British Virgin Islands: BVI Companies And Their Registered Agents: A Critical Relationship

A sometimes overlooked, yet critical, aspect of a British Virgin Islands (BVI) company is the role of its registered agent. Only a registered agent can incorporate a BVI company, and they are essential in its ongoing maintenance.

Registered agents are licensed by the BVI Financial Services Commission (the Commission) and are subject to its regulatory oversight under various laws, including the Regulatory Code and the Anti-Money Laundering and Terrorist Code of Practice.

Legally, a BVI company must at all times have a registered agent, except when it is in insolvent liquidation.

Section 91(6) of the BVI Business Companies Act, 2004 (as amended) (the Act) provides that, "A company that does not have a registered agent in contravention of [subsection (1)] commits an offence and is liable on summary conviction to a fine of $10,000."

Further, section 91(A) of the Act provides that, "If at any time a company does not have a registered agent it shall forthwith, by resolution of members or directors, appoint a registered agent."

What are the ongoing obligations of a BVI company and its registered agent?

Key obligations of a BVI company and its registered agent include:

  1. The company shall keep the following documents at the office of its registered agent:

(a)       the memorandum and articles of the company;

(b)       the register of members maintained in accordance with section 41 of the Actor a copy of the register of members;

(c)       the register of directors maintained under section 118 of the Actor a copy of the register of directors; and

(d)       copies of all notices and other documents filed by the company [with the Registry] in the previous ten years.

  1. Where the company keeps a copy of the register of members or the register of directors at the office of its registered agent, it shall:

(a)       within fifteen days of any change in the register, notify the registered agent, in writing, of the change; and

(b)       provide the registered agent with a written record of the physical address of the place or places at which the original register of members or the original register of directors is kept.

When the place at which the original register of members or the original register of directors is changed, the company shall provide the registered agent with the physical address of the new location of the records within fourteen days of the change.

  1. The company shall keep the following records at the office of its registered agent or at such other place or places, within or outside the BVI, as the directors may determine:

(a)       minutes of meetings and resolutions of members and of classes of members maintained in accordance with section 102 of the Act; and

(b)       minutes of meetings and resolutions of directors and committees of directors maintained in accordance with section 102 of the Act.

Where any records specified above are kept at a place other than at the office of the company's registered agent, the company shall provide the registered agent with a written record of the physical address of the place or places at which the records are kept.

Where the place at which any records specified above is changed, the company shall provide the registered agent with the physical address of the new location of the records within fourteen days of the change of location.

  1. The company shall:

(a)       keep at the office of its registered agent or at such other place or places, within or outside the BVI, as the directors may determine, the records and underlying documentation of the company;

(b)       retain the records and underlying documentation for a period of at least five years from the date:

(i)        of completion of the transaction to which the records and underlying documentation relate; or

(ii)       the company terminates the business relationship to which the records and underlying documentation relate; and

(c)       provide its registered agent without delay any records and underlying documentation in respect of the company that the registered agent requests.

"Records and underlying documentation" includes accounts and records, such as invoices, contracts, and similar documents, in relation to:

(i)        all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place;

(ii)       all sales and purchases of goods by the company; and

(iii)      the assets and liabilities of the company.

  1. Subject to the memorandum and articles of the company, the registered agent shall:

(a)       act on the instructions of the directors of the company if those instructions are contained in a resolution passed by the directors and a copy of the resolution is made available to the registered agent, and

(b)       recognise and accept the appointment or removal of a director or directors by members of the company.

  1. Service of a document may be effected on the company by addressing the document to the company and leaving it at, or sending it by a prescribed method to:

(a)       the company's registered office; or

(b)       the office of the company's registered agent.

  1. The company shall have a common seal and an imprint of the seal shall be kept at the office of the registered agent of the company.
  2. The company is required through its registered agent to privately file a copy of its register of directors at the Registry. If it fails to do so, then it is subject to penalties at the rate of US $1,000 per month up to a maximum of US $5,000. (The maximum penalty was recently reduced from US $8,000, and companies that paid above the current maximum will receive a refund.)

Resignation of registered agent / registered agent ineligible to act

Given a registered agent's obligations, in terms of the maintenance of due diligence and records for a company, it is not uncommon for registered agents to resign from their role if they find themselves unable to comply with their obligations under the Act, the Regulatory Code, or the Anti-Money Laundering and the Terrorist Financing Code of Practice.

If a registered agent wishes to resign, it shall:

(a)       give not less than ninety (90) days written notice of its intention to resign as registered agent of the company on the date specified in the notice to a director or the last person from which the registered agent has received instructions concerning the company;

(b)       indicate in writing on the written notice that the list of all approved registered agents in the BVI with their names and addresses may be found on the Commission's internet site; and

(c)       file a copy of the written notice with the Registrar.

If a company does not change its registered agent on or before the date specified in the notice given above, the registered agent may file a notice of resignation. Unless the company has previously changed its registered agent, the registered agent's resignation is effective the day after the notice is registered by the Registrar. Note that, a registered agent may rescind the notice of its intention to resign, which usually occurs if they are able to resolve their issues with the company.

Additionally, where a registered agent ceases to be eligible to act, for example, if it surrenders or loses its license, it must provide notice to the company in a manner similar to the resignation procedure.

Replacing a Registered Agent

How does a company go about replacing its registered agent: (i) where it wishes to do so; (ii) its registered agent intends to resign; or (iii) the registered agent ceases to be eligible to act?

In either of the three scenarios, the company first needs to find a new registered agent that is willing to accept the company based on due diligence that they will need to conduct.

In any of the scenarios, once the new registered agent is satisfied and willing to act, then it can coordinate with the existing registered agent and the company regarding the filing of the notice of change of registered agent with the Registrar, which is usually done by the existing registered agent and endorsed by the new registered agent. As part of the process, the company will need to pass appropriate resolutions to change its registered agent.

In scenarios two (ii) and three (iii), particularly when the existing registered agent is unwilling to participate in the process because of some unresolved issue with the company, then the company may, with the assistance of a legal practitioner, file notice of a change of registered agent. As part of that process, the legal practitioner would make the necessary filing with the Registrar, but before the legal practitioner can do so, they must be satisfied that the company has complied with the relevant laws including passing the appropriate resolutions and that the new registered agent has conducted the necessary due diligence on the company and has given confirmation to that effect.

Also, in scenarios two (ii) and three (iii), the company may not be able to obtain all its records from its former registered agent and could pose a problem in the due diligence process for the new registered agent. Dialogue and payment of any outstanding fees, along with outstanding due diligence compliance, may help to resolve the issue. But if the former registered agent goes out of business, then it becomes more difficult. In such a case, the company will need to reconstruct records and provide adequate due diligence to a new registered agent who is willing to work with them.

Conclusion

The relationship between a registered agent and a BVI company is crucial to its operations. Both parties must work together to achieve the best outcome. However, when that is not possible, there are mechanisms in place to allow the company to change its registered agent or for the registered agent to resign. In all cases, a BVI company must have a registered agent, and that agent must be satisfied with the due diligence provided and believe that they will be paid for their services. These two items remain the hallmark of the relationship.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions