There are many ways of doing business in Ukraine. The most popular legal forms are:
- Limited Liability Company (“LLC”), where equity holders are not liable for the company’s debts beyond the capital/assets they contributed or committed to contributing to LLC capital. It is the most popular, widespread and flexible legal form that both local and foreign founders commonly use to operate in Ukraine;
- Joint Stock Company (“JSC”), which issues shares registered with the National Commission on Securities and Stock Market (the “JSC Regulator”). The shareholders are liable for the company’s debts only to the extent of the capital/assets they contributed as payment for the shares;
- Representative Office (“RepOffice”), which does not amount to a legal entity. It acts on behalf of and as directed by its foreign parent.
Does Ukrainian law impose any significant restrictions or requirements on the creation of LLC?
Generally, no severe restrictions are applicable. The law neither sets the minimum amount of LLC authorized capital nor limits the number of its participants. After the incorporation, the LLC founders have 6 months to contribute the authorized capital unless they unanimously agree on a more extended period.
What is the process for LLC establishment and registration?
The process for establishment and registration of an LLC may be divided into two stages:
- The pre-registration stage where the LLC founders are required to:
- hold the founders’ meeting and decide on the LLC establishment by executing the meeting minutes in front of a notary;
- choose the company’s office location (registered address) and ensure document certifying the company’s entitlement to occupy office premises (e.g., lease or sale & purchase agreement);
- execute before the notary of the company’s Charter, being the LLC only constituent document.
2. The state registration of LLC (and its Charter) by a state registrar or the notary acting in this capacity.
What is the timeframe for LLC establishment?
The length of the pre-registration stage mostly depends on the founders’ coming to terms regarding the Charter text, including the company’s corporate governance structure, and collating requisite authorization documents, especially if the founder is a foreign entity. After all documents required for the state registration are drafted and executed, the registration could be done within 1 business day.
What costs and fees are involved?
Aside from a legal counsel fee if engaged, the costs of the establishment and registration of an LLC with foreign participants include notary’s and translator’s charges. All the documents issued abroad have to be apostilled, translated into Ukrainian and notarized. In medium and total, such charges amount to EUR 350-450.
What types of JSC are available in Ukraine?
Ukrainian law envisages public and private JSC. Though they are different in many aspects, their incorporations have much in common.
Does Ukrainian law impose any significant restrictions or requirements on the creation of JSC?
Yes, the establishment of a JSC is a much more complex process than that of an LLC. For example, the JSC authorized capital must be equal to 1,250 minimal wages (approx. EUR 235,000) at least. The number of shareholders is, however, not limited.
What is the process for JSC establishment and registration?
The establishment and registration of the JSC is a complex task that requires various actions involving state authorities and stock market players. In brief, the JSC establishment is done through:
- Obtainment of a Shares Issue Temporary Certificate, which requires:
— adoption by the founders’ meeting of a decision on the JSC establishment and shares issue;
— registration of the shares issue by the JSC Regulator;
- Conclusion of an agreement with the National Depository of Ukraine on servicing the shares issue;
- Issuance of shares and their payment by the JSC founders;
- Approval of the shares issue results and the JSC Charter by the constituent meeting as well as the adoption of other requisite decisions;
- Registration of the JSC (and its Charter) by a state registrar;
- Registration of a report on the shares issue results and provision of a Shares Issue Registration Certificate by the JSC Regulator;
- Provision to the JSC founders of documents confirming their title to the shares.
What is the timeframe for JSC establishment?
Mainly, the timeframe depends on the founders’ and their advisors’ coordination and efforts internally and before the JSC Regulator. However, as practice shows, the above stages can be passed within 3-4 months in the best-case scenario.
What costs and fees are involved?
Aside from a fee of a legal counsel if engaged, the costs of the establishment and registration of the JSC having the foreign founder include notary’s and translator’s charges, a service charge of the National Depository of Ukraine. In medium and total, such charges amount to EUR 450-600.
Are there requirements or restrictions for companies planning to open RepOffice?
Except for the companies sanctioned by Ukrainian authorities, any foreign entity may establish a RepOffice.
What is the procedure for RepOffice registration?
A foreign parent must submit a set of prescribed documents (those are mostly a standard form application and documents on the parent’s status and standing) to the Ministry of Economy of Ukraine (the “Ministry“) being the registration authority.
What is the timeframe for RepOffice registration?
Registration of the RepOffice takes up to 20 business days for foreign companies.
What costs and fees are involved?
Aside from a fee of a legal counsel if engaged, the costs for the RepOffice registration include state registration duty as well as notary’s and translator’s changes. The registration duty is approx. EUR 75 for a foreign company’s RepOffice.
Is there a requirement to have a Ukrainian national as a participant, manager or employee?
Except for the individuals sanctioned by Ukrainian authorities, there are no restrictions for foreign nationals having the full legal capacity to be participants/shareholders, managers or employees of the LLC, JSC or RepOffice.
What rules of employment of foreign nationals apply in Ukraine?
Employment of a foreign national in Ukraine is allowed upon obtaining a Work Permit by their employer from the labour authorities. This takes up to 30 days after requisite documents are filled with the authority at the employer location. The state fee payable by the employer is 4 minimum wages (approx. EUR 750) per one permit.
This procedure does not extend to the RepOffice, where employment of a foreign national is based on an Accreditation Card obtained from the Ministry. The card issuance takes up to 15 business days and is free of charge. The quota to employ foreigners by the RepOffice is limited to 3 employees. If the RepOffice wants to employ more foreigners and can justify that, the quota may be increased through a requisite filing with the Ministry.
Are there any procedures to facilitate the registration of a company in Ukraine?
With the help of the recently implemented electronic service Diia (‘Дія’ in Ukrainian), it is possible to complete the LLC registration online, provided such LLC is going to operate based on the Model Charter (as approved by the authorities), using an electronic digital signature obtained in Ukraine. However, as of now, online registration is not available to the LLCs with ultimate beneficial owners (a.k.a. controllers) (“UBOs“) who are not residents of Ukraine.
Are there any other specifics of setting up a company in Ukraine?
When registering a company in Ukraine, its UBOs must be disclosed to a state registrar by submitting the company’s ownership structure and documents identifying its UBOs. The more complex the upward ownership structure of the company, the more extensive list of documents shall be disclosed when registering the company. Once disclosed, that information must be verified by the company annually and updated in case of change.
Vadym Samoilenko, partner, co-head of the corporate
and M&A practice at Asters law firm