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A Bill to amend the BVI Business Companies 2004 ("the BC
Act") has been introduced in the BVI's House of Assembly.
The Bill, and the BVI Business Companies Regulations 2012
("Regulations"), have also been published in the official
BVI Gazette. The resulting BVI Business Companies (Amendment) Act
2012 ("Amendment Act"), along with the Regulations, are
expected to come into force towards the end of this year.
The Amendment Act and Regulations are the result of the first
comprehensive review of the BC Act since it came into operation
seven years ago. While most of the reforms are relatively minor and
uncontroversial, the reforms as a package have been designed with
the input of the private sector to ensure that the BVI maintains
its position as the leading domicile for international business
companies. There are currently close to 500,000 active BVI business
companies.
While Appleby will publish a comprehensive guide to the reforms
once implemented, at this time we wish to brief ly note the key
changes which are expected to be made through the Amendment Act and
Regulations.
Some of the expected key changes are:
Foreign Character Names: The Regulations set
out in detail provision for the registration of an additional
foreign character name for a BVI company, and will require a
notarised statement by a "person with the necessary
competence" confirming the translation and meaning of the
foreign character name when applying for registration.
Reuse of Company Names: The Regulations
provide that a company name will be available for re-use, inter
alia, once that BVI company has been dissolved, or continues out of
the BVI to another jurisdiction (at any time after the expiry of a
period of seven years from the date of the certificate of
discontinuance).
Company Names Generally: The Amendment Act
will make it clear that the Registrar, when considering whether to
allow a company name, is not to be concerned with the legal rights
any person has to the name or to the use of the names—
whether this arises out of trade or service mark legislation in the
BVI or elsewhere, or under common law.
Bulk Change of Registered Office and Registered
Agent: The Amendment Act will address a problem that has
arisen when a BVI company's registered agent changes the
address of its office in the BVI. The Amendment Act will permit the
bulk changing of registered office and the address of the
registered agent through a filing by the registered agent, without
the need for a resolution or separate notices to be filed by each
company. Further, once the registered agent files notice with the
Registry of a change of its principal office, a company's
Memorandum of Association will be deemed to be amended to state the
changed address of the registered agent's principal office. The
Amendment Act also provides for a deemed amendment to a
company's Memorandum of Association where its registered agent
changes its own company name.
Alternate Directors: The Amendment Act will provide alternate
directors with the power to sign written resolutions, and confirm
that alternates have the responsibilities of a director under law
when acting as alternate directors.
Registration of Charges: The Amendment Act will provide that an
application to register a charge against a BVI company's assets
by a chargee (or a person authorised to act on the chargee's
behalf ) may only be filed by a person qualified to act as a
registered agent in the BVI or by a legal practitioner in the BVI,
who is acting on behalf of the chargee or authorised person.
Further, chargees outside the BVI who apply to register a charge in
the BVI will be required to designate a person located in the BVI
to receive copies of notices from the Registrar.
Voluntary Liquidation: Under the Amendment Act, the liquidation
of a solvent BVI company will commence on the registration with the
Registry of a notice of appointment by the voluntary liquidator,
rather than at the time of resolution to appoint the voluntary
liquidator. Further, the Regulations provide that BVI companies
which are regulated entities (e.g. banks; trust companies; certain
insurance companies that are BVI business companies; money services
companies and insurance intermediaries and managers, but not funds)
will be required to appoint a licensed insolvency practitioner as
voluntary liquidator.
Dissolution: Under the Amendment Act, an application to restore
a BVI company (by paying the outstanding license fees, etc.) will
need to be made within seven years of the company being struck off,
rather than the current ten years, before the company will be
dissolved.
Listed Company and Funds Regulations: The Amendment Act will
also enable regulations to be made to exclude or modify the
provisions of the BC Act in relation to listed BVI companies and
BVI companies operating as funds.
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.
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