REVISITING THE PROPRIETY OF A JOINT VENTURE STATUTE

REVISITING THE PROPRIETY OF A JOINT VENTURE STATUTE
Michael Uche Ukponu
ABSTRACT
The proposition for a separate legal status and statute for Joint Venture arrangements remains
a hot topic in legal circles. Australia and New Zealand have recognized the legal status of Joint
Venture, separate from other contractual arrangements such as Partnership. However, these
two countries do not have governing statutes for Joint Venture, but derive the governing
principles of Joint Venture largely from common law and practice. This paper attempts to
critically analyse various viewpoints and court judgments on the legal status of Joint Venture
vis-à-vis Partnership. It aims to simplify the defining principles of Joint Venture and argue in
favour of a governing statute to set out its legal context and parameters. The paper postulates
that (at least) Resources Joint Ventures as is obtainable in Australia and similar arrangements
in other jurisdictions is underserving of, not only a separate legal status, but also a governing
statute.

LL.B (Hons); B.L (Hons); Barrister and Solicitor of the Supreme Court of Nigeria; Master of Energy and
Resources Law, Melbourne Law School, The University of Melbourne.
[1]
I INTRODUCTION
Ever since the enactment of the Partnership Act by the British Parliament in 1890, the
proposition of a separate legal status–and by extension a separate regulatory statute–for Joint
Ventures has remained a hot topic in legal circles.1 This controversial proposition gathered
more momentum as Joint Venture gained legal status in some jurisdictions–such as the United
States,2 Australia3 and New Zealand4–separate from other contractual arrangements, especially
Partnership. However, these jurisdictions do not have a regulatory statute for Joint Venture as
the main sources of their Joint Venture regulation stem from common law and practice. Other
jurisdictions, such as China, have enacted Joint Venture statutes that regulate ‘international’
Joint Ventures. 5 International Joint Ventures are typically foreign direct investments by a
foreign company or companies, and they usually collaborate with a local participant by
unifying their property, capital, labour and knowledge in pursuance of a single business
transaction or series of business transactions.6
This research paper attempts to unpack and analyse various viewpoints and judicial
pronouncements on the issue of a separate legal status for Joint Venture vis-à-vis Partnership
in some jurisdictions such as Australia, Canada, England, New Zealand and the United States.
The paper will aim to simplify, as much as possible, the meaning and types of Joint Venture
and argue in favour of a regulatory statute for Joint Ventures. In doing so, the paper will set
out the contexts and legal parameters that embody the concept of Joint Venture. Joint Venture
statutes are gradually becoming necessary bearing in mind the ever-increasing rate of cross-
border transactions, as well as international activities towards the harmonisation and
1
Robert Flannigan, ‘Joint Venture Theurgy’ (2013) 54 Canadian Business Law Journal 368.
2
GM Lewis, ‘Comment: The Joint Operating Agreement: Partnership or Not’ (1986) 4 Journal of Energy and
Natural Resources Law 80.
3
MC Chetwin, ‘Joint Ventures – a Branch of Partnership Law? (1991) 16(2) University of Queensland Law
Journal 256, 257; MC Chetwin, ‘The Broad Concept Of Joint Venture: Should It Have A Fixed Legal Meaning?’
(Paper presented at the EABR Business & ETLC Teaching Conference, Ljubljana, Slovenia, 2007) 2.
4
Chetwin (n 3) 260; Chetwin (n 3) 2.
5
Law of The People’s Republic of China on Joint Ventures Using Chinese and Foreign Investment (People’s
Republic of China) Second Session, Fifth National People's Congress, July 1, 1979; DI Salem, ‘The Joint Venture
Law of the Peoples' Republic of China: Business and Legal Perspectives’ (1981) 7 (1) Maryland Journal of
International Law 73.
6
Laimonas Marcinkevičius, ‘Prospects for the Regulation of International Joint Ventures’ (2009) 3(3) Social
Sciences Studies 229.
[2]
codification of legal principles and their applications into a single legal framework, which
started before the turn of the twenty-first century and have intensified since then. Due to this
current reality, among other reasons proffered here, this paper postulates that (at least)
Resources Joint Ventures as is obtainable in Australia and similar arrangements in other
jurisdictions is deserving of, not only a separate legal status, but also a regulatory statute.
In arguing for the enactment of a statute to regulate Joint Venture arrangements, the paper will
attempt to answer the following questions:
1. Is Joint Venture different from Partnership as to warrant a separate legal

status for Joint Ventures?
2. If the answer to the first question is yes, is a Joint Venture statute necessary
in this 21st century? What elements should a Joint Venture statute contain or
cover?
Part II of the paper will attempt an examination of the two concepts of Joint Venture and
Partnership with the aim of identifying key technical distinctions that indicate a separate legal
status for Joint Venture. The paper also proposes a better categorization of Joint Ventures–
Profit-sharing Joint Venture and Product-sharing Joint Venture. Part III of the paper will make
out a case for a regulatory statute for Joint Venture, highlighting some economic and
international developments in recent times that justify the case for a Joint Venture statute. In
Part IV, the author suggests some key elements that a Joint Venture statute will need to contain
or cover, while Part V concludes the paper by acknowledging the difficulties associated with
giving Joint Venture a legal status and regulatory statute. However, the paper submits that (at
least) Product-sharing Joint Venture, such as Australia’s Resources Joint Venture, be given a
priority of a regulatory statute pending the fuller development of legal principles governing
Profit-sharing Joint Venture.
II AN EXAMEN OF THE CONCEPT OF JOINT VENTURE VIS-À-VIS PARTNERSHIP
[3]
In this part, the paper attempts to define Joint Venture and Partnership and identify and analyse
the essence of the distinctive technical features of both concepts. In addition, the paper will
look at the jurisprudence regarding the commonality and otherwise between Joint Ventures and
Partnerships in Australia, Canada, New Zealand, United Kingdom and United States
jurisdictions.
A Background
Depending on the jurisdiction in question, the controversy surrounding the issue of a separate
legal status for Joint Venture is largely unresolved even by available case law and statute.
Whereas, some legal experts argue that Joint Venture is separate from Partnership, 7 others
maintain that Joint Venture is a type or variant of Partnership. 8 Interestingly, these polarised
viewpoints seem to emanate from accepted definitions of both concepts. Due to the position
that Joint Venture is a type or variant of Partnership, the paper first attempts to give accepted
definitions and jurisprudence of Partnership, followed by that of Joint Ventures, then distil the
distinctive technical features of both concepts in order to advance the argument that despite
their similarities,9 both legal concepts have separate legal statuses.
B Partnership
The English Partnership Act 10 defines Partnership as “the relation which subsists between
persons carrying on business in common with a view to profit.”11 There are three types of
Partnership, namely General Partnership, Limited Partnership and Limited Liability
Partnership.12 A Limited Partnership must have two or more partners.13 At least one of the
partners involved in the Limited Partnership must be a general partner and one must be a limited
partner.14 In Limited Partnerships, the general partner has unlimited personal liability, while
7
AB Weissburg, ‘Reviewing the Law on Joint Ventures With An Eye Toward the Future’ (1990) 63 Southern
California Law Review 487; KM Hayne, ‘The Need for a Joint Venture Code?’ [1990] AMPLA Yearbook 362, 368;
8
Robert Flannigan, ‘The Legal Status of Joint Ventures’ (2009) 46 (3) Alberta Law Review 713; Flannigan, ‘The
Joint Venture Fable’ (2008–2010) 50 (2) The Journal of American Legal History 200; Flannigan (n 1);
9
KE Olson, ‘Joint Ventures–Essential Elements: The North Dakota Supreme Court Creates a Broader Definition
of Joint Ventures (Sandvick v. LaCrosse, 2008 ND 77, 747 N.W.2d 519)’ (2009) 85 North Dakota Law Review
469, 478 – 479.
10
Partnership Act 1890 (UK) 54 Vict, c 39.
11
Partnership Act 1890 (UK) 54 Vict, c 39, s 1 (1); Partnership Act 1958 (Vic) s 5 (1)
12
KE Olson (n 9) 470.
13
KE Olson (n 9) 470 – 471 citing J A Friedland, Understanding Partnership and LLC Taxation (LexisNexis, 2nd ed,
2003) 11.
14
Ibid.
[4]
the limited partner is only liable for the amount he or she invested into the Limited
Partnership.15 A Limited Liability Partnership is a partnership in which the partners are not
personally liable for certain partnership debts. 16 Liability differs from state to state, but in
Limited Liability Partnerships, a partner is usually only personally liable when he or she has
acted negligently or committed a misconduct.17
However, this paper is more concerned with General Partnership where individual personal
liability of the partners are usually unlimited. The other two types of Partnership mentioned
here are of special consideration, and therefore not the focus of this paper. Thus, in this paper,
Partnership refers to General Partnership. As seen in the above definition of Partnership, three
technical elements which must be present for there to be a Partnership.18 They are:
1. That there is a business being carried on,

2. That the business is being carried on in common, and
3. That the business, carried on in common, is with a view to profit.
1 Business Being Carried On

