Will The Amendments To The BVI Business Companies Act Assist Litigants?

• Published date: 06 February 2023
• Subject Matter: Corporate/Commercial Law, Corporate and Company Law, Directors and Officers
• Law Firm: Appleby
• Author: Mr Eliot Simpson, Crystal Au-Yeung and Ray Leung

The BVI Business Companies (Amendment) Act, 2022 and the BVI Business Companies (Amendment) Regulations, 2022, gazetted by the BVI Government on 12 August 2022, came into force on 1 January 2023.

Amongst other changes, from 1 January 2023, each BVI company (with exceptions for listed companies and companies already making financial filings in BVI) has to file an annual financial return with its registered agent within 9 months after the end of the year to which it relates. Furthermore, the names of current directors of a BVI company will, on payment of a fee, be available to registered users of the online VIRRGIN company search website.

Previously, the register containing the particulars of the directors of a BVI company was only required to be filed with the BVI Registry of Corporate Affairs, but was not available to be searched by the public (unless the company has voluntarily elected to file the register in the public record). By comparison, the names of a company's directors have been available in the Cayman Islands since 1 October 2019.

The ability to check the names of directors of BVI companies is likely to prove beneficial for BVI litigants looking to establish a connection between an individual and a BVI company of which they are aware but about which they have no detailed information. However, the search would only reveal a list of the names of the current directors and no other information normally included in the full register of directors, including past directorship.

In some cases, the names of directors alone will be sufficient to establish a claim. In others, it may be necessary to establish the identity of members or beneficial owners of a company. In those cases, the connection shown by the names of directors may prove crucial in seeking disclosure orders against the registered agent compelling it to disclose the requisite information.

NORWICH PHARMACAL ORDERS

Typically, disclosure is obtained by way of a "Norwich Pharmacal" order (derived from the English case of Norwich Pharmacal Co. v Customs and Excise Commissioners¹).

Given the very large number of BVI companies administered by local registered agents, registered agents are typically the targets of disclosure orders as they would normally possess documents and records which may assist an intended claimant to ascertain the identity of the ultimate wrongdoers. In most cases, an intended claimant would wish to see the register of members, register of directors and due diligence...