The BVI Business Companies (Amendment) Act, 2024 (the Amendment Act), published in the BVI Gazette in September 2024, came into force on January 2, 2025.
The amendments seek to ensure that the British Virgin Islands (BVI) keeps up to date with international best practices and international standards while ensuring that it remains a business-friendly jurisdiction with a robust, modern corporate and regulatory framework committed to combatting financial crime.
The amendments affect various aspects of the BVI corporate law regime and include a requirement for a company’s register of members to be filed privately with the Registrar of Corporate Affairs (the Registrar); new registration requirements for companies which have “nominee” shareholders and use licensed professional directors; new rules with respect to continuations out of the jurisdiction which seek to limit companies from using the continuation process to avoid any regulatory action or pending litigation; a new express duty for companies to co-operate with regulators; and new additional enforcement and information gathering powers granted to the Registrar. The Amendment Act also now requires the private (non-public) filing of beneficial ownership information with the Registrar. These and other amendments are discussed further below.
Register of Members
Every company is required to keep a register of members and, save for certain exceptions, file a copy with the Registrar. Although the copy maintained by the Registrar will be available to domestic competent authorities and law enforcement agencies in the lawful discharge of their responsibilities (in addition to the company and its registered agent), it will not generally be available to the public.
A company may still opt for its register of members, including any notations thereon concerning financing transactions (particularly as it relates to share charges), to be publicly accessible.
Every company must file a copy of its initial register of members (including the required nominee shareholder information, if applicable) with the Registrar within 30 days of incorporation (or continuation into the BVI, as the case may be). Any subsequent changes to the register of members must also be filed with the Registrar within 30 days of the changes occurring. However, this filing requirement will not apply to listed companies, BVI private, professional, public, private investment funds, and BVI incubator or approved funds.
The Amendment Act contains additional filing requirements relating to nominee shareholders. For the purposes of the Amendment Act, a nominee shareholder is a shareholder who “exercises the associated voting rights according to the instructions of a nominator without any discretion or receives dividends on behalf of a nominator.”
In respect of a nominee shareholder, the company must file with the Registrar (in addition to other information in the company’s register of members):
(a) the name and address of the nominator,
(b) the date on which the nominee shareholder ceased to be a member, and
(c) the date on which a person ceased to be a nominator.
Directors and Register of Directors
The period within which a company’s registered agent is required to appoint the company’s first director(s) has been reduced from 6 months to 15 days. The initial copy of the register of directors must also be filed with the Registrar within 15 days of the appointment of the first director(s) or continuation into the BVI, as the case may be.
The Registrar will only make such copy of the register of directors available to the company, its registered agent, domestic competent authorities, and law enforcement agencies in the lawful discharge of their responsibilities. As is the case currently, the Registrar may make available a list of directors contained in a filed copy of the company’s register of directors upon request and payment of a fee. A company’s full register of directors will not be generally available to the public.
Additionally, where a person who is licensed by the BVI Financial Services Commission (FSC) to provide director services to companies (licensed director service provider) acts as a director of a company, the company will be required to indicate the capacity in which such licensed director service provider is acting (whether in corporate capacity or individual capacity representing the licensed director service provider) and file this information with the Registrar at the time of filing a copy of the company’s register of directors. The company will also need to record and file with the Registrar the name of the relevant licensed director service provider and, where applicable, the name and address of the individual on whose behalf the licensed director service provider acts.
Rectification of Register of Directors
Persons who may be aggrieved by an omission or inaccuracy (or unreasonable delay to the updating of information) in a company’s register of directors will have a statutory power to apply for court rectification of the register of directors. This aligns with similar rights already available concerning a company’s register of members.
Beneficial Ownership Information
Every company must collect, keep, and maintain adequate and up-to-date beneficial ownership information, which, save for certain exceptions, must be filed with the Registrar within 30 days of incorporation (or continuation into the BVI, as the case may be).
A beneficial owner is defined as follows:
- in the case of a legal person (other than a listed company), a natural person who
- ultimately owns or controls, directly or indirectly, 10% or more of the shares or voting rights in the legal person;
- holds, directly or indirectly, the right to appoint or remove a majority of the board of directors of the legal person; or
- otherwise exercises control over the management of the legal person;
- in the case of a limited partnership, a natural person who
- is ultimately entitled to or controls, directly or indirectly, 10% or more share of the capital or profits of the partnership or 10% or more voting rights in the partnership; or
- otherwise exercises control over the management of the partnership;
- in the case of a trust:
- the trustee;
- the settlor or other person by whom the trust is made;
- the protector (if any);
- the beneficiaries or class of beneficiaries with a vested interest in the trust at the time of or before distribution of any trust property or income; and
- any other natural person exercising ultimate effective control over the trust (including through a chain of control or ownership).
It should be noted, however, that the filing requirement for beneficial ownership information does not apply to listed companies, BVI private, professional, public or private investment funds, or BVI incubator or approved funds. However, BVI funds can only benefit from this exemption if the fund’s beneficial ownership information is held by a person who has a Category 6 investment business licence under the Securities and Investment Business Act, Revised 2020, or its authorised representative or other person licensed by the BVI Financial Services Commission (BVI FSC) that has a physical presence in the BVI, and the beneficial ownership information can be provided by such person to the Registrar within 24 hours of the request.
Where the beneficial ownership information of a company is held by a person as detailed above, the company must file the name and address of that person with the Registrar within 30 days of incorporation (or continuation into the BVI, as the case may be).
