Register of members
At the moment, a Company must maintain a private register of members (“Private ROM”), which includes the following information (the “Shareholder Information”):
- the date each shareholder held/ceased to hold shares in the Company;
- the number (and class) of shares held by each shareholder;
- each shareholder’s name and residential address, if they are a natural person;
- each shareholder’s name, registration number and registered office, if they are a corporate entity; and
- any voting rights attached to the shares, if this information is not contained in the M&A.
When the Bill is introduced, the Private ROM will also have to include the following information (together, with the Shareholder Information, the “New Shareholder Information”):
- if a shareholder is acting in its capacity as nominee (if so, the Private ROM also needs to include the name and address of each nominee shareholder and when they cease to be a shareholder); and
- if any person has nominated a nominee shareholder (if so, the Private ROM also needs to include the name and address of each nominator and date they cease to be a nominator).
Register of members - filing requirements
Currently, there is no requirement to file a Private ROM with the BVI Registry of Corporate Affairs (the “BVI Registry”), although a Company can voluntarily elect to do so. This usually occurs when shares are charged, resulting in an annotation being made on the Private ROM. Some chargees will insist on the Private ROM being filed at the BVI Registry, because this means will make it available for public inspection and therefore puts third parties on notice about the existence of the share charge.
When the Bill is enacted, Companies will have to file a copy of their register of members with the BVI Registry (“Registry ROMs”). The Registry ROM must: (a) contain the New Shareholder Information for each incumbent shareholder; and (b) be filed:
- within 6 months of the Bill being brought into force;
- within 14 days of any change being made it;
- when a foreign company continues into the British Virgin Islands (the “BVI”); and
- within 14 days of a Company’s incorporation - a newly incorporated Company cannot commence business until this filing has been made.
The BVI Registry will not issue a certificate of good standing to any Company that has not complied with these new filing requirements and a newly incorporated Company cannot commence business until its Registry ROM has been filed.
The new Registry ROM will not be available for public inspection. Access will be limited to: (a) the Company; (b) its registered agent; (c) anyone the Company has authorised (in writing); (d) a competent authority, exercising its powers as a regulator of a financial services business, tax administrator, or for the purpose of dealing with a matter for which it has authority under an enactment (a “Competent Authority”); and (d) law enforcement agencies.
Register of directors
Presently, a Company must maintain a private register of directors (“Private ROD”), which includes the following information (the “Director Information”):
- the date each director is appointed/ceases to be a director;
- each director’s name, residential address, correspondence address, date of birth, place of birth, and nationalities, if they are a natural person; and
- each director’s name and registration number, registered office, date of incorporation and place of incorporation if they are a corporate entity.
When the Bill is introduced, the Private ROD will have to include the following additional information (together, with the Director Information, the “New Director Information”):
- if a director is acting in its capacity as nominee (if so, the Private ROD also needs to include the name and address of each nominee director and when they cease to be a director); and
- if any person has nominated a nominee director (if so, the Private ROD also needs to include the name and address of each nominator and date they cease to be a nominator).
Register of directors - filing requirements
Companies are currently required to file a copy of their Private RODs with the BVI Registry (“Registry RODs”) within:
- 30 days of any change being made to it;
- 21 days of a foreign company being continued into the BVI; and
- 21 days of a Company’s first director(s) being appointed, who must be appointed within 6 months of a Company being incorporated.
When the Bill is enacted, it will change when the Registry RODs need to be filed, to:
- within 30 days of any change being made to it;
- as soon as a foreign company continues into the BVI; and
- within 14 days of a Company’s first director(s) being appointed, who must be appointed within 14 days a Company being incorporated.
The BVI Registry will not issue a certificate of good standing to any Company that has not complied with these new filing requirements and a newly incorporated Company cannot commence business until its Registry ROD has been filed.
At moment, the Registry ROD is not available for public inspection, but it is possible to conduct a search at the BVI Registry to obtain the names of a Company’s incumbent directors. When the bill is passed, access to the Registry ROD will be expanded to include: (a) the Company; (b) its registered agent; (c) anyone the Company has authorised (in writing); (d) a Competent Authority; and (d) law enforcement agencies.
Register of beneficial ownership
At the moment, information about the beneficial owners of a Company (the “Owners”) is entered on the beneficial ownership register maintained pursuant to the Beneficial Ownership Secure Search System Act (the “BOSS Register”). The BOSS Register includes the following information about each Owner (the “Owner Information”):
- their name, residential address, date of birth, place of birth and nationalities, if they are a natural person; and
- their name, registration number, registered office, date of incorporation and place of incorporation, if they are a corporate entity (e.g. if the Owner is a regulated entity).
