中国企业在巴西投资所需的当地代表——其确切权限是什么？

 

在巴西，任何外国投资者均需事先准备委任两类不同的法律代表。这套双重机制常令初次接触者感到困惑与不便，然其运作亦可相当有效。

 

巴西法律体系的结构特点在于，政府部门必须能够与所有相关主体进行正式法律文书往来。正式送达通知或传票等程序，是启动司法诉讼、实施行政处罚等法律行动的必要前提。

 

基于此原则，外国投资者被要求必须在巴西境内持续指定一名常驻代表，该代表需被明确授权接收司法传票、法院通知及其他正式法律文书。

 

因此，在设立含有外资股东的巴西公司时，必须提交的法律文件之一，即是任命该常驻代表的授权委托书。

 

被指定人必须在巴西境内拥有住所，但其国籍不限。换言之，该代表不必是巴西国籍，只需是常住巴西的自然人。

 

然而，受任此职者必须审慎注意：作为法律代表，其个人可能需要对巴西公司的多项金钱债务承担连带责任，特别是当公司未能及时履行相关义务时。此类责任范围可涵盖税款欠缴、未付劳动报酬乃至环境损害罚金等。

 

潜在责任范围的广泛性，正是专业法律代表通常收取较高月度服务费的原因所在。

 

常驻巴西的公司首席执行官或知名律所的执业律师，若无充分保障，通常不会轻易承担此类法律风险。因此，除固定月费外，委托方往往还需为其购买董监事及高级职员责任保险。

 

需特别说明的是，该代表不必限定为首席执行官、律师或会计师等特定身份。投资者可根据实际情况，选择业务合作伙伴、公司雇员乃至可信赖的友人担任此职。

 

对于计划逐步开展业务、难以承受为满足此项要求而产生高额支出的企业，可考虑委任当地商业伙伴或临时指定人士作为法律代表，以降低初始成本。

 

由于指定和选定代表本身已涉及时间与精力投入，实践中通常会在授权委托书中赋予其若干附加权限，以更充分地利用其职能。此类权限可包括：签署股东会/董事会决议纪要、签署公司章程修正案，以及办理与投资相关的附属登记手续，包括在巴西中央银行办理投资登记。

 

截至目前所述的所有授权，均仅涉及外国投资者作为股东身份所实施的行为。该法律代表无权以新设公司董事的身份开展任何经营活动。

 

在巴西新设的公司，必须委任一名或多名常驻当地的董事，负责公司的日常经营管理。

 

直至近年，巴西法律曾强制要求公司董事必须为巴西居民。再次强调，此处不要求巴西国籍，但需持有长期居留签证并在巴西常住。由于该区别在实际中意义有限，业界长期存在"巴西公司需由巴西籍董事管理"的普遍认知。

 

值得关注的是，该项限制现已取消。自数年前起，全球任何国家的公民均可担任巴西公司董事职务。

 

这也引出了可能需要的第二类代表：外国董事的常驻代表。

 

当公司存在非常驻巴西的董事时，该董事作为自然人，必须亲自指定一名在巴西常驻的代表。

 

那么，法律对董事授权代表的权限作何规定？

 

在公司运营过程中，大量正式文书需送达董事本人，例如司法诉讼的初始传票、银行通讯函件等。若董事在巴西无常设通讯地址，所有相关文件将送达其指定的个人代表。

 

因此，第二类代表的核心职责，即是接收针对公司董事的司法文书与正式信函。

 

出于实务考量，董事通常会授予其代表若干附加权限。例如：签署公司决议文件、代收法律文书包裹等。特定情况下，董事甚至可授予广泛授权，包括签署具有法律约束力的法律文件。

 

当然，若投资架构中已安排董事常驻巴西，则此第二层代表即无必要。

 

在需要同时设立两类代表的情况下，需说明的是，两项职能可由同一人兼任。

 

这意味着，一名当地雇员可同时持有中国股东出具的授权委托书，以及由一位居住于美国、已被委派至董事会的董事单独签发的授权委托书。

 

两份授权委托书在法律效力上相互独立。

 

如需协助办理巴西公司设立事宜，请随时联系。

LOCAL REPRESENTATIVES FOR CHINESE COMPANIES INVESTING IN BRAZIL – WHAT ARE THEIR EXACT POWERS?

Any foreign investor in Brazil must be prepared to appoint two separate representatives. This dual system is confusing and frustrating for newcomers. Nevertheless, it can work quite well.

The way the Brazilian legal system is structured, it is very important for authorities to be able to formally communicate with all persons. The formal delivery of a notice or subpoena is a prerequisite for starting lawsuits, applying penalties, etc.

This general principle is applied to foreign investors through the requirement to maintain a permanent representative in Brazil at all times, with specific powers to receive subpoenas, court notices and similar communications.

Thus, one of the documents required for the incorporation of a company that has a foreign shareholder is the power of attorney that names this representative.

