You need to register a foreign entity in Belarus to make your investment effective, carry out legitimate activities in the territory of the Republic of Belarus and/or to open a joint venture founded by Belarusian and foreign legal entities.
Belarusian regulations have certain specific requirements to opening a foreign representative office or a joint company, which you need to know.
Who is interested in registering a foreign entity?
Non-residents of the Republic of Belarus wishing to create a unitary enterprise (UP), a limited liability company (LLC) or a closed joint-stock company (CJSC) might be interested in registering a foreign entity.
A choice of the best form of representation will depend on the sphere of company’s activities, specifity of its articles of association, authorized fund and other criteria. When deciding on the management structure, it is better to consult with Belarusian lawyers. Experts will help you understand the pros and cons of various forms of management.
How legal entities are registered
The procedure for opening a joint entity with foreign founders differs from the procedure for registering a foreign company. The process consists of several stages:
● Holding a meeting with the founders. Representatives of the both parties shall take part (where the company is joint).
● Finding and registering the official legal address of the company.
● Agreeing on the names of the prospective business and the next meeting of the founders.
● At the final stage, the business entity undergoes registration.
Important. Where a foreigner decides to register an enterprise in our territory, he/she is obliged to act within the framework of Belarusian legislation and must provide additional papers. If the passport of a non-resident of the Republic of Belarus does not contain information in Russian and/or Belarusian, he/she is obliged to provide, along with the original identity document, also a translation thereof duly certified by the translator’s original signature and notarized.
What papers will be required to register a foreign representative office
A non-resident is obliged to provide a passport. The original and a notarized copy shall be provided. In some cases, foreigners do not invest in the Republic of Belarus directly, but conduct their affairs through proxies.
Where registration of a foreign company takes place by proxy, a passport copy is also required. This requirement also applies to Russian and Ukrainian citizens who use intra-national passports.
Foreign entities from among the founders are required to provide an extract from the trade register of the country of residence to the appropriate authority. Such certificate is referred to differently in different countries: a “certificate”, a “list of data”, and other names. Regardless of the name, the submission procedure is the same for all applicants.
An extract from the trade register (including certificates denoted by other names) must meet the following requirements:
1. The document shall be issued by a competent government agency. Authenticity shall be confirmed by an official seal. Where a certificate has been issued by a private counsel, lawyer or another entity, it will not be recognized as official (registration will be denied).
2. Such document shall be issued no more than 12 months prior to the submission thereof to the registration body. Experts recommend providing the latest documentation that will contain up-to-date information. Where such extract is expired or information is unreliable, the registering authority has the right to deny acceptance. Also, problems when creating a non-resident representative office are possible in the future.
There is no strict regulation on the amount of information in such statement. However, it is necessary to indicate the minimum reliable information about a foreign entity:
● Company name.
● Exact address.
● Company status (whether it is active or facing liquidation).
● A list of founding members.
● Data on the person having the right to make decisions and act without a power of attorney (normally, CEO).
● Powers vested in the entity’s representative.
A “representative” of a foreign legal entity refers to a participant indicated in the trade register list. Such representative has the right to provide only a passport, no other certificates confirming his/her powers will be required. However, a confirmation of powers will be required from those participants who are authorized to represent a non-resident company by proxy.
Please note. The power of attorney for the purpose of registration formalities shall be certified by a notary. Apostille and other legalization methods are not considered notarial certification. The above-mentioned document shall be certified only by a notary pursuant to the legislation of the Republic of Belarus.
An authentic and authorized power of attorney shall be signed and sealed by a notary or a notarizing body duly authorized within the legal framework of the Republic of Belarus.
The main nuances when registering foreign companies
Foreign citizens often face the following problems:
● An inscription of a foreign notary on the power of attorney does not comply with the standards specified by Belarusian legislation. Therefore, the company representative shall carefully ensure that the person who has issued the document is the same person that is indicated in the list of the company board. Otherwise, registration will be denied.
● Quite often, foreign firms wishing to do business in Belarus are required to submit documentation confirming the powers of a foreigner CEO. However, even if all the data match perfectly, the registration authority has the right to refuse registration. This happens, for instance, where the Belarusian authority is unable to understand the delineation of powers between management bodies (the founding company has a collegial management unit).
The problem can be solved by providing a non-notarized translation of an extract from the company’s charter. The charter will read that each member of the executive board has the full right to act separately from the other members — individually.
How to legalize documents
Some types of documentation require legalization when registering a foreign entity.
The papers that originate from non-Belarusian jurisdictions must be legalized. This rule applies to securities of states that are parties to the Hague Apostille Convention.
Most of Belarus’s investor partners are nationals of the member states to the Convention. There are also a number of international treaties between foreign states and Belarus that cancel legalization, but require a use of an official seal.
Important. The principle of the official seal is applied only in dealing with Russia. Certificates provided by other states will be acknowledged only if bearing an apostille.
● Consular legalization
A large number of states use the consular principle to confirm documentation. Such states include the People’s Republic of China, Canada, countries of the Arab world and other states.
When using the consular principle, an interested party must have the document acknowledged by the state agency that has issued the valuable security. Only after such confirmation such document can be legalized by a Belarusian consular institution.
But difficulties may arise when such state has no Belarusian consulate. In such a case, the interested legal entity has to contact a Belarusian consulate located in the territory of another country.
The procedure for legalizing documents is the same both for a new representative office or for an existing representative office (where it is necessary to introduce a non-resident founder or amend the charter).
Where foreign companies are registered
Be careful when choosing a competent registration authority. Where a foreign company is going to be registered outside of Minsk, it shall apply to a regional executive committee.
In some cases, legal entities shall apply to a district executive committee (the procedure shall be clarified, depending on region).