by Toffler



Starting a New Business in China (Pt 1): Legal Entity

November 9, 2007, by TofflerN, category Entrepreneurship, Entrepreneurship & Business, Uncategorized

For the non-lawyer among us, forming the legal entity for a new business can act as a small roadblock in the early stages. In China, formation can be a much larger roadblock, especially as a foreigner trying to navigate countless ministries, language barriers, develop the necessary guanxi, and just generally figure out how the system works.

Due to this, my idea was to have my business started in China in the name of a local partner who’d be responsible for all government, incorporation, and tax issues while leaving me with execution and operations side of the business. In fact, its much easier for Chinese to start a business (in China) than foreigners. Indeed, Chinese persons only need CNY1 to be able to start a business. Anyway, I thought this was the best plan, but then questions of selling, repatriation of profits, etc started to creep into my mind so I sought additional advice.

A fellow American entrepreneur in China suggested I incorporate a holding company in Hong Kong which would then open a wholly foreign owned subsidiary (WOFE) to operate in Mainland. This allows the HK parent company to be bought and sold without ever touching the subsidiary and therefore having to deal with title transfer in Mainland (apparently a nightmare).

I cross-checked this advice with another Australian entrepreneur in China who said this only works if you have operations in another country. According to her, the Chinese government doesn’t allow this method if you don’t have operations in another country, which I have no intention of having (initially, if ever).

Further research suggests I may not be eligible for a WOFE anyway as I intend to ‘sell to the Chinese market,’ well, more accurately provide a service to expats (and some Chinese) within China but I guess that’s still the same. According to that same site, my local partner could act just as I had in mind: “The local partner […] may be a silent partner who was acquired by the foreign firm simply to gain domestic market access.”

A different site suggests that information is outdated and therefore “With China’s entry into the WTO, these conditions were gradually abolished and the WFOE is increasingly being used for service providers such as a variety of consulting and management services, software development and trading as well. […] The advantages of establishing a WFOE include: Capable of converting RMB profits to US dollars for remittance to their parent company outside China.” By comparison to the Chinese who can start a business with CNY1, a WOFE requires registered capital of USD120,500.

Guess its time to consult a lawyer. In the meantime, I welcome anyone’s advice who has had experience with this.

So, what do you think ?