When the Bill is enacted, Companies will have to: (a) collect, maintain, and update the Owner Information; and (b) prepare a new Register of Beneficial Ownership (“ROBO”), which can be verified by the BVI Registry. These new requirements will be in addition to the existing obligation to maintain the BOSS Register.
ROBO filing requirements
Currently, the BOSS Register is maintained by the registered agent on a secure database provided by the BVI International Tax Authority, which can only be disclosed to a Competent Authority. There is no requirement for the BOSS Register (or the Owner Information) to be filed with the BVI Registry.
When the Bill is passed, Companies will have to file their ROBO with the BVI Registry:
- within 6 months of the Bill being brought into force;
- within 14 days of a Company’s incorporation;
- when a foreign company continues into the BVI; and
- within 30 days of any change being made to it.
The BVI Registry will not issue a certificate of good standing to any Company that has not complied with these new filing requirements.
Access to the ROBO will be limited to: (a) the Company; (b) its registered agent; (c) anyone the Company has authorised (in writing); (d) a Competent Authority; and (e) law enforcement agencies.
Once the ROBO has been filed, the BVI Registry shall adopt such measures as are considered necessary and adequate to verify the Owner Information and ensure it is kept up to date, pursuant to the under the Anti-money Laundering Regulations and Anti-money Laundering and Terrorist Financing Code of Practice (Revised Edition 2020). When the BVI Registry discharges this verification duty, a Company is bound to provide: (a) information that is within its domain; (b) documents in its possession or under its control (or the control of its subsidiary); and (c) any other material which the Company has access to and authority to produce.
Discontinuations
From a BVI perspective, a Company can currently continue into a foreign jurisdiction if it is in good standing at the BVI Registry and it has: (a) passed the requisite corporate resolutions; (b) advertised the continuation in the BVI Gazette (and on its website, if any); (c) notified its shareholders and any creditors (in writing); (d) filed a continuation notice with the BVI Register; and (e) issued a declaration confirming that the relevant foreign laws permit the continuation, and the Company has complied with those laws (the “Discontinuation Requirements”). There will be additional requirements if a Company has created a security interest over any of its assets and filed a register of charges with the BVI Registry.
When the BVI Registry is satisfied that the Company has complied with the Discontinuation Requirements, it will issue a certificate of discontinuance, strike the Company off the BVI Register of Companies (the “Company Register”), and publish a strike-off notice in the BVI Gazette. The continuation will be effective from the date specified in the certificate of discontinuance.
When the Bill is passed, the BVI Registry will only issue a certificate of discontinuance if:
- the Company has satisfied the existing Discontinuance Requirements;
- the Company has included the New Shareholder Information in its Private ROM and filed its Registry ROM;
- the Company has included the New Director Information in its Private ROD and filed its Registry ROD;
- the Company has included the Owner Information in its ROBO and filed its ROBO with the BVI Registry;
- the Company has filed the address of its registered office in its country of incorporation with the BVI Registry;
- there is no unsatisfied request from a Competent Authority, for the Company to produce documents or provide any information; and
- there is no pending criminal or civil litigation proceeding against the Company, its shareholders, directors, officers or agents.
Continuations
From a BVI perspective, a foreign company can continue into the BVI if it: (a) passes the requisite corporate resolutions; (b) reserves a company name with the BVI Registry; and (c) appoints a registered agent in the BVI, who files the following documents with the BVI Registry: (i) an application form; (ii) a certified copy of its certificate of incorporation (or equivalent document); (iii) the corporate resolutions; (iv) a copy of the memorandum and articles of association that it will adopt when it is continued into the BVI; and (v) evidence it is not disqualified from continuing into the BVI (the “Continuation Requirements”).
When the BVI Registry is satisfied that the foreign company has complied with the Continuation Requirements, it will issue a certificate of continuance and issue a company number. The foreign company will become a Company registered in the BVI with effect from the date specified in the certificate of continuance.
When the Bill is enacted, the BVI Registry will only issue a certificate of continuance, if the foreign company has:
- satisfied the existing Continuation Requirements;
- included the New Shareholder Information in its Private ROM and filed its Registry ROM;
- included the New Director Information in its Private ROD and filed its Registry ROD;
- included the Owner Information in its ROBO and filed its ROBO with the BVI Registry; and
- filed the address of its registered office in its country of incorporation with the BVI Registry.
