Amendments to BVI Business Companies Legislation Now in Effect
Further to our update of 15 December 20151, the BVI Business Companies Act 2004 ("BCA") and the BVI Business Companies Regulations 2012 have been amended by the BVI Business Companies (Amendment) Act 2015 and the BVI Business Companies (Amendment) Regulations 2015 (the "Amendment Regulations") to provide greater flexibility and certainty for those operating or doing business with British Virgin Islands ("BVI") companies. Save for those changes relating to registers of directors, which are not due to come into force until 1 April 2016, the amendments come into effect on 15 January 2016.
The key changes coming into force on 15 January 2016 include:
(a) The ability of a BVI company listed on a recognised stock exchange to dispense with the need to keep a register of members containing the information previously required by the BCA, instead, allowing the company itself to determine the contents of such register and provisions which allow shares of a BVI company listed on a recognised stock exchange to be transferred without the need for a written instrument of transfer;
(b) Clarification of the rules surrounding the issue of bonus shares, the issue of shares for non-cash consideration and the ability of shareholders to surrender shares; and
(c) A change to the requirements relating to the execution of deeds governed by BVI law to simplify and give certainty to the process.
These changes, together with a number of other amendments to the BCA, are set out in our previous update (see footnote 1).
Register of Directors
The amendments to the regime relating to register of directors, which are currently planned to come into effect from 1 April 2016, will be the subject of a further update shortly.
Methods of Proving Service of Documents
In addition to the changes set out in our previous bulletin, the Amendment Regulations clarify the manner in which service of a document may be effected on a BVI company. The BCA provides that service may be effected by addressing the document to the company and leaving it at or sending it by a prescribed method to (i) the company's registered office or (ii) the office of the company's registered agent. To date, no "prescribed methods" had been legislated for. The Amendment Regulations now prescribe the following methods for service of documents:
(a) By properly addressing, preparing and posting an envelope containing the document to the address for service;
(b) By personal service;
(c) By direct delivery to the secretary or clerk of the company's registered agent; and
(d) By email attaching the document, provided that (i) the original of the document will also be sent by post; and (ii) it will not matter whether the document was served in a scanned or other form so long as it is legible and in the form of the original document.
As regards deeming service, where a document is served:
(a) by post, the document shall, unless the contrary is proved, be deemed to have been served at the time when the envelope would have been received in the ordinary course of post;
(b) by personal service, the document is considered served at the time when the document is received by the person on whom it is served, whether or not receipt of the document has been signed for;
(c) by direct delivery, the document is considered served on the secretary or clerk at the time when the secretary or clerk received it, whether or not receipt of the document has been signed for; and
(d) by email, the document is considered served at the time at which it is shown to have been sent electronically if sent to the correct address.