The British Virgin Islands (BVI) Government has taken proactive measures which are designed to control, suppress and prevent the spread of COVID-19 by restricting access to the BVI, curfews and encouraging social distancing.
A curfew is currently in place in the BVI between the hours of 2:01 a.m. to 4:59 a.m. daily for a period of fourteen (14) days from 19 November 2020 until 3 December 2020.
The BVI’s Virtual Integrated Registry Regulatory General Information Network (VIRRGIN) is the main means of obtaining publicly available information, lodging filings and registrations for BVI Business Companies. It is an electronic system and its functionality has not been affected by measures put in place to deal with COVID-19. All filings/registrations can be undertaken electronically through VIRRGIN in the usual manner.
2. can Searches be conducted?
Company Searches can be undertaken electronically via VIRRGIN, which is operational in the usual manner.
Court Searches (JEMS, Probate, E-Litigation Portal)
Searches are being conducted from 9:00 a.m. to 3:00 p.m. Monday to Friday in the usual manner.
3. Certificates of good standing and apostille – if and how these are being conducted
Certificates of Good Standing for BVI companies are available electronically via VIRRGIN and hard copies can be collected daily from 9:00 a.m. – 4:00 p.m. by appointment only.
The Deputy Governor’s Office continues to provide apostille services between the hours of 8:30 a.m. to 3:00 p.m.
4. Other searches – how are these being conducted?
5. Court sessions and position (including filings and hearings)
The resolution of disputes in the Commercial Court is an important part of the infrastructure in the BVI and the Court intends to adopt a business as usual approach whilst ever this is possible. To facilitate that, an Emergency Measures Practice Direction came into force on 23 March 2020. That Practice Direction has since been revised thrice. In practice, what this means is that:
In respect of all matters that have been issued since the advent of e-filing, all filings can be undertaken electronically through the E-Litigation Portal in the usual manner.
Documents may be filed in all matters that are not currently subject to the E-Filing regime by attendance at the High Court Registry. However, restrictions consistent with social distancing policies on access to the Registry have been applied, with the result that this process may now take a little longer.
Arrangements have been made for documents to be filed electronically by email in all non E-Litigation Portal cases where curfews are in place that result in the High Court Registry closing to the public, if accompanied with an undertaking given by a Legal Practitioner to pay the relevant fees.
The Judiciary are currently accepting electronic bundles and the submission of written submissions electronically.
The Court is attempting to adopt a “business as normal” approach. The COVID-19 Emergency Practice Direction has been fine tuned since March and is now on its fourth iteration. The Practice Direction records that “the objective is to undertake as many hearings as possible remotely” with face to face hearings discouraged. Paragraph 5.3 of the Practice Direction provides that “nothing in the Practice Direction derogates from the judicial officer’s duty to determine all issues that arise in the case judicially and in accordance with normal principles.”
In the Commercial Division, the Court list is being heard as normal, but with the vast majority of matters being heard by video conference or telephone. The Court will nevertheless facilitate face to face hearings where that is appropriate. The Resident Commercial Judge recently heard a lengthy trial remotely, and it has adjusted court hours to suit those participating in Asia.
Consistently with the COVID-19 Emergency Practice Direction, a majority of hearings in civil matters in the High Court are taking place remotely. However, physical hearings are taking place where necessary – principally for trials and committal applications.
Court of Appeal
The Court of Appeal is an itinerant Court that has its headquarters in St Lucia, but which travels across the Member States and Territories. Having regard to the risk to the Court, and reduced airlift, all hearings have taken place remotely since March 2020.
The Court of Appeal sat remotely in the BVI for the period 20 – 24 July 2020 with two panels hearing a full list.
The BVI International Arbitration Centre has made provisions to deal with hearings remotely.
PROBATE AND ADMINISTRATION OF ESTATES
Probates applications are being processed in the usual manner.
6. Any travel restrictions
The BVI is currently in Phase 2 of the Restricted Border Re-opening Plan which allows the following categories of persons to enter the BVI (with certain conditions and restrictions for each particular category):
- work permit holders or work permit exemption holders;
- persons who have been granted permission to reside in the BVI for a definite period (i.e. people who are permitted to reside but not seek employment and individuals with Non Belongers Land Holding Licenses);
- students of locally based medical schools and H. Lavity Stoutt Community College students;
- persons employed by the Government of the Virgin Islands and its Statutory Bodies, Agencies and Boards, and teachers (public and private);
- dependents (spouses and children) of Belongers, Permanent Residents, work permit holders, work permit exemption holders; and
- persons desirous of conducting business in the Territory.
For the avoidance of doubt, Virgin Islanders, Belongers, Permanent Residents and Naturalised Citizens) are also permitted to re-enter the BVI. in Phase 2 of the Restricted Border Re-opening Plan.
For all of the categories listed in the paragraphs above, the approved COVID-19 entry into the BVI measures must be adhered to such as:
- mandatory quarantine;
- social distancing protocols;
- sanitisation and hygiene protocols; and
- approved face covering (masks and shields).