The phrase “carrying on business” seems to connote an ongoing repeated business concern.19
The intention of the partners in this ongoing business is to, perhaps, continue the business in
perpetuity unless certain circumstances arise which could bring the business to an end. Such
circumstances include voluntary termination or frustration. In United Dominion Corporation v
Brian Pty Ltd,20 Dawson J espoused on the element of an ongoing business in Partnerships:
[T]he requirement that a business should be carried on provides no clear means of

distinguishing a joint venture from a partnership. There may be a partnership for a single
adventure or undertaking, for the Acts provide that, subject to any agreement between the
partners, a partnership, if entered into for a single adventure or undertaking, is dissolved by
the termination of that adventure or undertaking: see, e.g. Partnership Act 1892 (NSW), s.
32(b). A single adventure under our law may or may not, depending upon its scope, amount
to the carrying on of a business: Smith v. Anderson (1880) 15 Ch D 247 at 277278; ReGriffin;
15
Ibid.
16
Ibid.
17
Ibid.
18
Chetwin, above n 3, 261
19
Ibid.
20
United Dominion Corporation v Brian Pty Ltd (1985) 157 CLR 1.
[5]
Exparte Board of Trade (1890) L.I. QB 235 at 237; Ballantyne v. Raphael (1889) 15 VLR
538. Whilst the phrase “carrying on a business” contains an element of continuity or
repetition in contrast with an isolated transaction which is not to be repeated, the decision
of this Court in Canny Gabriel Castle Jackson Advertising Pty. Ltd. v. Volume Sales
(Finance) Pty. Ltd. (1974) 131 CLR 321; 3 ALR 409, suggests that the emphasis which will
be placed upon continuity may not be heavy.21
However, regarding the last sentence of the above excerpt, Chetwin notes that the mere fact
that an enterprise is formed for a single transaction of a limited period of time does not
necessarily connote that it is a Joint Venture. Rather, careful examination could reveal that it
is a Partnership.22 Olson corroborates Chetwin’s observation in the context of the US State of
North Dakota.23 In the same vein, “carrying on business” does not necessarily mean that an
enterprise is a Partnership in the sense of a repetitive business activity. 24 In Canny Gabriel
Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd,25 the Plaintiff paid some
money to a pop music promoter on the understanding that the promoter would assign to it one-
half of the interest in the organisation of the music tours of pop singers Cilla Black and Elton
John via a Joint Venture arrangement. The High Court of Australia held this arrangement to be
a Partnership despite the parties describing their contract to be a Joint Venture.
One may argue that the basis for the High Court of Australia’s judgment could be that the
agreement to organise the music tours of particular musicians in this circumstance connotes a
successive or future organisation of music tours for those musicians (as long as they continue
to perform at successive music tours organized by the music promoters). A counter-argument
against the judgment could be that although there may be more than one music tour, it could
be that these music tours were to be held within a certain period of time–no matter how long–
hence the arrangement was a single transaction. Chetwin questions the rationale of the Court
21
United Dominion Corporation v Brian Pty Ltd (1985) 157 CLR 1, 15.
22
Chetwin (n 3) 5.
23
“In 1995, North Dakota adopted the revised Uniform Partnership Act’s definition, which added the phrase,
‘whether or not the persons intend to form a partnership,’ to the existing definition. This language informs
parties that they could become partners by demonstrating intent through their actions alone, even if they
explicitly stated that their relationship was not a partnership”: KE Olson (n 9) 476.
24
Chetwin (n 3) 5.
25
Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321. See
also the North Dakota cases of Gangl v Gangl 281 NW 2d 574 (ND, 1979) and Tarnavsky v Tarnavsky 2003 ND
110; ¶1, 666 NW 2d 444 (ND, 2003).
[6]
in determining the arrangement to be a Partnership despite lacking a “repetitive element.”26 In
contrast, Harding posits that “the fact that persons only associate to carry out a single venture
with narrow compass…clearly does not preclude partnership”.27 In essence, the reliance on the
element of ‘carrying on business’ in continuity as a measure to distinguish Partnerships from
Joint Ventures remains controversial and largely unresolved. The courts in many jurisdictions
such as Australia tend to treat this element with less emphasis in determining whether an
agreement is a Partnership or Joint Venture.28
2 Business Being Carried On In Common

This second element, carrying on business in common, appears to be less controversial and
generally accepted by jurists and the courts as the most important element in distinguishing
between Partnership and Joint Venture.29 The courts will only need to apply the test laid down
in Lang v Morrison & Co Ltd30 –“is the person who carries on that business doing so as agent
for all the persons alleged to be partners?”31 In Partnership, each partner is an agent to the other
partner(s). 32 Carrying on business in common means that the partners carry on business
together and are jointly and severally liable in the event of damages and liabilities arising from
the Partnership. Furthermore, the rights and obligations of each partner on whose behalf the
business is carried on must be at a mutual level, otherwise there is no Partnership but a mere
Principal-Agent relationship.33
3 A View to Profit
The Partnership must be carried on with a motive or view to make profit.34 Where the partners
can prove that their business was intended to, and functioning with a view to make profit, the
26
Chetwin (n 3) 262.
27
MM Park, Joint Venture: North American Emigrant Possessing Skills Not Readily Available in Australia, Family
Reunion Immigrant, or Native-Born Australian Unrelated to Foreigners of the Same Name? (LLM Research
Paper, The University of Melbourne, 1984) 5 <https://minerva-
access.unimelb.edu.au/bitstream/handle/11343/26213/115980_JntVnt.pdf?sequence=1&isAllowed=y> citing
DE Harding, ‘General Principles of Partnership Law’ (Paper presented at the Macquarie University Seminar on
The Use of Partnerships in Tax and Estate Planning, Sydney, Australia, 1976) 26–27.
28
Chetwin (n 3) 262.
29
Ibid 263; Hayne (n 7) 365.
30
Lang v Morrison & Co Ltd (1911) 13 CLR 1.
31
Lang v Morrison & Co Ltd (1911) 13 CLR 1 at 11.
32
Chetwin (n 3) 262.
33
Ibid.
34
Olson (n 9) 477.
[7]
element is met. 35 This third element may seem uncontroversial on the surface. Generally,
business partners may come together to do business in common, make profit in terms of money
and then share it among themselves according to their agreement. However, jurists are divided
regarding what constitutes ‘profit’. Some jurists have observed that, just like the element of
‘carrying on business’, the element of ‘a view to profit’ is not to be emphasized in determining
a Partnership.36 Profit connotes not only profit in monetary terms but also profits in money’s
worth. Profit in money’s worth, as opposed to money simpliciter, is more relevant with Joint
Ventures in the energy and resources industry. However, in Partnerships, profit is generally
taken to be profit in monetary terms.
C Joint Venture – and Its Legal Status

Joint Venture is simply defined as a contract where “two or more individuals enter into an
agreement to carry out a single business enterprise for profit.”37 It is also defined as “a special
combination of two or more persons who, in some specific venture, seek a profit jointly without
any actual partnership or corporate designation.”38
A Joint Venture may be incorporated or unincorporated.39 As with companies, Incorporated

Joint Ventures are regulated by statute and case law as a body corporate. Usually, they are
incorporated as a body corporate under corporate law and given a separate legal personality
with a common seal, the incidental rights to own property, sue and be sued.40 They are used as
a special purpose vehicle to execute the business of the Joint Venture. 41 This type of Joint
Venture is less controversial.42 It is the unincorporated Joint Venture that is problematic and
controversial because of its similarity to a Partnership,43 and therefore the focus of this paper.
35
Ibid.
36
Chetwin (n 3) 263.
37
AB Weissburg (n 7) citing Note, ‘Joint Venture or Partnership’ (1949) 18 Fordham Law Review 114,
115.
38
AB Weissburg (n 7) 487 citing HW Nichols, ‘Joint Ventures’ (1950) 36 Virginia Law Review 425, 430.
39
Michael Crommelin, ‘The Mineral and Petroleum Joint Venture in Australia’ (1986) 4 (2) Journal of Energy
and Natural Resources Law 65; Chetwin (n 3) 256.
40
Chetwin (n 3) 1.
41
Crommelin (n 38) 65; JD Merralls, ‘Mining and Petroleum Joint Ventures in Australia: Some Basic Legal
Concepts’ (1988) 62 The Australian Law Journal 907.
42
Chetwin (n 3) 10.
43
Ibid; Chetwin (n 3) 256.
[8]
However, for ease of reference, the paper adopts the approach of jurists in referring to the
unincorporated Joint Venture as simply Joint Venture.44
While there seems to be relative unanimity in the meaning and essence of Partnership,
especially in terms of carrying on business in common, this is not the case with Joint Venture.
More so, while Joint Venture is viewed in some jurisdictions to have a separate legal status
distinct from Partnership, other jurisdictions view Joint Venture as a variant of Partnership.45
The paper now considers the meaning and legal status of Joint Venture as is obtainable in some
jurisdictions.
1 England
Joint Venture does not have a separate legal status in England.46 Joint Venture is regarded as a
type of Partnership in the sense that even where joint venturers describe themselves as such,
English Law will still refer to them as partners under a Partnership. 47 Foundational English
legal authorities do not contain or refer to the term “Joint Venture.” The nearest term to Joint
Venture is “Joint Adventure”.48 As stated in Halsbury’s Laws of England,
If two persons jointly export their individual goods for sale as a joint adventure, dividing
the profits of the transaction in specified shares, there is no partnership as regards the
separate parcel of goods provided by each, until they are brought into common stock.
Conversely, if they are jointly concerned in the purchase, they are not partners unless
they are also jointly concerned in the future sale. Where, however, they agree to embark
in a joint adventure for the purchase and sale of goods, there is a partnership as regards
all the goods bought in pursuance of the agreement, and each is liable for the price of the
goods bought by the other, and if goods bought for a joint adventure by two persons are
wholly paid for by one of them, while the other contributes skill and labour in return for
44
Crommelin (n 38) 65.
45
Crommelin (n 38) 65 citing Encyclopedia of the Laws of Scotland (1931) Vol. II s 67. “There is a species of
association in trade analogous to, or perhaps more correctly a variety of, partnership in which the partners use
no firm or social name although they are associated in joint adventure or trade which is confined to a
particular adventure, speculation, course of trade or voyage.”: at 32.
46
Chetwin (n 3) 259; Flannigan (n 8) 716; Lewis (n 2) 80; HW Nichols, ‘Joint Ventures’ (1950) 36 Virginia Law
Review 425, 443.
47
Chetwin (n 3) 260.
48
Ibid 259. Other commercial lexemes for Joint Venture are Joint Undertaking, Joint Speculation, Joint
Enterprise, Deal and Syndicate.
[9]
a share of the profits, there may be a partnership between them of such a nature that the
goods are partnership property.49
The last sentence in the above excerpt envisages a Joint Adventure (or Joint Venture) as a
Partnership. Although, the joint adventurers are partners for a future sale, it does not necessarily
follow that they will be partners for other subsequent sales. This notion seems to resonate with
Sir Frederick Pollock’s view after his consideration of Scottish Law–which states that “joint
adventure or joint trade is a limited partnership, confined to a particular adventure”50 and “incur
no responsibility beyond the limits of the adventure”51–that there is no distinction between
Joint Venture and Partnership.52
In Khan v Miah,53 the parties entered into an agreement to establish and run a restaurant. For
this purpose, they purchased premises and took other steps to complete the agreement.
Unfortunately, the restaurant was never opened for business. The English Court of Appeal held
that the parties did not become partners until the restaurant had opened for business. However,
the House of Lords in unanimously overturning the decision of the Court of Appeal and holding
that a Partnership existed, stated thus:
There is no rule of law that the parties to a joint venture do not become partners until actual trading
commences. The rule is that persons who agree to carry on a business activity as a joint venture do
not become partners until they actually embark on the activity in question. It is necessary to identify
the venture in order to decide whether the parties have actually embarked upon it, but it is not
necessary to attach any particular name to it. Any commercial activity which is capable of being
carried on by an individual is capable of being carried on in partnership.54
2 United States of America

