BVI company information – What can be obtained from public and third-party sources?

One of the factors that makes the British Virgin Islands (BVI) an attractive place in which to incorporate a private company is that a BVI company may keep documents and information about its ownership, management and financial affairs confidential if it wishes to do so.

Although confidentiality is desirable from the company’s perspective, it means that only limited documents and information about the company are publicly available. This guide provides a summary of the documents and information about a BVI company (which is not a regulated person) that a third party can obtain from public and third-party sources.

Why seek documents or information?

The main reasons why a third party may want to obtain documents or information about a company are to:

• carry out due diligence on the company before entering into a transaction with it;
• carry out due diligence on the company before buying or merging with it;
• find out about the company’s ownership, management or financial position in connection with litigation or potential litigation; or
• trace the company’s assets in connection with a claim or potential claim.

What documents and records must a company keep?

For more information on the documents and records that a company must keep under the BVI Business Companies Act, Revised Edition 2020 (as amended, the Act), please refer to our guide ‘What documents and records must a BVI company keep?‘

What documents and information of a company are publicly available?

Company search

A company is required to make relatively few filings under the Act. Consequently, only limited documents and information about the company can be obtained from a search of the records kept by the Registrar of Corporate Affairs (Registrar) by carrying out a company search on VIRRGIN¹ (company search), which is only accessible by account holders.

See the table below for more details on the documents and information that can be obtained from a company search.

Optional filings and public accessibility

Under the Act, a company may elect to make certain filings or make certain filings publicly accessible. In general, only the company, its registered agent or domestic competent authorities and law enforcement agencies in the lawful discharge of their responsibilities shall have access to the company’s registers.

Register of directors and register of shareholders

Whilst a company is required to file a copy of its register of directors and its register of shareholders² with the Registrar, unless the company elects to make those registers public, they will remain confidential and will not be available for public inspection, except on an order of the High Court, or on a written request by a competent authority or a law enforcement agency.

If a company elects to make its filed register of directors or register of shareholders public, those registers may be accessible through a company search.

Security over shares

Where a shareholder creates security over shares in a company, the secured party will typically require the company to elect for its filed register of shareholders that is annotated to record particulars of the security created over its shares by the shareholder to be made publicly available. This is often required by the secured party to put third parties that inspect the Register of Companies (Register) maintained by the Registrar under the Act on notice of the secured party’s security over the shares. For more information, please refer to our guide ‘Taking security over shares in a BVI company‘.

Security created by a company

Where a company creates security over any of its assets, the company or the secured party may elect to file particulars of security with the Registrar. The particulars are registered in the Register of Registered Charges for the company that is maintained by the Registrar which is open to inspection by the public. If particulars of security are not filed, the security will be valid, but its priority under the Act may be affected.

A properly advised secured party will normally file particulars of security itself or insist that the company does so because:

• under the Act, the priority of competing security interests created over the same asset is determined by the date and time on which particulars of security for the security interests were registered; and
• it puts third parties on notice of the security interest and, under the Act, a person is taken to have notice of any particulars of security created by the company that have been registered with the Registrar irrespective of whether they have actually searched the Register.

For more information, please refer to our guide ‘Creation of security by a BVI company‘.

Company documents/information that can be obtained from a company search³

General information

• name and address of its registered agent
• 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 (if it is in good standing it will be ‘active’)
• a list of director names based on the register of directors filed with the Registrar
• whether it has paid its annual fee in the current year

Other information

• particulars of security for any security created by the company over any of its assets that have been registered under the Act (see ‘Security created by a company’ above)
• a copy of its register of shareholders showing particulars of security created over the company’s shares if a shareholder has created security over any of its shares and the company has elected (or has been required by the secured party) to make the copy filed with the Registrar publicly available (see ‘Security over shares’ above)
• a copy of its register of directors or its register of shareholders if the company elects to make the copy register filed with the Registrar publicly available
• articles of arrangement if the company has entered into an arrangement
• articles of merger if the company has merged, or proposes to merge, with another company or foreign body corporate
• a court order sanctioning a scheme of arrangement where the company has entered into a compromise or an arrangement with its creditors and/or shareholders (or any class of them)
• a notice of appointment filed by a liquidator or receiver

Certificate of good standing

Any person with access to VIRRGIN may request from the Registrar a certificate of good standing in respect of a company. A certificate of good standing is typically valid for 3 months from the date of issuance⁴.

