British Virgin Islands

Stephen has served as an officer on the committee for several years and will, in the period 2025 -2027, co-chair the committee with Kate McMahon, founding partner of Edmonds Marshall McMahon.   We believe Stephen is the first Channel Islands practitioner appointed as chair of a committee of the International Bar Association which has been in operation for more than seventy years.  This appointment does much to reflect the fact that Stephen has worked tirelessly with successive attorneys general to craft structures  and methods of international asset recovery and repatriation which have been widely adopted elsewhere, which remain functional to this day, and which have done much to enhance the reputation of Jersey as an international finance centre.   The focus for Stephen’s tenure in office is the rule of law. This was the founding theme of the IBA when it was established in the aftermath of WW2 and with a particular aim to promote a rules-based order. The rule of law underpins democracy, human rights, and societal progress. Without it, chaos and corruption can all too easily take root, undermining the very principles that allow societies to thrive. The legal profession must actively defend these principles, educate the public, raise awareness, and hold failing systems accountable.    As Co-Chair, Stephen looks forward to progressing the agenda of the Asset Recovery committee.  This includes the development of a thriving programme of events, the production of expert publications focussed on knowledge-sharing for best practice in the field, and growing its membership.  In this way the committee will create a legal model for asset recovery specialists enabling them to play a full role in upholding the rule of law to the benefit of this and future generations.   The IBA is made up of 80,000 member lawyers and over 190 bar associations spanning over 170 countries.  Stephen is also the Jersey representative of the IBA.   Please connect with Stephen Baker on Linkedin if you would like to stay-up-to date with the Committee’s progress and plans.   

BVI Business Companies Act 2024 Amendments The amendments to the BVI Business Companies Act 2004 (as amended), aimed at enhancing the BVI’s regulatory landscape, officially came into effect on 2 January 2025 (the “Effective Date”). These amendments were first introduced in the BVI Business Companies (Amendment) Act 2024 (the “Amendment Act“), which was published in the BVI Gazette on September 26, 2024. With the Amendment Act now in force, it brings significant updates to the jurisdiction’s corporate legislative framework. This article highlights the key changes under the Amendment Act. Beneficial Ownership – Definition, Criteria, and Required Information The Amendment Act refines the definition of ‘beneficial owner’ as a natural person who ultimately owns or controls a company or limited partnership. It also specifies the criteria to be met in the context of legal entities, limited partnerships, and trusts. Every company is now required to collect, maintain, and update comprehensive and accurate information on its beneficial owners, including their name, address, and confirmation of the category of ownership held. This information must be filed with the BVI Registrar of Companies within 30 days of incorporation or continuation into the BVI, as applicable. Publicly listed companies are exempt from the requirement to file beneficial ownership details. Additionally, private, professional, public, or private investment funds, as well as incubator or approved funds, are similarly exempt, provided that: The company’s beneficial ownership information is held by: a person with a Category 6 investment business license under the Securities and Investment Business Act, Revised Edition 2020; or a person licensed by the BVI Financial Services Commission (“BVI FSC”) with a physical presence in the BVI; and The beneficial ownership information can be supplied to the Registrar within 24 hours of a request. It is important to note that the obligation to file beneficial ownership information also applies to exempted entities during the period between incorporation and approval for registration as an exempt entity. The Amendment Act further mandates that Registered Agents (“RAs“) take reasonable steps to verify that beneficial ownership information is accurate and current before filing. The Registrar is granted authority to implement additional measures to verify the information and ensure it remains up to date. Companies are also obligated to notify the Registrar of any changes in beneficial ownership within 30 days of becoming aware of the changes. Prior to the Effective Date, beneficial ownership details were filed on the Beneficial Ownership Secure Search System (BOSS), and public access is restricted. Similarly, under the Amendment Act, information filed with the Registrar remains confidential, with access granted only to competent authorities and law enforcement agencies. However, regulations may be introduced to permit limited access to ownership information where beneficial owners hold 25% or more of shares or voting rights. Register of Members Under the BCA, all companies are required to maintain a register of members, which must be filed with the Registrar except in certain cases. The register must contain: The names and addresses of individuals holding registered shares, guarantee members, and unlimited members; The number of each class and series of shares held by each member, including (unless provided for in the company’s memorandum or articles) any voting rights attached to such shares; The date when a person was added to the register; and The date of cessation of membership The Amendment Act provides clarity on the definition of nominee shareholders, describing them as individuals who hold shares and exercise voting rights under the direction of another person (the nominator) or receive dividends on behalf of the nominator. Companies with nominee shareholders must file additional details, including the nominator’s name and address, the date the nominee ceased to hold shares, and the