Initially, there was no distinction between Joint Venture and Partnership in the United States
as American courts had maintained the conventional view that both concepts were virtually
analogous. 55 Even when the courts distinguished between Partnership in the general sense of
49
Halsbury’s Laws of England (5th ed), Vol 35, 13 [11].
50
GJ Bell, Commentaries on the Law of Scotland II, Principle § 392.
51
Ibid.
52
Frederick Pollock, Pollock on the Law of Partnership (15th ed, 1952) 6, 9-11.
53
Khan v Miah [2001] 1 All ER 20.
54
Khan v Miah [2001] 1 All ER 20, 24.
55
Chetwin (n 3) 257.
[10]
continuity or repetition of business and single transaction Partnership, there was still no push
for a separate legal status for the latter.56 However, the twentieth century witnessed, albeit in
some US state jurisdictions like North Dakota,57 a shift from this conventional view to the
controversial view that Joint Venture is conceptually different from Partnership.58 It suffices to
say that across US state jurisdictions, there is no uniformity on the issue of a separate legal
status for Joint Venture.59
In reaction to this situation, Flannigan argues that the shift by some US state jurisdictions
towards the unconventional and controversial view of a legal status for Joint Venture is
inconsequential because the US states that have so shifted are less in number compared to those
that are still stuck to the conventional majority view.60 He contends further that even in the
States holding the minority view, the arguments in favour of a legal status for Joint Venture is
weak in substance.61 Hence, “a choice must be made” as to the camp to pitch tents with, and
he chooses the camp of the majority.62 However, other writers believe that American courts
largely recognise Joint Venture as a separate legal concept but apply the legal principles
governing Partnership to Joint Venture as there is no separate statute regulating Joint Venture.63
Weissburg captures the absence of uniformity in the case law on Joint Venture in the US. He
groups the case law into three categories. The first category denies any dissimilarity between
the Joint Venture and Partnership.64 The second category acknowledges the dissimilarity but
downplays them.65 The third category acknowledges the dissimilarity and recognizes a separate
legal status for Joint Venture, but still applies the law of Partnership to regulate Joint Venture.66
3 Canada
Canadian jurisprudence favours a legal status for Joint Venture. However, like in some US
State jurisdictions, Canadian courts apply the principles of Partnership to govern Joint
56
Flannigan (n 8) 715.
57
Olson (n 9) 499 – 501; Sandvick v. LaCrosse, 2008 ND 77, 747 NW 2d 519, 523.
58
Flannigan (n 8) 715; Lewis (n 2) 80.
59
60
Ibid.
61
Ibid.
62
Ibid.
63
64
Weissburg (n 7) 513 – 514.
65
Ibid 514.
66
Ibid.
[11]
Venture.67 In the landmark case of Canadian Mortgage and Housing Corporation (CMHC) v
Graham et al,68 CMHC engaged Bras D’or Construction to construct a number of low-income
houses according to design plans supplied by CMHC. Bras D’or Construction owned the
houses it constructed but would only sell to purchasers approved by CMHC. Upon their
approval, the purchasers obtained CHMC mortgage application forms from Bras D’or
Construction for the houses in which they are interested. This arrangement led Graham and
other purchasers to sue both CMHC and Bras D’or Construction for the defective construction
of their houses, arguing that CMHC had a partnership or joint venture with Bras D’or
Construction to construct their houses. Jones J. ruling in favour of Graham et al stated that the
arrangement between CHMC and Bras D’or Construction was a Joint Venture held thus:
In my view, there was a contribution by both parties of money, property, skill and
knowledge to a common undertaking. There was a joint property interest in the subject-
matter even though evidenced only in the mortgages. The parties had a mutual control
and management of the enterprise during the construction of the houses and in the sales.
The arrangement was limited to this project. There is no doubt that Bras D'Or intended
a profit from the project. While there was not a mutual sharing of the profits, Central
Mortgage clearly had a financial interest at stake and was vitally concerned with the
successful completion of the venture. The project was within the operations of Central
Mortgage under the National Housing Act, R.S.C. 1970, c. N-10. This was made clear
by the evidence of the officials of the corporation. Based on the evidence, the
arrangement between Central Mortgage and Bras D'Or can be characterized as a joint
venture. To the extent that Bras D'Or in carrying on the venture incurred liabilities then
both parties were bound.69
A lot of subsequent cases where the question of a separate legal status for Joint Venture was
determined have followed the decision of Jones J. in the above case, settling the legal position
on the legal status of Joint Venture in Canada in the affirmative.
4 Australia and New Zealand

Flannigan posits that in Australia, Joint Venture and Partnership are regarded as analogous to
each other. 70 Crommelin and Lewis maintain a different view that Joint Venture and
67
Chetwin (n 3) 258.
68
Canadian Mortgage and Housing Corporation (CMHC) v Graham et al (1973) 43 D.L.R. (3d) 686.
69
Canadian Mortgage and Housing Corporation (CMHC) v Graham et al (1973) 43 D.L.R. (3d) 686, 709.
70
[12]
Partnership are mutually exclusive under Australian law. 71 However, there is a different
approach in Australia and New Zealand regarding the legal status of Resources Joint Venture,
that is, Joint Venture in the petroleum and mining industry. 72 Under this approach, Resources
Joint Venture differs from Partnership, and therefore have a separate legal status, in that they
involve a business activity where two or more participants combine their resources and skills
to produce and share a product, rather than share profit from the product. 73 When two mining
companies combine their capital assets to mine for gold, upon discovery and extraction, the
mined gold, being the product of the mining, is shared between the participants according to
agreed terms. Afterwards, each participant goes ahead on its own to sell its own portion of the
mined gold in order to make individual profit.
In the Australian case of United Dominion Corporation Ltd v Brian Pty Ltd,74 Dawson J stated
thus:
Perhaps in this country, the important distinction between a partnership and a joint
venture is, for practical purposes, the distinction between an association of persons
who engage in a common undertaking for profit and an association of those who do
so in order to generate a product to be shared among the participants. Enterprises of
the latter kind are common enough in the exploration for and exploitation of mineral
resources and the feature which is most likely to distinguish them from partnerships
is the sharing of product rather than profit.75
In Petrocorp Exploration v Butcher,76 the New Zealand Court of Appeal held that
In accordance with common Australasian practice, the joint venture operating
agreement includes provisions that it represents the entire understanding of the joint
venturers in relation to the matters dealt with therein and that it should not be
construed as creating any partnership.77
71
Crommelin (n 38) 66; Lewis (n 2) 80.
72
Chetwin (n 3) 260.
73
Ibid; Chetwin (n 3) 10; Flannigan (n 8) 724; Crommelin (n 38) 68.
74
United Dominion Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1.
75
United Dominion Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1, 15 – 16.
76
Petrocorp Exploration v Butcher [1989] 1 NZLR 348.
77
Petrocorp Exploration v Butcher [1989] 1 NZLR 348.
[13]
Sharing of the product as against sharing of profit is heralded as the distinguishing factor
justifying a legal status for Resources Joint Ventures. McPherson 78 criticised this product
argument by citing the very old case of Holderness v Shackels,79 to justify his counter-position.
In this case, Tenterden CJ held that an agreement by three part-owners of a whaling ship to
share the whale bubbler of a whaling exercise was a Partnership. Thompson80 disagreed with
McPherson by citing three likewise old cases of Hoare v Dawes;81 Coope v Eyre; 82 and Grace
v Smith.83 These cases distinguished joint purchases of goods for resale jointly by adventurers
from joint purchase of goods for division and separate sale by the individual adventurers. This
paper aligns with the submission of Thompson on the product argument in support of the
position that Resources Joint Ventures have a separate legal status. As Chetwin points out, joint
purchases of goods for resale jointly by adventurers may give rise to Partnership and joint
purchase for division and separate sale by the individual adventurers is a separate contract. 84
This separate contract is a Joint Venture.85
D Distilling the Stand-out Differences between Partnership and Joint Venture
From the above analysis of the legal principles guiding Partnership and Joint Venture in various
jurisdictions, the paper posits that Joint Venture is a separate legal concept for three key reasons
namely, the element of tenancy-in-common, single transaction or series of transactions, and
sharing of the product.
1 Tenancy-In-Common
The first reason is that whereas in Partnership, the partners carry on business in common, the
Joint Venture (including Resources Joint Venture) participants carry on business severally.86
In Joint Venture, the business activity of the participants are separate, albeit that they are
tenants-in-common, that is, they apply commons assets and take common decisions to further
the course of the venture.87 As Nichols elucidates, “[p]ersons engaging in a joint venture must
78
BH McPherson J, ‘Joint Ventures’ in PD Finn (ed), Equity and Commercial Relationships, (Law Book, 1987) 61.
79
Holderness v Shackels (1828) 8 B & C 612; 108 E R 1170.
80
Neil Thompson, ‘The nature of the joint venture’ in WD Duncan (ed), Joint Ventures Law in Australia
(Federation Press, 2nd ed, 2005) 33.
81
Hoare v Dawes (1780) 1 Doug 371.
82
Coope v Eyre (1788) 126 ER 24.
83
Grace v Smith (1775) 2 Wm Bl 998; 96 ER 587.
84
Chetwin, above n 3, 10.
85
Ibid; Chirnside v Fay [2007] 1 NZLR 433, 442.
86
Chetwin (n 3) 263.
87
Nichols (n 45) 433.
[14]
combine their property, money, efforts, skill or knowledge in a common undertaking.” 88 In
Partnership, the assets utilised do not belong to the partners; they belong to the Partnership
because the partners are separate and distinct from the Partnership itself. This is not the case in
Joint Venture. The assets utilised in Joint Venture belong to the individual participants who
pool them together to execute the venture.89 However, though the participants share profits and
losses, they have their individual business interests which they seek to actualise through the
Joint Venture.90
2 Single Transaction or Series of Transactions

