ゼットランドよりニュースレターの配信（2013年11月号） 平素より格別なご高配を賜り、厚くお礼を申し上げます。 ご希望のお客様へニュースレターを配信させていただいております。 英語でのオリジナル版から要点のみを取り上げ日本語の翻訳サポートを行っております。それぞれの英文記事の最後に日本語翻訳を合わせてご一読ください。 尚、日本語翻訳付版は翻訳に時間がかかるため、英語オリジナル版より遅れての発行となります。ご了承願います。 今後も変わらぬご愛顧のほどよろしくお願いいたします。 Zetland Newsletter November, 2013 | www.zetland.biz/ Dear Friend of Zetland, The new Hong Kong Companies Ordinance will be effective in the first quarter of 2014. The highlights are the requirement for a natural person to now be a director of a Hong Kong company, though unlike Singapore the director need not be resident in Hong Kong. Other exciting news that as of 1st December there will be the introduction into the law of the Hong Kong Trust Amendment Ordinance. This article newsletter will focus on both the new developments. Additionally, there will be information on the new Shanghai Free Trade Zone which though in its early days, is expected to be a huge thing for China. The article will explain more about it and how Zetland through its Shanghai office can help. If anyone has any questions on the recent developments, or pretty much anything else for that matter, please feel free to contact me. No question will go unanswered. 香港にて新会社条例が来年（2014年）第一四半期中（3月まで）に執行されます。今回もっとも注目すべき変更内容は、個人の取締役登録が義務づけられるという点です。ただし、シンガポールとは異なり取締役が香港居民である必要はありません。（シンガポール法人の場合、個人取締役はシンガポール居住民である必要がある） お客様法人にて法人取締役のみをご利用の方は、是非この機会に変更手続き見直しをお勧めいたします。 11月号ニュースレター取り扱い記事：
Hong Kong - New Companies Ordinance 香港、新会社条例New Companies OrdinanceIn our December 2012 issue, we have provided a brief summary of the main changes introduced by the new Companies Ordinance (Cap. 622) (the “Ordinance”). With the commencement of the new Ordinance expected in the first quarter of 2014, it is now time to review your Hong Kong companies (if any) to make sure they are in compliant with the new Ordinance. We highlight the changes that are of most significance and relevance to our clients in a series of issues to follow. All changes we refer here are in relation to private companies which are not members of a group of companies of which a listed company is a member.
Directors (Part 10 of the Ordinance)
- Requirement to have a natural person director (section 457) Private companies are required to have at least one director who is a natural person to enhance transparency and accountability. The natural person should be above 18 and can be of any nationality. Corporate directorship is still allowed. For existing companies with no natural person director, there will be a grace period of 6 months after the commencement of the Ordinance to comply with the new requirement. There is an exemption for existing dormant companies but they are required to comply with the requirement when they cease to be dormant. Before September 2014, all existing companies are required to have an individual director. We recommend keeping the corporate director (if any) for ease of administration. Zetland offers individual directorship services. With more than 25 years’ experience in the industry, we can tailor a solution to suit your needs. Please contact us for further details.
- Clarifying the standard of director’s duty of care, skill and diligence (sections 465 and 466) Under the current Companies Ordinance (Cap. 32), there is no provision on director’s duty of care, skill and diligence and the common law position in Hong Kong is not entirely clear. With a view to providing clear guidance to directors, the standard is clarified in the Ordinance to incorporate a mixed objective and subjective test. In deciding whether a director of a company has breached the duty of care, skill and diligence owed by him to the company, his conduct is compared to the standard that would be exercised by a reasonably diligent person having – The general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company (objective test); and The general knowledge, skill and experience that the director has (subjective test). The duty has effect in place of the corresponding common law rules and equitable principles, and it applies to a shadow director. The existing civil consequences of breach of the duty are preserved. The remedies for breach of the duty will be exactly the same as those that are currently available following a breach of the common law rules and equitable principles that the said duty replaces.
- Clarifying the rules on indemnification of directors against liabilities to third parties (sections 467 and 469-472) The law regulating a director’s right to be indemnified against liabilities to third parties is currently found in case law, which is fairly difficult for lay directors to understand. The uncertainty over the right to be indemnified against liabilities to third parties may deter competent persons from accepting directorships. The Ordinance permits a company to indemnify a director against liability incurred by the director to a third party if the specified conditions are met. Certain liabilities and costs must not be covered by the indemnity, such as criminal fines, penalties, defence costs of criminal proceedings where the director is found guilty. To enhance transparency, a company that provides any permitted indemnity must disclose the provision in the directors’ report available for inspection by any member on request.
