Foreigners have the right to be not only founders of companies in Ukraine on a par with Ukrainian citizens, but also to be chief executives (directors) of such companies. However, it is necessary to consider some features, the execution of which are obligatory for foreign citizens.
The founders of a limited liability company in Ukraine may be foreign individuals as well as foreign legal entities. Let’s consider both variants.
The procedure for opening an LLC where the founder is a foreign individual
- Package of documents:
- Tax identification number;
- Notarized translation of the passport into Ukrainian (the passport page with a mark of the customs authorities of Ukraine on crossing the border is subject to mandatory translation and certification as well);
- Apostilled notarized power of attorney with translation into Ukrainian (when opening an LLC on behalf of a foreigner by a trustee).
A foreigner has to obtain an identification tax number in Ukraine. This number is assigned once and for life. A foreigner can get a tax number in person or by the agency of a trusted person. The period of receipt is up to 2 working days. The documents required: translation of a non-resident’s passport into Ukrainian, and in case of obtaining a tax number through an authorised person – an apostilled, notarized power of attorney with a notarized translation into Ukrainian.
- An LLC both may be open personally by a foreigner (staying legally in Ukraine) and through an authorized person (being abroad). Initially, it is necessary to decide on the basic information on the company, namely: choose the name, its address, the size of the authorised capital, how the authorized capital will be formed, what exactly the company will do, and most important – choose the head of your company (director). A foreigner has the right to be a director in his own company only after obtaining an employment authorization document for foreign citizens in Ukraine. This means, at least for the initial time, a foreigner needs to choose an Ukrainian citizen as director.
- In the availability of all documents, the signing of documents on the establishment of an LLC and state registration of an LLC take no more than a day. Often there are situations when a foreigner or his authorised representative doesn’t speak the Ukrainian language and doesn’t understand the content of the documents in Ukrainian. In this case, a certified translator must to be invited to sign the documents on the establishment of an LLC.
- Immediately after the registration of the LLC the foreigner has the right to begin the procedure for obtaining an employment authorisation document in Ukraine, the successful completion of which gives him the right to change the “temporary” Director of his company (Ukrainian) to himself.
The procedure for opening an LLC where the founder is a foreign legal entity
- The following documents are required from a foreign legal entity:
- an extract from the commercial register that the company is registered and currently operates;
- documents about beneficiaries (passports, information on registration / residence addresses);
- document of appointment of the director and his powers;
- charter of a non-resident;
- if the documents for the establishment of an LLC in Ukraine will be signed by an authorised person, an appropriate power of attorney is required;
- quite often a foreign legal entity is required the decision of the founders to establish a company in Ukraine with the participation of their company. In such a decision, it is necessary to detail the information on the company that is being established: name, address, size of the authorised capital and its composition (money, real estate, etc.), as well as to determine the head of your company (director) from among the citizens of Ukraine. Such a document is not required if there is a direct permission in the non-resident’s charter for the director to make such decisions independently. However, practice shows that the statutory documents of Ukraine and non-residents are quite different and don’t contain information and powers to the extent necessary for a notary to register an LLC.
- The signing of documents on the establishment of an LLC and state registration in the availability of all documents, as well as when opening an LLC by a foreign individual, takes no more than a day. If, on behalf of a foreign company, the documents for establishing an LLC in Ukraine are signed personally by the director of such a foreign company, then the notary will necessarily check the mark in his passport, put down by the customs authorities.
(All the documents specified in the list above must be submitted in original or in notarized copies, and in addition, it is necessary to affix an apostille to each document. In Ukraine, these documents must also be translated into Ukrainian, and such a translation must be notarized).
It is important to note that a foreigner or a foreign company as a founder of an LLC in Ukraine has the right to restrict its director’s rights (in order to prevent the director from making and implementing unauthorised decisions). For example, you can set a restriction on the conclusion of contracts by a director for a certain amount, as well as prohibit certain actions on behalf of the company. In the future, when changing the Ukrainian director to a foreigner (to the owner or one of the beneficiaries of the company), these restrictions can be removed.
Method of registration
When choosing a method for registration of an LLC in Ukraine (for yourself or for your foreign company), it’s necessary to know the procedure for making decisions on behalf of the LLC. The director has the right to carry out economic activities on behalf of the LLC.
However, there are a number of actions that can be carried out only if there is an appropriate decision of the general meeting of the participants of the LLC (that is the owners of the LLC). For example, decisions such as: amending the charter, changing the types of activities, changing the director, limiting the powers of the director, making a decision to sell a share in the authorised capital, etc., require mandatory prior approval from the owner of the LLC. There are different options:
- If the owner of the LLC is a foreigner personally, then the decision-making procedure doesn’t require extra time. A foreigner can make a decision personally while in Ukraine or provide relevant powers to his representative by power of attorney.
- If the owner of the company is a foreign legal entity, the adoption by his representative such decisions requires an appropriate amount of authority.
- If the charter of a foreign company has any restrictions or decision-making issues in companies where a foreign legal entity is a founder, and these issues are not regulated, then every change from a non-resident legal entity will require a notarial decision with an apostille.
But anyway, with the help of qualified specialists, the process of creating a business in Ukraine by a foreigner is painless and fast enough.
The author of this article is Daryna Kravchenko, Lawyer of “De-Jure” Law Firm LLC