Foreign companies
At the moment, a foreign company can register on the BVI Register of Foreign Companies if it files the following documents with the BVI Registry: (a) evidence of its incorporation; (b) a certified copy of its constitutional documents; (c) a list of its directors; and (d) an endorsed notice specifying its BVI registered agent (the “Foreign Company Requirements”).
When the BVI Registry is satisfied that the foreign company has complied with these Foreign Company Requirements, it will issue a certificate of registration as a foreign company.
When the Bill is passed, the BVI Registry will only issue this certificate, if the foreign company has:
- satisfied the existing Foreign Company Requirements;
- included the New Shareholder Information in its Private ROM and filed its Registry ROM;
- included the New Director Information in its Private ROD and filed its Registry ROD;
- included the Owner Information in its ROBO and filed its ROBO with the BVI Registry; and
- filed the address of its registered office in its country of incorporation with the BVI Registry.
Dissolution
When the Act was last amended on 1 January 2023, it made significant changes to how a Company could be struck-off and dissolved (“Dissolved”). Click here for more information about these changes.
A Company can be Dissolved if: (a) it does not pay fees due to the BVI Registry; (b) it does not have a registered agent; (c) it fails to file any return, notice or document that it is required to be filed under BVI law e.g. economic substance declarations and annual returns; (d) the BVI Registry is satisfied that it has ceased to carry on business; (e) the BVI Registry is satisfied that it is carrying on business without a required licence; and/or (f) the BVI Financial Services Commission has revoked a licence that it issued to the Company.
When the new Bill is passed, a Company can also be Dissolved if it fails to file any information that it is required to be filed under BVI law and/or it fails to pay any penalty imposed on it when it becomes due.
Dissolution process
The most common way for a Company to be Dissolved is to stop paying its BVI Registry fees, whereby the BVI Registry will (unless the Company shows cause to the contrary):
- issue a notice to the Company (via its registered agent) confirming it will be Dissolved in 90 days;
- publish a notice in the BVI Gazette of its intention to dissolve the Company;
- strike the Company’s name from the Company Register; and
- publish a notice of the dissolution in the BVI Gazette (the “Final Notice”).
At the moment, the dissolution is effective from the date of the Final Notice published in the BVI Gazette. This has caused some practical issues for the BVI Registry’s portal (VIRRGIN) because the BVI Gazette is only published weekly, resulting in the actual dissolution date noted on VIRRGIN and the date noted in the BVI Gazette not being aligned. In light of this, the Bill introduces a new dissolution process, whereby the BVI Registry will (unless the Company shows cause to the contrary):
- issue a notice to the Company via its registered agent (the “First Notice”), confirming it will be Dissolved on a specific date (the “Dissolution Date”);
- publish a notice in the BVI Gazette, of its intention to dissolve the Company;
- dissolve the Company on the Dissolution Date; and
- publish a notice of the dissolution in the BVI Gazette.
Under the new dissolution process, a Company will be Dissolved on the Dissolution Date, which will be 90 days from the date of the First Notice.
Restoration
When the Act was last amended, it made significant changes to the restoration process. Please click here for more information about these restoration processes. In short, there are currently two restoration processes: (1) the administrative restoration process; and (2) the Court restoration process.
As part of the new restoration processes, the Company’s registered agent needs to submit a declaration, confirming that it has received all necessary company records and documents for the Company (the “Company Records”). At the moment, the Company Records include a copy of the Private ROM, Private ROD and updated customer due diligence information/documents. When the Bill is passed, the Company Records will need to include the Registry ROD, Registry ROM and ROBO, unless these have already been filed with the BVI Registry (together with the Company Records, the “New Company Records”).
The Bill will also allow a Company to be restored if the registered agent provides an undertaking that it will receive the New Company Records within 14 days of the restoration date. If the undertaking is not satisfied, the Company will be Dissolved again. This will prevent Companies relying on their agents to avoid penalties or allow agents to rectify their own shortcomings in relation to Dissolved Companies.
At the moment, it is possible for a person who would have been in a contractual relationship with the Company (but for the Dissolution) to make an application to restore a Company. The Bill clarifies this does not include a registered agent, a former registered agent or any person who is/was an agent of or in an agency relationship with a Company.
Penalties
The new Bill also increases some of the penalties for non-compliance and provides a new consolidated schedule setting out all penalties that can be imposed under the Act.