The appointed person must reside in Brazil, although he can be of any nationality. It doesn’t have to be a “Brazilian” Brazilian representative. Only a representative that is domiciled in Brazil.

The individual who received the incumbency must beware, though. As a representative, he is at risk of being liable for many financial obligations of the Brazilian company, in case they are not dully paid. Obligations may include tax debts, unpaid labour compensation and penalties for environmental damage.

This large gamut of potential problems is the reason why professional representatives may charge somewhat expensive monthly fees.

A CEO based in Brazil or a lawyer from a reputable firm will not take on such a burden without proper guarantees. The hiring of a D&O type insurance is usually required, on top of a monthly payment.

Keep in mind that the representative need not be a CEO, lawyer or accountant. Any business associate, employee or even a friend could be selected.

For companies that plan to start slow and cannot justify a large expense in complying with this requirement, appointing a local business associate or a temporary nominee as the local representative may be an option to reduce costs.

Now, since the appointment and selection of this representative has taken up some time and effort, it is customary to add some powers to the POA with the purpose of making a better use of him. Such powers may include powers to execute minutes of meetings, to sign alterations to the articles of association and to comply with ancillary registrations connected to the investment operation, including the registration of the investment before the Brazilian Central Bank.

All the powers mentioned so far are exclusively related to the actions of the foreign investor himself, acting as a shareholder. The legal representative does not have any powers to act as a director of the newly incorporated company.

The new company that has been created in Brazil will need a local director or group of directors who will represent the company on daily operations.

Until recently, the directors were required to be Brazilian residents. Again, not Brazilian citizens, but at least people who lived in Brazil with long term visas. Since this distinction was not always of much use, one would frequently hear that “Brazilian companies need Brazilian directors”.

Gladly, this is no longer the case. Since a few years now, any person in the world can act as the director of a Brazilian company.

Which is the motive for the second-level representative that may be required: the representative of the foreign director.

Whenever the company has a director that does not have residence in Brazil, this director, as an individual, must personally name a local representative for himself.

What does the law say about the the powers of the attorney to the director?

Durint the life of the company, many official notices may be addressed to the company’s director, such as the initial subpoena for lawsuits, messages connected to bank communication, etc. In case the director does not keep a permanent address in Brazil, all of those will be directed to his personal attorney.

Therefore, the main duties of this second representative are to receive subpoenas and communications directed towards the company director.

For practical reasons, the director will most likely grant some additional powers to his representative. For example: powers to execute minutes of corporate resolutions and to receive mail packages. Depending on the situation, the director can even grant extensive powers to the local representative, including powers to execute legally binding agreements.

Of course, if the investment is structured as to have a director domiciled in Brazil, this second-level representative will not be necessary.

For the cases where the two representatives are required, it is useful to say that both roles can be performed by a single person.

This means that a local employee could have a power of attorney from the Chinese shareholders, as well as a separate power of attorney issued by an American-resident director who has been appointed to the board. 

The two POAs would be independently valid.

Please feel free to get in touch in case you need assistance with company incorporation in Brazil.  

Brazil just clarified how a new Japanese tax is treated under the Brazil–Japan tax treaty.

 From my colleague Douglas Domingues. 

STARTUPS IN DANGER – EFFECTS OF PROPOSED BRAZILIAN DIVIDEND TAX ON FOREIGN INVESTMENT

 

The bill that aims to tax dividends is confusing and allows for numerous exceptions.

 

 The only clear-cut rule is that dividends paid abroad must be subject to a 10% dividend tax, regardless of tax treaties or any other considerations.

 

There is a provision for partial reimbursement of the dividend tax paid, after one year, if the company paying the dividends can prove that it has already paid the full nominal tax rate according to Brazilian rules (i.e., it has not utilized any tax benefits). However, this convoluted exemption offers little solace to financial planners. As things stand:

 

 

a)      Investment vehicles based in countries that have a tax treaty with Brazil, or that maintain reciprocity with Brazil, such as the USA, should be able to offset the Brazilian dividend tax against the federal income tax due in their country;

b) Investment vehicles based in other countries—and especially in the various tax havens typically used as platforms for investments in Brazil, such as the British Virgin Islands and the Bahamas—will be taxed in full, with no compensation.

 

This means investments routed via the BVI and many other tax havens will face a net increase in taxation.

 

What are possible strategies to minimize this disgraceful tax, if it ever comes to pass?

 

a)      Holding a minority equity share directly through a treaty country;
b) Funding the startup via loans;
c) Capitalizing profits into the Brazilian entity, with subsequent partial liquidation of the capital;

d) Expanding the startup’s operations to other countries from an early stage, so that profits can be routed to countries with lower overall taxation.

 

An additional tip: both Luxembourg and Dubai have tax treaties with Brazil. They may replace the BVI as springboards for investments in the country.

“How to expand your Business to the Brazilian market?”

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I'm giving a lecture at Broward College (Brazil) today

 You can enroll here: http://land.browardbrasil.com.br/friday-forum