Secondly, while Partnership involves continuous or repetitive business activity which may last
in perpetuity unless it is terminated voluntarily or by frustration, Joint Venture (including
Resources Joint Venture) usually involves a one-off or series of transactions, after which the
collaboration between the participants terminates upon completion of those transactions.
Flannigan argues that “there is no substantive difference between trading jointly in one
occasion or two or more.”91 He further argues that many Partnership statutes envisage and
cover single transaction Partnerships. For instance, in the dissolution provisions of many
Partnership statutes, a Partnership is dissolved “if entered into for a single adventure or
undertaking, by the termination of the single adventure or undertaking.”92
In the author's mind, Flannigan’s argument begs the question as to the meaning of the word
‘termination’ in this context. Does it connote the classic legal meaning of bringing a contract
to an end by the mutual consent of the parties or frustration or repudiation on one hand, or an
automatic discharge of a contract upon completion of the subject matter of the contract on the
other hand? In the author’s view, the meaning of ‘termination’ in the context of Joint Venture
cannot be interpreted to be its classic legal meaning93 as it goes beyond mutual consent of the
parties or repudiation or frustration. Termination by way of completion of a single undertaking
or series of (related) transactions is a hallmark of Joint Venture, not Partnership. An anonymous
jurist opined that
88
Ibid 438.
89
Merralls (n 40) 918.
90
Ibid.
91
92
Ibid.
93
“Termination: the act of ending something. Terminate: to put to an end; to bring to an end”: BA Garner (ed),
Black’s Law Dictionary (Thomson Reuters, 10th ed, 2014) 1700.
[15]
[t]he determination of the expiration date of a joint adventure is relatively simple
because it is usually ascertainable in point of event, if not in point of time, at the
outset of the venture. The normal partnership agreement is not ordinarily entered
into with any specific ideas concerning its termination. Upon the completion of the
particular enterprise constituting the venture the relationship ceases.94
Flannigan justifies his scathing attack on the single transaction argument by citing the decision
of American courts in Brubaker v Robinson,95 Bringham v Dana96 and Wright v Crumpsty.97
In these cases, the courts considered situations where a Partnership was yet to be completed
due to an outstanding single business or transaction item.98 His argument is to the effect that
though the courts realized these situations, they never decided that such outstanding single item
metamorphosed into a Joint Venture with a separate legal status.99 Flannigan believes that it is
a misunderstanding of these cases that emboldened the Joint Venture single transaction and
separate status bandwagon.100
In response, it is unfair to hold the position that proponents of a legal status for Joint Venture
misconstrue outstanding business item in a Partnership. A Joint Venture for a single transaction
is distinct from an outstanding business item in a Partnership. Of course, it will be ridiculous
to attempt an outstanding business item under a Joint Venture when the preceding business
items, and indeed the entire transaction have the main trappings of a Partnership – carrying on
business in common with a view to making profit. Assuming without conceding that
Flannigan’s argument has some merit, one needs to be reminded that law is not static. Law is
dynamic. Law develops from one stage to another. It was Merralls who insinuated that
incorporated Joint Stock Companies were once under the statutory cover of the laws governing
Partnerships and Business Trusts until they eventually gained a separate legal status. 101 One
cannot keep on maintaining a stoic stance by applying traditional yet unsuitable mechanisms
94
Note, ‘Joint Venture or Partnership’ (1949) 18 Fordham Law Review 114, 130
<http://ir.lawnet.fordham.edu/flr/vol18/iss1/7>.
95
Brubaker v Robinson 3 Pen. & W. 295 (Pa 1831) cited in Robert Flannigan, ‘The Joint Venture Fable’ (2008–
2010) 50 (2) The Journal of American Legal History 200, 206.
96
Bringham v Dana 29 Vt. 1 (1856) cited in Robert Flannigan, ‘The Joint Venture Fable’ (2008–2010) 50 (2) The
Journal of American Legal History 200, 207.
97
Wright v Crumpsty 41 Pa. 102 (1861) cited in Robert Flannigan, ‘The Joint Venture Fable’ (2008–2010) 50 (2)
The Journal of American Legal History 200, 207.
98
99
Ibid.
100
Ibid.
101
Merralls (n 40) 908.
[16]
to cater for new (age) concepts.102 In the long run, it is unsustainable to store new wine in old
wine skins.103
Concluding on this point, the author submits here that the phrase “carrying on business”
connotes a repetitive business activity, which is a hallmark of Partnership. For the purposes of
clarity and avoidance of confusion, this phrase should not be applied to define Joint Venture.
It is proposed that this phrase should be substituted for the word “execute”. In the author’s
opinion, the word “execute” connotes a once-and-for-all performance of a single transaction or
series of transactions better than its synonym “carry on” and its present continuous tense
“carrying on”. Thus, the paper proposes that Joint Venture, as provided by Weissburg, 104
should be defined as a contract where “two or more individuals enter into an agreement to
execute a single business enterprise for profit.”
3 Sharing of the Product

The third reason is of particular reference to the Joint Venture common in Australia and New
Zealand, otherwise referred to as Resources Joint Venture. It is difficult to distinguish
Partnership from Joint Venture in terms of doing business for the purpose of making profit,
whether the enterprise is an ongoing concern or a one-off or series of transactions that
terminates upon completion. This is because both Partnership and one-off Joint Venture are for
the purposes of realising profit. However, with particular reference to Resources Joint Venture,
the objective is not profit per se. Rather, it is for the sharing of products, or in this context,
resources between the participants. Whatever the participants decide to do with their individual
portion of the resource is left to them.
One may argue, citing the old cases of Hoare v Dawes; Coope v Eyre and Grace v Smith, that
this kind of Joint Venture need not be for sharing of mining and petroleum resources alone.
General mercantile enterprises, such as importation of goods and sharing of these goods
between the participants, amount to sharing of a product. While sharing of goods as products
between participants may not be uncommon nowadays, it has gained more prominence with
Joint Ventures in the extractives sector.
102
Ibid.
103
The Holy Bible, Matthew 9: 14 – 17.
104
Weissburg (n 7) 487 citing Note, ‘Joint Venture or Partnership’ (1949) 18 Fordham Law Review 114, 115.
[17]
Flowing from the above analysis, this paper posits that Joint Venture, including Resources Joint
Venture, has a separate legal status. It is in this light that the paper proposes the following
classification of Joint Ventures for ease of reference: Profit-Sharing Joint Venture and Product-
Sharing Joint Venture. A prominent example of a Product-Sharing Joint Venture is Resources
Joint Venture common in Australia and New Zealand. Having established that a legal status is
appropriate for Joint Venture, it is pertinent to discuss the propriety of a regulatory statute.
III STATUTE FOR THE TWENTY-FIRST CENTURY JOINT VENTURE

Under this part, the paper discusses some problems associated with Joint Venture and makes a
case for a Joint Venture statute to deal effectively with these problems. The paper also identifies
key elements that should be contained in, or covered by, the Joint Venture statute.
A Background – Application of the Principles of Partnership to Joint Venture and

Attendant Problems
In recent times, Joint Venture has become a frequent and reliable form of business agreements
in many jurisdictions. 105 This is due to the fact that many laws of countries have created
enabling environments for the use of Joint Venture agreements to foster cross-border
transactions.106 In addition, foreign investors use Joint Venture to by-pass trade barriers and
reduce the cost of production, research, and project development.107
In Part II, the paper was able to advance justifications for according Joint Venture with a legal
status, as is the case in some jurisdictions such as the US. However, some other jurisdictions
like England and Scotland regard Joint Venture as a special Partnership and having no separate
legal status.108 Even in some US jurisdictions that recognize a separate legal status for Joint
Venture, there is no applicable separate law or principles for Joint Venture-related cases. Law
courts have to rely on Partnership Law to adjudicate cases relating to Joint Venture. Over time,
in many cases, Partnership Law has proven to be inadequate to cater for the “unique
105
Marcinkevičius (n 6) 230; Weissburg (n 7) 487.
106
Marcinkevičius (n 6) 230.
107
Weissburg (n 7) 487.
108
Ibid 487 – 488.
[18]
characteristics of Joint Venture, overlooking issues such as the structure of the Joint Venture,
as well as the activities, real intentions and expectations of the participants.”109 The reliance on
Partnership Law to govern Joint Venture begets four major problems associated with the issues
of disclosure, conflict of interest, mutual agency, and property rights of joint venturers.110 The
paper now examines each of these problems with the view to proposing a Joint Venture statute
as a sustainable legal solution.
1 Disclosure – and Attendant Problems

