Key changes to BVI Company Legislation
The British Virgin Islands (“BVI”) Government has introduced important amendments to the BVI Business Companies Act, 2004 (As Revised) that are contained in the BVI Business Companies (Amendment) Act, 2024 (the “Amendment Act”). These changes came into force on 2 January 2025 and are designed to ensure that the BVI’s financial services sector continues to meet international standards and best practices.
Register of Members
Unless exempt, every BVI company is now required to file a copy of its register of members with the BVI Registrar of Corporate Affairs (“Registrar”). Although such copy of the register of members that is filed with the Registrar will be inspectable by competent authorities and law enforcement agencies in certain circumstances, as well as the relevant company and its registered agent, it will not be generally accessible by the public unless a company opts to make it public. An exemption to file a BVI company’s register of members with the Registrar exists for listed companies and certain types of investment funds.
A BVI company that has any nominee shareholder(s) will also need to file certain prescribed information with the Registrar. This includes the name and address of the nominator, the date the nominee ceased to be a member, and the date on which a person ceased to be a nominator.
Beneficial ownership information
The Amendment Act modifies the definition of “beneficial owner” and confirms the long-standing position that beneficial ownership must take into account both ownership and control. Beneficial ownership information will now need to be filed with the Registrar, rather than on the BOSS Portal. This filing with the Registrar will not be publicly accessible and beneficial ownership information will need to be filed within 30 days of the incorporation of a BVI company.
Companies falling under certain categories – such as listed companies and specified BVI funds – will be exempt from filing beneficial ownership information provided that certain prescribed conditions are met. If any changes occur in a company’s beneficial ownership, those changes will need to be reported to the Registrar within 30 days.
Future regulations may allow beneficial ownership information to be accessible by individuals or entities that demonstrate a legitimate interest. However, this would likely only apply to ownership stakes of 25% or more.
Directors and Register of Directors
Pursuant to the Amendment Act, the timeline for appointing a BVI company’s first director(s) has been shortened from six months to 15 days. Additionally, a copy of the register of directors must be filed with the Registrar within 15 days of appointment of the first director(s). While the filed copy of the register of directors will be available for inspection by the relevant company, competent authorities, law enforcement agencies, and the company’s registered agent, it will not be made generally accessible to the public. However, the Registrar will continue to provide a list of directors to any third party upon request for payment of the prescribed fee.
Where a person who is licensed by the BVI Financial Services Commission to provide director services acts as a director of a BVI company, the relevant company will be required to indicate the capacity in which such licensed director service provider is acting 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.
A director, member or any person who is aggrieved by an error or omission in a company’s register of directors will be able to apply to the High Court for rectification.
Continuation under foreign law
A BVI company that proposes to continue under the laws of another jurisdiction now faces additional requirements when filing its notice of intention to continue with the Registrar. Among other things, the company will need to declare that: (a) it has no pending request from a competent authority to produce documents or provide information, (b) a receiver has not been appointed over the company or its assets, and (c) there are no legal proceedings pending against it or any member, director, officer or agent of the company.
Certificate of Good Standing
To obtain a certificate of good standing, a BVI company must now meet additional requirements where applicable. These include filing up-to-date copies of its register of members and register of directors, as well as beneficial ownership information. Furthermore, the Registrar must not be in receipt of any notification that the company has failed to file an annual return.
A certificate of good standing will generally be valid for a period of three months from the date stated on the certificate. Where the company to which the request relates has not yet filed its register of members, register of directors, or beneficial ownership information, on the basis that the register of members, register of directors, or beneficial ownership information is not yet due to be filed, the certificate of good standing issued by the Registrar will be valid for the period within which the register of members, register of directors, or beneficial ownership information is required to be filed
This article first appeared in the January 2025 issue of the Hong Kong Lawyer, the official journal of The Law Society of Hong Kong.
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last updated on 7 January 2025.