Before filing beneficial ownership information, the company’s registered agent must take reasonable measures to verify the information, including the identity of the beneficial owners and to ensure that the particulars provided are adequate, accurate and up to date. The Registrar (or the BVI FSC) may adopt measures to further verify the beneficial ownership information filed by a company and ensure that such information is kept up to date.
Any changes to the beneficial ownership information must be filed with the Registrar within 30 days of the company becoming aware of the relevant changes.
Regulations may be made to permit beneficial ownership information to be publicly accessible by persons who can demonstrate a legitimate interest (to be defined in the relevant Regulations) in acquiring the information. However, access to such beneficial ownership information in such cases will be restricted to beneficial ownership of 25% or more of the shares or voting rights in a legal person. It is expected that the legitimate interest definition will be very limited in scope. Currently, beneficial ownership information is transferred from the BOSS system to the Registry’s VIRRGIN system.
Continuation of a BVI Company Under Foreign Law
In addition to current requirements, a BVI company which intends to continue as a company incorporated under foreign law will need to include the following additional declarations in the notice of intention to be filed with the Registrar:
- the company does not have any pending request from a competent authority to produce documents or provide information which has not been satisfied;
- a receiver has not been appointed over the company or in relation to any assets of the company; and
- the company 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.
Accordingly, clients currently contemplating a continuation to another jurisdiction should factor in the possibility of some changes to the documentation required and the overall timetable for the process.
Registration of Foreign Companies
An application to register a foreign company in the BVI will need to contain additional information, such as the registered office address in its country of incorporation and a list of members as at the date of application. The Registrar will only make the list of members of a foreign company available to such foreign company, its registered agent, a competent authority or a law enforcement agency.
A registered foreign company will also be generally required to file a notice within 30 days after any change relating to its registered agent, constitution, directors, members or registered office.
The period of written notice which a foreign company’s registered agent needs to give before resigning from that role has been increased from 30 days to 60 days. New provisions for a registered agent of a foreign company wishing to rescind a notice of intention to resign have also been included.
Restoration of Struck Companies
The requirements for restoration of struck off and dissolved companies have been streamlined to make it easier for creditors and other persons to apply to restore such companies to the register of companies.
There is now an alternative option for a proposed registered agent to give an undertaking that the company’s records will be updated as required or procured and maintained within 14 days of the company’s restoration, rather than the current practice of a prior declaration. Notably, a failure to keep such undertaking will result in the company’s name being struck off the register of companies.
The company to be restored must also file a copy of its register of members and a copy of its register of directors with the Registrar within 14 days of the company’s restoration (unless the company had filed its register of members and register of directors at the date when it was struck off and dissolved).
Also, where a company is struck off the register of companies, it will be dissolved on the same date (as specified in the notice sent to the company by the Registrar of its intention to strike off the company), rather than the date the Registrar publishes a notice of the striking off in the Gazette which has caused some uncertainty in practice.
The period for filing the sealed Court order to restore a company with the Registrar has been extended to 60 days from 30 days. Failure to meet this filing timeline will result in a penalty instead of invalidating the order.
Certificate of Good Standing
In addition to current requirements, before issuing a certificate of good standing, the Registrar will need to be satisfied that: the company has filed a copy of its register of members and a copy of its register of directors, has filed the requisite beneficial ownership information, and the Registrar has not received any notification that the company has failed to file its annual return, in each case, save where the company is exempt from the relevant requirement.
Further, the validity of a certificate of good standing issued by the Registrar will be restricted to a specified period (which is to be provided for in Regulations when published).
Duty to Cooperate
The Amendment Act introduces an express duty on companies to cooperate with the Registrar, an inspection, competent authorities, and BVI law enforcement agencies. However, there will be an exemption from the duty to cooperate where there is a claim of legal professional privilege.
Returns
Provisions have also been included to give the BVI FSC the power to require companies to prepare and submit “returns” on matters relating to their business or affairs. However, the changes introduced do not currently impose additional returns on companies.
Penalties
The penalties for late payment of fees or late filings will be increased and the framework for penalties will be streamlined generally in Regulations (when published).
Transitional Provisions
Existing companies
Existing companies will be required to comply with the requirement to file their register of members, nominee shareholder information (if applicable), beneficial ownership information and, if applicable, information on any appointed licensed director service provider within 6 months of the Amendment Act coming into force. However, an existing company which has already opted to file its register of members prior to January 2025 will not be required to file a copy of another register of members, unless the register of members already filed does not contain all of the required information.
Failure to comply will result in a penalty of US$600 for the first 3 months and US$800 for the following 3 months, after which point the company will be struck from the Register. Any subsequent application for restoration by a director, former member of former liquidator of the company will be liable to a penalty of US$2,500 (in addition to any other restoration fees or outstanding penalties that may be payable).
Existing struck off and dissolved companies
An existing struck off and dissolved company seeking to be restored to the Register will not be restored until it has filed its register of members, nominee shareholder information (if applicable), register of directors (including information on any appointed licensed director service provider), and beneficial ownership information, or has undertaken to do so within 14 days after the company’s restoration. Failure to file within the 14-day time period will result in the company being struck off again from the Register and deemed never to have been restored to the Register. The company is liable to a penalty of US $5,000 upon any reapplication by the same person for restoration.
Please feel free to contact Christopher Simpson (csimpson@onealwebster.com), Kerry Anderson (kanderson@onealwebster.com), or your usual O’Neal Webster attorney should you have any questions regarding the matters highlighted above.