Most times, the obligation of Joint Venture participants to disclose information to each other
is generally limited to only such information which the individual participants had knowledge
of or developed prior to the Joint Venture, or contemplated will be developed during the course
of the Joint Venture. 111 However, issues could arise where a participant develops some
information that the Joint Venture did not contemplate would arise.112 Would the participant
who discovered this information be legally required to disclose this information to the other
participants?113 If the participant who develops the information discloses it to the Joint Venture,
he may lose a pecuniary interest in that information and the other participants may use that
information outside the Joint Venture.114 This would not ordinarily be an issue in a Partnership
because such information would be co-owned by the partners.
Cardozo J. entertained the issue of the limits of obligations to disclose information by Joint
Venture participants. In Meinhard v Salmon, 115 the Defendant, lacking funds to obtain a
property on a twenty-year leasehold, entered into a Joint Venture with the Plaintiff. Both
participants agreed that they will share the profits equally, the Defendant will manage the estate,
and the Plaintiff will fund the project. Shortly before the end of the leasehold, the reversion
landlord approached the Defendant to jointly obtain the surrounding land for a new estate
project. Salmon agreed but did not disclose this agreement with the landlord to the Plaintiff.
When the Plaintiff discovered this agreement, he felt short-changed and brought an action
seeking to be given an interest in the project. The question for determination before Cardozo J.
109
Ibid 488 – 489.
110
Ibid 489.
111
Ibid 491.
112
Ibid.
113
Ibid.
114
Ibid.
115
Meinhard v Salmon 249 NY 458; 164 NE 545 (1928).
[19]
was whether the Defendant was under the duty to disclose this agreement to the Plaintiff.
Cardozo J., in finding that such duty to disclose did exist, stated that “[j]oint adventurers, like
co-partners, owe to one another while the enterprise continues, the duty of the finest loyalty.”116
The learned judge went further to hold that the Plaintiff was entitled to half of the Defendant’s
interest in the new project.
From this case, one can see that although the learned judge stated implicitly that Joint Venture
and Partnership are different, he still applied the legal principles governing Partnership to the
Joint Venture between both participants to the extent that a participant who obtained
information independent of the Joint Venture would still be made to disclose it ‘free of charge’
to other participants, thereby suffering intellectual property loss. The other participants would
be benefitting from another participant’s ‘sweat’ without working for it. 117 This is a major
difficulty with applying Partnership principles to Joint Venture line, hook and sinker.
2 Conflict of Interest – and Attendant Problems

Problems that arise when applying conflict of interest principles of Partnership to Joint Venture
are similar to those that occur when applying disclosure principles of Partnership to a Joint
Venture. The only difference is that where a participant takes undue advantage of a situation
to the detriment of the other participants, those other participants are compensated only to the
extent of the injury to their participating interests.118
In a Partnership, where a partner obtains an unreasonable benefit to the detriment of the other
partner, that benefiting partner has breached his fiduciary relationship to the injured partner. If
this same principle is applied to a Joint Venture, it will erode the concept that the participants
had intended to restrict their obligations to the Joint Venture, and to the exclusion of their
individual activities not related to the Joint Venture.119
3 Mutual Agency – and Attendant Problems

Issues could arise as to whether Joint Venture participants’ acts are binding on each other. If a
participant’s act has express or implied authority of other participants, such act may not pose a
116
Meinhard v Salmon 249 NY 458, 463-64; 164 NE 545, 546 (1928).
117
Weissburg (n 7) 493 – 494.
118
Ibid.
119
Ibid 495.
[20]
problem in the Joint Venture in relations with third parties. 120 However, a problem may occur
if a third party believes that a participant has apparent authority to engage in that act. The
participant, without express or implied authority to act on behalf of other participants, may
make the third party reasonably believe that he has express authority to so act.121 In the case of
a Partnership, the act of such a partner will bind other partners and each of them will be jointly
and severally liable to the third party by operation of law, in so far as such act is within the
scope of the Partnership and the third party is not aware that such partner lacked the authority
to act.122 However, Joint Venture agreements usually narrow the extent of each participant’s
authority to act, which is in accordance with the concept of participants’ intentions regarding
the Joint Venture.123 If the other participants deny that they gave their authority for such act,
the third party would then be left to bear his losses.
Weissburg posits that the “knowledge of the formation of a Joint Venture should put third
parties in notice” of a likelihood of an absence of apparent authority to act.124 This paper posits
that is this principle will most likely not be applied by courts in jurisdictions where Joint
Venture is viewed as a form of Partnership, or that apply principles of Partnership to Joint
Ventures despite acknowledging their separate legal status. The reason for this view is that a
court sitting to adjudicate based on the principles of equity is loath to allow third parties to
suffer for the ‘sins’ of an erring participant. As most Joint Venture agreements have indemnity
provisions, the equitable ruling will be to award damages to the third party, which will then
lead the other participants to activate the indemnity clauses in their favour in order to assuage
their individual losses arising from the erring participant’s act.
4 Assets, Ownership Rights and Attendant Problems

In a Joint Venture, the participants commit their individual assets for common use in the Joint
Venture. These assets still belong to the participants, not the Joint Venture. They are just
pooling their individual assets to further the cause of the Joint Venture. In a Partnership, the
partners have a duty to first disclose to each other, in the event where a partner intends to divest
his asset, before marketing and selling to third parties. This principle is also applied in Joint
120
Ibid 496; Susan O’Rourke, ‘Corporate Developments: Joint Venture Governance’ [2005] AMPLA Yearbook
112, 115.
121
122
Ibid.
123
124
[21]
Venture agreements that have pre-emptive rights and option of first refusal clauses. Based on
the principle that the scope of a Joint Venture is limited to the intention of the participants,
assuming that the Joint Venture agreement does not contain such pre-emptive rights and option
of first refusal clauses, or there is no Joint Venture agreement at all, it is difficult to say with
certainty that a participant has the right to divest his assets to third parties without first
disclosing to his co-participants and giving them the option to acquire his assets.125 In this
situation, applying the principles of Partnership which recognise the co-participants’ pre-
emptive rights and option of first refusal is in contrast with the concept of intention of the
participants in a Joint Venture.
B Justifications for a Joint Venture Statute

This paper argues that the separate legal status of Joint Venture; the non-uniformity of applied
legal principles to govern Joint Venture; and recent developments in international economic
activities are tenable justifications for a Joint Venture statute.
1 The Separate Legal Status Argument

The above analysis has clearly shown that applying principles of Partnership to Joint Venture
goes against the intention of the participants. The concept of participants’ intentions and
expectations as distinct from the operation of law in Partnerships lays credence to the argument
that, however technical or narrow it seems, Joint Venture has a legal status separate from
Partnerships. The concept of participants’ actual intentions and expectations from the Joint
Venture is reflected in the extent of disclosure obligations, conflict of interest, mutual agency
and ownership of property. The intentions and expectations of the participants usually entail
that the Joint Venture is restricted to a particular transaction or sets of transactions, after which
the Joint Venture terminates, and that liabilities of the participants are several. 126 In fact, it is
these participants’ intentions and expectations to restrict the Joint Venture to a particular
transaction or set of transactions that gives Joint Venture its separate legal status.127 Thus, a
court of law will find it easier to accurately determine the rights of the participants in a Joint
Venture by establishing their respective and collective intentions and expectations in
accordance with a set of codified legal provisions governing Joint Venture.128
125
Ibid 497 – 498.
126
Ibid 500.
127
Ibid 522.
128
Ibid 524.
[22]
The author is not oblivious of Flannigan’s arguments positing the non-legal status of Joint
Venture because it is a variant of Partnership,129 hence, undeserving of a separate governing
statute. In a bid to defeat his argument, this paper considers the example of the regulation of
companies, shares and securities. Companies and shareholdings are usually regulated by the
Corporate Law of a particular jurisdiction. However, Corporate Law is usually not adequate to
regulate dealings in shares and securities tied to shareholdings in a given company. Such
securities include debt, debenture, equities, corporate bonds, venture capital, angel investment,
etc. To adequately regulate dealings in securities, recourse is usually had not only to Corporate
Law, but Securities Law, Investment Law and even Contract Law. Depending on the drafting
and content of the Corporate Law statute, the fact that some securities such as debentures can
be converted into shareholding in a company does not necessarily mean that Corporate Law
will sufficiently apply to regulate such transaction. Definitely, Securities Law and Contract
Law will apply. In the same vein, this paper has submitted that Partnership Law cannot
adequately deal with the unique characteristics and technicalities of Joint Venture. A separate
statute containing legal principles that are peculiar to Joint Ventures, as well as Contract Law,
Corporate Law and Investment Law,130 will adequately cover Joint Venture activities.
2 Lack of Uniformity of Legal Principles Governing Joint Venture

The lack of uniformity of legal principles applied by law courts across various jurisdictions to
determine Joint Venture matters calls for a Joint Venture statute. As has been stated in Part II
of this paper, while law courts in some jurisdictions hold that Joint Venture is a form of
Partnership, law courts in other jurisdictions maintain that Joint Venture is separate from
Partnership. Now, even among those jurisdictions like some US states where Joint Venture is
accorded a separate legal status, some courts acknowledge the separate legal status but do not
deem it to be substantial enough for special treatment. 131 Some other courts recognize a
separate legal status for Joint Venture, but still apply the principles of Partnership Law to
determine Joint Venture rights,132 a significant amount of which are contained in case law. The
Resources Joint Venture in Australia is governed mostly by case law and practice.133 This lack
129
Flannigan (n 1) 368; Flannigan (n 8) 713.
130
131
132
Ibid.
133
[23]
of uniformity and clarity of Joint Venture guiding principles justify a harmonization and
codification of Joint Venture guiding principles into a single and generally accepted governing
legal framework.
The example of the harmonization of Limited Partnership Laws in the US is instructive of the
fact that it is sometimes pertinent to harmonize laws. Italy is renowned to be the birthplace of
the business organization known as Limited Partnership.134 Having found its way to the US,
many US state jurisdictions enacted their own laws to govern Limited Partnership businesses
in their respective States.135 After some time, the US Legislature enacted the Uniform Limited
Partnership Act to harmonize all Limited Partnership laws to provide an atmosphere of
certainty in the economy and boost the confidence of investors to engage in commercial
activities.136
The lack of uniformity of applicable principles makes it difficult for law courts to be properly
guided in ascertaining the true intentions and expectations of the participants. Thus, a Joint
Venture statute wherein the principles of law applicable to the intricacies of Joint Venture are
codified will provide some statutory clarity on the elements that define Joint Venture, which
are distinct from those that define Partnership. These elements are discussed under Part IV of
this paper.
3 Current Socio-Economic Realities

