The BVI Business Companies (Amendment) Act, 2019 (the Amendment) came into force on 23 December 2019. This 60 second update summarises the changes, which are intended to clarify the requirements around filing a company’s register of directors in special circumstances.
Reminder: the requirement to file a ROD for registration
The BVI Business Companies Act, 2004 (the BVI Act) requires all companies to file their register of directors within 21 days of appointing its first, or any new, directors.
Wait… I thought the register of directors wasn’t a matter of public record?
It is not. The requirement, introduced via 2015 and 2016 amendments to the BVI Act, is for a company to file its ROD with the BVI Registrar. The BVI Registrar may only disclose its contents to third parties (ie persons other than the company, its registered agent, or a person specifically authorised by the company) on an order of the court or a written request by a relevant competent authority exercising its power as a regulator or for the purposes of dealing with a mutual legal assistance request.
Companies continued in
The Amendment extends the filing obligation to companies that continue in to the British Virgin Islands (BVI) by way of redomiciliation. Similarly to newly incorporated BVI companies, companies continued in have 21 days to comply with the filing obligation; the 21 day period runs from the date of continuation in.
Newly revived companies
The Amendment also seeks to address the registers of directors of companies that are being restored to the Register after a period of being struck off (without having been legally dissolved). The Registrar’s discretion to restore the relevant company can now only be exercised where a copy of the register of directors has been filed. This would appear to require a new filing regardless of whether any changes had occurred to the constituency of the board during the period between striking off and restoration (which period, in certain circumstances, could just be a matter of a few days).
Good standing issues
Since the register of directors filing requirement was introduced, compliance has been linked to good standing of a BVI company and the Registrar will only issue a certificate of good standing under the BVI Act if a company’s register of directors has been filed and is complete. Previously, in order to be in good standing a company need only be on the Register of Companies and keep up to date with its fees and penalties. Adding an additional limb to the good standing test was conceptually uncontroversial given the filing requirement, but the newly reformulated test did not take account of the period in between appointment of a director and the 21 day filing deadline. The Amendment introduces a clarification that the Registrar may, despite the filing requirement, issue a certificate of good standing:
- during the first six months and 21 days of a company’s existence, where it has not yet appointed directors (as permitted by the BVI Act)
- within 21 days of a company’s continuation in to the British Virgin Islands
For more information, contact the author or your usual Harneys contact.