Guide

Documents and information that can be obtained in respect of a BVI company

There are various reasons why someone may wish to obtain documents and information in respect of a company incorporated in the British Virgin Islands (BVI). For example, the documents may be required by directors to perform their duties or shareholders to understand how the company operates. They may also be necessary for due diligence purposes of a business interested in making a deal with a BVI company or to help victims of fraud to trace dissipated assets. Whatever the reason, there are a number of helpful tools available to those who seek documents and information relating to a BVI company.

Publicly available documents and information

Some BVI company documents may be obtained from the electronic registry called VIRRGIN (which can be accessed by account holders such as BVI law firms), which will generally reveal the following:

• the name and address of its registered agent;
• the location of its registered office;
• its certificate of incorporation and any certificate of change of name;
• its memorandum and articles of association and any amendment to (or restatement of) them;
• its status with the Registrar, showing if it is in 'good standing' (if it is, it will be 'active');
• a list of names of current directors; and
• whether it has paid its annual fee in the current year.

The search may also reveal other documents, including copies of a company's register of shareholders and register of directors (which includes both current and former directors), however, filing of these documents is not mandatory and so they will not appear on every search.

Norwich Pharmacal Order

In some cases, it is possible to obtain documents which are not publicly available. This may be possible in cases of a wrongdoing (such as fraud). An order can be sought against a third party (such as a registered agent, bank or broker), who has innocently become involved in wrongdoing and holds documents which may help victims to establish the identity of a wrongdoer, plead their case and trace dissipated assets.

A Norwich Pharmacal order compels the third party to disclose relevant documents which may include registers of members and directors, deeds of trust showing Ultimate Beneficial Owners (UBOs), KYC documents, information as to who pays the registered agent's fees and expenses, bank statements and documents relating to assets and transactions.

In Al Rushaid Petroleum Investment Company & Another v TSJ Engineering Consulting Company Limited BVIHC (Com) 2010/37, the Court established the following test, which must be met by an applicant:

• there must be an apparent wrong carried out, or arguably carried out, by an ultimate wrongdoer;
• there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
• the person against whom the order is sought must:
  • be mixed up in so as to have facilitated the wrongdoing; and
  • be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.

All BVI companies are required to appoint a BVI-based registered agent, which is required to keep information about the company. As a result, the vast majority of applications for Norwich Pharmacal orders in the BVI are brought against registered agents.

Registered agents are usually obliged to notify their clients of any such application, which may frustrate its purpose. However, the risk of 'tipping off' may be eliminated by obtaining a so-called 'seal and gag' order. Applications for 'seal and gag' orders are made without notice to a respondent and usually before an application for a Norwich Pharmacal order, which should be made on notice except in cases of extreme urgency 'in the sense of literally no time to give notice' as the Court explained in CIF v DLG & Another BVIHCM2023/0050.

Section 100(1) of the BVI Business Companies Act

Under section 100(1) of the BVI Business Companies Act (Revised Edition) 2020 (as amended) (the Act), a director is entitled, on giving reasonable notice, to inspect the documents and records of the company. If the company refuses the request for inspection, the director may apply for an order compelling disclosure.

In Intimere Holdings Limited & Another v Papanikolaou BVIHCMAP2022/0031, the Court-appointed director obtained an order for disclosure of documents revealing the identity of a litigation funder. The Court clarified that whilst section 100(1) is mandatory, a right to inspect company's documents should only be used to fulfil director's duties and not for any 'improper purpose'. The burden of demonstrating that the inspection is sought for an 'improper purpose' rests on the party opposing it. If the 'improper purpose' is successfully demonstrated, the Court will refuse the director's application.

Section 100(2) of the BVI Business Companies Act

Under section 100(2) of the Act, a shareholder of a company is entitled 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 or she is a member.

However, subject to the memorandum and articles, directors have a right, set out in section 100(3) of the Act, to refuse inspection if they are satisfied that it would be contrary to the company's interests. Exercise of this right may be challenged by the shareholder by making an application for an order compelling the company to allow inspection under section 100(4) of the Act.

Whilst it may be argued that section 100(2) of the Act effectively restricts the scope of documents, which may be accessed by the shareholders, in Green Elite Limited v Delco Participation BV BVIHCMAP2016/0041, the Court clarified that section 100(2) of the Act is not a 'compendium' of all shareholder rights, rather it only sets a minimum standard of such rights. In the context of that case, it meant that it was not unlawful for the company to add a provision to its articles of association allowing shareholders access to financial statements of the company and that it would not contravene or be inconsistent with section 100(2) of the Act.

Contacts

A full list of contacts specialising in BVI law can be found here.