employer needs to have a valid and fair reason for termination. 

Apart from this valid reason of termination, the employer must follow fair procedures for termination as are provided under the Employment Act, section 45 (2) and section 46.). In any form of termination, the employer is required to prove the reasons for the termination otherwise it will be termed as unfair (section 45 (2)). The procedures for termination are different depending on the reason for termination but they all have a common item - the right of an employee to be heard before a termination decision is taken against an employee (section 41 (2)).

12.0 Am I to follow the procedure for termination even in cases where an employee is caught red-handed committing serious misconduct, for example, stealing?

Yes. Notwithstanding the serious misconduct of the employee, and the evidence available, the law requires that procedures outlined under the law be followed. Failure to follow the procedure will amount to summary dismissal, meaning an employee is terminated without being availed of an opportunity to defend herself/himself before a fair disciplinary committee. In labor laws, summary dismissal amounts to unfair termination with consequences specified in section 47 and 49 (1) & (3).

Can I terminate an employee who is facing a criminal charge before a court of law?

No one can terminate or take disciplinary action against an employee who is facing the same charges before a court of law unless the two charges are different or do not arise in the same cause of action. 

What are the likely consequences of unfair termination for an employer?

If the labor officer makes the decision that the summary dismissal or the termination of the contract of an employee is unjustified, he may recommend to the employer to pay the employee any or all of the following:

• The wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service. 
• Where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract.
• The equivalent of several months’ wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
• Alternatively, the employer may have to reinstate the employee and treat the employee in all respects as if the employees' employment had not been terminated; or 
• Re-engage the employee in work comparable to that in which the employee was employed before his/her dismissal, or other reasonably suitable work, at the same wage.
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• For PDF Version of notes just send a request mail to ---gechangazacharia@gmail.com---

Principle of Unreasonableness - Kenyan Case Study: Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others

 Case Study: Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others - Associated Provincial Picture Houses vs. Wednesbury Corporation [1948] 1 KB 223

 

This case involved an application for judicial review by the applicant company, a manufacturer of wines, against various orders and decisions of the KRA.

Facts of the case

The facts were that the applicant and its predecessors applied for a license to the customs department to manufacture wines on or about 1996 and 1997 and a license was granted which classified the applicant's product under Tariff Heading 22.04. According to the applicant, they paid duty under Tariff Heading 22.04 from 1997 to 2006. That is, until a decision to change the tariff was communicated to it vide a letter dated 29^th November 2006. The decision communicated was that the Applicant's fortified wine products were wrongly classified under tariff 22.04 but should have been classified under Tariff Heading 22.06. The latter Tariff, namely 22.06 attracts a higher rate of duty than tariff 22.04 in that it attracts 60% instead of 45%.

By the same letter, the Respondents issued a tax assessment based on the new tariff 22.06 from the year 2002 to 2005. Consequently, the letter demanded from the applicants the payment of approximately Kshs. 1.1 Billion with 14 days of November 2006. This amount was without the usual penalties and therefore the actual amount due was certainly higher than the figure stipulated. Although the figure quoted included amounts in the rest of the various tax regimes, namely; Custom Excise Duty, VAT, Withholding tax and Income ax, only one global demand was sent to the applicant.

Key issues for determination

There are two key issues relevant that the court tackled ably as to deserve revisiting. One is jurisdictional competence of the court to intervene in matters where the applicant has failed to exhaust other tribunals with jurisdiction on the matter. On this point, it was submitted for the Respondents that the court ought not to have intervened in the matter because various tax tribunals could have sorted out the matter. The court however did not agree. It was the court's view that the issue should be considered from the standpoint of the rule of law. It held that while judicial review could be a collateral attack, the right of assess to court is a fundamental principle and cannot be taken away except in exceptional cases.  The present case, in the courts view, fell within the bounds of the exception. The court did not however lay down the criteria for determining when the right to access court for judicial review should or should not be denied in Kenya.

Retrospective application of tax tariff similar to ex-post facto law

The other issue worthy revisiting is whether retrospective application of Tariff is similar to ex-post facto laws. The court held that retrospective application is a Wednesbury unreasonable, irrational, oppressive, biased, discriminating, mala fides, unfair, arbitrary, and procedurally improper and abuse of power. The court, in so holding, upheld the legitimate expectation of the applicant, that it would not abruptly and unilaterally be transplanted from Tariff 22.04 which had been the basis of its business and its business plans and projections over the nine years. In particular, the court found the respondent's decision to have threatened or threatens to thwart the above legitimate expectations and the court reasoned that it must come to the defense of legitimate expectations because fair bargains ought not to be thwarted-this being a principle of fairness.