Company Formation and related matters (Part 3 of the Ordinance)Constitution – abolishing the Memorandum of Association (the “MA”) (Sections 67-70, 75-85 and 98) The Ordinance states that a person may form a company by, amongst other things, delivering to the Registrar for registration an incorporation form in specified format and a copy of the company’s Articles of Association. These will include all information currently contained in the MA. Common seal – making the keeping and use optional (Sections 124, 125 and 127) In order to facilitate business and gives flexibility to companies and does not prejudice those companies which may still wish to keep and use their common seals, the Ordinance simplifies the mode of execution of documents by making the keeping and the use of a common seal optional. It allows a company to execute a document by having the document signed by the director or in case of a company having two or more directors, by two authorised signatories. A document signed in accordance with the sections and expressed to be executed by the company has effect as if the document had been executed under the company’s common seal. With the deeming provisions set out in the Ordinance, it is not necessary for existing companies to do anything in this respect. However, you may wish to review the current constitutional documents to take advantages of some of the new initiatives set out in the Ordinance, such as making the company seal optional. Zetland provides ongoing maintenance services for Hong Kong and offshore companies and we can make suggestions to the operations of your business according to your specific requirements.
Share Capital (Part 4 of the Ordinance)Abolition of nominal value of shares (Section 135) The par value of shares does not serve the original purpose of protecting creditors and shareholders and may be misleading as it does not necessarily give an indication of the real value of the shares. The Ordinance adopts the mandatory system of no-par and abolishes relevant concepts such as nominal value, share premium and requirement for authorised capital. Upon the commencement of the Ordinance, all shares, including shares issued before that day, will have no nominal value. The share capital of a company is its issued share capital (including full proceeds the company actually received as capital contribution). The share capital can be altered in a number of ways under a no-par environment, e.g. to allow a company to capitalize its profits without issuing new shares and to allot and issue bonus shares without increasing share capital. Deeming provisions are introduced to ensure contractual rights defined by reference to par value and related concepts will not be affected by the abolition of par. Although the Ordinance provides comprehensive transitional provisions for existing companies, you may wish to review the particular situation to determine if specific changes are required as a result of the migration to no par regime, such as reviewing the constitutional documents, contracts, trust deeds and share certificates. Please feel free to contact Zetland for any specific advice. Our team of professionals in Hong Kong, London, Singapore and Shanghai is ready to respond to your enquiries.
Company Administration and Procedure (Part 12 of the Ordinance)
- AGM – allowing companies to dispense with AGM by unanimous shareholders’ consent (Sections 612 to 614) A company is allowed to dispense with the requirement for holding of AGMs by passing a written resolution or a resolution at a general meeting by all members. After passing the resolution, the company will not be required to hold any AGMs for the financial year or for subsequent financial years to which the resolution relates. The company may revoke the resolution by passing an ordinary resolution to that effect. A single member company is not required to hold an AGM at all. The financial statements and reports originally required to be laid before an AGM will still be required to be sent to the members.
- 2.Written resolution – introducing a comprehensive set of rules for proposing and passing (Sections 548 to 561) The new procedures facilitate the use of written resolutions for decision-making, which is more expeditious and less costly than passing a resolution in a general meeting. The Articles of a company may set out alternative procedures for passing a resolution without a meeting, provided the resolution has been agreed by the members unanimously.
- 3.Keeping and inspection of company records – provisions updated ‘Company records’ is defined as any register, index, agreement, memorandum, minutes or other document required by the Ordinance to be kept by a company, but does not include accounting records. A company must keep its records at the company’s registered office or a prescribed place. Inspection of company records kept in electronic form to be inspected by electronic means is allows if so requested by the person inspecting the records.
