Establishing a WFOE
A wholly foreign owned entity (WFOE) is an autonomous legal entity in which the ownership resides wholly with the foreign investor(s). It is instituted in China by the foreign investor(s) using foreign capital and adhering to the laws and regulations of the People’s Republic of China.
It registers in China as a Chinese legal entity and independently performs operational activities subject to the business scope approved on its business cence.
WFOEs are becoming an increasingly popular investment vehicle.
The principle characteristics of WFOE are as follows:
. limited liability company with a registered legal person
. directly employ Chinese labour in accordance with local and State government laws and regulations
. sign separate contracts with government authorities or Chinese business entities for land use rights, buildings, and utilities
. exclusive management control and enjoys autonomy in operations and management with less Chinese Government interference
. trade unions are encouraged, but not required
. exclusive management control
. autonomy in operations and management
The duration of a WFOE is fairly open and amenable to revision. China’s WFOE law stipulates that the term of operation of such an enterprise must be stated in its application, but it is both easily extended should profits be abundant, and easily dissolved if excessive losses have accrued.
Establishing an Joint Venture(EJV and CJV)
An joint venture (EJV and CJV) can be established in China by Chinese investors (exclusive of Chinese individuals) and foreign investors (including foreign companies, other economic organisations and individuals).
In accordance to law of the PRC and its implementation regulations,JVs are legal entities of the PRC and the have right to independently perform operational activities, subject to the laws and regulations of the PRC and JV’s articles of association and registered business licence (scope of business).
The principle characteristics of an JV are as follows:
. limited liability company with a registered legal entity;
. in general the foreign party(ies) will not invest less than 25 percent of the registered capital of the JV. [note:foreign investments less than 25 percent can still be applied for in accordance with this approval process, but they will not normally benefit from preferential policies,and the business license and the certificate of approval will indicate that the “foreign investment portion is less than 25 percent”];
. profits, risks and losses will be shared by both parties in proportion to their contributions to the registered capital (i.e.percentage equity);
. board of directors is the highest authority of an JV, which must have at least three directors, deciding all major issues;
. directly employ Chinese employees in accordance with State and local government laws and regulations;
. enter into separate contracts with government authorities or Chinese business entities for land use rights,buildings, and utilities; and
. faces some restrictions in certain industries according to the Catalogue for the Guidance of Foreign Investment Industries
The duration of an JV is fairly open and amenable to revision. China’s JV law stipulates that the term of operation of such an entity must be stated in its application, but it is both easily extended should profits be abundant, and easily dissolved if excessive losses have accrued.
Approval process(both WFOE and JV)
The approval process can vary from industry to industry, and due to the size of a proposed venture; as can the appropriate government authorities, but in general the following is a
brief overview of the steps that you are likely to be required to take when establishing a WFOE or JV:
1. application
Documentation will be lodged with the National Development and Reform Commission (NDRC) and Ministry of Commerce (MOFCOM) at the appropriate levels.
2. organisation code
Once the application has been approved by the bureau of industry and commerce,then an application for an organisation code shall be made to the appropriate level bureau of quality and technical supervision.
3. certificate of approval
Once an organisation code has been issued, then an application to the appropriate level department of commerce shall be made for a certificate of approval.
4. business license
The foreign investor(s) must register with the appropriate level Bureau OF Industry & Commerce within thirty (30) days after receiving the certificate of approval, and apply for a business license. The WFOE will only be deemed to be 'established' on the date the business license is issued.
5. other formalities
There are a number of formalities that proceed receiving the business licence,these include:
. application for official seals / chops at the local office of the Public Security Bureau(PSB)
. application for the foreign exchange registration at the appropriate level of the State Administration of Foreign Exchange (SAFE)
. open RMB and foreign currency bank accounts
. tax registration at the Local and State Tax Bureaus
. local customs and commodity inspection registration (if importing equipment etc)
. registration at the local statistics bureau
List of basic matierial for the establishment of WFOES /CJV/EJV
1.Copy of the registration certificate of the foreign investor with Chinese translation;(If the investor is a person, should submit the passport of this person)And the passport or certificate need to be notarized through local notary,Then authenticated the notarization by Chinese embassy.
2.Copy of business license of the Chinese investor;
3.Resume, ID cards or passport of the directors;Photos of Legal Pearson;
4. Bank credibility letters of the investors;
5.Ownership certificate of the office building ;Office lease contract ;
6. Other documents and forms we draft need to be signature by investors
7. According to the special Scope of business,Approvals from the various departments of goverment goverment for market entrance.