GHP BVI has, since hanging the proverbial shingle in in 2020, quickly distinguished itself within the BVI legal community and developed a reputation for exceptional service and client-focused approach. The addition of Lesley-Ann to the team is a testament to execution by the firm of its vision for the future.

Lesley-Ann’s proactive approach to speedy resolution of client issues in her role as client advocate and her overall enthusiasm for the law, are perfectly aligned with the firm’s values and mission. Her expertise in deftly navigating complex disputes and dedication to achieving the best possible outcomes for our clients will be invaluable to the continued growth and development of our firm as a client-focused legal services business.

“Our growth over the past four years has been exciting to experience as an active participant, and the addition of Lesley-Ann to our team is another significant milestone on this incredible journey,” said Sheila C George, Managing Partner of GHP. “We are confident that Lesley-Ann’s combination of technical skill and approach to dispute resolution will contribute positively to our ability to consistently deliver the high-quality, personalised legal service our clients expect from us.”

The firm looks forward to the positive impact of Lesley-Ann’s presence on its efforts at strengthening its dispute resolution practice and contributing to the firm’s ongoing success.

Having recently been admitted to practice in the Virgin Islands, Lesley-Ann commented, “Joining the expanding team at GHP marks an exciting new chapter in my legal career. I feel a profound sense of privilege to be welcomed into this firm which prides itself on excellence and client-focused solutions. I am looking forward to working in a collaborative environment where I will be able to tackle and resolve diverse and challenging disputes.” 

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This note is intended as a brief guide to the exemption of certain categories of people engaged in employment in the British Virgin Islands (BVI) from the need to obtain a work permit. It is not intended to be a comprehensive guide on all aspects of BVI employment or immigration law. We recommend that specific advice is sought as each set of circumstances has its own peculiarities.

Background

In 2017, the BVI Government enacted a measure that exempted various categories of people from the need to obtain a work permit to work in the BVI for short periods of time. The categories of people exempted from the need to obtain a work permit has now been expanded, with effect from 7 March 2024.

BVI Work permit exemptions

Following the changes introduced by the Labour Code (Work Permit Exemption) (Amendment) Order, 2024 on 7 March 2024, the following classes of persons, described in summary form, are exempt from the need for a work permit for 7 days in the first instance with extensions based on a request for an extension:

1. directors and other officers of companies (whether incorporated in the BVI or elsewhere) visiting the BVI for the sole purpose of participating in meetings of the board of directors of such companies;
2. persons visiting clients for business deals and negotiations. Note that this does not include foreign lawyers not admitted to practise in or holding a valid practising certificate in the BVI;
3. persons attending business-related events (meetings, seminars and similar events) put on by BVI entities (whether government or private). This includes paying participants but also persons associate with the event, including presenters and support staff;
4. persons making purchases from BVI entities (whether government or private);
5. persons receiving training and work coaching (including internships) from BVI entities (government or private);
6. persons conducting research with the permission of the requisite BVI Government agency;
7. persons participating in amateur sporting activities, including coaches, officials and others that support the event or participants;
8. students attending institutions of learning for short-term training and educational activities;
9. persons providing emergency and humanitarian services to BVI registered businesses, statutory bodies, non-profit organisations and other entities. This category applies to persons offering vital support in areas such as emergency response, medical care, firefighting and rescue operations services;
10. persons providing repairs to machinery or equipment that are essential for the safe and uninterrupted operation of a business or facility where the necessary expertise is not available in the BVI. This category

Revised: 11 March 2024
www.ghpbvi.com 

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On 13 April 2023, the British Virgin Islands (BVI) issued General Licence [No.03], 2023 (the General Licence) under:

Regulation 64 of The Russia (Sanctions) (EU Exit) Regulations 2019 (as amended) as extended to the British Virgin Islands (with modifications) by The Russia (Sanctions) (Overseas Territories) Order 2020 (as amended); and

 

Regulation 34 of the Republic of Belarus (Sanctions) (EU Exit) Regulations 2019 as modified by the Republic of Belarus (Sanctions) Overseas Territories) Order 2020;

 

((i) and (ii) above are together referred to in this note as the Sanctions Regulations).

Download a pdf copy of our legal update on the general licence under the sanctions regulations

When does the General Licence come into effect and who does it apply to?

