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BVI issues further General Licence (Sanctions Regulations) for Legal Practitioners and Banking Licensees

Jennifer Potter — Thu, 27 Apr 2023 20:32:22 +0000

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:

*Designated Person*	Any person designated by the Sanctions Regulations and/or any individual or other person that is owned or controlled by that designated person as determined under the Sanctions Regulations.
*Economic Resources*	Assets of every kind which are not funds but can be used to obtain funds, goods or services.
*Funds*	Financial benefits of every kind including cash, cheques, deposits, credit, guarantees, etc.
*Legal Services*	Any legal work performed by a Legal Practitioner and provided to or for the benefit of a Designated Person.

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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Significant changes to the BVI Business Companies Act take effect 1 Jan 2023

Paul Mellor — Wed, 28 Dec 2022 18:08:44 +0000

Overview of BVI Business Companies (Amendment) Act 2022

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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Jennifer A Potter joins GHP as Director of Operations

Paul Mellor — Fri, 22 Apr 2022 13:44:05 +0000

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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George Henry Partners LP Welcomes Jermaine O Case to the Team

Jennifer Potter — Thu, 21 May 2020 16:41:05 +0000

Jermaine O Case Joins George Henry Partners LP

Jermaine O Case joined George Henry Partners LP (GHP) on 18 May 2020 as the newest addition to the firm. Jermaine brings to the firm experience and expertise in the areas of banking, financial services regulatory, corporate and commercial, debt finance, employment and general commercial litigation. Jermaine also advises on all aspects of the British Virgin Islands’ telecommunications regulatory framework.

“Jermaine is a great addition to our team. His particular skill set and experience are an excellent fit for GHP, and enhance our offering and capacity to provide the best service to our clients. We are excited to have Jermaine on board at this critical stage of our development and look forward to deploying the expanded suite of services his addition to the GHP team brings,” remarked Sheila George, Managing Partner.

“I am ecstatic about joining GHP and couldn’t be prouder to be a part of this highly qualified and skilled team. I am delighted to have the opportunity to work in an environment with a culture of excellence, where every member of the team is given a platform and is motivated to achieve his or her full potential. GHP’s core values certainly align with my own. Their people-centric approach ensures that clients receive consistent, high quality, tailored legal support. I very much look forward to using my skills, expertise and experience to add value to the team,” said Jermaine Case.

View Jermaine’s Profile

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Employers’ Obligations in Relation to the Coronavirus Outbreak

Jennifer Potter — Thu, 19 Mar 2020 12:10:47 +0000

Download the PDF of our guide to employers’ obligations in relation to the coronavirus outbreak

As of 16 March 2020, there were no confirmed cases of coronavirus (officially known as Covid-19) within the British Virgin Islands. As more coronavirus cases are detected outside of China and the first cases have been identified within the Caribbean area, BVI employers should monitor the impact of the outbreak and take steps to protect their employees and their business.

The outbreak of coronavirus raises points of employment law, immigration, and health and safety for BVI employers. Specific legal advice should be sought where necessary, particularly as the situation is changing daily.

General Measures

Employers should have regard to the following measures to help them to manage the current coronavirus outbreak:

Monitor and follow advice and guidance from relevant authorities such as the World Health Organisation, the BVI Health Services Authority, Pan American Health Organisation and the Caribbean Public Health Agency
Determine protocols for the self-isolation of employees, where deemed appropriate
Carry out a risk assessment to identify the risks faced by employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable persons (such as those with weakened immune systems, older people, and those with long-term health conditions including diabetes, cancer, heart disease, asthma and chronic lung disease)
Inform employees about any proposed measures to be implemented in the workplace, consulting with employees or employee representatives where appropriate, bearing in mind the need to encourage employee participation
Review the possibility of flexible working and whether existing employment contracts, policies and working arrangements permit such flexibility. If they do not, consider how such flexibility might be achieved
Review existing policies governing business travel, vacation leave, sick leave, caring for dependents and working from home. Employers should adopt a reasonable and consistent approach, taking account of risk assessments and official guidance
Review any relevant insurance policies and guidance issued by insurers, particularly in connection with travel, medical insurance, and business interruption
Ensure that contact details for employees are up to date, including who should be contacted in the event of an emergency
Consider how employees who are currently travelling or who have travel plans will be impacted by the current travel restrictions
Consider arrangements for dealing with employees who need to travel abroad, who may be at particular risk of contracting coronavirus, or who report symptoms and may have coronavirus

