The BVI Securities and Investment Business Act (the "SIBA") and the Mutual Fund Regulations (the "Regulations") under which all hedge funds are regulated defines a mutual fund as a company, partnership or unit trust which:
- collects and pools funds for the purpose of collective investment; and
- issues shares (or similar interests) that entitle the holder to receive on demand or within a specified period after demand an amount computed by reference to the value of a proportionate interest in the whole or part of the net assets of the company, partnership or unit trust.
Closed-ended funds are outside the scope of regulation (because the investors do not have the right to receive the NAV of their interests on demand).
There are three types of fund under the Act; public funds (in which shares are sold to the public), and the more popular private and professional funds:
Private fund: a mutual fund whose constitutional documents specify that either (a) it will have no more than 50 investors, or (b) the making of an invitation to subscribe for interests is to be made "on a private basis", i.e. the invitation is made (i) to specified persons (however described) and is not calculated to result in shares becoming available to other persons or to a large number of investors, or (ii) by reason of a private or business connection between the person making the invitation and the investor.
Professional fund: only available to professional investors (i.e. persons (i) whose ordinary business involves, whether for its own account or the account of others, the acquisition or disposal of property of the same kind as a substantial part of the property of the fund, or (ii) whose net worth (whether individually or jointly with his or her spouse) exceeds US$1,000,000 and who consents to being treated as a professional investor) and the initial investment, in respect of each of the investors, is at least US$100,000 or its equivalent in another currency.
There is little to choose between a private fund and a professional fund from a regulatory or cost perspective. Where speed is an issue, a professional fund can prove beneficial as the fund may carry on business for up to 21 days prior to being recognised by the BVI Financial Services Commission (the "Commission") provided that the application for recognition is submitted to the Commission for consideration within 14 days of the launch of the fund.
Private and professional funds are by far the most common form of fund to be established under SIBA and the vast majority of these funds are established as corporate entities.
The recognition or registration procedure for mutual funds with the Commission is relatively straightforward requiring the submission of:
- evidence of the formation of the
entity (i.e. copies of the certificate of incorporation
and memorandum and articles of association for a company);
- completed application form and offering document; and
- evidence of the type of fund, for instance, an extract of the subscription agreement showing the professional investor declaration referred to above.
Any private or professional fund that intends to make an offer of its interests or shares must include the prescribed investment warning, in a prominent place in the offering document. The subscription agreements must include a written acknowledgement from any new investor that is has received, understood and accepted the investment warning. Professional funds should also include statements in their constitutional documents as to its professional fund status.
A private or professional fund must appoint a manager, an administrator and a custodian (although application may be made to the Commission to exempt a fund from appointing a manager and/or custodian). Such funds are also required to appoint a local authorised representative who will accept service on behalf of the fund in the BVI. Ongoing requirements for professional or private funds include:
- notice to the Commission within 14 days of any change to the composition of the board, change in place of business and amendment of constitutional documents and new or amended offering documents;
- notice to the Commission at least 7 days prior to the appointment of any new functionary (including custodians, administrators, prime brokers and managers) and, in the case of a functionary ceasing to act, notice within 7 days of the cessation or resignation;
- filing audited accounts within 6 months of the financial year end;
- filing annual returns by 30 June each year;
- notice to the Commission of any material change to the nature and scope of business as soon as reasonably practicable; and
- payment of annual fees.
Once recognised, the fund is then subject to the supervision of the Commission which is authorised under SIBA to direct the fund to furnish information or provide access to any records, books or other documents which are deemed necessary to ascertain compliance with SIBA.
SIBA further provides that any fund's certificate of recognition may be cancelled or made subject to conditions if, inter alia, the fund has breached any regulations or conditions of its certificate, has been convicted of an offense, is carrying on business in a manner detrimental to its investors or to the public interest, or is declared bankrupt or is being wound up or dissolved.
Advantages of the BVI
- Statutory provisions clarify that companies and international limited partnerships are exempt from local taxation. There is no requirement or need to obtain any certificate or undertaking to that effect.
- The BVI is well known as a low cost jurisdiction for incorporations and the fees payable to the Commission in connection with the recognition/registration of a fund (as mentioned above) are, comparatively, low when considered against other offshore fund jurisdictions.
- No requirement for local audit sign-off.
- Constitutional documents of a BVI company may be drafted to allow amendments to be made by a resolution of the directors. No shareholder approval would then be required unless the proposed amendments would vary shareholder rights.
No advance authorisation is required in the BVI and professional funds can take advantage of the fast-track procedure which allows such funds to operate for a 21 day period prior to obtaining official recognition.
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.