The United Kingdom is one of the favored locations for U.S. businesses to set up their first base in Europe. As a result of its history, the UK has maintained strong trade links with most countries in the world; it is geographically located in Europe but also serves as a midpoint between the U.S. and Asian time zones. The World Bank report "Doing Business 2016" ranks the UK the 2nd easiest place to set up and run a business in the European Union (after Denmark), and the 7th easiest jurisdiction globally. This is largely due to its highly developed but modern system of laws, stable political climate and practical approach to business regulation.
There are a variety of ways of structuring an operation in the UK. The aim of this guide is to highlight some of the key areas that a U.S. corporation will need to address before it begins to operate a new business in the UK. This guide should not be considered to be an all-inclusive guide, and specific UK legal advice should always be sought before setting up and running a business in the UK.
It should be noted that the United Kingdom is composed of separate jurisdictions: England and Wales, Scotland and Northern Ireland. In most areas, the same or very similar laws will apply in each of these jurisdictions. However, there are differences between the jurisdictions, particularly in relation to local government regulation, the transfer of property and their judicial structures. Additional local advice will be needed if the intention is to operate in Scotland or Northern Ireland. This guide focuses on the jurisdictions of England and Wales.
The Business Environment
Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, able to create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. The role of the UK courts is to interpret the laws made by Parliament through their application to the specific cases brought before them. When researching a piece of legislation it is therefore necessary to look at the underlying law as well as the decisions made by the courts in cases relevant to that law.
Much UK law also now derives from the European Union (EU). There are a number of examples of significant pieces of UK legislation being replaced by new EU laws having "direct effect." If the relevant provision of EU law does not have "direct effect" the national court will have a discretion to interpret existing national legislation to comply with the EU provision. If the national court cannot interpret the national law to satisfy the requirements of an EU law that does not have "direct effect" then the national law will prevail. The recent Brexit vote is unlikely to affect the relationship between English and EU law in the immediate future. Once the exit negotiations have been conducted and the UK has formally left the EU then at that point it is possible that UK and EU laws will begin to diverge over time, but it is also likely that they will always remain close in most key areas.
The Department for Business, Energy and Industrial Strategy (BEIS) is a governmental organization set up to help ensure the UK's business success. Its role is to boost productivity and keep the UK competitive and an attractive place to do business, especially in challenging economic times, as well as to help companies succeed overseas and to bring foreign investment to the UK. The UK has very limited legislation governing investments into the country from other jurisdictions, and generally no consents or approvals are required for the flow of funds into or out of the jurisdiction.
BEIS works with consumers, employees, investors, small and medium-sized enterprises, large corporates and representative bodies. It is also the "voice for business in Government" representing the arguments for business success in both the UK Government and the European Parliament. One of its aims is to achieve business and trade regulation which is simple and proportionate to the outcome it is trying to achieve. A predecessor department of BEIS was heavily involved in revising the UK's company law framework, resulting in the enactment of the Companies Act 2006. The Companies Act 2006 minimized the regulatory complexity surrounding the operation of companies, in particular private companies. It also seeks to enhance shareholder engagement and a long-term investment culture.
The UK has achieved global recognition as one of the most developed legal systems available for the litigation of disputes between commercial parties. A key principle of the English judicial system is that judges exercise impartial judgment based on the evidence available to them, free from any political interference. This gives parties the confidence that they will receive a fair hearing and as a result, multinational parties often choose the UK as the appropriate forum to determine a dispute.
Forming a Company
A U.S. business that wishes to commence operations in the UK will often want to form a subsidiary company as a vehicle for conducting its affairs. Most subsidiaries are formed as private companies and can be converted into public companies at a later date if the need arises. It is also possible to establish a limited liability partnership as an entity distinct from its members. An English company is required to have an address in England or Wales, known as the registered office, at which valid service of documents on the company may be made.
Private companies cannot offer their shares for sale to members of the public. Public companies may offer their shares to the public and may apply to be admitted to the Official List of the UK Listing Authority and admitted to trading on the Main Market of the London Stock Exchange or AIM . However, public companies are subject to greater rules and regulation as a result, and unless a public share offer is anticipated, it is advisable for most companies to be incorporated as private companies.
A subsidiary will be a distinct legal entity able to own assets and employ workers in its own right. It will also be subject to UK taxation. The rules relating to the operation and regulation of companies are set out in the Companies Act 2006. The key features of English companies include:
Limited Liability: The liability of the shareholders is limited to the amount due to be paid to the company for their shares.
