Purpose of Checklist The purpose of this Checklist is to illustrate the preliminary considerations which need to be borne in mind and on which instructions will need to be sought, when considering entry into a joint venture (JV) arrangement where the JV vehicle is to be a private company limited by shares. It is for guidance only and is not exhaustive. This Checklist is prepared with the requirements of English law in mind and, although similar considerations are applicable in the case of an international JV arrangement, it is important to recognise the limitations of this Checklist in the context of a foreign JV vehicle. For further information, see Practice Note: Setting up a corporate joint venture—initial considerations. For a checklist on the key issues to consider when drafting the shareholders’ agreement/joint venture agreement (JVA), see Checklist: Joint venture shareholders’ agreement—checklist. Preliminary matters • Is a confidentiality undertaking required from either, both or all the parties or their affiliates? For a template confidentiality agreement, see Precedent: Confidentiality agreement—joint venture • Do the parties want to have a period

This Practice Note assumes the following: • the corporate vehicle for the joint venture is a private limited liability company • none of the shareholders of the joint venture company (JVC) are listed companies, and • the directors of the JVC are natural persons Directors' duties Directors owe various duties to the companies of which they are directors. In certain circumstances, they may also incur liability to other persons under statute or common law. Historically, some of the key duties were fiduciary in nature. The main directors’ duties developed by the courts are now set out in statute in sections 171–177 of the Companies Act 2006 (CA 2006). For an overview of the nature and extent of these statutory duties (general duties), see Practice Note: Directors' duties—fundamentals. While the duties owed by a director of a JVC to that JVC will not differ to the duties owed by a director of a non-JVC company to that company, some of the duties are of particular relevance to, or have a particular application to, the

This Practice Note outlines the employment issues that require consideration when setting up, running and terminating a corporate joint venture (JV). It considers TUPE transfers, non-TUPE transfers, secondments, the harmonisation of employment terms, collective agreements and trade union recognition, pension issues and immigration issues. Formation of the joint venture entity A number of the employment issues on setting up a JV arrangement will depend upon the intentions behind the JV. While it is possible for a JV to be set up by way of any number of differing methods, when considering the effect on employees, the key issue will be whether their work can be seen as transferring from their existing employer to the new JV entity under the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006). For further information, see Practice Note: Preliminary issues (joint ventures)—overview. If the JV entity is a completely new undertaking, set up for a new purpose, such a transfer is highly unlikely. This is because, if the JV is set up for a totally new undertaking,

A A Definition Alternate director An individual (whether another director or any other person) appointed by a director to exercise that director’s powers and carry out that director’s responsibilities in relation to the taking of decisions by the directors, in the absence of the alternate's appointor. Unlike the Table A articles, the Model Articles for private companies limited by shares do not contain provisions about the appointment or removal of alternate directors. A company that has adopted bespoke articles of association may include provisions for the appointment, removal, rights and responsibilities of alternates (for example see article 4 of Precedents: Articles of association—joint venture company—deadlock (50:50) and Articles of association—joint venture company—majority/minority). Articles of association Generally referred to simply as the Articles. It is the principal constitutional document of a company, dealing with management and administration issues, most notably the powers of directors, the transfer and issue of shares and board and member meetings. The Articles form the fundamental contract between the company and the shareholders and must be available for public inspection at Companies

An incorporated company is a legal entity and can be liable for a criminal offence (unless the offence is not punishable with a fine, eg murder, or the nature of the offence is such that a company is physically incapable of committing it even through its controlling officers, eg rape).

A parent company is not responsible for the acts or omissions of its subsidiary simply by virtue of its status as parent. Each subsidiary has separate corporate responsibility and any intention to pierce the corporate veil must be clearly and unequivocally expressed in the statute. However, a parent company can be fixed with liability if its knowledge of, and ability to, intervene in the affairs of the subsidiary are sufficient to create a duty of care towards any person suffering damage or injury due to the subsidiary's acts or omissions. Crucially, if a parent company has 'superior knowledge' about the nature and management of particular risks, and is aware of a 'systemic failure' on the part of its subsidiary, then the court may be willing to find a duty of care. It is more likely to do so if the subsidiary: • has been dissolved • has limited financial strength, and/or • does not have insurance cover in relation to the relevant type of damage or injury Such circumstances

An organisation is guilty of corporate manslaughter if the manner in which its functions are managed or organised causes a person's death and amounts to a gross breach of the relevant duty of care owed by the organisation to the deceased.

