|Compulsory Filing of Register of Directors - FAQs
Updated: 26 May 2017
Amendments to the BVI Business Companies Act, 2004 (the Act) which came into force on 1 April 2016 require the compulsory filing of particulars of directors with the Registrar (the Registrar) of the BVI Registry of Corporate Affairs (the Registry).
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- Is every BVI Company required to file particulars of its Directors?
Yes. The obligation to file Director particulars applies to all BVI companies.
- When does the filing of Director particulars have to be made?
For companies registered on or after 1 April 2016, the particulars of the first directors must be filed at the Registry within 21 days of their appointment by the first registered agent. Transitional arrangements apply to all Companies which were incorporated, registered or continued under the Act as at 31 March 2016 (see below for more details). When the Director particulars change, a subsequent filing must be made within 30 days of the occurrence of the change.
- Is there a fee for filing the Director particulars?
Yes. For companies registered on or after 1 April 2016, a fee of US$50 is payable to the Registry on the initial filing of the Director particulars and for each subsequent filing. For existing companies, there is no Registry fee for the initial filing if it is made prior to 31 December 2016. The free fee period was initially set to end on 30 September 2016 however according to a statement by the BVI Financial Services Commission this has been extended to 31 December 2016. There is a Registry fee of US$25 if the initial filing is made between 1 January 2017 and 31 March 2017. All subsequent filings made by existing companies will attract a fee of US$50. In addition, Harneys Fiduciary, as Registered Agent, will charge a professional fee for making the filing. Discounted fees apply to all initial filings for existing companies and other client or company specific arrangements may apply. Please contact your normal Harneys Fiduciary contact for further details.
- Are the filed Director particulars available to the public?
No, the filed particulars are not available to the public unless the Company elects otherwise. The Act requires that the Registrar shall not make the Director particulars available to any person save in limited circumstances (see below for more details on such exceptions).
- Who can make the filing of the Director particulars?
Only the Registered Agent of the Company can make the filing. The filing is made through the Registry's VIRRGIN electronic filing platform.
- What is the difference between Director particulars and the Register of Directors?
Although the Act refers in several places to the requirement of a company to file its Register of Directors, in practice, the Registry’s VIRRGIN electronic filing platform requires the filing only of certain information about the Director (particulars which the Act requires to be contained in the Register) rather than a copy of the Register of Directors itself. Many companies include additional information in its Register of Directors including Notes providing more details on the particular circumstances. Any such information will not be filed at the Registry.
- What particulars of the Directors must be filed?
The amendments to the Act prescribed additional minimum information which must be maintained in the Register of Directors of a BVI Company. The minimum information now prescribed is the information which must be filed at the Registry as the Director particulars of the Company.
Prior to 1 April 2016, a Company’s Register of Directors was required to contain only:
- the name and address of each director;
- the date on which each director was appointed and the date the director ceased to act;
From 1 April 2016, the date of appointment and cessation of acting is, of course, still required but additional information about each director is required to be maintained as follows:
In the case of an individual director:
- full name (broken down into first, middle and given names);
- former name, if any, unless the former name was changed by deed poll or other legal means or disused for more than ten years;
- address for the service of documents;
- usual residential address, unless that address is the same as the individual’s address for the service of documents;
- date and country of birth; and
In the case of a corporate director:
- full corporate name;
- corporate or registration number, if any;
- address of registered or principal office;
- date and place of incorporation or registration.
These requirements apply to all companies from 1 April 2016. There are no transitional arrangements for this obligation. While the failure of an existing company to update its Register of Directors to include the additional information by 31 March 2016 amounts to an offence under section 96(4) of the Act (liable on conviction to a fine of US$10,000), we do not anticipate any action being taken by the competent authorities for any such breach provided that the company complies with the requirement to file the Director particulars by 31 March 2017.
- Must the Register of Directors of an existing company be amended to include the additional Director particulars prescribed by the Act?
Yes, the Act prescribes additional information to be included in the Register of Directors of all companies and the Register of Directors should be updated to include the additional information.
- Does the Registered Agent need to be authorised to make a filing of Director particulars?
The Registered Agent will make the filing of the particulars of the first directors within 30 days of their appointment without any further authorisation. Filings of subsequent changes to the Director particulars and the initial filings by existing companies will require authorisation from the Company. We recommend that, where practical, as a matter of good practice any resolutions of directors or members dealing with changes to the Register of Directors expressly authorise the Registered Agent to make the required filings at the Registry.
- What transitional arrangements apply to existing companies?
Transitional arrangements apply to all companies registered at the Registry on 31 March 2016. Such companies are required to file the particulars of their register of directors no later than 31 March 2017. An existing company may elect to make an initial filing of its Director particulars any time up to 31 March 2017 (although as noted above an extra fee is payable for filings made after 31 December 2016). Once an existing company has made its initial filing, it must make a subsequent filing within 30 days of any change to its Director particulars. A Registry fee of US$50 applies to each such subsequent filings as well as a Harneys Fiduciary filing fee.
- What are the consequences of an existing company failing to file its initial Director particulars by 31 March 2017?
If an existing company fails to file its Director particulars by 31 March, 2017 the following penalties shall apply:
|Date Initial Filing made
|Up to the end of 31 July 2017
|1 Aug 2017 – 31 Oct 2017
|1 Nov 2017 and thereafter
The Registry has been reported as indicating that the applicable penalties are non-cumulative and would therefore be lower than indicated above.
- Once an existing company files its initial Director particulars, what happens when the particulars change? For example, when a new director is appointed or his/her residential address changes?
Any change to the Director particulars must be filed within 30 days of the occurrence of the change. Failure to file within 30 days will attract an automatic penalty of US$100. The Registry has stressed in guidance that the 30 day timetable applies from the date that the change occurs not the date on which the Company is notified or the date on which the registered agent is notified. It is important therefore that companies ensure that its directors notify them of any change of their own particulars and that companies immediately notify their registered agent of any changes.