It is a reality of the twenty-first century that entrepreneurs–even where they are competitors–
are increasingly creating strategic alliances with each other, via the means of Joint Venture, to
actualise business objectives. 137 As Joint Venture alliances increase, they lead to significant
positive impacts on both national and global economy.138 More so, entrepreneurs usually find
Joint Ventures easier to establish and execute their businesses. Unincorporated Joint Ventures
are used to execute enterprises while avoiding bureaucracies that often occur with
134
135
Ibid.
136
Ibid.
137
Erja Askola, Joint Ventures at the Intersection of Collaboration and Consolidation: Conceptualisation of Joint
Ventures in EU Competition Law as Compared to the Approach in the United States (LL.D Thesis, Department of
Law, European University Institute, Florence, November 2012) 1 – 4
<http://cadmus.eui.eu/bitstream/handle/1814/24617/2012_Askola.pdf?sequence=1>.
138
[24]
incorporating other forms of business organizations such as Partnerships and Companies. Thus,
Joint Venture has not only gained economic significance, it is also garnering legal traction. 139
In recent times, foreign direct investments, including through the means of Joint Ventures, have
demonstrated the potential of propelling economic activity in any given country. Joint Ventures
have one of the most patronized forms of foreign direct investments140 especially in the energy
and resources sector.141 Investors increasingly enter into Resources Joint Ventures to execute
highly technical and capital-intensive exploration and development activities. 142 If there is
some uncertainty regarding the applicable legal framework for Joint Ventures and lack of
clarity about the rights of participants, it can discourage foreign direct investments leading to
a reduction in the number of international Joint Ventures.143 This can have adverse impacts on
the middle and lower classes of society such as unemployment and inadequate cash flow, which
hamper socio-economic growth.
Joint Ventures are suitable for exploring “new areas of economic activity” that are best
executed in a single transaction rather than incorporating a Company or Partnership for that
purpose.144 These new areas of economic activity include exploring for new deposits of mineral
resources that have never been discovered in a particular geographic location. They have
become the preferred vehicle for entrepreneurs to co-undertake extensive research and
development activities, which are very expensive and time consuming for one entrepreneur to
undertake on its own.145 International Joint Ventures in the energy and resources sector help
governments to achieve the Sustainable Development Goals in their national economies.146
Resources Joint Ventures have the potential to drive economic growth by creating more
employment opportunities for locals of host mining communities; patronizing the services of
local contractors and locally made exploration and mining equipment; build local capacity and
encourage transfer of technical knowledge.147 In the light of its current economic importance,
139
WH Jaeger, ‘Partnership or Joint Venture’ (1961) 37 Notre Dame Law Review 138, 158 – 159.
140
141
142
O’Rourke (n 120) 113.
143
144
Ibid.
145
Ibid.
146
Columbia Centre on Sustainable Investment et al, ‘Mapping Mining to the Sustainable Development Goals:
An Atlas’ (White Paper, Columbia Centre on Sustainable Development, July 2016) 39
<ccsi.columbia.edu/2016/07/19mapping-mining-to-the-sustainable-development-goals-an-atlas/>.
147
Ibid.
[25]
Joint Venture deserves to be accorded a separate legal status and statute, failure of which will
be detrimental to any economy.148
Joint Ventures are increasingly treated differently from Partnerships by governments for
taxation purposes.149 A distinct feature between Partnership and Joint Venture is that property
utilised in a Partnership belongs to the Partnership, while property used by a Joint Venture
belongs to the individual participants according to the provisions of the Joint Venture
agreement. 150 Whereas, under Partnerships, taxes are levied on its intangible assets, the
government levies taxes on the tangible assets of the participants.151 This distinct feature has
led governments to hold that the respective income received by each participant must be treated
and taxed differently from Partnerships, a development which was influenced by the product
argument from Australia.152
Flannigan has criticised this separate tax treatment for Joint Venture, stating in effect that it is
too insignificant to warrant and attribute a distinct legal status for Joint Venture. 153 As
McGechan J. held in Commerce Commission v Fletcher Challenge Ltd & Ors,154 “in the end,
the matter is one of substance and intention.” 155 It may be argued that this tax distinction
focuses on the form rather than the substance of Joint Ventures, and that the court will be more
concerned with “the substance which is agreed.” 156 However, as jurists like Harding, 157
Chate158 and Knox159 have posited, the paper argues that the separate taxation of Joint Ventures
is too important to be overlooked. In Canada for example, the courts have upheld the taxation
argument in a number of cases such as Woodlin Developments Ltd v M.N.R.;160 D & B Oilfield
148
149
MF Sommer, ‘Kentucky's Distinction between Multi-State Income from Partnerships and Joint Ventures’
(1992) 11 Journal of State Taxation 26, 27.
150
Ibid 28.
151
Ibid 28 – 29.
152
Ibid 28; Flannigan (n 8) 732.
153
Flannigan (n 8) 733; Flannigan (n 1) 388.
154
Commerce Commission v Fletcher Challenge Ltd & Ors (1989) 4 NZCLC 64.
155
Commerce Commission v Fletcher Challenge Ltd & Ors (1989) 4 NZCLC 64, 73.
156
Commerce Commission v Fletcher Challenge Ltd & Ors (1989) 4 NZCLC 64, 73.
157
Park (n 26) 5 citing DE Harding, ‘General Principles of Partnership Law’ (Paper presented at the Macquarie
University Seminar on The Use of Partnerships in Tax and Estate Planning, Sydney, Australia, 1976) 26.
158
Park (n 26) 19 citing MG Chate, ‘Unincorporated Joint Ventures in Australian Mineral Development’ (Paper
presented at the Symposium on Private Investments and International Transactions in Asian and South Pacific
Countries, 1974) 44.
159
Park (n 26) 19 citing PW Knox, ‘Mining Joint Ventures’ (1982) 16 Taxation in Australia 802, 803.
160
Woodlin Developments Ltd v M.N.R. (1986) 86 D.T.C. 1116 (T.C.C.).
[26]
Contracting Ltd v M.N.R.161 and Marion Estates Ltd v M.N.R.162 In addition, the US Internal
Revenue Code (IRC) seems to recognise the taxation argument as a basis for a distinct legal
status for Joint Ventures, or at least creates an avenue for the courts and the Internal Revenue
Service to so recognise:
For purposes of this subtitle, the term “partnership” includes a syndicate, group, pool, joint
venture, or other unincorporated organization through or by means of which any business,
financial operation, or venture is carried on, and which is not, within the meaning of this title,
a corporation or a trust or estate. Under regulations the Secretary may, at the election of all
the members of an unincorporated organization, exclude such organization from the
application of all or part of this subchapter, if it is availed of—
(1) for investment purposes only and not for the active conduct of a business,
(2) for the joint production, extraction, or use of property, but not for the purpose of selling
services or property produced or extracted, or
(3) by dealers in securities for a short period for the purpose of underwriting, selling, or
distributing a particular issue of securities,
if the income of the members of the organization may be adequately determined without the
computation of partnership taxable income.163
In essence, under the IRC, Joint Ventures are Partnerships for the purposes of tax except where
the Secretary of the IRS exempts an unincorporated organisation (including a Joint Venture),
and where all the members of such unincorporated organisation elect to be so exempted, from
being taxed as a corporation. Such exemption will be made provided the IRS can determine the
income of the members of the organisation without computing the taxable income of a
Partnership, and if the unincorporated organisation is embarking on investments only; for the
joint production, extraction, or use of property without engaging in sales, or for a short period.
This statutory provision recognises the concept of real intent, the product argument and the
single transaction argument, which this paper has argued forms the main distinctive features of
Joint Venture that justify its separate legal status, and not a form of Partnership. For the fact
that case law, statute and conventional practice are tilting towards a separate legal status for
161
D & B Oilfield Contracting Ltd v M.N.R. (1989) 89 D.T.C. 425 (T.C.C.).
162
Marion Estates Ltd v M.N.R. (1990) 90 D.T.C. 1369 (T.C.C.).
163
Inland Revenue Code 1986 s 761 (a) (1).
[27]
Joint Venture, contrary positions on the issue will, in a matter of years, become akin to
wandering in the wilderness in protest of civilization.
As stated earlier, the legal principles guiding Joint Ventures appear to be scattered around case
law, statutes on different branches of law and practice. This US IRC, governing taxation, is a
typical example of such statute. This paper has attempted to justify the essence of a codified
Joint Venture statute especially in the recent economic realities of the twenty-first century.
Now, the question arises as to the elements that a Joint Venture statute will necessarily have to
contain or cover. These elements are presented in Part IV of this paper.
IV PLAUSIBLE ELEMENTARY CONTENTS OF A JOINT VENTURE STATUTE

As suggested by Hayne, the paper addresses plausible basic elementary contents (and their
associated issues) that should be contained or covered by a Joint Venture statute. They include
the definition, formation and consequences of a Joint Venture;164 the relationship amongst the
Joint Venture participants;165 and the relationship between the Joint Venture participants and
third parties.166
A The Definition, Formation and Consequences of a Joint Venture