date a person ceased to be a nominator. Every company, except listed companies and funds, must file their initial register of members, including nominee shareholder information (where applicable), with the Registrar within 30 days of incorporation or continuation. Updates to the register must also be filed within 30 days of any changes. Exempted entities must adhere to this requirement during the period between incorporation and the granting of exempt status. Companies that are struck off and later restored are not required to refile their register of members. The register of members remains private unless the company chooses to make it publicly available. Companies may also opt to include additional relevant information. Companies must comply with the filing requirements within six months from the Effective Date, with a possible six-month extension if deemed necessary by the Registrar. Appointment of First Directors The timeline for appointing the first director(s) has been significantly reduced from six months to 15 days. The company’s initial register of directors must also be filed with the Registrar within 15 days of the first director’s appointment, or within 15 days of the company’s continuation into the BVI. Director Services When a licensed director service provider, as regulated by the BVI FSC, serves as a director, the company must indicate whether the director acts in a corporate capacity or as an individual representing the licensed director service provider. This information must be filed with the Registrar along with the register of directors. Additionally, the company must provide the name of the licensed director service provider and, if applicable, the name and address of the individual represented by the provider. Rectification of the Register of Directors The Amendment Act allows any aggrieved party, including members or directors, to apply to the High Court for rectification of the register of directors if there is an omission, inaccuracy, or unreasonable delay in correcting an error. Continuation of a BVI Company under Foreign Law Companies intending to re-domicile outside the BVI must include additional declarations in their notice of intention, including confirmation that there are no outstanding requests from competent authorities for documents or further information, no receiver has been appointed over the company or in relation to any of its assets, and there are no pending legal proceedings concerning the company or its key personnel. Restoration for Struck-Off Companies The process for restoring companies that have been struck off and dissolved has been simplified, making it easier for creditors and other eligible individuals to apply for the company’s reinstatement to the Register of Companies. Importantly, current or former RAs are explicitly excluded from applying for a company’s restoration. Prior to the Effective Date, restoring a struck off company required a declaration from the RA confirming that the company’s records had been updated. The new provisions allow an alternative, where the proposed RA may provide an undertaking to update company records within 14 days of restoration, failing which the company will be struck off again. Moreover, restored companies must file their register of members and directors within 14 days unless previously filed prior to the company being struck off and dissolved. Under the new provisions, dissolution will occur on the same date as the strike-off, as stated in the Registrar’s notice, eliminating confusion caused by previous requirements. The deadline for submitting a sealed Court order for restoration has also been extended from 30 to 60 days, with penalties for non-compliance instead of invalidation of the order. Conclusion In conclusion, the amendments to the BVI Business Companies Act serve to further solidify the British Virgin Islands’ standing as a jurisdiction committed to transparency and the observance of international best practices. These legislative enhancements not only improve the regulatory framework but also strengthen the jurisdiction’s ability to combat financial crime, particularly money laundering. By aligning its practices with global standards, the BVI reinforces its position as a reputable and secure financial centre, ensuring its continued competitiveness and compliance in the evolving international regulatory landscape.

Cayman Islands Partner Jennifer Colegate, restructuring and insolvency specialist and co-chair of IWIRC Cayman Islands, has been admitted to the bar of the British Virgin Islands. Jennifer’s admittance comes shortly after Counsel Tara Liao and Associate Arthur Preget, both of whom are based in London, were admitted in 2024 to the Bar of the British Virgin Islands. These recent BVI admissions reinforce the firm’s ability to provide BVI legal advice from a range of locations and time zones. Partner Jennifer Colegate will work closely with our on-the-ground team in Tortola in the British Virgin Islands led by Partner Shaun Reardon-John, and our BVI qualified team members in Jersey, London and the Cayman Islands. Jennifer advises a range of corporate entities, directors, fiduciaries and officeholders in respect of issues arising under the laws of the Cayman Islands, having previously worked in Hong Kong and London. She is a commercial litigator specialising in cross-border litigation with expertise in insolvency and restructuring, investigations, asset tracing and enforcement and recovery across a variety of industry sectors. Jennifer advises stakeholders across the board from corporates in financial distress, family offices, directors, noteholders and court appointed officeholders. Jennifer is a well-respected lawyer in the Cayman Islands and is described by clients as “…whip-smart and super-responsive; she is a major asset (Chambers & Partners). With Jennifer’s admittance, the BVI legal team includes 10 qualified practitioners: Partners: Stephen Baker, Shaun Reardon-John, Lynne Gregory, and Jennifer Colegate . Counsel: Tara Liao, Gurprit Mattu and Christopher Howitt. Associates: Jodi-Ann Stephenson, Nia Statham and Arthur Preget.