HK’s Trust Amendments to Take Effect from 1st December 香港の信託法改定版、2013月12月１日より執行HK TrustHong Kong being the gateway to China, its trust industry has a clear comparative advantage over other locations in Asia. However, many industry players have long felt that Hong Kong’s premier position is being eroded by its trust law, which is relatively out of date and inflexible. Since its enactment in 1934, the Trustee Ordinance has not been substantially reviewed and amended. In response to such market sentiment and increasing competition from Singapore, the Trust Law (Amendment) Ordinance 2013 was gazetted in February this year and will take effect from 1st December. These amendments are intended to strengthen the clarity and certainty of Hong Kong trust law, and grant trustees modernised powers necessary for the efficient management of trusts in Hong Kong. The Ordinance updates the existing legislation in certain specific aspects of by enhancing trustees default powers, abolishing the rule against perpetuities and changing the rule against excessive accumulation of income. In practice though, in most cases there will be a trust deed drafted to govern the powers and obligations of professional trustees. Here is a brief summary of the main changes to HK trust legislation: Introduction a statutory duty of care for trustees when they are exercising their powers in relation to investment, delegation, and appointment of nominees. General power for trustees to appoint agents, with specified safeguards. Abrogation of the existing rules against perpetuity in respect of new trusts to be set up. Abrogation of the rules against excessive accumulation of income in respect of new trusts to be set up, except for charitable trusts. Granting of more powers to insure trust assets against risk of loss or damage by any event, and pay the premium out of the trust funds. Foreign forced heirship rules will not affect the validity of a lifetime transfer of moveable assets to a trust expressed to be governed by Hong Kong law. Trust instruments can no longer exempt a trustee from liability for fraud, wilful misconduct and gross negligence. Having considered the essential features of the Trust Law (Amendment) Ordinance 2013, the advantages for the settlor in setting up a trust based in HK and with a HK trustee will depend mostly on the settlor’s personal circumstances and country of residence. Some may be attracted by the fact that HK is a major finance and business centre well known internationally compared to “exotic” jurisdictions. 中国大陸へのゲートとして発展してきた香港、他アジア地域の信託法と比べ、香港の信託法は利点が多いことでも知られています。しかしながら香港の信託法は時代錯誤であり且つフレキシブルに対応していないとの批判も聞かれてきました。1934年に信託法が設立されて以来、大きな改定がさせずにきましたが、ここ近年、金融市場のライバルであるシンガポールの台頭を受け、香港でも2013年の2月に信託法への改正案が出され、2013年の12月1日を持って新信託法が執行されます。 これら新信託法では受託者がより効率的に信託を管理できるように改定されています。 弊社では信託管理のライセンスを有し、各お客様のニーズにあわせた信託の設定を承っております。詳しくは弊社までお問い合わせください。
Singapore as an Attractive, Competitive and Transparent Tax Jurisdiction 透明性と高い競争力を狙う課税管轄区域、シンガポールの魅力SingaporeBefore deciding upon a location for establishing an international business in Asia, there are many issues to be considered, and one of the key considerations is usually the taxation. Singapore offers a very tax competitive tax regime with its low tax rate and a wide range of tax incentives. Businesses based here can also benefit from its network of 71 comprehensive taxation agreements and increasing. Singapore operates a territorial and remittance-based tax system. This means taxes apply to income that is accrued to or derived by the company from Singapore or foreign-sourced income received in Singapore. Foreign-sourced income received in Singapore that meets certain qualifying conditions is exempt from Singapore tax, while foreign-sourced income that is not remitted into Singapore is exempt from Singapore taxation. Singapore follows a single-tier tax policy which means once the income has been taxed at the corporate level, dividends can be distributed to shareholders tax free. Those companies that do not meet the qualifying conditions can rely on the relief from double taxation treaties. If we compare the taxes with Hong Kong company, smaller businesses or SMEs are in fact better off in Singapore. Newly established companies, subject to certain conditions, pays about 4.5% tax for the first S$300,000 chargeable income for the first 3 years of assessment. Companies that do not qualify for full tax exemption will still have access to partial tax exemption, ie the first S$300,000 chargeable income, the effective tax rate will be approximately 8.5%. Excess profits are taxed at 17%. There are also various industry specific tax incentives that the government has to offer. SMEs have various tax rebates/benefits and even cash bonus to assist companies to increase their productivity that give them a competitive edge. Singapore has strict banking secrecy laws, despite having applied the OECD standard on Exchange of Information (“EOI”) to all its existing bilateral tax treaties without the need to renegotiation, subject to the reciprocity by the tax treaty partner. With respect to the EOI requests, the Inland Revenue Authority of Singapore will no longer require a court order to obtain information protected the Banking Act and Trustees Act from financial institutions. While the court order will no longer be required, basic safeguards to taxpayers’ interests remain. Fishing expeditions are not permissible and information requests must be specific and reasonable. Singapore is determined to protect the integrity and reputation of Singapore as a trusted and transparent financial centre. It has also designate tax crimes as money laundering as predicate offence from 1 July 2013. If one’s objective is to avoid paying taxes all together, it will be quite challenging to achieve through a Singapore company. However, if the goal is to avoid paying double taxes but let the income to be subjected to low tax regime of Singapore, incorporating a Singapore entity would be a perfect choice. 