BRITISH VIRGIN ISLANDS: An Introduction
Background
The British Virgin Islands (BVI) is a leading offshore international business and finance centre recognised for its stable, innovative, business-friendly legal and regulatory environment. The past year (2023) was a significant one for the jurisdiction, with the implementation of notable changes to the BVI Business Companies Act, 2004 (as amended) and other legislative developments within the financial services sector.
The island’s tourism sector has continued its rebound since the COVID-19 pandemic, and, alongside the financial services sector, still represents a central pillar of the economy. Recent global economic challenges, including the Russian invasion of Ukraine and the Palestine-Israel conflict, are of increasing concern. Also, high-interest rates continue to impact on global clients of the jurisdiction and persons resident within it. Notwithstanding these issues, the BVI is seeing a year-over-year increase in cruise ship arrivals, including new ocean liners, day-trippers and yachting activities.
The territory’s financial services sector is also doing well with respect to company incorporations, limited partnerships, investment funds, investment fund managers, investment business licensees and trust businesses. At the end of the third quarter of 2023:
i) active companies stood at 370,595;
ii) limited partnerships stood at 2,429; and
iii) registered investment funds stood at 2,120.
This marked a noticeable increase for the latter over the previous year. BVI trusts remain attractive vehicles for succession planning, including the BVI’s sought-after VISTA trusts and private trust companies. Domestic real estate and banking activities have also grown but with some limitations due to higher interest rates.
Key Transactions and Cases
As with previous years, BVI entities featured in significant capital markets and M&A deals across the globe. BVI firms acted in high-value, complex and innovative transactions worth tens of billions of dollars, including initial public offerings, acquisitions, complex restructurings and new fund launches.
Some noteworthy transactions include the acquisition of Cloud Light Technology Limited by NASDAQ-listed Lumentum Holdings for USD750 million (subject to certain adjustments) by way of a BVI statutory merger and a significant international fintech acquisition involving Shift4 (BYSE: FOUR) and Finaro, a prominent clearing technology provider and online merchant bank in Europe.
In the mix, Vice Media Group was acquired by a consortium of lenders led by Fortress Investment Group. It included Soros Fund Management and Monroe Capital in a court-sanctioned asset purchase after Vice filed for bankruptcy in May 2023. The high-profile media company deal was valued at USD350 million.
Rounding out 2023 were the business combinations of Maxpro Capital Acquisition Corp with late-stage clinical biopharmaceutical company Apollomics Inc through a reverse merger, and the acquisition by Nuvei (Nasdaq: NVEI) (TSX: NVEI) of American payments processor Paya Holdings (NASDAQ: PAYA) for USD1.3 billion.
In the dispute resolution and insolvency arena, 2023 saw several high-profile matters involving BVI law firms and insolvency practitioners, including a dispute involving issuing and vesting cryptocurrency tokens. A proprietary injunction was obtained restraining the respondent from dealing with or disposing of a number of crypto tokens pending the dispute’s outcome. In granting the order, the BVI court followed established BVI authority in Chainswap and Torque Group that fungible tokens are to be treated as property, and demonstrated that it will move swiftly and on short notice to protect assets deemed to be at risk.
Court cases involving the first major crypto-firm bankruptcy, Three Arrows Capital, and several spin-off cases resulting from the meltdown of crypto-exchange FTX, continue. Meanwhile, the BVI International Arbitration Centre remains active, adding experienced international arbitrators to its panel in 2023 and welcoming a new chief executive officer.
Legislative and Regulatory Changes
On the legislative front, the changes to the BVI Business Companies Act, 2004 (as amended), which took effect on 1 January 2023 by virtue of the BVI Business Companies (Amendment) Act, 2022, were a critical development. Amendments include:
i) the requirement to file a list of names of BVI companies’ directors at the BVI Registry of Corporate Affairs;
ii) a new strike-off and dissolution regime for companies;
iii) a new requirement for filing an annual return (for which filings will commence in 2024); and
iv) changes to the eligibility of voluntary liquidators.
Another significant piece of legislation, the Virtual Assets Service Providers Act, 2022, commonly called the “VASP Act”, came into force on 1 February 2023. The Act provides a regulatory framework for supervising virtual assets service providers and builds on the BVI’s position as a leading digital assets hub. Several VASP applications have since been filed with the BVI Financial Services Commission under the new Act.
The BVI also enacted the Virgin Islands Shipping and Maritime Authority Act, 2023, which sees the Virgin Islands Shipping Registry become the Virgin Islands Shipping and Maritime Authority, a statutory body. As a statutory body, it has greater autonomy in making decisions that generate revenue, facilitate growth and expand its services in keeping with international maritime community demands and market trends.
In 2023, the BVI underwent its Caribbean Financial Action Task Force (CFATF) evaluation, led by a team from the International Monetary Fund (IMF) on behalf of the CFATF. The mutual evaluation report is expected to include recommended actions to improve the BVI’s AML/CFT measures, and is expected to be published in early 2024. Implementing the recommended actions will ensure that the BVI remains adequately competent to prevent and forestall money laundering, terrorist financing and proliferation-financing activities. After a short delay, the BVI was removed from the EU’s list of non-cooperative jurisdictions for tax purposes and returned to the EU’s “whitelist” this past year.
The Pragmatix Report of 2022, commissioned by BVI Finance, remained very relevant in 2023, highlighting that the BVI promotes global capital flows and facilitates important transactions that would otherwise be impossible. The jurisdiction remains significant in the global economic sector, with the report explicitly confirming that the territory’s domestic economy is “sound, balanced and stable”, and that the jurisdiction offers a “net benefit” to countries worldwide “due to its scale of contribution to investments and jobs”.
Following general elections in 2023, the territory welcomed a new government and its first Minister of Financial Services. How this government handles ongoing governance reforms and the evolving economic landscape will determine the territory’s trajectory. However, with a minister dedicated to financial services, the industry is expected to continue to grow and innovate.
The issue of a public register of beneficial ownership is very much alive within the territory. Still, with the November 2022 judgment of the European Court of Justice declaring such registers invalid in the EU for privacy-based reasons, the BVI, alongside other overseas territories and crown dependencies, is pushing back and seeking to establish a “legitimate interest” or similar test before implementation. In a nutshell, it means that a public register of beneficial ownership in the BVI is not expected anytime soon. However, preparations are well underway should that eventually become a reality.
Outlook
As with previous years, BVI financial services sector participants, including lawyers, accountants, insolvency practitioners and corporate services professionals, continue to employ their significant skills and expertise in addressing innovative, complex and high-value transactions for the global market.
Overall, the outlook for the BVI is very positive, with industry practitioners feeling confident that the territory will rise above the global economic challenges and continue to meaningfully contribute to the worldwide economy.