The General Licence came into effect on 13 April 2023 (the Date of Issue).

It applies to:

• Legal Practitioners – persons admitted to practice law under the laws of the BVI and firms of legal practitioners operating in the BVI that hold a trade licence for that purpose;
• Relevant Institutions – licensed firms carrying on banking business in the BVI.

What can I do under the General Licence?

The General Licence permits Legal Practitioners and Relevant Institutions to:

• receive payments from a Designated Person for Legal Services;
• make payments for or on behalf of a Designated Person;
• make payments for the benefit of a Designated Person;
• process payments of which relate to a Designated Person; and
• perform any act reasonably necessary to give effect to any of the above actions,

(the above activities are together referred to as the Permitted Activities).

Are there any specific definitions that I should consider for this note?

The General Licence sets out a glossary of technical definitions. For this note, it is sufficient to highlight the following definitions which we have summarised in part for easy reference:

What are my obligations when relying on the General Licence?

In performing any of the Permitted Activities, Legal Practitioners and Relevant Institutions should ensure that:

• any activity that is purportedly done under the General Licence actually falls within its terms;
• they comply with the conditions of the General Licence in full. Under the General Licence there are numerous conditions that apply to Legal Practitioners in relation to the provision of Legal Services.

Additionally, Legal Practitioners are required to:

• report to the Governor within seven days of either (i) completion of Legal Services or (ii) the expiration of this Licence. Such a report must specify the payments received from, made for or on behalf of or processed in respect of a Designated Person; and
• keep and maintain accurate, complete and readable records in either hard or soft copy of any activity purported to have been performed under the authority of the General Licence for a minimum period of six years.

Are there actions that the Generally Licence specifically does not authorise?

 The General Licence does not authorise:

• dealings with Funds and Economic Resources for and on behalf of the Designated Person which occurred prior to 13 April 2023;
• any act which a Legal Practitioner or Relevant Institution knows or has reasonable grounds for suspecting will result in Funds and Economic Resources being made available for a Designated Person in breach of the Sanctions Regulations; or
• any act which will result in a breach of the Sanctions Regulations.

When does the General Licence expire?

The General Licence is for an initial period of six months from the Date of Issue unless revoked earlier by the Governor.

If you have any questions regarding this General Licence or relating to BVI sanctions generally, please reach out to your usual GHP contact.

The BVI Financial Services Commission’s note on the General Licence is accessible HERE. The General Licence is accessible HERE.

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The BVI Business Companies (Amendment) Act, 2022 (the Amendment Act) comes into force on 1 January 2023 (the effective date). The Amendment Act makes significant changes to the existing BVI Business Companies Act (the current BCA) which are intended to ensure compliance with international standards and best practices. These changes include abolition of the bearer share regime, creation of a new requirement to file annual returns, and changes to the regime for striking off and restoration of companies.

Legal Update BVI Business Companies Amendment Act 2022

Bearer shares

The current BCA permits the issue and transfer of bearer shares but these bearer shares could only be held by custodians authorised or recognised by the Financial Services Commission (the Commission). A bearer share which is not held by a custodian is “disabled” under the current BCA so that the holder of it is not entitled to vote, receive dividends or share in the assets of the company on its winding up or dissolution.

The Amendment Act will effectively abolish the concept of bearer shares in the BVI. As of the effective date, a company shall not issue a bearer share, convert a registered share to a bearer share or exchange a registered share for a bearer share. The memorandum of a company which, prior to the effective date did not prohibit these actions (bearer share company), will be deemed to be amended from the effective date to state that the company is not authorised to issue bearer shares, convert registered shares to bearer shares or exchange registered shares for bearer shares.

Every bearer share which existed prior to the effective date will, as of the effective date, be deemed to be converted to a registered share and be treated as if it had been issued on or after the effective date as a registered share. Following the effective date, custodians will cease to be authorised or recognised by the Commission to hold bearer shares.

If the owner of the bearer share is unknown, it shall be deemed transferred to the company which shall hold the share in trust for the owner of it. In these circumstances, the bearer share company may redeem the share notwithstanding the provisions of the BVI Business Companies Act, the company’s memorandum and articles of association and any shareholders’ agreement or other agreement. Prior to redeeming the share, the company must meet the requirements of the Amendment Act including publishing a notice in the Gazette announcing its intention to redeem the share, stating the redemption price of the share and indicating the manner in which the redemption is to be effected.