Excepts from judgment on topical issues

The court stated in conclusion:

"It seems apt to state that public authorities must constantly be reminded that ours is a limited government- that is a government limited by law-this in turn is the meaning of constitutionalism. Certainty of law is a major requirement to business and investors. Imposition of a different tariff, to that an investor contemplated when setting up an industry is reckless, irrational and unreasonable and it violates the principle of certainty and the rule of law. Such a style of decision making cannot offer a conducive business and investment climate. The courts have a role in keeping public authorities within certainty of law. To enable them to do this, the frontiers of judicial review have to expand. For now, let it suffice to state and hold that the actions and decisions of public authorities must be questioned, directed and shaped by the law and, if not, the courts must intervene. This is the essence of the decision."

 The court added on certainty of law:

"I think it is significant to stress on the ground of certainty of law as an ingredient of the rule of law because it is very easy for public authorities and bodies to overlook it in their decision making processes as has happened in this case."

The judgment is not complete without the courts statement on rule of law. It stated:

"The rule of law is the cog upon which all provisions of the constitution turn. For example, the intended tariff change has clearly been shown to have been discriminatory in its effects contrary to section 82 of the constitution. I hold that the public bodies decisions and activities should always turn on this cog as well, failing which the courts are entitled to intervene where this is overlooked, as I have done in this case."

Conclusion

The court's finding that retrospective applications of tax legislations are unenforceable as they are similar to ex-post facto laws is a relief to business and businessmen. The case stands out as an authority in that respect and promises to boost Kenya's standing as an ideal investment destination no small deal.

 To impose a condition that did not exist previously retrospectively was clearly unreasonable. This practice was deprecated in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others (supra) when it was held that:

“imposing a liability of 1 billion on the applicant to be paid within 14 days though attractive in terms of enhanced public revenue and perhaps for the zeal of meeting annual tax targets, I find is not such an overriding interest for the reasons set out in this judgment including failure to satisfy the principle of legality. In order to ascertain whether or not the respondents decision and the intended action is an abuse of power the court has taken a fairly broad view of the major factors such as the abruptness, arbitrariness, oppressiveness and the quantum of the amount of tax imposed retrospectively and its potential to irretrievably ruin the applicant. All these are traits of abuse of power.”

83. The principle of unreasonableness was projected in Associated Provincial Picture Houses vs. Wednesbury Corporation [1948] 1 KB 223 where it was held:

“It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short vs. Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.”

Legal Framework of Emergency Care in Kenya

1.0 Background

The legislative framework on emergency medical treatment in Kenya is anchored on the provisions of the Constitution which guarantees every person the right to the highest attainable standard of health. [1] In particular, Article 43(2) provides that no person shall be denied emergency medical treatment. Naturally, in law, given that the Constitution is only meant to provide broad guiding principles, it does not expound further on the circumstances under which this right can be enforced.

Between 2010 and 2017, there was no enabling law to give life to these constitutional provisions, and as such, health care practitioners were largely guided by the Kenya Health Policy 2014 – 2030. The Policy defines emergency treatment to include first aid treatment of ambulatory patients and those with minor injuries; public health information on emergency treatment, prevention, and control; and administrative support, including maintenance of vital records and providing for a conduit of emergency health funds across government. The policy further provides that “Emergency health services shall be a part of the referral services and shall be provided by the nearest health facility, regardless of ownership (both public and private).”

Relatedly, the 2013 Ministry of Health National Patients’ Rights Charter provides that every patient has a right to receive emergency treatment in any health facility. The Charter goes further to state that, in emergency situations, irrespective of the patient’s ability to pay, treatment to stabilize the patient’s condition shall be provided.

2.0 Discussion/Analysis

Notably, in May 2017, Parliament enacted the Health Act, which has subsequently given more clarity and legal direction on the rights and duties encompassed in emergency care. Section 7 of the Act is instructive on what constitutes emergency medical treatment including:

(a) pre-hospital care;

(b) stabilizing of the individual; or

(c) arranging for referral in cases where the health provider of the first call does not have the facilities or capability to stabilize the victim.