Section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) creates the specific offence of corporate manslaughter. The CMCHA 2007 extends to the whole of the UK and simultaneously introduces the offence of corporate homicide in Scotland. This Practice Note considers corporate manslaughter, rather than corporate homicide, as the two offences are treated slightly differently in some of the provisions of the CMCHA 2007. See Practice Note: Involuntary manslaughter. Corporate, not individual, liability The CMCHA 2007 is concerned with corporate liability and does not apply to directors or other individuals who have a senior role in a company. No individual liability is created under the CMCHA 2007. Moreover, the CMCHA 2007, s 18 specifically states that an individual cannot be guilty of aiding, abetting, counselling or procuring the commission of the offence of corporate manslaughter nor can an individual be guilty of encouraging or assisting an offence of corporate manslaughter. The offence contained in the CMCHA 2007, s 1, only applies to the following organisations: • a corporation, including any body corporate wherever

The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) extends to the whole of the UK and introduced the offence of corporate manslaughter (known, in Scotland, as corporate homicide) on 6 April 2008. This Practice Note considers corporate manslaughter, rather than corporate homicide, as the two offences are treated slightly differently in some of the provisions of CMCHA 2007. For information about corporate manslaughter generally, see Practice Note: Corporate manslaughter—an introductory guide and for detailed information on the various elements of the offence of corporate manslaughter, see Practice Note: Corporate manslaughter—the offence. Corporate manslaughter investigations The offence of corporate manslaughter has been relatively under-used since it came into force; 10–12 prosecutions a year were anticipated, but these have not emerged, although the number of cases coming through the courts is increasing. For information on the number of convictions for corporate manslaughter, see Practice Note: Corporate manslaughter—prosecutions tracker. It is not clear exactly why so few prosecutions have been brought under CMCHA 2007, but it is thought to be a combination of factors, including:

This Practice Note provides a summary of key corporate manslaughter convictions under section 1 of the Corporate manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) and provides brief case outlines. This tracker is intended to assist practitioners in monitoring the sentences which are being imposed by the courts for this offence and the application, in England and Wales, of the applicable sentencing guidelines for corporate manslaughter. For an explanation of the steps which Crown Courts must take in sentencing corporate manslaughter offences in England and Wales, see Practice Note: Sentencing for corporate manslaughter. For guidance on the offence of corporate manslaughter, see Practice Notes: Corporate manslaughter—an introductory guide, Corporate manslaughter—the offence and Corporate manslaughter—enforcement and prosecution. Corporate manslaughter—convictions Defendant Plea entered/verdict reached Sentence imposed Brief case details Fairytales Day Nursery Limited Fairytales Day Nursery Limited—guilty pleas to breaches of CMCHA 2007, s 1 and HSWA 1974, s 3(1)Director and owner—guilty plea to a breach of HSWA 1974, s 37Nursery practitioner—guilty plea to gross negligence manslaughter Fairytales Day Nursery Limited was fined £240,000 and was ordered to

The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA 2007) extends to the whole of the United Kingdom and introduces the offence of corporate manslaughter (known, in Scotland, as corporate homicide). This Practice Note considers corporate manslaughter rather than corporate homicide, as the two offences are treated slightly differently in some of the provisions of CMCHA 2007. For an introduction to the offence of corporate manslaughter, see Practice Note: Corporate manslaughter—an introductory guide. It is possible for a charge of corporate manslaughter arising out of a particular set of circumstances and a charge of an offence under any health and safety legislation arising out of some or all of those circumstances to be brought, if the interests of justice so require. It is also possible for an organisation that has already been convicted of corporate manslaughter arising out of a particular set of circumstances to be, if the interests of justice so require, charged with an offence under any health and safety legislation arising out of some or all of those circumstances. For further information

In practice, there are different ways in which a UK tax resident company (or group of companies) might migrate from the UK (or reorganise itself so as to achieve a similar result from a tax perspective). As explained further in Practice Note: Company migration or corporate inversion—how to change tax residence in practice, these include: • direct emigration—whereby a UK tax resident company shifts its tax residence outside of the UK, and • corporate inversion—whereby a new, non-UK resident, holding company is inserted above the existing UK parent company of a corporate group This Checklist outlines the points that must be considered on direct emigration, when a company is migrating from the UK by shifting its tax residence from the UK to another jurisdiction. The UK corporation tax exit charges arising as a result of direct emigration, and post-migration UK tax considerations, are considered more fully in Practice Note: Consequences of company migration—UK exit charges and post-migration UK tax considerations. Checklist of key points prior to corporate migration Point Comment and references Response If