Baker and Partners (BVI), acting on behalf of Angela Barkhouse and Toni Shukla (Kroll) as Liquidators of a BVI company, successfully obtained an unprecedented ruling allowing the restoration of a dissolved British Virgin Islands (BVI) company to the Register of Companies despite the expiration of the statutory limitation period prescribed under the BVI Business Companies Act, 2004 (the “BCA”). The Court’s order marks the first successful application under such circumstances, providing clarity on the interpretation of section 218(5) of the BCA. At the time of the company’s dissolution, section 218(5) stipulated that an application for the restoration of a dissolved company “[m]ay not be made more than ten years after the date that the company was dissolved.” The Court examined the precise wording of this provision, particularly the term “may not,” and its legislative intent within the context of the historical language of this section, which had previously employed the word “shall.” In coming to its decision, the Court also considered Counsel’s submissions on jurisprudence from other jurisdictions involving misuse of the voluntary liquidation process. Given that the period for restoring a company has since been reduced to five years, the significance of this decision is particularly relevant to practitioners dealing with allegations of misconduct in voluntary liquidations. Key Court Findings and Reasoning 1. Interpretation of “May Not” The Court held that the words “may not” in section 218(5) should be interpreted as “permissive empowering,” granting the Court limited discretion in exceptional circumstances. This interpretation aligns with section 37(1) of the Interpretation Act, which generally construes “may” in legislative texts as permissive unless the context dictates otherwise. 2. Exceptional Circumstances The Court determined that exceptional circumstances justified the exercise of discretion in this case, including: Evidence of Fraud: Prima facie evidence indicated that the dissolved company was involved in a multi-billion-dollar large-scale fraud. Abuse of Process: The company had purportedly utilised the voluntary liquidation process to conceal its fraudulent activities. Asset Recovery: Restoration would enable the liquidators to investigate the company’s records and seek recovery of misappropriated assets. 3. Policy Considerations The Court emphasised that the policy objectives of the BCA favour restoring companies where allegations of fraud exist, enabling transparency, investigation, and recovery efforts. While the Court did not issue a written judgment, the reasoning behind its decision was set out in the recitals of its order, highlighting the exceptional nature of this ruling and its implications for the interpretation of section 218(5) of the BCA. Court Order and Policy Implications The Court declared the company’s voluntary liquidation and subsequent dissolution void, rescinded the dissolution, and appointed liquidators to investigate its affairs. In reaching its decision, the Court considered the broader legislative purpose of the BCA, which aims to uphold the integrity of the corporate register while balancing justice and public policy objectives. The Court’s order underscores that statutory interpretation must align with fairness and the legislative framework’s purpose. Where the framework is abused, the Court will intervene to prevent individuals from benefitting from improper use of the BVI corporate system at others’ expense. Implications of the Decision This ruling carries significant implications for the restoration of dissolved companies in the BVI, especially in cases involving fraud or misconduct. The Court’s interpretation of section 218(5) confirms that the statutory limitation period for restoration is not absolute, allowing restorations in exceptional circumstances. This decision signals a clear warning to individuals who attempt to evade accountability for fraudulent activities by relying on the expiration of statutory periods. The decision highlights the Court’s willingness to scrutinise voluntary liquidations, particularly those marked by rapid dissolutions or suspected impropriety. Voluntary liquidators must ensure they fulfil their statutory duties diligently to avoid potential consequences, even years after closing their files. While recent legislative amendments aim to prevent abuse of the voluntary liquidation process, historical abuses, such as those alleged in this case, may continue to surface. The Court’s order equips creditors, liquidators, and other stakeholders with a powerful tool to seek justice and recover assets, reaffirming the BVI’s role as a jurisdiction that values corporate integrity.