The Act further states that any medical institution that fails to provide emergency medical treatment, while having the ability to do so, commits an offense and is liable upon conviction to a fine not exceeding three million shillings. Besides medical institutions, healthcare providers, whether in the public or private sector, also have a personal duty to provide emergency medical treatment. [2]

Moreover, the Act instills a critical duty upon the government under section 15 to achieve the following as part of the realization of emergency medical treatment: First, a duty to develop policies, laws, and procedures, in consultation with the county governments and other stakeholders for the realization of emergency care. Second, a duty to ensure that financial resources are mobilized for uninterrupted access to all health services. Third, a responsibility to establish an emergency medical treatment fund for unforeseen situations, and lastly, to provide policy and training, maintenance of standards, and coordination mechanisms for the provision of emergency healthcare. It is worth noting, however, that while section 112 of the Act enshrines an obligation on the Ministry of Health to enact regulations for the better carrying out of the obligations under the Act, the National Policy on Emergency Medical Care in Kenya remains a draft that is yet to be endorsed into law. [3]

From the Kenyan judiciary, there is little jurisprudence that has interrogated emergency medical care. In the 2013 case of LN & 21 others vs Ministry of Health, the court, in its analysis held that renal dialysis did not constitute an emergency as the petitioner’s condition did not create a need for immediate remedial treatment but rather, was an ongoing state of affairs.

In the absence of national precedents, several cases can be used to give guidance on emergency care from the international sphere. First, the Supreme Court of India has long established a duty to provide emergency treatment for accident victims, regardless of the ability to pay. This was declared in the case of Parmanand Katara v. Union of India. [4] Generally, the jurisprudence from India on emergency care is indicative of the duty of a hospital to respond positively and admit a patient if they have facilities for dealing with the condition. [5] Lack of bed space has been held as not being a justifiable reason for turning away a critically ill patient whose condition needed to be stabilized urgently. The medical facility should be able to make internal arrangements to accommodate the patient if challenges relating to bed space arose.

3.0 Comparison

Closer home, the 2015 South African case of Charles Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape also provides useful guidance on the legal duties that arise in emergency care. These duties include: First, the duty to ensure that a patient is transferred in time to be treated; second, the duty to ensure that the patient is given appropriate treatment with the greatest possible urgency and lastly, the duty to ensure that hospital personnel working in trauma units are properly instructed. Those who fail to do thus incur liability.

In addressing the regulatory weaknesses of emergency care in Kenya, guidance may be placed on the recommendations made in the Ruling of the Medical Practitioners and Dentist Board in the Alex Madaga Complaint of 2016. The Board noted with concern that to date, there exist several lacunae in emergency medical treatment that would benefit from the enactment of an overall emergency care policy at the national level. The Board recommended that the Ministry of Health, in collaboration with the Council of Governors enact guidelines that would regulate: Payment of emergency medical care, particularly in private hospitals, inter-hospital transfers, and referrals where a hospital does not have the capacity to offer emergency care; and lastly, regulation, licensing and operation of ambulances. [6]

4.0 Conclusion

In conclusion, therefore, the legal duty in emergency medical treatment can be summarized as follows: First, medical institutions that fail to provide health care services necessary to prevent and manage the damaging health effects due to an emergency situation are culpable. Further, facilities that have systems that are inappropriately designed and invariably cause a patient deserving of emergency medical treatment not to receive such treatment, are also culpable. Hospitals that prioritize monetary security before admission can also be held in violation of the Constitution as well as the Kenya National Patients’ Rights Charter. The liability of the government, on the other hand, arises from its duties as stipulated in the Constitution as well as sections 15 and 112 of the Health Act. Where the government thus fails to enact policies; mobilize financial resources, regulate, train and accredit emergency care providers or ensure compliance with already existing guidelines by medical institutions, then it is liable in law. This, must, of course, be done in consultation with county governments and other stakeholders in the health sector acknowledging that health is now a devolved function.

Review of a Joint Ventures (JVs) and an anaylsis of its Nature

1. What is a Joint Venture?

A JV is a legal organization that takes the form of a partnership between two or more persons by which they jointly undertake a transaction for mutual profit.