国際的なビジネスを展開するにあたり各国の税制に対する考慮は重要なキーポーントとなります。シンガポールは低税地区であり、あらゆる控除が受けられる税制的に非常に魅力的な地域として有名で、現在71カ国と結んでいる租税条約によっても税制整備の非常に整った地域として知られています。 シンガポールは属地主義（Territorial System）を採用しており、シンガポールに源泉がある所得ならびにシンガポール国外源泉所得のうちシンガポールで受け取る所得が課税対象となります。シンガポールで受け取る国外源泉所得については一定の免税範囲があり、シンガポールで受け取らない分についてはシンガポールでは課税対象になりません。シンガポールはSingle-Tier Tax Policy（一層税制）を導入しており、一度法人税で課税されている場合、株主に対する配当については課税されません。 シンガポールは香港に比べても税制において中小企業を優遇しており、ある一定の条件を満たした新法人の場合、課税対象額S$300,000に対し初頭3年の課税率は4.5％となっています。条件を満たさない会社でも課税対象額S$300,000に対し8.5％の税率が適応される条件枠を設けるなど、中小企業向けの税面優遇が多くみられます。（普通のシンガポールにおける法人税率は17％です。香港は16.5％） 弊社では弊社のシンガポール支社を通じ、シンガポール法人設立サポートも行っております。詳しくは弊社までお問い合わせください。
Belize: Steady, Secure and Steering into 2014 ベリーズ、（オフショア金融センターとして）2014年に向けた発展BelizeBelize is recognized worldwide as being a reputable financial centre for safe offshore banking, offshore accounts, IBC company formations, Foundation establishment, Limited Liability Companies (LLCs) and secure Offshore Trusts. This gives you maximum privacy, international banking, asset protection, wealth building and tax-free investment in a financially solid and trustworthy country with Laws designed so that nobody can touch your assets or find out who owns them. Highlighted below are the various offshore structures and their special features. Belize’s Trust Law is one of the strongest and most flexible asset protection trust legislations in the world and highly favoured for estate planning, asset protection and investment purposes. The primary benefit of a trust is that it allows the legal ownership of property to be distinguished and separately vested from the enforceable rights of use and enjoyment of that property. This makes the Belize trust an extremely sophisticated, flexible and creative instrument for asset protection, investment planning, tax, estate and preservation of confidentiality. International foundations are another alternative choice to succession planning and wealth management. Other potential uses of foundations are for discrete structures, discretionary benefits, and charitable or non-charitable purposes. Belizean Foundations are exempt from business tax and offer a no tax haven for offshore investors. The International Limited Liability Companies Act is known to have a special appeal for international investors. The LLC is a hybrid between two familiar business structures, namely a corporation and a partnership. LLCs has distinct advantages over both a corporation and a partnership in that it not only avoids multiple level taxation, it also limits the liability of its members to the extent of the contributions made by them to the Company. No member of an LLC has personal liability for the debts of the LLC except where there are personal guarantees or other special arrangements. The LLC is also exempted from duties, taxes and exchange control. The international financial services sector of Belize is continuously subject to revisions and improvements to meet with international standards. As such, Belize has taken all necessary action to comply with the Organization for Economic Cooperation and Development’s (OECD) standards in this respect. Belize has now entered into Tax Information Exchange Agreement (TIEA) with 17 countries and is on the OECD’s White List: United Kingdom, Australia, France, Belgium, Ireland, Denmark, Sweden, Finland, Netherlands, Portugal, Greenland, Norway, Iceland and Faroes, Mexico, Poland and India. We have remained steady and secure with the advent of the global financial crisis of 2008, the Foreign Account Tax Compliance Act (FATCA) whose objective is the reporting of foreign financial account and offshore assets held by U.S. taxpayers of foreign entities in which U.S. taxpayers hold a substantial ownership interest and development of intergovernmental agreements. As we steer towards the year 2014, it is evident that despite global challenges and unforeseen ones yet to come, Belize continues to grow and develop as a thriving financial services business. Currently, there are 138,568 International Business Companies incorporated, 166 LLC’s, 2016 Trusts established and 168 Foundations created. We continue to offer confidentiality and professional excellence and at the same time ensure that we meet and exceed regulatory requirements. 今、ベリーズは安全なオフショア金融センターとして、オフショア銀行、オフショア口座、IBC（国際商業法人）の設立、財団法人の設立、LLC（Limited Liability Companies、有限責任会社）の設立、そしてオフショア信託の設定先として国際的に認知されています。 匿名性の確保に続き、国際銀行取引、資金保護、資金運用管理、非課税投資などが行なえる、財政的にも信頼がおけ且つ安定している国で、特に資金保護と匿名性の守秘に関してはもっとも最善を尽す法律を提供する国として知られています。
- LLC（Limited Liability Company、有限責任会社）の設立