Obviously, the statute should sufficiently define the nature and extent of a Joint Venture
agreement. As has been discussed in this paper, there are two types of Joint Ventures, namely
Profit-sharing Joint Ventures and Product-sharing Joint Ventures (e.g. Resources Joint
Ventures). The statute should make the clear distinction between both categories of Joint
Ventures to the extent that while the former involves sharing of profits and losses of an
enterprise, the latter involves sharing of a product of an enterprise. However, they both have a
common denominator – they are both intended by the participants for a single transaction or a
series of transactions. 167 This denominator is essential because Partnership connotes a
continuity of enterprise until the partners decide to terminate, while Joint Venture automatically
terminates after completion of the transaction. The elements relating to taxation of Joint
164
Hayne (n 7) 362.
165
Ibid.
166
Ibid.
167
JP Thomas and EJ Johnson, Understanding the Taxation of Partnerships (CCH, 5th ed, 2006) 9 –10.
[28]
Ventures as stipulated in s 761 of the IRC of the US is very helpful in this regard and therefore
recommended for consideration in drafting the statutory definition of Joint Ventures.
The statute should also reflect that the consequences of a single transaction or series of
transactions denotes that upon completion of those transactions, the Joint Venture agreement
should be terminated or terminates by operation of law.168 This particular statutory provision
is essential because where the transactions have been completed and the participants decide to
venture into a new transaction without termination of the Joint Venture, an element of
continuity could be read into the Joint Venture which a court may interpret to be a Partnership.
Weissburg observes that while it may be desirable for the statute to be “highly specific” on all
the elements associated with the nature and extent of a Joint Venture, he is of the opinion that
a specific language may sometimes impede on the discretion of the court to apply a flexible
approach to determining a Joint Venture agreement.169 The danger with Weissburg’s ‘flexible
approach’ it that the court may be tempted to depart from express stipulation of statutory
provisions only to end up interpreting a Joint Venture as a Partnership. If the intention is to
maintain a separate legal status for Joint Venture, then there should be a separate statute which
must be strictly adhered. The author poses this question: is this flexible approach being applied
to interpret the status governing Partnerships throughout all the case law on Partnerships? The
author does not believe it to be the case, as case law history seems to be very rigid in
interpreting any ‘similar’ enterprise like Joint Venture to be a Partnership. Hence, this same
rigid approach, and not the flexible approach, should be applied in interpreting the Joint
Venture statute.
B The Relationship amongst the Joint Venture Participants

The statute should provide that a Joint Venture agreement must expressly stipulate that the
agreement is a Joint Venture and not a Partnership. It is essential that the statute contains this
mandatory requirement. As Lewis posits, such a contractual provision may not be enforceable
168
Ibid.
169
[29]
without a legal backing. 170 The Canny Gabriel case shows clearly that parties may end up
creating a Partnership while their ‘real’ intention was to create a Joint Venture.171
Also, the statute should stipulate that both parties exercise mutual control and management of
the Joint Venture enterprise. 172 Assets used in a Joint Venture do not belong to the Joint
Venture. They belong to the individual participants who commit them for common use by all
participants, hence the statute should expressly state that the participants hold the assets of the
Joint Venture as tenants-in-common.173 However, this would generally mean that a participant
can divest of his assets without informing the other participants. This situation could distort the
course of the Joint Venture and the statute should be able to avoid this situation. Thus, this
paper posits that the statute should provide that pre-emptive rights and option of first refusal
are applicable in a Joint Venture so that the other participants can be aware of the divestment
of an asset by a participant-owner and then decide whether they will acquire the asset or not.
This proposed provision should make disclosure of any divestment of proprietary interests in
the Joint Venture mandatory and pre-emptive rights and option of first refusal clauses
applicable, whether or not such clauses are expressly stated in a Joint Venture agreement.
Hayne argues that there may be no need for a statute to make specific provisions to govern
Joint Venture agreements. He believes that participants should be at liberty to form any type
of relationship that they intend to create.174 This relationship will be governed by the Joint
Venture agreement that the participants make themselves. 175 Hence, in this regard, a Joint
Venture statute is unnecessary. He further opines that even where a statute makes standard
provisions to regulate the intention of the participants, they should be subject to variation or
exclusion by the participants.176 The author partly disagrees with this line of argument. The
danger with this argument is that if participants are given too much room to define their
relationship based on the concept of the participants’ intention, they may end up creating a
Partnership or other type of enterprise, even though their agreement wears the toga of a Joint
Venture. An example of this scenario is Canny Gabriel Castle Jackson Advertising Pty Ltd v
170
Lewis (n 2) 80.
171
Ibid 81.
172
Thomas and Johnson (n 167) 9 –10.
173
Ibid.
174
Hayne (n 7) 368.
175
Ibid.
176
Ibid 369.
[30]
Volume Sales (Finance) Pty Ltd,177 where the High Court of Australia held an agreement to be
a Partnership despite the parties describing their contract to be a Joint Venture. Thus, the
intentions and expectations of the participants should be carefully balanced with the general
principles of Joint Venture, so that the participants do not inadvertently end up creating an
unintended business relationship other than the intended Joint Venture.
C The Relationship between the Joint Venture Participants and Third Parties
The statute should also exclude fiduciary relationships, especially Principal-Agent relationship,
from Joint Ventures178 except where the participants give a participant their express authority
to act on their behalf. As discussed above, unlike Partnerships, Joint Ventures agreements do
not generally bind participants to the liabilities of each other nor do participants owe fiduciary
relationships to one another.179 In Joint Ventures, the extent of each participants’ authority to
act as agent of the others is usually narrow. This is in accordance with the concept of the
participants’ intentions and expectations in a Joint Venture, therefore, the statute should
preserve this feature of Joint Venture.
However, this provision is problematic for third parties who may suffer damages caused by the
misrepresentation of an errant participant that he has the authority to act for the Joint Venture.
For the statute to stipulate that the Joint Venture is a notice to third parties in itself and that
third parties would not be compensated for any damages is harsh and unequitable. It is not in
all cases that a third party may be aware of the Joint Venture. In this circumstance, the statute
should stipulate that the participants would be jointly and severally liable to the third party.
However, the participants can include indemnity clauses in their Joint Venture agreement
which they can activate in their favour in order to assuage their individual losses arising from
the erring participant’s act.
D Plausible Elements of a Joint Venture Statute: Summary
177
Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321.
178
Thomas and Johnson (n 167) 9 –10.
179
Hayne (n 7) 370.
[31]
On a general basis, a Joint Venture statute will have to uphold and protect the intentions and
expectations of participants.180 The intention and expectations of the participants are essential
factors in determining whether the agreement is a Joint Venture or Partnership. The elementary
contents of the statute as analysed above are directly reflective of the participants’ intentions
and expectations as the main basis for determining that an agreement is a Joint Venture and not
a Partnership. However, the intentions and expectations of the participants should be carefully
balanced with the general principles of Joint Venture, so that the participants do not
inadvertently end up creating a Partnership when they had intended to create a Joint Venture.
Ironically, Hayne still took the position–even after analysing plausible elementary contents of
a Joint Venture statute–that such a statute is “unlikely to be useful” because “the nature and
extent of the association of participants vary from Joint Venture to Joint Venture.” 181 In
response to Hayne, in the first place, there would have been no need to propose elementary
contents for a Joint Venture statute if a Joint Venture statute was unnecessary. In addition, the
fact that the nature and extent of the association of participants vary from Joint Venture to Joint
Venture is in itself a pointer to the fact that there seems to be a miscomprehension and
misapplication of the guiding principles of a Joint Venture agreement by participants (and
courts in some jurisdictions). A Joint Venture statute will go a long way in harmonising all the
‘scattered’ sources of Joint Venture principles into one authoritative single and identifiable
codified legal framework for ease of reference and application. When this happens, both the
courts and participants will be enabled to fully comprehend and identify the unique nature and
extent of Joint Venture and appropriately apply its principles.
It is important to note that conceptually a Joint Venture statute would have to play both a
‘negative’ role and a ‘positive’ role. The negative role would be to state unequivocally that an
unincorporated Joint Venture is not a Partnership for the purposes of the Partnership Act and
not subject to the rules of law and equity that apply to Partnership. This unequivocal statement
is common in Australian Resources Joint Venture agreements, and it is recommended that such
statements or similar ones be codified in Australia and other jurisdictions for the purposes of
certainty. The positive role would be to establish and codify a set of substantive rules and
principles for Joint Venture in the same way as the Partnership Act does for Partnerships and
180
Ibid 368; Weissburg (n 7) 525.
181
Hayne (n 7) 374.
[32]
the Companies Act does for Companies, which is, of course, quite an ambitious project. It is
possible to achieve some certainty by only codifying the ‘negative’ aspect and leaving the
common law to continue develop the positive aspect. This is of course the easier route.
However, in other to achieve substantial certainty, the author recommends going the full hog
to codify rules and principles for Joint Venture in order to fulfil the positive role. As its common
law and practice has a strong recognition of the legal status of Joint Venture, Australia can lead
the way in actualizing a Joint Venture statute, starting with the Resources Joint Venture, in
order to consolidate on the certainty of the legal status of Resources Joint Venture. This would
be a stepping stone to extending legal status to non-Resources Joint Ventures.
V CONCLUSION
The paper has shown, citing the writings of McPherson and Thompson, that it is contestable
that the differences between Partnership and Joint Venture are blurred and, at best,
unsubstantial technicalities. However, this paper has made a fair attempt at arguing in favour
of a legal status and statute for Joint Ventures. The paper has also proposed that based on the
present state of the law across various jurisdictions considered here, there are two types of Joint
Venture, namely Profit-sharing Joint Venture and Product-sharing Joint Venture. A typical
example of a Product-sharing Joint Venture is the Resources Joint Venture, which is common
in the Australian energy and resources industry.
As the twenty-first century wears on, the differences or technicalities between these two
enterprises are getting clearer and more substantial, especially with regards to Product-sharing
Joint Venture. Although slow when compared to Product-sharing Joint Venture, the legal
principles governing Profit-sharing Joint Venture are fast-evolving as modernity, technological
advancement and increasing global economic activities set in. As the legal principles governing
Product-sharing Joint Venture seems to be more developed than Profit-sharing Joint
Ventures,182 it may not be out of place for jurisdictions like Australia to begin with enacting a
separate statute to govern Product-sharing Joint Venture–which at the moment appears to be
182
Chetwin (n 3) 270.
[33]
scattered around Australian case law and business practices–pending the full development of
the legal principles governing Profit-sharing Joint Venture.
[34]
BIBLIOGRAPHY
A Articles
Chetwin, M C, ‘Joint Ventures – a Branch of Partnership Law? (1991) 16(2) University of Queensland
Law Journal 256
Crommelin, M, ‘The Mineral and Petroleum Joint Venture in Australia’ (1986) 4 (2) Journal of Energy
and Natural Resources Law 65
Flannigan, R, ‘Joint Venture Theurgy’ (2013) 54 Canadian Business Law Journal 368
Flannigan, R, ‘The Joint Venture Fable’ (2008–2010) 50 (2) The Journal of American Legal History 200
Flannigan, R, ‘The Legal Status of Joint Ventures’ (2009) 46 (3) Alberta Law Review 713
Hayne, K M, ‘The Need for a Joint Venture Code?’ [1990] AMPLA Yearbook 362
Jaeger, W H, ‘Partnership or Joint Venture’ (1961) 37 Notre Dame Law Review 138
Knox, P W, ‘Mining Joint Ventures’ (1982) 16 Taxation in Australia 802