Constitution: The articles of association set out the rules by which the company is operated, including the appointment and removal of directors and the procedures for holding board and shareholder meetings.
Issuing Shares: Commonly the directors have authority to issue new shares in the company to any party, subject to any limitations on their authority in the articles and any pre-emption rights that may apply in favor of the existing shareholders.
Statutory Filings: A company is required to make certain filings with the Registrar of Companies. Accounts, details of directors and shareholders, the registered address, charges granted over the company's assets and certain key beneficial owners are all a matter of public record.
Directors: At present, a company must have at least one director who is a natural person, although a ban on the use of corporate directors (companies acting as directors) is due to come into force in 2017. Once this ban takes effect, subject to very limited exceptions, all directors must be natural persons. Directors are not required to be resident in the UK.
To form a company it is necessary to file a statutory form with the Registrar of Companies. The form must have attached to it certain required information (such as details of the company's articles of association and its founding shareholders and directors) and a relatively small filing fee must be paid.
Through VP Secretarial Limited, which provides bespoke company secretarial and compliance services, Vedder Price can incorporate UK companies, act as registered office and company secretary, provide an address for the services of process in the UK and maintain client UK companies in good standing. Please contact us for further details.
Under the Small Business, Enterprise and Employment Act 2015, as from April 2016 all UK companies and limited liability partnerships (LLPs) have been required to maintain a register of their 'persons with significant control' (PSCs – essentially key beneficial owners). The information in this register must be notified to Companies House. It is not possible to incorporate new UK companies or LLPs without first providing the PSC information to the Registrar of Companies. The PSC register needs to record:
- information on individuals who ultimately own or control more than 25 percent of a UK company's shares or voting rights, or who otherwise exercise control over the company or its management;
- similar information on UK companies or LLPs which ultimately own or control more than 25 percent of a UK company's shares or voting rights, or who otherwise exercise control over the company or its management (know as 'relevant legal entities' or RLEs); and
- where a qualifying beneficial interest is held through a trust arrangement, information on the trustees or any other natural persons exercising control over the activities of the trust.
The rules "look through" nominee arrangements as they focus on the beneficial ownership, and not the registered ownership, of the shares. Where there is a chain of UK companies in a group structure, each UK company is only required to disclose the next UK company above it in the chain in its PSC register.
UK companies that are subject to Rule 5 of the Disclosure and Transparency Rules (e.g., companies listed on the Main Market of the London Stock Exchange or AIM), and companies listed on certain other specified regulated global markets, are exempt from the requirement to keep a PSC register as they are considered to already be subject to equivalent disclosure requirements. A subsidiary of such an exempt company will only be required to identify the relevant exempt company as the subsidiary's beneficial owner – it will not be necessary to provide details on the owners of the exempt company. The obligation to disclose the information is placed both on the company and on the PSCs:
- A UK company is required to take reasonable steps to discover the relevant information for inclusion in a PSC register and to give notice demanding information to any person who may reasonably be a PSC. The UK company's directors may be liable to fines and imprisonment for failing to discharge this duty.
- A PSC is required to comply with any notice for information served on it by the UK company. If a PSC fails to do so then the UK company may follow a procedure to suspend the rights attaching to the shares controlled by the suspected PSC and to prevent their transfer. While this procedure is optional, the UK company directors may feel obliged to follow this procedure or face their own sanctions noted above.
The information required to be made available includes the PSC's full name, date of birth, nationality, country or state of usual residence, residential address, service address, date on which they acquired the beneficial interest in the company and details of that beneficial interest and how it is held. All of this information will be publicly available except for the PSC's residential address. In exceptional circumstances it will be possible to make an application to the Registrar of Companies to protect certain beneficial owner information.
In addition, UK incorporated companies are no longer allowed to issue new bearer shares (i.e., shares owned by the holder of the share certificate and for which no register of shareholders is maintained). The rights attaching to any remaining bearer shares that have not already been converted into registered shares are now automatically suspended, and these shares are now incapable of transfer.
These measures are part of a package of reforms aimed at increasing the transparency of the ownership and control of companies and combatting tax evasion and money laundering. They are intended to implement recommendations made by the Financial Action Task Force that were discussed and agreed to by the G8 members at the UK's request. The EU is, via the Fourth Money Laundering Directive, in the process of following the UK's lead and implementing similar rules in all EU member states.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.