In this article, I would like to specify all the moments that together form all the specifics that must be taken into account when working with documents of Cypriot companies for the accreditation of a branch or representative office in Russia. For these companies, the set of documents will differ slightly from the standard one (for example, four certificates instead of one reference). We will scrutinise why it is necessary to pay special attention to stamps and legalisation, and also you will find out why you may need documents from other companies, when setting up a branch or representative office.
First of all, for accreditation, a set of constituent documents of the company will be required:
1. A notarised copy of the Articles of Association or Memorandum of Association of the company. Some companies may have only Articles of Association or a Memorandum of association; others have Articles of Association and a memorandum of association as a single document. For accreditation it will be enough to prepare a notarised copy of one of these documents. When preparing, it is important to check the relevance of all information about the company. If any piece of information is no longer valid, it is necessary to make the appropriate changes / additions to the Articles of Association / Memorandum of Association, and then notarise a copy of it.
Often there is a situation when the Articles of Association contain data on the authorised capital of a company in Cypriot pounds, while in the certificate of shareholders the same amount is indicated in euros. This is due to the fact that the constituent document of the company was drawn up prior to the entry of the Republic of Cyprus into the euro zone. In such a situation it is recommended to amend the Articles of Association and use a new edition of the document. If for any reason this is not possible, it is needed to draft a covering letter containing an appropriate indication of this circumstance and a request not to consider it as a discrepancy, since the certificate contains the same amount as in the Articles of Association, but it is expressed in different currencies. Based on practice, this option is working, but there is no guarantee that the tax authority will take this letter into account.
In addition, the legal form of a legal entity specified in the statute may differ from the one in any of the certificates. You can specify the legal form uniformly in all translations, but it is likely that the tax authorities will consider this as a provision of inaccurate information. The only reliable way to solve a problem is to make amendments to the Articles of Association of a legal entity.
2. Four certificates issued by the Department for Registration and Liquidation of Companies of the Ministry of Energy, Commerce, Industry and Tourism: certificate of incorporation, certificate of shareholders, certificate of registered office, certificate of directors. It often happens that the certificate of incorporation (registration) is older than 12 months at the time of submission of documents. In this case, instead of the certificate of incorporation, a certificate of good standing of the company is used. Make sure they are signed by the officials of this department.
3. A certificate of tax residency status or another document of the Ministry of Finance indicating the tax number and company name. A signature of an employee of the Ministry and a stamp of the tax administration are a must, if there is an apostille — the certification of a signature of an employee of the Ministry is mandatory.
Since Russia and Cyprus had concluded the Agreement between the Union of Soviet Socialist Republics and the Republic of Cyprus on legal assistance in civil and criminal matters of January 19, 1984, the notary stamp of the Republic of Cyprus or an employee of the authorised body of Cyprus is sufficient to recognise the legal force of the document in the Russian Federation . However, documents with an apostille stamp can also be accepted for accreditation (in accordance with the Hague Convention of 1961).
When ordering the previously mentioned documents, it is important to ensure that they were not stitched into an affidavit, and none of them contain the mark «true certified copy» or «translated true copy». Such a mark may be put on documents for various reasons. One of the most common reasons is the use of copies of documents drafted in English, while the originals are made in Greek. In this case, it is necessary to request original documents, using which a notarial copy can be made in Russia.
To make the set complete, it is necessary to prepare documents for opening a branch / representative office:
• resolution to set up a branch /representative office;
• regulations of a branch /representative office;
• power of attorney for a director of the branch / representative office;
• application for accreditation.
4. The resolution to open a branch / representative office is signed by the authorised body of the legal entity (as a rule, it is a director of the company), these signatures are certified by a notary who confirms their authenticity and the powers of the signatories. The resolution indicates the creation of a branch / representative office, its location, the name of its director and his passport details, the fact of issuing a power of attorney to this person, and also approves the text of the regulations of the branch / representative office. If necessary, regulations may be signed by the director of the branch / representative office (if it is specified in the resolution).
5. The regulations of a foreign branch, representative office shall be signed on the basis of the resolution to open a branch / representative office. Usually, this is done by an authorised body of a legal entity, in this case the signatures and powers of the signers are also notarised. If having appropriate powers under a power of attorney, the head of the branch / representative office can sign the regulations, in this case the certification of the signature by the notary is optional. In accordance with Art. 22 of the Federal Law of 09.07.1999 N 160-FZ (amended on 07.18.2017) «On foreign investments in the Russian Federation», the regulations specify information about the legal entity and its branch / representative office: full name of the legal entity, its organizational and legal form and location, name of the branch / representative office, its location in Russia, the purpose of the establishment, opening of the branch / representative office, its management procedure and legal status. The document may also contain other information.
6. The power of attorney for the Director of the branch / representative office is signed by the body of the legal entity authorised to issue powers of attorney on behalf of the legal entity, and must contain all the necessary powers to carry out activities in this position, including filing and receiving documents from the Chamber of Commerce and Industry Moscow, the signing of an application for accreditation. It is recommended to coordinate the powers to open and manage bank accounts of a branch / representative office with the bank where it is planned to open a bank account of the branch / representative office. The power of attorney cannot be issued before the resolution on the basis of which the power of attorney was signed.
In the case of certification of these documents in Cyprus, they will need a translation into Russian, certified by a notary in Russia. If the directors of a company opening a branch / representative office are legal entities, it is recommended to use certificates of directors of each of these legal entities in addition to the documents for accreditation. The former ones are to confirm the powers of the signatories of the resolution to open a branch / representative office.