Requirement to file annual return

The Amendment Act introduces the requirement for companies to file a financial return (referred to as an annual return) with their registered agent. The annual return shall be filed nine (9) months after the company’s financial year ends. For example, the first annual return for a company with financial year ending 31 December would be due in September 2024 and the first financial return for a company with financial year ending 31 March would be due in December 2024. This requirement does not apply to a listed company, a company that is regulated under financial services legislation and provides financial statements to the Commission in accordance with that legislation, and a company that files an annual tax return to the Inland Revenue Department accompanied by the company’s financial statements.

Where a company fails to file its annual return within the required timeframe, the registered agent shall notify the Registrar of Companies (the Registrar) in writing of that fact not later than 30 days after the annual return was due.

A company which fails to file an annual return within the required timeframe shall be liable to a financial penalty for each month or part of a month that the filing is delayed, up to a maximum penalty of US$5,000.00. Where a company is liable to pay the maximum penalty and has not filed its annual return, the Registrar may strike the name of the company off the Register of Companies (the Register).

The Amendment Act does not outline what should be included in the annual return. However, it does state that the annual return should contain such information as the Commission may by Order prescribe. It is expected that these requirements will be published by the Commission prior to September 2024, which is the earliest date by which companies would be required to file annual returns under the Amendment Act. We will provide updates when these requirements are available.

Additional requirements for company registers

A company’s register of members has always been required to show the number of each class and series of registered shares held by each shareholder, but from the effective date must now also include the nature of the voting rights associated with those shares, unless the nature of the voting rights is outlined in the memorandum and articles of association.

From the effective date, the register of directors shall include the names of persons appointed as alternate directors, however this requirement shall not apply where the alternate director is, at the time of appointment, already a director of the company.

The Amendment Act establishes a framework for the Registrar to maintain a register of persons with significant control as shall be defined and kept in accordance with the BVI Business Companies Regulations. As at the date of this publication, the Regulations regarding the register of persons with significant control have not yet been published. Details are not yet available about what this register should contain however we will publish updates when the regulations become available.

Continuation of companies out of BVI

The current BCA allows a BVI business company to continue as a company incorporated under the laws of a jurisdiction outside the Virgin Islands in the manner provided under the laws of that jurisdiction. The Amendment Act places additional requirements on a company which intends to continue outside the Virgin Islands after the effective date. The company will be required to file a notice of intention to continue under the laws of a jurisdiction outside the Virgin Islands with the Registrar in the approved form. At least 14 days before filing the notice, the company must advertise a notice of intention in the Gazette and on its website (if any) and specify the jurisdiction to which it intends to continue. The company shall also notify its members and creditors in writing of such intention. These additional requirements provide a means by which shareholders, creditors and other stakeholders of the company will be given notice of the continuation before the process is completed. However, the Amendment Act does not empower them to make representations to the Registrar or otherwise take steps which will prevent the issuance of a certificate of discontinuance.

List of directors of BVI companies 

The Amendment Act empowers the Registrar to make available a list of directors contained in a company’s register of directors on request made by registered users of the Registry’s online information system (VIRRGIN) or members of the public who visit the Registry. It is important to appreciate that it is only a list of names of the directors which will be publicly available and not the register of directors, which includes the date of appointment and date of cessation as director and personal data of individual directors such as residential address, date and place of birth and nationality.

Striking off and dissolution of BVI companies

The current BCA provides a mechanism for the Registrar to remove companies from the Register which are not compliant with its provisions. This is the process of striking the company off the Register. When a company is struck off the Register, that company cannot carry on business, commence or defend legal proceedings or otherwise act in any way with respect to the affairs of the company.

The current BCA provides for a seven-year period between the point at which the Registrar strikes a company off the Register and the date the company is dissolved. The Amendment Act changes this position. As of the effective date, where a company is struck off the Register, the company shall be dissolved on the date the Registrar publishes a notice of striking off in the Gazette. The Amendment Act provides for transitional arrangements for companies which are struck off the Register but not yet dissolved as at the effective date. However, it is important that companies which have been struck off the Register consider whether they wish to be restored and take action accordingly without delay.