The certificate will confirm the following matters in relation to the company:

• its name is listed on the Register;
• it has paid to the Registrar all fees, annual fees and penalties due and payable under the Act;
• it has filed with the Registrar a copy of its register of directors in accordance with the Act (or is not yet due to file its register of directors with the Registrar);
• it has filed with the Registrar a copy of its register of shareholders in accordance with the Act (or is not yet due to file its register of shareholders with the Registrar);
• it has filed with the Registrar beneficial ownership information in accordance with the Act (or is not yet due to file the beneficial ownership information with the Registrar);
• the Registrar has not received any notification that it has failed to file with its registered agent its annual return in accordance with the Act;
• whether, at the date of the certificate:
  • it has filed any articles of merger or consolidation, or articles of arrangement, that have not yet become effective;
  • it is in voluntary (ie solvent) liquidation under the Act;
  • it is in insolvent liquidation, or receivership, under the Insolvency Act, Revised Edition 2020 (as amended);
  • it is in administrative receivership; or
  • proceedings to strike the company’s name off the Register have been instituted.

Eastern Caribbean Supreme Court

The Eastern Caribbean Supreme Court keeps details about legal proceedings brought in the High Court (which includes the commercial division) and the Court of Appeal. A search of these records will reveal,
in relation to any legal proceedings involving a company, any:

• claim form;
• notice of appeal; and
• judgment or order given or made in court.

It is also possible to obtain a copy of any other document held by the court with the leave of the court.

Is it possible to obtain company documents that are not publicly available?

Disclosure order

Documents and information held by an agent or a service provider of a company, like its registered agent, bank or broker (a third party), are confidential and may not be disclosed without the consent of the company.

However, where a company is involved in a wrongdoing and a third party innocently becomes involved in the wrongdoing, the injured party may apply to the High Court for an order requiring the third party to disclose documents (sometimes called a Norwich Pharmacal order) concerning the company held by it. For more information, please refer to our guide ‘Documents and information that can be obtained in respect of a BVI company‘.

Right of inspection of director and shareholder

Under the Act:

• a director of a company is entitled, on giving reasonable notice, to inspect the documents and records of the company. However, if the company refuses the request for inspection, a director may apply for an order compelling disclosure; and
• a shareholder of a company is entitled to inspect certain documents and registers of a company. However, subject to the memorandum and articles of the company, the directors have a right under the Act to refuse inspection if they are satisfied that it would be contrary to the company’s interests.

For more information, please refer to our guide ‘Documents and information that can be obtained in respect of a BVI company‘.

Foreign competent authorities

The BVI government has entered into a number of arrangements with foreign governments under which it may be required to disclose information about a company to a foreign competent authority. These arrangements include being a party to the Organisation for Economic Co-operation and Development’s (OECD) multilateral convention on mutual administrative assistance in tax matters and tax information exchange agreements with foreign governments.

The ITA was established to deal with cross-border tax matters that affect BVI entities and the practical aspects of tax information exchange. The ITA has established reporting systems to facilitate different information exchange regimes, including reporting obligations under the US Foreign Account tax Compliance Act (FATCA), OECD’s Common Reporting Standard (CRS) and Country-by-Country Reporting (CbC Reporting)⁵.

In addition, in appropriate circumstances, the BVI government will provide information about a company to a competent authority in connection with investigations relating to anti money laundering, terrorist financing and other financial crimes or financial services business.

To enable it to meet its international obligations, the BVI government has various statutory powers to require BVI persons (including banks and registered agents) to provide it with the information that is being sought by a foreign competent authority.

Information held by a company’s registered agent

A company’s registered agent keeps copies of certain records and documents relating to a company, details and decisions of its directors and shareholders as well as correspondence and instructions. These items are not publicly available and, except as noted under ‘Disclosure order’ and ‘Foreign competent authorities’ above, a company’s registered agent will be bound by a duty of confidentiality and not disclose to a third party any documents or information relating to the company held by it.

Contacts

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