- Does the obligation to file Director particulars apply to companies which are struck off the Register?
It depends when the company was struck off. A Company which was struck off the Register prior to 1 April 2016 is not required to file its Director particulars. However, if such a company ever wishes to apply to be restored to the Register it will be required to make the filing with effect from the date of restoration. A company which is struck off on or after 1 April 2016 is required to make the initial filing of its register of directors. This applies even to those companies which are struck off between 1 April 2016 and 31 March 2017. This includes companies struck off on 1 May 2016 for non-payment of 2015 Government Licence Fees due by 30 November 2015 and those companies which will be struck off on 1 November 2016 for non-payment of Government Licence Fees due on 31 May 2016. A company will not be able to make the filing if it is struck off although we have made representations to the Registry to allow such a filing.
- What happens when a company is restored to the Registry which has not previously filed a register of directors?
If the company was struck off prior to 1 April 2016, then it may be restored in the normal way but in addition will be required to make an initial filing of its register of directors as at the date of restoration. A company that was struck off on or after 1 April 2016 should have made the filing of its initial register of directors even if it was struck off prior to the initial filing deadline on 31 March 2017. If such a company is restored prior to 31 March 2017 then it will be able to do so and make the initial filing as if it had never been struck off. If, however, it applies to restore after 31 March 2017 then it will be in breach of the initial filing obligation and the penalties which arise as a result will be due for payment. These could be very significant as there is no upper limit on the failure to make the filing.
- What happens if an election is made for the Directors particulars to be public?
If such an election is made, all of the Director particulars will be available to anybody making a search on the company at the Registry. This includes sensitive personal information such as place and date of birth and residential address of individual directors. Currently, a search of a Company’s file at the Registry can only be made in person or through an electronic account held by an approved service provider. There is no online access available to the general public.
- How do the initial filing obligations apply to companies in liquidation?
Clause 118B(10)(c) of the Act does not carve out the requirement to file Director particulars for existing companies in liquidation as it does those companies that are struck off the Register and not restored. However, in practice the Registry will issue a certificate of dissolution for existing companies in liquidation who have not filed Director particulars. Should a company remain in liquidation after 31 March 2017 then it will need to file its Director particulars in order to be issued with a certificate of dissolution.
- What about a company that is continuing out of the jurisdiction prior to the deadline for the initial filing?
This depends upon the timing of the continuation out. Provided that the company has continued as a company incorporated under the laws of a jurisdiction outside the BVI and the Registrar has issued a certificate of discontinuance of the company in advance of 31 March 2016 then it shall not be required to file the particulars of its register of directors. If the company is still in existence after this date then a filing must be made.
- What is the impact on companies who previously filed their Registers of Directors at the Registry under section 231 of the Act?
A number of companies previously elected to file a copy of its register of directors with the Registrar pursuant to section 231 of the Act. Such registers were then available for public inspection. Such copy registers are very unlikely to contain all of the particulars now required to be contained in the Register of Directors. As such, those companies are now required to file the additional Director particulars no later than 31 March 2017. Section 231 of the Act has now been repealed and as such there is no obligation to keep the copy register previously filed under section 231 up-to-date in the event of changes between 1 April 2016 and the date on which it makes the initial filing of Director particulars under section 118B.
- Why have the amendments been introduced?
The amendments were introduced in order to ensure the BVI’s continued full compliance with international regulatory and transparency requirements. In order to remain a successful financial jurisdiction the BVI must meet and exceed the requirements imposed by bodies such as the Financial Action Task Force and its initiatives on Terrorist Financing and International Standards on Combating Money Laundering.
- While the filing is not public, the Act states that the Registrar may share the Director particulars pursuant to a Court Order or a request from a competent authority – what does this mean in practice?
The Registrar will only share Director particulars pursuant to a Court Order or a request by BVI law enforcement and tax authorities. Typically, such information is requested in order to prevent and detect money laundering, terrorism financing, financing of the proliferation of weapons of mass destruction and other serious and organised crime. The Director particulars are not available to third parties who do not have a legitimate interest.
- In what circumstances may the Registrar share information it holds about the company?
Where a company has not elected for their filings to be public the Registrar will only share company information with (i) the company itself, its registered agent and any person authorised in writing by the company; and (ii) any other person authorised by the High Court or a written request by a competent authority acting in exercise of its powers as a regulator of financial services business, tax administrator or law enforcement agency or for the purposes of dealing with a matter for which it has authority under an enactment (including pursuant to its obligations to a mutual legal assistance request received or made by it eg FATCA).
- What about foreign companies registered under Part XI of the BVI Business Companies Act?
The provisions of the Act requiring foreign companies registered under Part XI of the Act to file particulars of their directors at the Registry have not been amended and remain in force. Section 186 of the Act requires that the full name, address and nationality of each director be filed. This does mean that there is a slight mismatch between the amount of information held by the Registry about a director of a foreign company registered under the Act and that of a BVI company.
- As a current director of an existing company, what can I do if I would prefer that my personal details are not filed with the Registry?
The requirement under the transitional arrangements for existing companies is to file particulars only of those directors that are in office as at the date on which the initial filing is made. The initial filing can be any time up to 31 March 2017. A director who resigns as a director of an existing company before the date of the initial filing will not have any of his or her particulars filed at the Registry with respect to that existing company.
Now is a good time to review the composition of the board of directors of an existing company and ensure that it is properly constituted and continues to achieve all of your objectives. Harneys Fiduciary offers professional directorship services to its clients (subject to enhanced due diligence and formal client acceptance procedures). For further details please click here or contact Tatenda Gotosa.