Under the current BCA, applications to be restored to the Register can only be made to the Registrar in respect of companies that are struck off but not dissolved; companies which are dissolved are required to apply to the court to be restored. The Amendment Act will allow dissolved companies to make an application to the Registrar in prescribed circumstances, introducing a simpler process of restoring dissolved companies to the Register. In some circumstances, applications for restoration will still need to be made to the court including where the company was not carrying on business or in operation on the date of dissolution or where the purpose of the restoration is to initiate, continue or discontinue legal proceedings in the name of or against the company. However, dissolved companies will only have a period of five years (moving from the current seven years) to file an application for restoration to the Registrar or the court. It would therefore be prudent for persons to check the status of their companies and check that they are up to date with the annual fees and all other requirements notified to them by their registered agent.

Residency requirements for voluntary liquidators of BVI companies

The Amendment Act introduces the requirement for voluntary liquidators appointed after the effective date to be resident in the British Virgin Islands. If joint voluntary liquidators are appointed, only one needs to be resident in the British Virgin Islands. This requirement does not apply to voluntary liquidators who are appointed prior to the effective date.

Restrictions in relation to charitable or non-commercial businesses

Persons who wish to incorporate a company to pursue charitable or non-commercial purposes, whether wholly or partially, are required to apply to the Registrar in the approved form. The application must meet the requirements in the Amendment Act; this includes indicating (i) whether the purpose of incorporating the company is to undertake charitable or non-commercial activities, wholly or partially; (ii) how the company intends to segregate the activities of the charitable or non-commercial business from other activities of the company if carrying out these activities partially, and (iii) the geographical region or regions in which such charitable or non-commercial activities are to be carried out. The Registrar will only approve the incorporation of the company if satisfied the requirements under the Amendment Act are met. This new requirement applies to all BVI business companies regardless of where in the world it performs charitable or non-commercial activities.

Conclusion

The above is not intended to be a complete account of the changes to the business company regime. It is important for companies to familiarize themselves with the various amendments and make adjustments accordingly in order to comply with their new obligations under the Amended Act. As indicated above, further developments are expected as new concepts introduced by the Amendment Act will be further refined. We will continue to monitor changes and provide updates when available.

Feel free to contact us with any queries on the impact of the Amendment Act on your company or the steps you may need to take to ensure compliance with its provisions.

KERRI-ANNE J MAYNE

Associate │George Henry Partners LP

📞 + 1 284 393 7005 │ + 1 284 346 9734

📧 kerri-anne.mayne@ghpbvi.com

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The ECJ considered that such public access constitutes a serious interference with the fundamental rights guaranteed in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (the Charter) relating to, respectively, respect for private life and the protection of personal data. The decision is final and binding on all EU Member States.

Download our legal update European Court of Justice rules on public registers of beneficial ownership

In its clearly reasoned judgment, the ECJ opined that:

• The limitation on the exercise of the rights guaranteed by Articles 7 and 8 of the Charter, resulting from the general public’s access to Beneficial Ownership Information, fulfils the principle of legality.
• Making available to the general public only ‘adequate’ Beneficial Ownership Information which is related to the purpose of the 4^th Anti-Money Laundering Directive as amended (the 4AMLD), would not undermine the essence of the rights guaranteed by Articles 7 and 8 of the Charter.
• It is an objective of general interest to provide such public access thereby creating, by means of increased transparency, an environment less likely to be used for purposes of money laundering and terrorist financing (ML/TF). However, the principle of transparency cannot of itself be considered an objective of general interest capable of justifying interference with Articles 7 and 8 of the Charter.
• The general public’s access to Beneficial Ownership Information is appropriate for contributing to the objective of preventing the use of the EU financial system for purposes of ML/TF (the Objective).
• Notwithstanding the above, the interference resulting from the general public’s access to Beneficial Ownership Information is not strictly necessary to achieve the Objective.

(i) The ECJ noted that the 4AMLD, in the version prior to its amendment by the 5AMLD, made access to beneficial ownership information conditional upon the establishment of a ‘legitimate interest’. However, the lack of a uniform definition of the concept of ‘legitimate interest’ had given rise to practical difficulties in its application. The ECJ held that the difficulty in providing a detailed definition of the circumstances and conditions under which the public may access beneficial ownership information is no reason to resort to general public access.

