Recently, we were asked to incorporate a Japan subsidiary (kabushiki kaisha, “KK”) of a US (Delaware) entity. The following is a short description of the process followed.
Collect information about the promoter (US entity)
When a Japanese corporation becomes the promoter of a new KK entity, a copy of the company’s registration certificate and registered seal certificate issued by the Legal Affairs Bureau must be attached when having the Articles of Incorporation of the new entity notarized.
In this case, since the promoter was a US entity, an Affidavit was attached in lieu of the registration certificate and similarly a Signature Certificate instead of the registered seal certificate.
In order to collect the information necessary to draft the Affidavit, we asked the client to provide copies of the Certificate of Incorporation and Annual Return of the Delaware entity.
Payment of Capital
The company capital must be fully paid-up, in principle, into a bank account in Japan under the name of the promoter.
However, because the promoter in this case was a Delaware entity and thus did not have a bank account in Japan, receipt of capital was delegated to another party by Power of Attorney and the initial capital was deposited to that person’s bank account.
Signature Certificate of Officers
The representative director of the new KK entity was an American citizen with residence in New York.
When a Japan resident is appointed as representative director, a copy of that person’s personal seal certificate is required for registration, however in the case of a non-Japan resident, a Signature Certificate (a document created by a government body in the country of citizenship of the individual concerned certifying that person’s signature) is attached.
We drafted the document and used the Signature Certificate that was notarized by a Notary Public in New York.
Notice to Bank of Japan Pursuant to Foreign Exchange and Foreign Trade Act (FEFTA)
Since the US promoter is considered as a non-Japan resident and acquiring shares in a domestic KK entity qualifies as an act of direct inward investment, the relevant notice was filed with the Bank of Japan.
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