Generally each person contributes assets and share risks.

Like a partnership, JVs can involve any type of business transaction and the ‘persons' involved can be individuals, groups of individuals, companies, or corporations.

2. Nature of a Joint Venture

In order to form a JV, the parties to it must agree to create a new entity by both contributing equity, and they then share in the revenues, expenses, and control of the enterprise.

The venture can be for one specific project only, or a continuing business relationship. This is in contrast to a strategic alliance, which involves no equity stake by the participants, and is a much less rigid arrangement.

JVs are formed in the following ways:

a. Two parties, (individuals or companies), incorporate a company. Business of one party is transferred to the company and as consideration for such transfer, shares are issued by the company and subscribed by that party. The other party subscribes for the shares in cash.

b. Two parties subscribe to the shares of the joint venture company in agreed proportion, in cash, and start a new business.

c. Promoter shareholder of an existing company and a third party, who/which may be individual/company, one of them non-resident or both residents, collaborate to jointly carry on the business of that company and its shares are taken by the said third party through payment in cash.

Joint Ventures can take place between locals amongst themselves or they may involve locals and foreigners. However, they are commonly used by foreign companies to gain entrance into local markets. Foreign companies form joint ventures with domestic companies already present in markets the foreign companies would like to enter. The foreign companies generally bring new technologies and business practices into the joint venture, while the domestic companies already have the relationships and requisite governmental documents within the country along with being entrenched in the domestic industry.

3. Rationale for forming Joint Ventures

Internal reasons

a. Build on company's strengths

b. Spreading costs and risks

c. Improving access to financial resources

d. Economies of scale and advantages of size

e. Access to new technologies and customers

f. Access to innovative managerial practices

Competitive goals

a. Influencing structural evolution of the industry

b. Pre-empting competition

c. Defensive response to blurring industry boundaries

d. Creation of stronger competitive units

e. Speed to market

f. Improved agility

Strategic goals

a. Synergies

b. Transfer of technology/skills

c. Diversification

4. Form of a Joint Venture Agreement (JVA)

Joint Ventures are achieved through Joint Venture Agreements (JVAs). The Encyclopedia of Forms and Precedents (4th Edn, Vol 22) defines a ‘joint venture agreement' as being in the nature of a partnership between enterprises by which they seek to achieve, by mutual cooperation, a greater coordination of their separate activities.

5. How to enter into a Joint Venture Agreement

a. Selection of a good local partner is the key to the success of any joint venture.

b. Once a partner is selected generally a Memorandum of Understanding or a Letter of Intent is signed by the parties highlighting the basis of the future joint venture agreement.

c. Negotiation of the terms of the joint venture agreement. The terms should be thoroughly discussed and negotiated to avoid any misunderstanding at a later stage. Negotiations require an understanding of the cultural and legal background of the parties. The negotiations will focus on issues such as:

· Dispute resolution agreements (Negotiation, arbitration, conciliation etc).

· Applicable law.

· Force Majeure: (What does it mean in the context of the subject agreement?). ‘Force majeure, as used herein, shall mean acts of God, laws or regulations, industrial disturbances, acts of the public enemy, civil disturbances, explosions and any other similar cause of equivalent force not caused by, nor within the control of either party, and which neither party is able to overcome. As soon as possible after the occurrence of the force majeure and within not more than 15 days, the Supplier shall give notice and full particulars in writing to the Federation of such force majeure if the Supplier is thereby rendered unable, wholly or in part, to perform its obligations and meet its responsibilities under this Purchase Order. The Federation shall then have the right to terminate the Purchase Order by giving in writing seven days notice of termination to the Supplier, and the Supplier shall return any deposit paid by the Federation'.

· Holding shares (Percentages.

· Transfer of shares.

· Board of Directors.

· General meeting.

· CEO/MD.

· Management Committee.

· Important decisions with consent of partners.

· Dividend policy.

· Funding.

· Access.

· Change of control.

· Non-Compete.

· Confidentiality. ‘All materials prepared as well as all data collected and processed in the course of your work under the terms of this contract become the property of the International Federation to dispose of as the International Federation deems suitable. They cannot be used for any purpose without prior written permission from the Secretary General. You hereby assign to the International Federation all intellectual property rights to the material prepared in the course of your work under the terms of this contract. Any information you become aware of during this assignment must remain confidential and not be divulged outside the Federation Secretariat and its field delegations, except where such information is publicly available'.