Phase 2 of the Restricted Border Re-opening Plan, also allows the following special category of persons (with certain conditions and restrictions for each particular category) to enter the BVI but for no longer than five days:
- aviation crew;
- maritime crew;
- healthcare practitioners/medical staff;
- emergency maintenance, repair and other technical personnel;
- other essential specialised workers, not mentioned are subject to approval by the Minister responsible for Immigration and Labour and the Minister for Health; and
The following requirements apply to all qualified persons arriving in the BVI:
- All qualified persons regardless of immigration status, who elect to quarantine in private accommodation upon return to the BVI is required to contribute toward the cost for 24-hour security and other administrative expenses of US$3500 per household, except for reasons such as medical or as otherwise exceptionally authorised by the Minister for Health.
- All qualified persons, regardless of immigration status, required to quarantine in government accommodation upon return to the BVI, will be required to contribute towards the cost of quarantine.
- All qualified persons, except for Virgin Islanders, Belongers, Permanent Residents and Naturalised Citizens shall contribute toward the costs for government quarantine accommodation, 24-hour security and meals in the amount of USD2500.
With effect from 1 December, 2020, the BVI borders will be open to international visitors. The entry requirements include quarantine at approved accommodations, Polymerase Chain Reaction testing, medical travel insurance that includes COVID-19 coverage and contact tracking through mobile phones and wearable devices.
7. Other Temporary Regulatory Measures
The BVI Financial Services Commission (Commission) has adjusted levels of services as follows:
- The Asia Representative Office is open. In-office processing of transactions continues daily from 10:00 a.m. – 12:00 p.m. Arrangements for the delivery of certificates to agents via courier continues.
- The physical offices in the BVI remain closed to the public with BVI contactless services provided between the hours of 9:00 a.m. and 4:00 p.m. by appointment only.
The Financial Services (Exceptional Circumstances) Act, 2020 (FS Act) came into force on 28 March 2020 and was gazetted on 2 April 2020. The FS Act and the Financial Services (Exceptional Circumstances) Order, 2020 (Order) includes a structure that allows for stability of financial services operations, conducted in and from the BVI during extraordinary situations and permits relocation in the BVI or elsewhere and will modify certain regulatory obligations. The provisions of and measures introduced under the FS Act was initially extended beyond 31 July 2020 for a period of three months ending on 31 October 2020 and has been recently been further extended for a further period of two months ending on 31 December 2020.
The Financing and Money Services (Amendment) Act, 2020 introduces a transaction levy of 7% on the gross amount of each money transmission out of the BVI.
The BVI Labour Code, 2010 was amended on 5 June 2020 to extend the period in which severance is payable to 31 October 2020 by employers to their employees who were temporarily laid off on or between the period of 14 March 2020 to 31 October 2020.
The BVI Stamp Act was amended to dispense with stamp duty for the sale or transfer of real property in the BVI to a Belonger for an instrument of sale or transfer executed during the period 7 May 2020 to 31 May 2021 with certain conditions.
8. Implications for economic substance compliance and residency
On 18 March 2020, the British Virgin Islands’ International Tax Authority (ITA) issued a press release to the effect that it does not propose to make any changes to previously announced deadlines. However, the ITA intends to adopt a reasonable and practical approach where legal entities are obliged to make adjustments to their operating practices in order to mitigate the threats from COVID-19 and the ITA will not seek to prejudice those entities which temporarily adjust their normal operating practices so as to mitigate the threats of the COVID-19 outbreak.
Any arrangements that are put in place would be temporary and persons are therefore urged to continue to make every effort to comply with all requirements (including filing deadlines) except where the practical and reasonable approach is necessary to manage the threat of the outbreak.
On 27 March 2020, the ITA issued a follow-up press release providing further particulars that should be borne in mind with respect to economic substance, repeating the above-stated reminder that any arrangements that are put in place would only be temporary:
- Where possible, recourse should be had to the appointment of alternate directors in the BVI in order to meet substance requirements;
- All directors do not have to attend Board meetings in the BVI – only as many as required to make the meeting quorate (given social distancing protocols, virtual meetings may be preferred);
- Not all Board meetings need to be held in the BVI – only those related to core income generating activities;
- Where it is still not possible to have a Board meeting in the BVI or to meet some other substance requirement due to restrictions (whether in the BVI or otherwise) due to the COVID-19 outbreak, then entities are urged to retain documentation to be able to support such claims for the applicable periods of time affected; and
- Individual requests should be made to the ITA for any extension of time within which to comply with Notices, along with any supporting evidence.
9. FATCA AND CRS enrollment
The ITA has issued notifications to produce written policies and procedures pursuant to the Mutual Legal Assistance (Tax Matters) Act, 2003 (as amended). The ITA has also advised that it will take a pragmatic approach for those Virgin Islands Financial Institutions (VIFIs) that are facing any difficulties in providing their policies and procedures due to COVID-19. Such VIFIs are encouraged to contact the ITA at 1 (284) 468 – 4415 or by email to email@example.com.