(ii) To the extent that the recital in the 5AMLD states that the general public’s access to Beneficial Ownership Information allows greater scrutiny of the information by civil society, the ECJ held that the press and civil society organisations that are connected with the prevention and combatting of ML/TF have a legitimate interest in accessing Beneficial Ownership Information.

• The provisions in the 4AMLD allowing (i) any member of the general public to access the prescribed minimum Beneficial Ownership Information and (ii) Member States to provide access to ‘additional information enabling the identification of the beneficial owner’ are not sufficiently defined and identifiable. Accordingly, such provisions do not meet the requirement of clarity and precision.
• Unlike the previous version of the 4AMLD which provided for access by competent authorities and financial intelligence unities, entities required to carry out customer due diligence and any person or organisation capable of demonstrating a ‘legitimate interest’, the regime introduced by the 5AMLD was a more serious interference with the rights enshrined in Articles 7 and 8 of the Charter without being offset by any additional benefits.
• The optional provisions of the 4AMLD, which allow Member States to make information on beneficial ownership available on condition of online registration and to provide for exemption from access in exceptional circumstances, were not in themselves capable of achieving the appropriate balance between pursuance of the Objective and respect for the rights enshrined in Articles 7 and 8 of the Charter.

What are the implications of this decision?

It is evident from the ECJ’s decision that more restricted access to public registers of beneficial ownership is preferred and indeed required by the Charter. Member States have already taken down public beneficial ownership registers in response to the judgment.

The ECJ appeared to look favourably upon an approach that restricts access to Beneficial Ownership Information to persons who are able to show a ‘legitimate interest’ (including competent authorities and financial intelligence units, any entity required to carry out customer due diligence, the press, and certain members of civil society).

It also appears from the reasoning of the ECJ that any public beneficial ownership regime that is likely to satisfy the requirements of the Charter should set out a detailed definition of the circumstances and conditions under which the public may access Beneficial Ownership Information. Additional acceptable safeguards may include a mandatory requirement for an online registration process to access such information (including payment of a fee), clear specifications as to what additional Beneficial Ownership Information Member States may request in their national laws as well as exemptions from access.

The British Virgin Islands intends to introduce publicly accessible beneficial ownership registers during the course of 2023. It has already undertaken significant preparatory steps in this regard. The judgment of the ECJ is not binding on the United Kingdom or its overseas territories. The Governor’s Office has nevertheless indicated that it will work with colleagues in the British Virgin Islands and the United Kingdom to understand the implications of the judgment while the Territory continues its work towards publicly accessible registers of beneficial ownership.

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The content of this guide is intended for general information purposes only and is current as at the date of publication indicated. This guide does not constitute legal advice and should not be relied upon as such. You should always seek specific legal advice that takes into account your individual circumstances.

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Jermaine O Case

Senior Associate

+1 284 393 7004

+1 284 346 4422

Email Jermaine

Kerri-Anne J Mayne

Associate

+1 284 393 7005

+1 284 346 9734

Email Kerri-Anne

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GHP BVI continues growth and expansion strategy with critical hire

George Henry Partners LP is pleased to announce that Jennifer Potter joined the firm on 5 April 2022 as Director of Operations. Jennifer has extensive experience in the implementation of innovative solutions to manage and optimise business systems and resources. Jennifer is particularly adept at identifying and harnessing advances in technology to achieve business objectives.

An experienced executive, Jennifer led strategic solutions for the BVI financial services regulator for over two decades and has demonstrable experience in delivering change and innovation in the fields of risk-management, corporate governance and regulatory compliance.

“We are delighted to welcome Jennifer to the team. Jennifer’s skills and experience, particularly in the areas of risk-management, corporate governance and regulatory compliance will be of fundamental importance to the growth and development of our firm. Jennifer’s unique experience better positions the firm to provide our clients with comprehensive solutions.  We are excited to have Jennifer join us at such a critical stage of our development, as we continue to broaden and enhance our offering” said Sheila George, Managing Partner.

Jennifer joins a team of professionals who are widely recognized as experts in their field and who are dedicated to serving clients in a culture of excellence where people are the core.

View Jennifer’s profile.

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