· Indemnity. ‘The Supplier shall indemnify, hold and save harmless, and defend, at its own expense, the Federation, its officials, servants, and agents from and against all suits, claims, demands, and liability, of any nature or kind, including their costs and expenses, arising out of any acts or omissions by the Supplier, or the Supplier's employees, officers, agents, or sub-contractors, in their performance of this Purchase Order. The obligations under this provision do not lapse upon termination of this Purchase Order and do not prejudice any other remedies available to the Federation'.

· Assignment. ‘The Supplier shall not assign, transfer, pledge or make other disposition of this Purchase Order or any part thereof or of any of the Supplier's rights, claims or obligations under this Purchase Order except with the prior written consent of the Federation'.

· Break of deadlock.

· Termination. ‘Without prejudice to other remedies, either Party may cancel a Purchase Order immediately by providing written notice to the other in the event that (i) the other party commits a material breach of the Purchase Order and fails to remedy that breach after being required to do so by notice in writing from the party seeking to terminate the Purchase Order specifying the breach complained of and stating its intention to terminate the Purchase Order if such breach is not made good, (ii) the other Party becomes insolvent, (iii) termination is permitted in accordance with the specific terms hereto'.

· Legal compliance. The JV agreement should be subject to obtaining all necessary governmental approvals and licenses within specified period. ‘The Purchase Order is conditional upon the obtaining of any export license or other governmental authorization that may be required. The Supplier shall inform the Federation beforehand of such restrictions and shall obtain such license or authorization. In the event of refusal thereof, through no fault of the Supplier, the Purchase Order will be annulled and all claims between the parties automatically waived. The Supplier shall be responsible for any expenses or losses due to incorrect, incomplete or late documentation'.

6. How to Draft a Joint Venture Agreement

A good Joint Venture agreement is one which provides a comprehensive road map of the duties and obligations of both the parties. It minimizes complications when disputes arise.

Before finalizing a Joint Venture Agreement, the terms should be thoroughly discussed and negotiated to avoid any misunderstanding at a later stage. Negotiations require an understanding of the cultural and legal background of the parties.

Before signing a Joint Venture Agreement the following must be properly addressed:

· Applicable law.

· Force Majeure.

· Holding shares.

· Transfer of shares.

· Board of Directors.

· General meeting.

· CEO/MD.

· Management Committee.

· Important decisions with consent of partners.

· Dividend policy.

· Funding.

· Access.

· Change of control.

· Non-Compete.

· Confidentiality.

· Indemnity.

· Assignment.

· Break of deadlock.

· Termination.

· Security and confidentiality.

· Legal compliance.

· Fees and payment terms.

· Proprietary rights.

· Auditing rights.

· Events of Defaults and Addressing.

· Dispute Resolution Mechanism.

· Time limits.

· Location of Arbitration.

· Number of Arbitrators.

· Interim measures/Provisional Remedies.

· Privacy Agreement.

· Non-compete Agreement.

· Confidentiality Agreement.

· Rules Applicable.

· Appeal & Enforcement.

· Be aware of local peculiarities.

· Survival terms after the termination of the Joint Venture agreement. The expiry or termination of this agreement shall be without prejudice to any rights which have already accrued to either of the parties under the Agreement. Things which need to be done under it to continue as if the Contract was in force.

· The Joint Venture agreement should be subject to obtaining all necessary governmental approvals and licenses within specified period.

· Every Joint Venture agreement should be modified as applicable under different circumstances. One brush should not paint all the painting.

7. International Joint Venture Agreements

Joint Venture Agreements structured with in-country partners will be different from those meant for international partnership.

The greatest risks for International Joint Venture come from some emerging countries that are early entrants into Joint Venture, or those that have limited governmental support, ineffective legal enforcement, immature infrastructure, limited or nonexistent intellectual property protection or lack an understanding of foreign laws.

The most important areas to protect through an international Joint Venture agreement are security and confidentiality, legal compliance, fees and payment terms, proprietary rights, auditing rights and dispute resolution process. The legal systems in some countries might claim jurisdiction over any agreement regardless of which system the agreement specifies, and that other legal systems might have little respect for intellectual property rights.