A frequent part of Walkers' practice in the Finance Group involves reviewing the register of directors ("ROD") of BVI companies to verify who can authorise those companies to participate in various transactions. Walkers notes with interest that changes to the BVI Business Companies Act, 2004 ("BVI BCA") are to come into force on 1 April 2016 requiring a company to include additional personal details of directors in its ROD and to file a copy of the ROD with the Registrar (the "Registrar ") of the BVI Registry of Corporate Affairs (the "Registry").

The driver behind these changes is the BVI Government's commitment to ensuring that the BVI is in compliance with the transparency requirements of the Financial Action Task Force (FATF) International Standards on Combating Money Laundering and the Financing of Terrorist Financing by, among others, providing accurate and timely information on the control of legal persons which can be accessed in a timely fashion by competent authorities.

Whereas previously the ROD only had to include the name, address and date of appointment/cessation to act of a director, under the new section 118A of the BVI BCA, a company's ROD shall also contain, for each director who is a natural person:

  • former names (unless changed by deed poll or other legal means or disused for 10 years);
  • address for service of documents as well as residential address (if different from address for service);
  • date and place of birth; and
  • nationality.

Corporate directors are required to provide their corporate or registration number (if any), their registered or principal office, their address (unless they are a BVI company in which case their registration number will suffice) and place and date of incorporation or registration.

The new section 118B of the BVI BCA requires that a copy of a company's ROD be filed with the Registrar. For newly established companies, this must be done within 21 days of the company appointing its first directors. For existing companies, there is a grace period of up until 31 March 2017 to file the ROD, which may, in the circumstances prescribed in section 111B(8) (essentially relating to the difficulty for registered agents of having to do mass filings within the deadline), be extended by a further 6 months at the discretion of the Registrar.

To help ensure that companies comply with the new requirements, a range of penalties has been introduced for non-compliance. The penalty for a newly-established company failing to file its ROD within 21 days of appointing its first directors is $100.

The penalty for an existing company failing to file its ROD on or before 31 March 2017, or on or before the period of any extension granted, is:

  • $300 for the first month or part thereof after 31 March 2017 (or the end of the extension period, if any);
  • $500 for the next three months or part thereof;
  • $750 for the next three months or part thereof; and
  • $1,000 for each subsequent month or part thereof that the failure continues.

As an on-going obligation, a company must notify the Registrar of any changes to its ROD, within 30 days of such changes being made, by filing a copy of the ROD containing the changes with the Registrar. The penalty for failing to file changes to the particulars in a ROD within this period is $100.

Although the RODs of companies will be held on file at the Registry, it will not be possible to obtain the ROD of a company from the Registry by running a company search through an authorised agent (in the way that the M&A and register of charges can be obtained) unless the company has opted for the ROD to be made publicly available at the time of registration. Where a company has not opted to make its ROD publicly available, the Registrar will only make a copy of the ROD held by it available to:

  • the company itself, its registered agent and any person authorised in writing by the company; or
  • any other person upon an order of the High Court, or on a written request by a competent authority acting in exercise of its powers as a regulator of financial services business, tax administrator or law enforcement agency or for the purposes of dealing with a matter for which it has authority under an enactment, including pursuant to its obligations to a mutual legal assistance request received or made or to be made by it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.