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Evgeny Voronov, lawyer
In this article, I would like to specify all the moments that together form all the specifics that must be taken into account when working with documents of Cypriot companies for the accreditation of a branch or representative office in Russia. For these companies, the set of documents will differ slightly from the standard one (for example, four certificates instead of one reference). We will scrutinise why it is necessary to pay special attention to stamps and legalisation, and also you will find out why you may need documents from other companies, when setting up a branch or representative office.
First of all, for accreditation, a set of constituent documents of the company will be required:
1. A notarised copy of the Articles of Association or Memorandum of Association of the company. Some companies may have only Articles of Association or a Memorandum of association; others have Articles of Association and a memorandum of association as a single document. For accreditation it will be enough to prepare a notarised copy of one of these documents. When preparing, it is important to check the relevance of all information about the company. If any piece of information is no longer valid, it is necessary to make the appropriate changes / additions to the Articles of Association / Memorandum of Association, and then notarise a copy of it.
Often there is a situation when the Articles of Association contain data on the authorised capital of a company in Cypriot pounds, while in the certificate of shareholders the same amount is indicated in euros. This is due to the fact that the constituent document of the company was drawn up prior to the entry of the Republic of Cyprus into the euro zone. In such a situation it is recommended to amend the Articles of Association and use a new edition of the document. If for any reason this is not possible, it is needed to draft a covering letter containing an appropriate indication of this circumstance and a request not to consider it as a discrepancy, since the certificate contains the same amount as in the Articles of Association, but it is expressed in different currencies. Based on practice, this option is working, but there is no guarantee that the tax authority will take this letter into account.
In addition, the legal form of a legal entity specified in the statute may differ from the one in any of the certificates. You can specify the legal form uniformly in all translations, but it is likely that the tax authorities will consider this as a provision of inaccurate information. The only reliable way to solve a problem is to make amendments to the Articles of Association of a legal entity.
2. Four certificates issued by the Department for Registration and Liquidation of Companies of the Ministry of Energy, Commerce, Industry and Tourism: certificate of incorporation, certificate of shareholders, certificate of registered office, certificate of directors. It often happens that the certificate of incorporation (registration) is older than 12 months at the time of submission of documents. In this case, instead of the certificate of incorporation, a certificate of good standing of the company is used. Make sure they are signed by the officials of this department.
3. A certificate of tax residency status or another document of the Ministry of Finance indicating the tax number and company name. A signature of an employee of the Ministry and a stamp of the tax administration are a must, if there is an apostille — the certification of a signature of an employee of the Ministry is mandatory.
Since Russia and Cyprus had concluded the Agreement between the Union of Soviet Socialist Republics and the Republic of Cyprus on legal assistance in civil and criminal matters of January 19, 1984, the notary stamp of the Republic of Cyprus or an employee of the authorised body of Cyprus is sufficient to recognise the legal force of the document in the Russian Federation . However, documents with an apostille stamp can also be accepted for accreditation (in accordance with the Hague Convention of 1961).
When ordering the previously mentioned documents, it is important to ensure that they were not stitched into an affidavit, and none of them contain the mark «true certified copy» or «translated true copy». Such a mark may be put on documents for various reasons. One of the most common reasons is the use of copies of documents drafted in English, while the originals are made in Greek. In this case, it is necessary to request original documents, using which a notarial copy can be made in Russia.
To make the set complete, it is necessary to prepare documents for opening a branch / representative office:
• resolution to set up a branch /representative office;
• regulations of a branch /representative office;
• power of attorney for a director of the branch / representative office;
• application for accreditation.
4. The resolution to open a branch / representative office is signed by the authorised body of the legal entity (as a rule, it is a director of the company), these signatures are certified by a notary who confirms their authenticity and the powers of the signatories. The resolution indicates the creation of a branch / representative office, its location, the name of its director and his passport details, the fact of issuing a power of attorney to this person, and also approves the text of the regulations of the branch / representative office. If necessary, regulations may be signed by the director of the branch / representative office (if it is specified in the resolution).
5. The regulations of a foreign branch, representative office shall be signed on the basis of the resolution to open a branch / representative office. Usually, this is done by an authorised body of a legal entity, in this case the signatures and powers of the signers are also notarised. If having appropriate powers under a power of attorney, the head of the branch / representative office can sign the regulations, in this case the certification of the signature by the notary is optional. In accordance with Art. 22 of the Federal Law of 09.07.1999 N 160-FZ (amended on 07.18.2017) «On foreign investments in the Russian Federation», the regulations specify information about the legal entity and its branch / representative office: full name of the legal entity, its organizational and legal form and location, name of the branch / representative office, its location in Russia, the purpose of the establishment, opening of the branch / representative office, its management procedure and legal status. The document may also contain other information.
6. The power of attorney for the Director of the branch / representative office is signed by the body of the legal entity authorised to issue powers of attorney on behalf of the legal entity, and must contain all the necessary powers to carry out activities in this position, including filing and receiving documents from the Chamber of Commerce and Industry Moscow, the signing of an application for accreditation. It is recommended to coordinate the powers to open and manage bank accounts of a branch / representative office with the bank where it is planned to open a bank account of the branch / representative office. The power of attorney cannot be issued before the resolution on the basis of which the power of attorney was signed.
In the case of certification of these documents in Cyprus, they will need a translation into Russian, certified by a notary in Russia. If the directors of a company opening a branch / representative office are legal entities, it is recommended to use certificates of directors of each of these legal entities in addition to the documents for accreditation. The former ones are to confirm the powers of the signatories of the resolution to open a branch / representative office.