Update on BVI Business Companies (Amendment) Act and BVI Business Companies and Limited Partnerships (Beneficial Ownership) Regulations

The Amendments incorporate a number of significant changes to the BVI Business Companies Act (as revised)(BCA), including introducing requirements on BVI companies and limited partnerships to privately file beneficial ownership information with the BVI Registrar of Corporate Affairs (Registrar). Certain of these Amendments are to be amplified in BVI Business Companies Regulations to be brought into effect at a later date.

Notable amendments include:

• filing BVI companies registers of members with the Registrar and timing within which such filings must be made;
• new filing requirements for registers of members, relating to disclosure of nominee shareholders;
• new filing requirements for registers of directors relating to disclosure of licensed professional directors;
• introduction of the requirement to privately file beneficial ownership information with the Registrar;
• new requirements relating to the discontinuation of companies out of the BVI;
• changes to the restoration of struck off and dissolved BVI companies;
• new express duty for BVI companies to co-operate with regulators; and
• new additional enforcement and information gathering powers granted to the Registrar, as well as changes to the penalties regime levied under the BCA.

Register of Members (RoM)

The requirements for BVI companies to keep and maintain a register of members (RoM) have been amended and amplified. Subject to certain exceptions for listed companies and BVI funds (see Beneficial Ownership Information below), each company must file a copy of its RoM with the Registrar within 30 days of incorporation or continuation into the BVI or from any changes being made.

The RoM must now disclose any nominee shareholders and include the required particulars of those nominees. Nominee shareholders are those who hold shares in the company and exercise voting rights according to the instructions of the nominator, without any discretion applying or who receive dividends on behalf of the nominator.

Previously BVI companies could elect to file the relevant RoM with the Registrar and have that register publicly filed and publicly accessible. Following the Amendments, the RoM must now be filed for registration with the Registrar. The requirement to file the RoM  relates only to identify shareholders as of the date of filing and any changes thereafter to the register.

The RoM will not be publicly available and will only be available to (i) the company or its registered agent; (ii) competent authorities acting under lawful exercise of their powers or for the purposes of dealing with a matter which it has authority to do so under an enactment, including mutual legal assistance requests; and (iii) a law enforcement agency acting within its lawful functions.

The ability to include notations on the RoM (for instance to record security interests granted over shares held in the relevant BVI company) remains available.

Register of Directors (RoD)

The period within which a company’s registered agent is to appoint the initial directors has been reduced to 15 days (from 6 months).

Where a person (corporate entity or individual) licensed by the Financial Services Commission (FSC) to provide professional director services to BVI companies acts as a director of the company, that capacity and on whose behalf that licensed director is appointed, is to be recorded in the RoD and then filed with the Registrar.

The initial copy of the register of directors (RoD) is to be filed with the Registrar within 15 days of appointment of the directors or of date of continuation into the BVI (if applicable).

BVI companies full RoD will not generally be available to the public. The Registrar will make available copies of the full RoD that it holds, upon request, to the company, its registered agent, competent authorities (includes the BVI Financial Services Commission (FSC), the BVI International Tax Authority, Attorney General and Financial Investigation Agency) and law enforcement agencies.

The current RoD (reflecting directors as of the date of issuance of the RoD but not reflecting any historical director appointments) remains available from the Registrar, upon request and subject to payment of a fee.

Mirroring similar existing statutory provisions relating to the RoM, the BCA Amendments include a provision enabling a member, director or other person who is aggrieved by an omission, inaccuracy, or delay in updating the RoD to apply to the BVI courts for rectification of the register.

Beneficial Ownership Information (BOI)

The Amendments relating to beneficial ownership filings incorporate a definition of ‘beneficial owner’. The threshold that applies in order to be regarded as a beneficial owner for BVI companies and limited partnerships is 10% or more of the shares, partnership interest or of the voting rights.

In a departure from the previous BOI recording process under the Beneficial Ownership Secure Search System, the Amendments now require that BOI be filed with the Registrar. A 30 days filing date requirement is introduced for both initial BOI filings and for changes.

Exceptions apply to BVI company shares listed on a recognized exchange and to BVI registered or recognized funds (private, professional, public, incubator, approved or private investment funds), provided those funds BOI is held by a person who holds the requisite license from the FSC and the BOI can be provided to the Registrar within 24 hours of a request being made.

The BOI register maintained by the Registrar will not be publicly available and will only be available to (i) competent authorities acting under lawful exercise of their powers or for the purposes of dealing with a matter which it has authority to do so under an enactment, including mutual legal assistance requests; and (ii) a law enforcement agency acting within its lawful functions.

Discontinuation of a BVI Company

The Amendments introduce additional declaration requirements to BVI companies seeking to continue out of the BVI as a company incorporated under a foreign law. The additional declarations to be made in the notice of intention to be filed with the Registrar include that the company:

• does not have any pending requests from competent authorities to produce documents or provide information which has not been satisfied;
• is not aware of any legal proceedings pending against the company, or any member, director, officer or agent of the company as it directly pertains to the affairs of the company; and
• has not had a receiver appointed over the company or in relation to any of the assets of the company.

Restoration of struck off or dissolved BVI companies

Amendments have been introduced to assist creditors and other third parties to apply to restore struck off or dissolved companies.

Duty to co-operate

An express duty has been introduced on companies to co-operate with the Registrar, competent authorities and BVI law enforcement agencies. An exemption applies where there is a claim of legal professional privilege.

Enforcement, information gathering powers and penalties

Penalties for late payment of fees or late filings will be increased under new regulations to be introduced.

In addition, the Amendments grant the FSC the power to require companies to prepare and submit returns on matters relating to its business or affairs, should the FSC so direct.

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