The BVI economy is built on the twin pillars of financial services and tourism, both of which involve significant elements of international travel. Both of these areas of the economy will be impacted to varying degrees by the restrictions on travel and interaction that are being effected by governments around the world.

With the number of confirmed cases in the Caribbean area on the increase, employers need to understand what their obligations are to employees and how they should react to some of the challenges that will be faced. While specific legal advice should always be sought in relation to the coronavirus and its impact upon the workplace, we have endeavoured to cover some of the more common questions and concerns below.

What is an employer’s duty of care?

The Labour Code places obligations on employers in relation to health and safety in the workplace. This obligation requires employers to ensure that:

a safe, sound and secure working environment is provided so far as reasonably practicable
every reasonable precaution is taken in the circumstances for the protection of workers
reasonable precautions are taken in the circumstances to protect the general public who come into contact with the workplace
all applicable standards and policies established by the Labour Department and other relevant agencies of the Government in consultation with stakeholders are complied with. Practically, such agencies would include the BVI Health Services Authority and the Environmental Health Division of the Ministry of Health and Social Development

A breach of an employer’s obligations pertaining to health and safety under the Labour Code constitutes a criminal offence. Criminal liability may extend to individuals (including directors and other employees) where a breach of the obligation has been facilitated by their neglect.

The Labour Code requires employers to undertake a suitable and sufficient assessment of the risks to the safety and health of both (i) employees while at work; and (ii) persons who are not employees, but which are impacted in some way by the employer’s business. This latter category will capture persons such as customers, visitors, suppliers and persons on secondment. Employers should take the time now to review and update their risk assessment to reflect the challenges faced by the coronavirus outbreak and ensure that any required changes are implemented as soon as possible.

Can an employer expect an employee required to self-isolate to work from home?

This will depend on the circumstances of each case, but is likely to depend on:

whether the employee is impacted by symptoms of coronavirus – in which case, it is likely that they should not be working and should be on sick leave
is it a type of job that can be undertaken from home?
if it is a type of job that can be undertaken from home, does the employer/employee have the systems in place to enable that job to be undertaken from home?

Employers should consider whether they need to take any steps to facilitate working from home. This may include ensuring that employees have a way of logging on to secure systems and can access any necessary materials. The ability to work from home should be assessed for support staff as well as more senior staff. In this regard, employers should assess the availability of laptops, printers and other devices, the absence of which might prevent employees working effectively from home. Working from home may not be an option for some professions and trades.

The key point is that employers should take steps now to assess the viability of working from home, since the spread of the coronavirus has been unpredictable so far and it is unclear how long the duration of any impact might be. Using other countries that have confirmed cases of coronavirus as examples, it is likely that some workplaces will be closed (either voluntarily or required to close by the authorities) and employers need to make sure that any disruption is limited, to the extent possible.

Can an employer prevent employees travelling abroad on vacation?

It is unlikely that an employer could prevent an employee from travelling on vacation, even if the proposed destination is considered to be high risk. However, it would be prudent to advise employees against travel to certain areas in accordance with official advice, to ensure that government guidance is accessible to employees and to ask employees to notify the employer if they are intending to travel to affected areas.

Can an employer ask employees to provide cover for those who are unwell or in self-isolation?

Employers should review employment contracts and any relevant policy to determine whether employees can be required to provide cover for other employees who are unable to attend work because of the coronavirus. Employees should be consulted as it may not be appropriate or reasonable for some employees to work additional hours.

In any event, employers should pay close attention to the provisions of the Labour Code as they relate to the requirement to pay premium pay and also in respect of meal and rest periods.