Lewis, G M, ‘Comment: The Joint Operating Agreement: Partnership or Not’ (1986) 4 Journal of Energy
and Natural Resources Law 80
Marcinkevičius, L, ‘Prospects for the Regulation of International Joint Ventures’ (2009) 3(3) Social
Sciences Studies 229
Merralls, J D, ‘Mining and Petroleum Joint Ventures in Australia: Some Basic Legal Concepts’ (1988) 62
The Australian Law Journal 907
Nichols, H W, ‘Joint Ventures’ (1950) 36 Virginia Law Review 425
Note, ‘Joint Venture or Partnership’ (1949) 18 Fordham Law Review 114

<http://ir.lawnet.fordham.edu/flr/vol18/iss1/7>
O’Rourke, S, ‘Corporate Developments: Joint Venture Governance’ [2005] AMPLA Yearbook 112
Salem, D I, ‘The Joint Venture Law of the Peoples' Republic of China: Business and Legal Perspectives’
(1981) 7 (1) Maryland Journal of International Law 73
Olson, K E, ‘Joint Ventures–Essential Elements: The North Dakota Supreme Court Creates a Broader
Definition of Joint Ventures (Sandvick v. LaCrosse, 2008 ND 77, 747 N.W.2d 519)’ (2009) 85 North
Dakota Law Review 469
Sommer, M F, ‘Kentucky's Distinction between Multi-State Income from Partnerships and Joint Ventures’
(1992) 11 Journal of State Taxation 26
Weissburg, A B, ‘Reviewing the Law on Joint Ventures With An Eye Toward the Future’ (1990) 63
Southern California Law Review 487
[35]
B Books
Bell, G J, Commentaries on the Law of Scotland II

Friedland, J A, Understanding Partnership and LLC Taxation (LexisNexis, 2nd ed, 2003)
Garner, B A (ed), Black’s Law Dictionary (Thomson Reuters, 10th ed, 2014)
McPherson J, B H, ‘Joint Ventures’ in P D Finn (ed), Equity and Commercial Relationships, (Law Book,
1987) 61
Pollock, F, Pollock on the Law of Partnership (15th ed, 1952)

The Holy Bible (King James’ Version), Matthew 9:14 - 17
Thomas, J P and E J Johnson, Understanding the Taxation of Partnerships (CCH, 5th ed, 2006)
Thompson, N, ‘The nature of the joint venture’ in W D Duncan (ed), Joint Ventures Law in Australia
(Federation Press, 2nd ed, 2005) 33
C Research Papers/Theses
Askola, E, Joint Ventures at the Intersection of Collaboration and Consolidation: Conceptualisation of

Joint Ventures in EU Competition Law as Compared to the Approach in the United States (LL.D Thesis,
Department of Law, European University Institute, Florence, November 2012)
<http://cadmus.eui.eu/bitstream/handle/1814/24617/2012_Askola.pdf?sequence=1>
Park, M M, Joint Venture: North American Emigrant Possessing Skills Not Readily Available in Australia,
Family Reunion Immigrant, or Native-Born Australian Unrelated to Foreigners of the Same Name? (LLM
Research Paper, The University of Melbourne, 1984) <https://minerva-
access.unimelb.edu.au/bitstream/handle/11343/26213/115980_JntVnt.pdf?sequence=1&isAllowed=y>
D Conference/Seminar Papers
Chate, M G, ‘Unincorporated Joint Ventures in Australian Mineral Development’ (Paper presented at the
Symposium on Private Investments and International Transactions in Asian and South Pacific Countries,
1974)
Chetwin, M C, ‘The Broad Concept Of Joint Venture: Should It Have A Fixed Legal Meaning?’ (Paper
presented at the EABR Business & ETLC Teaching Conference, Ljubljana, Slovenia, 2007)
Harding, D E, ‘General Principles of Partnership Law’ (Paper presented at the Macquarie University
Seminar on The Use of Partnerships in Tax and Estate Planning, Sydney, Australia, 1976)
E Reports
Columbia Centre on Sustainable Investment et al, ‘Mapping Mining to the Sustainable Development
Goals: An Atlas’ (White Paper, Columbia Centre on Sustainable Development, July 2016) 39
<ccsi.columbia.edu/2016/07/19mapping-mining-to-the-sustainable-development-goals-an-atlas/>
[36]
F Case Law
Bringham v Dana 29 Vt. 1 (1856)
Brubaker v Robinson 3 Pen. & W. 295 (Pa 1831)

Canadian Mortgage and Housing Corporation (CMHC) v Graham et al (1973) 43 D.L.R. (3d) 686
Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321
Chirnside v Fay [2007] 1 NZLR 433
Commerce Commission v Fletcher Challenge Ltd & Ors (1989) 4 NZCLC 64

Coope v Eyre (1788) 126 ER 24
D & B Oilfield Contracting Ltd v M.N.R. (1989) 89 D.T.C. 425 (T.C.C.)
Gangl v Gangl 281 NW 2d 574 (ND, 1979)
Grace v Smith (1775) 2 Wm Bl 998; 96 ER 587

Hoare v Dawes (1780) 1 Doug 371
Holderness v Shackels (1828) 8 B & C 612; 108 E R 1170
Khan v Miah [2001] 1 All ER 20
Marion Estates Ltd v M.N.R. (1990) 90 D.T.C. 1369 (T.C.C.)

Meinhard v Salmon 249 NY 458; 164 NE 545 (1928)
Petrocorp Exploration v Butcher [1989] 1 NZLR 348
Sandvick v LaCrosse, 2008 ND 77, 747 NW 2d 519, 523
Tarnavsky v Tarnavsky2003 ND 110; ¶1, 666 NW 2d 444 (ND, 2003)

United Dominion Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1
Woodlin Developments Ltd v M.N.R. (1986) 86 D.T.C. 1116 (T.C.C.)
Wright v Crumpsty 41 Pa. 102 (1861)
G Legislation
Encyclopedia of the Laws of Scotland (1931) Vol II

Inland Revenue Code 1986
Partnership Act 1890 (UK) 54 Vict, c 39

Partnership Act 1958 (Vic)
Law of The People’s Republic of China on Joint Ventures Using Chinese and Foreign Investment
[37]

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Michael Uche Ukponu

1. Is Joint Venture different from Partnership as to warrant a separate legal

II AN EXAMEN OF THE CONCEPT OF JOINT VENTURE VIS-À-VIS PARTNERSHIP

1. That there is a business being carried on,

1 Business Being Carried On

[T]he requirement that a business should be carried on provides no clear means of

2 Business Being Carried On In Common

C Joint Venture – and Its Legal Status

A Joint Venture may be incorporated or unincorporated.39 As with companies, Incorporated

2 United States of America

4 Australia and New Zealand

2 Single Transaction or Series of Transactions

3 Sharing of the Product

III STATUTE FOR THE TWENTY-FIRST CENTURY JOINT VENTURE

A Background – Application of the Principles of Partnership to Joint Venture and

1 Disclosure – and Attendant Problems

2 Conflict of Interest – and Attendant Problems

3 Mutual Agency – and Attendant Problems

4 Assets, Ownership Rights and Attendant Problems

B Justifications for a Joint Venture Statute

1 The Separate Legal Status Argument

2 Lack of Uniformity of Legal Principles Governing Joint Venture

3 Current Socio-Economic Realities

IV PLAUSIBLE ELEMENTARY CONTENTS OF A JOINT VENTURE STATUTE

A The Definition, Formation and Consequences of a Joint Venture

B The Relationship amongst the Joint Venture Participants

D Plausible Elements of a Joint Venture Statute: Summary

Knox, P W, ‘Mining Joint Ventures’ (1982) 16 Taxation in Australia 802

Note, ‘Joint Venture or Partnership’ (1949) 18 Fordham Law Review 114

Bell, G J, Commentaries on the Law of Scotland II

Pollock, F, Pollock on the Law of Partnership (15th ed, 1952)

Askola, E, Joint Ventures at the Intersection of Collaboration and Consolidation: Conceptualisation of

Brubaker v Robinson 3 Pen. & W. 295 (Pa 1831)

Commerce Commission v Fletcher Challenge Ltd & Ors (1989) 4 NZCLC 64

Grace v Smith (1775) 2 Wm Bl 998; 96 ER 587

Marion Estates Ltd v M.N.R. (1990) 90 D.T.C. 1369 (T.C.C.)

Tarnavsky v Tarnavsky2003 ND 110; ¶1, 666 NW 2d 444 (ND, 2003)

Encyclopedia of the Laws of Scotland (1931) Vol II

Partnership Act 1890 (UK) 54 Vict, c 39

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