Article by Jon Wall and John N. Greenwood
Confidentiality of corporate documents and information is one of the key attractions of incorporating a company in the BVI. A company search of the BVI Registrar of Corporate Affairs will only disclose certain information and documents.
A company is required to file its Memorandum of Association and Articles of Association, together with any amendment to these documents.
A company is not required to file its register of directors, register of members, register of charges or an annual return1
with the BVI Registrar of Corporate Affairs.
A company can elect to file one or more of these registers, but if it does it will be obliged to continue to file such documents until it gives formal notice to the Registrar of Corporate Affairs.
In practice a company may file details of charges as lenders typically require it, since the effect of filing is to create priority over any subsequent registered or unregistered security.
Importantly, a BVI company is not required to file statutory accounts (with the exception of certain regulated companies). All that is required is to maintain records "sufficient to show and explain the company's transactions
" and which "will, at any time, enable the financial position of the company to be determined with reasonable accuracy
. There is no requirement for any accounts or financial records to be subject to independent audit.
Obligations of the Registrar of Corporate Affairs
The BVI Business Companies Act 2004 (BCA) requires the Registrar of Corporate Affairs to maintain the following information:
- Register of Companies incorporated under the BCA;
- Register of Foreign Companies (registered under Part XI);
- Register of Charges (registered under Part VIII)3.
Unless otherwise provided, a person may:
Certificate of Good Standing
- inspect the Registers maintained by the Registrar;
- inspect any document retained by the Registrar;
- require a certified or uncertified copy or extract certificate of incorporation, merger, consolidation, arrangement, continuation, discontinuance, dissolution or good standing of a company, or a copy or an extract of any document or part of a document of which he has custody4.
Upon completing form R800, it is possible to obtain a Certificate of Good Standing from the Registrar of Corporate Affairs certifying that a company is of good standing. The Certificate largely resembles the initial Certificate of Incorporation and is used to formally confirm the company's continued legal existence. It also confirms that all administrative requirements pertaining to the company's continued registration have been complied with.
Such a certificate will be issued if:
- The company is on the Register of Companies; and
- There are no overdue annual or other fees and penalties due and payable5.
The certificate will state whether:
- The company has filed articles of merger or consolidation which are pending;
- The company has filed articles of arrangement that have not yet become effective;
- The company is in voluntary liquidation; or
- Proceedings have been instituted to strike the name of the company off the Registrar of Corporate Affairs.
Whilst there are limited requirements to file documents with the Registrar of Corporate Affairs, a company is Company searches in the British Virgin Islands required to maintain certain records and documents at the office of its registered agent, as listed below. However, there is no public right to inspect these documents at the registered agent's office:
- Memorandum and Articles of Association;
- Register of Members;
- Register of Directors; and
- Copies of all notices and documents filed with the Registrar of Corporate Affairs in the previous ten years6.
A company must also keep other documents including:
- Minutes of members' and directors' meetings and copies of resolutions7; and
- Financial records sufficient to show and explain the company's transactions as detailed above.
Financial and other company records may be kept in written form, or wholly or partly in electronic form, in accordance with the requirements of the BVI Electronic Transactions Act 20018
In practice although the registered agent of a company is responsible for maintaining records, the registered agent is often reliant on the directors to keep the records up to date and accurate.
Rights of access by directors
A director of a company is entitled, on giving reasonable notice, to inspect the documents and records of the company:
- in written form;
- without charge; and
- at a reasonable time specified by the director;
and to make copies of or take extracts from the documents and records9
Rights of access by shareholders
A shareholder of a company is entitled, on giving, written notice to the company, to inspect:
- the memorandum and articles;
- the register of members;
- the register of directors; and
- minutes of meetings and resolutions of members and of those classes of members of which he is a member;
and to make copies of or take extracts from the documents and records10
. Subject to the memorandum and articles, the directors may, if they are satisfied that it would be contrary to the company's interests, refuse to permit the member to inspect any document or any part of a document (save the memorandum and articles)11
. In such circumstances, a member may apply to Court for an order that he should be permitted to inspect the document without limitation12
The following table summarises the mandatory documents that must be filed with the BVI Registrar of Corporate Affairs or documents issued which are typically available in a company search:
1 Unlimited companies that are not authorised to issue shares and foreign companies registered under Part XI of the BCA are required to file annual returns s118A and 192 of BVI Business Companies Act 2004
2 s98 BVI Business Companies Act 2004.
3 s230(1) BVI Business Companies Act 2004
4 s233(1) BVI Business Companies Act 2004. Any such document is prima facie evidence of the matters contained therein. s233(2) provides that any such certified document is admissible in evidence in any proceedings as if it were the original document.
5 s235(1) BVI Business Companies Act 2004
6 s96 BVI Business Companies Act 2004.
7 s97 BVI Business Companies Act 2004.
8 s99 BVI Business Companies Act 2004.
9 s100(1) BVI Business Companies Act 2004.
10 s100(2) BVI Business Companies Act 2004.
11 s100(3) BVI Business Companies Act 2004.
12 s100(5) BVI Business Companies Act 2004.
|Memorandum of Association (and any amendments)
|Articles of Association (and any amendments)
|Certificate of Registration
|Certificate of change of name (if applicable)
|Register of Directors
|Register of Shareholders
|Register of charges
||No but these may in practice be available
|Company accounts (excluding certain regulated entities)