Can an employer prevent an employee who has refused to self-isolate from accessing the workplace to limit the spread of coronavirus?

Employers must bear in mind the duties of care that they owe to other employees and members of the general public that could come into contact with the workplace. If an employer knowingly allows an employee who has been advised to self-isolate to attend the workplace, the employer may be in breach of those duties.

Suspension may be an option where an individual who has been advised to self-isolate refuses to do so, but employers should consider whether they have a right to suspend in these circumstances. Where no express contractual right to do so exists, legal advice should be sought.

Should employees who are required to self-isolate be paid?

Employers are unlikely to be able to insist that employees take vacation leave for any period of self-isolation in the absence of a contractual right to do so where such self-isolation accords with official guidance. As these employees are not “sick”, it is unlikely that they will be covered by sick leave. Instead, assuming the employer has instructed employees who according to official guidance should self-isolate to remain away from their place of work, employees are likely to be on a period of leave. This leave is likely to need to be paid, unless an employer has a contractual right to place the employee on a period of unpaid leave. The situation is more nuanced where employees consider they should self-isolate for reasons other than those reflected by official guidance.

Where an employee voluntarily remains away from the workplace due to self-isolation without discussing this with the employer first, or for reasons that are not proportionate or reasonable, there may be more scope for considering such leave to be unpaid, although this will depend on the circumstances in each case.

Are employees with coronavirus entitled to sick leave?

This will depend on an analysis of the employee’s employment contract, any relevant policy and an understanding of the statutory position under the Labour Code.

In essence, the Labour Code links the eligibility to sick leave with illness. There could be circumstances in which a person is advised to self-isolate (perhaps because they have been in close contact with a person that has tested positive for coronavirus) but is not actually unwell. In such cases employees may not have a legal entitlement to sick leave under the Labour Code. Where an employee is unwell, the Labour Code entitles that employee to sick leave with pay for a period of not less than twelve working days in any one year, provided the employee has been continuously employed for a period of at least four months.

Employers should consider making exceptions to their usual sick leave policies to ensure that employees do not feel compelled to attend the workplace when in accordance with official advice they should self-isolate to help to contain the spread of coronavirus.

How should an employer deal with incidents of discrimination and harassment?

There have been reports in other parts of the world of racism and prejudice being shown towards persons from certain countries that have been heavily impacted by the spread of coronavirus, particularly China. Employers need to be mindful of the risk of such behaviour occurring in the workplace.

Employers will potentially be liable for harassment or discrimination by their employees towards other employees and should therefore ensure that reasonable steps are taken to prevent such conduct.

Should business travel be curtailed?

Certain countries have imposed travel restrictions, and these are likely to be updated regularly and with little notice. In the BVI, the visa-free initiative for Chinese nationals is currently suspended.

Employers should pay attention to official advice relating to travel restrictions and should also consider implementing policies to minimise the risk of employees catching coronavirus in connection with business-related travel. Measures to be considered should include health screening for employees returning from abroad and delaying or cancelling non-essential business travel and meetings. Employers should also consider contingency planning for the possibility of employees being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements to determine if they remain in force and are adequate.

How to deal with employees who are unable or unwilling to attend work?

Some employees may be able but unwilling to attend the workplace because of fears of contracting coronavirus. Where work can be undertaken from home, it may be possible to agree that the employee works from home for a short period.

In other cases, it may be possible to agree that time away is taken as vacation or unpaid leave. However, if an agreed resolution cannot be found and an employee refuses to attend work without good cause, disciplinary action could be considered.

Before acting, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees concern. Employers should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

Other employees may be willing but unable to work because they are caring for dependents, as a result of closed schools, or transport disruptions. Employers will need to consider the terms of employment contracts and any relevant policies when determining how to respond to requests to be absent from work, bearing in mind that such requests could be made in relation to an extended period of time and by a significant number of employees.

For more information and to discuss these and any other ways in which the coronavirus outbreak may have an impact on your business, please feel free to email us or reach out to one of our lawyers using the contact details below.

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.