BVI Business Companies (Amendment) Act 2022 - Striking Off, Dissolution And Restoration Of Companies

• Published date: 28 November 2022
• Subject Matter: Corporate/Commercial Law, Corporate and Company Law
• Law Firm: Walkers
• Author: Miss Rosalind Nicholson, Luke Petith, Colette Wilkins, Andrew Chissick and Adam Hinks

BVI Business Companies (Amendment) Act revisions effective 1 January 2023

In our advisory Summary of Key Changes issued in September 2022, we discussed some of the key changes to the BVI Business Companies Act, 2004 (the "BCA") which will be introduced by the BVI Business Companies (Amendment) Act, 2022 (the "BCA Amendment Act") when it comes into force on 1 January 2023.

In this article, we focus on the changes to be made to the current regime applicable to the striking off, dissolution and restoration of BVI incorporated companies.

The current position

At present, the BCA provides for a BVI incorporated company to be "struck off" (meaning that its name is struck from the BVI Register of Companies (the "Register")) for a variety of reasons, including where the company no longer has a registered agent, where it has failed to file a return required by the BCA to be filed (most often, a Register of Directors), and where it has failed to pay its annual fees.

A company which is struck off but not yet dissolved may be restored by the Registrar of Corporate Affairs (the "Registrar") on filing of an application in the approved form, payment of a restoration fee and of all outstanding fees and penalties and, where the strike off has been effected because the company lacks a registered agent, on a licensed person agreeing to act as the company's registered agent.

If a company remains struck off for a continuous period of seven years, it is automatically dissolved at the end of that period. Upon dissolution, the company essentially ceases to exist, though for a period of 10 years after its dissolution, the court may restore the company to the register on the application of a creditor, former member, director or liquidator or any other person who can establish an interest in having the company restored.

When a company is struck off, neither it, its directors or members or any liquidator or receiver may act in any way with respect to the affairs of the company. However, the fact that a company is struck off does not prevent the company incurring liabilities or any creditor from making a claim against the company and pursuing the claim through to judgment or execution, and does not affect the liability of any of its members, directors, officers or agents.

The property of a dissolved company passes bona vacantia to the Crown.

Key Changes under the BCA Amendment Act

The BCA Amendment Act introduces a number of important changes to the law in this area. Most notably...