A Review of the Regime Governing the Dissolution and Restoration of Solvent Companies in BVI

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1 ARTICLE A Review of the Regime Governing the Dissolution and Restoration of Solvent Companies in BVI As originally appeared in Resolution, Offshore Summer 2012 BY SARAH MASSON When the BVI Business Companies Act (the BCA ) was enacted in 2004, it contemplated that Companies Regulations would subsequently be made generally for giving effect to this Act and specifically in respect of anything required or permitted to be prescribed by this Act. These provisions are distinct from the mechanism which applies to insolvent companies (under the Insolvency Act 2003 (the IA )). The Amendment Act will bring the BCA more into line with the BVI Insolvency Act by adding the words and the value of its assets exceeds its liabilities being the inverse of the corresponding IA provision. On 9 May 2012, the BVI Business Companies Regulations (the Regulations ) were published in the Official Gazette. While not yet gazetted, a draft BVI Business Companies (Amendment) Act (the Amendment Act ), was published for consultation in summer The Regulations are expected to come into force later this year together with the amendments to the BCA itself. A BVI company may be struck off the Register and dissolved pursuant to the voluntary liquidation procedure in the BCA if it has no liabilities, or if it does it is able to satisfy them in full as they fall due. Other than in certain limited circumstances, a voluntary solvent liquidation will require the cooperation (signatures) of the directors and the registered shareholders of the company. The voluntary liquidator, within 14 days of his appointment, is required to file a notice of his appointment with the Registrar together with a declaration of solvency made by the directors and a copy of the liquidation plan. Within 30 days of his appointment, he is required to advertise notice of his appointment in the manner prescribed. In practice, because no manner of

2 advertising has been in fact prescribed, this means that the appointment of a voluntary liquidator of a BVI company will only be advertised in BVI. Upon completion of a BCA voluntary liquidation, the company will be struck off the register and dissolved. The Regulations provide that the voluntary liquidator must advertise his appointment, not only in the local press, but also in: (i) at least one issue of a newspaper circulating in the place outside the British Virgin Islands in which its place of business, or if it has more than one, its principal place of business, is situated; or (ii) if the company does not have a place of business, or the voluntary liquidator does not know where its place of business is situated, in such a manner as the liquidator considers is most likely to come to the attention of any creditors of the company. A company will be struck off by the Registrar (who will publish a notice of the striking off in the Official Gazette) if it does not pay its annual government fees or fails to appoint a registered agent. To the extent that the company might choose to let either of these happen, this procedure might be described as voluntary. However, if struck off in this way, the company will not then be dissolved for a further ten years (being reduced to seven years by the Amendment Act), which is important as regards the company s/directors /shareholders rights and liabilities in the intervening period. By contrast, the striking off and dissolution following the completion of a voluntary liquidation are immediate. A company that has been struck off but not dissolved may be restored to the register by an application to the Registrar of Companies and payment of all outstanding licence fees and penalties and a restoration fee. A company that has been struck off and dissolved either following the completion of a voluntary liquidation or after ten years of having been struck off by the Registrar, can only be restored by an order of the BVI High Court (the Court ) declaring the dissolution void. If the order is made, all outstanding fees, penalties and the restoration fee will also have to be paid. Not only is the second procedure far more costly than the first, it is also far from certain to be successful. In his Judgment in Dedyson Enterprises Ltd. v. Registrar of Corporate Affairs (BVIHCM 0008 of 2011), (an application for the restoration of a company said to have been wound up in error ) HHJ Bannister stated that: it will generally be difficult to see why the application [for the dissolution to be declared void] should be granted otherwise than for the purpose of enabling newly discovered assets to be distributed by the company or claims to be made against it which had not previously been made. As the law currently stands, it is debateable whether a beneficial owner even has standing to make the application to restore. (The BCA provides that the application may be made by the company, a creditor, member or liquidator ). The proposed amendments suggest that they do not (given that the amendment

3 will add to the classes of potential applicants any person who can establish an interest in having the company restored to the register ). Companies Voluntarily Liquidated In the case of companies voluntarily liquidated and dissolved, it has for some time been unclear as to the proper status of the company upon its restoration. In Dedyson, Bannister J rejected the arguments made by Counsel for the Registrar of Corporate Affairs, that companies restored following liquidation should be restored in liquidation. In contrast, BCA Section 218 is all encompassing: being applicable to void dissolutions that occur both upon completion of a voluntary liquidation, and those that follow the company s administrative striking off. Bannister J did not feel bound to limit his discretion to impose such conditions as he felt just (BCA Section 218 (2)), by a finding that a liquidated company had to be restored in liquidation. In fact, he was quite firmly against the idea: from a practical point of view, too, it seems to me that with no liquidator in office, with his final accounts passed and, no doubt, his release granted and with no power to the court to compel him to resume his duties, it is eccentric to say that upon the voiding of its dissolution the company magically resumes its status as a company in liquidation. Unfortunately, the BVI legislature disagrees. The draft Amendment Act proposes to amend Section 218 so that where a company is dissolved following the termination of a voluntary liquidation, the Court shall not restore the company unless: i) the applicant nominates a person to be liquidator of the company; ii) that person consents to act; and iii) satisfactory provision is made for the expenses and remuneration of the liquidator. The new advertising requirements of the Regulations will go some way to addressing the criticism that the voluntary liquidation and strike off routes to the dissolution of BVI companies are too private or too locally focussed (particularly given that more than 480,000 or so international business companies incorporated in BVI do not do business in the Territory). There will, however, always remain the possibility that a company may be dissolved without alerting a creditor or beneficial owner who may have claims against the company, or an interest in its assets. It is not practical, nor should it be necessary for the creditors and/or beneficial owners of BVI companies to maintain a very close watch on the liquidation notices published in local newspapers and the striking off notices published in the Official Gazette. It is, however, sensible not to lose touch entirely it is far easier and far less costly to prevent a dissolution than it is to have one overturned.

4 SARAH MASSON Associate British Virgin Islands This publication is intended only to provide a summary of the subject mattered covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. July 2012 Appleby

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