The British Virgin Islands (BVI) is a British overseas territory and is recognised across the globe as the premier jurisdiction for the registration of asset-holding companies. BVI corporate legislation is generally regarded as non-prescriptive, in that companies are able to devise the corporate structure and procedures applicable to their business, subject to certain limited statutory requirements. The corporate structure and procedures applicable to a BVI company are set out in the company’s constitutional documents (i.e., its memorandum and articles of association), which govern the relationship between the company, its members and its directors. The ﬂexibilities inherent in such a system make BVI companies extremely attractive as part of asset-holding structures. Based on the attractiveness of BVI corporate vehicles for international businesses, asset holding and investments, there has been a steady increase in the use of BVI companies as holding and operating companies across the technology industry.
In August 2020, the BVI launched a fintech sandbox to encourage technological innovation in financial services under a lighter touch regulatory regime.
1. Are there any “sandbox” or other regulatory neutral zones?
Yes. In August 2020, the BVI Financial Services Commission (FSC) launched a regulatory sandbox for companies whose proposed business model involves the development or implementation of a new system, mechanism, idea, method or other arrangement through the use of technology to create, enhance or promote a product or service with respect to the conduct or provision of a financial services business. The sandbox is designed to encourage technological innovation in financial services under a lighter touch regulatory regime.
An application for entry into the sandbox consists principally of a business proposal to cover, among other things: (i) the proposed product or service, and how this encompasses innovation to improve accessibility, efficiency, effectiveness, security, quality in the provision of, or addresses shortcomings or opens up new opportunities in, financial services or the regulation thereof; (ii) the testing already carried out on the proposed product (with the expectation that testing, to the extent permitted by legislation, will be carried out prior to entry into the sandbox); (iii) details on the proposed customers (including estimated numbers, investment experience and geographical reach); (iv) an analysis of the risk profile of the proposals and the measures to be taken to manage those risks; (v) an indication of the resources (whether financial, technological, human or otherwise) available to the application; and (vi) a strategy for exiting the sandbox.
2. Is there a Digital “incubator” or hub?
No special economic zones have currently been established within the BVI to benefit companies in the tech and innovation sector. Whilst the FSC has indicated that it is considering initiatives to encourage entities to operate physically within the BVI, any such project is unlikely to be viable without significant investment into infrastructure.
3. Are there any barriers to entry for foreign technology companies?
There are no significant barriers to entry for any companies who wish to be incorporated within the BVI, without any physical presence in the jurisdiction. Subject to certain exemptions available under investment business and financial services licensing regimes, companies seeking to carry on business within the local market must apply for a local trade licence issued by the BVI Department of Trade, Investment Protection and Consumer Affairs. For further information, see section G.
4. Have traditional institutions embraced new technologies?
To date, there has been no significant displacement of traditional financial service providers in the BVI. Nonetheless, as one of the largest international business and financial centres, it is expected that this will be an area of significant growth in the coming years, with recent drives from the BVI government for local entities to embrace FinTech and RegTech solutions. In order to stay competitive, it is anticipated that traditional service providers will look at new innovations driven by technology-focused new entrants to the market. Similar to other offshore jurisdictions, one area of focus is on technology solutions that deliver performance improvements to existing paper-based checks and balances in areas such as customer due diligence, fraud detection and beyond. For larger financial institutions with substantial compliance overheads, the promise of FinTech to replace manual processes with technologies that are cheaper and more cost effective at achieving compliance and managing risk has yet to be realised but the possibilities are certainly being explored.
5. What forms of legal entity are available for technology companies?
The most popular type of BVI entity has typically been the BVI business company. A business company is a corporate structure managed by its director(s), whereby the liability of interest holders for the company’s debts or liabilities can be unlimited, limited by guarantee or, most commonly, limited by shares.
Whilst a common structure in other jurisdictions, the limited partnership has traditionally been underused in the BVI. Nonetheless, in January 2018, the BVI reinvented its legislation governing limited partnerships in a manner that now makes these an attractive and commercially flexible option for new corporate entities. A limited partnership is regarded in most jurisdictions as fiscally transparent and will consist of limited partners, who will not be liable for the debts of the partnership beyond the amounts they have agreed to contribute to the partnership, and at least one general partner, who will manage the business of the partnership and have unlimited liability for the debts of the partnership incurred whilst they are a general partner. Under the new legislation, a limited partnership can be established with or without legal personality.
BVI has also recently introduced the Micro Business Companies Act, 2017, which offers a new form of corporate entity, limited by shares, with lower set up and ongoing costs and fewer obligations. This form of entity is aimed at sole-traders and start-up enterprises. Among other restrictions, this option is not available for any business licensed under any financial services regulation and micro businesses are subject to limitations on, among other things, turnover, share issuances and transfers.
6. What AML requirements apply to businesses in the BVI?
International standards of anti-money laundering and counter-terrorist financing are set by the Financial Action Task Force (FATF). As a member of the Caribbean FATF, the BVI implements recommendations promulgated by the FATF.
All BVI-incorporated entities are subject to the BVI Proceeds of Criminal Conduct Act, 1997 (as amended), which sets out the principal money laundering offences. Certain ‘relevant’ businesses (which would include, for instance, entities caught within BVI financial services regulations and other entities thought to be at a higher risk of money laundering) are further subject to the BVI Anti-Money Laundering Regulations, 2008, and the Anti-Money Laundering and Terrorist Financing Code of Practice 2008 (the AML Code) (each as amended), which prescribe certain identification, record keeping and internal control procedures for such businesses.
In August 2018, changes were made to the AML Code to permit entities in the BVI to digitally verify identities and receive electronic copies of documents instead of traditional “wet ink” paper-based processes. The amendments are further evidence of regulators in the BVI embracing the blockchain revolution and will set a new standard for AML verification in the region.
7. Are electronic signatures valid?
Under the BVI Electronic Transactions Act, 2001, the legal requirement for a ‘wet’ signature is satisfied by an electronic signature if:
- the electronic signature adequately identifies the signatory;
- the electronic record adequately indicates (i) the signatory’s approval of the information to which the signature relates, or (ii) for the witnessing of a signature or seal, that the signature or seal has been witnessed;
- the electronic signature is as reliable as is appropriate given the purpose for which and circumstances in which the signature is required; and
- the recipient or counterpart of the electronic signature consents to receiving the electronic signature and the electronic signature of each witness (if any).
Electronic signatures are usable for all documents signed by BVI entities and for BVI-governed agreements, save that BVI-law governed deeds should be signed in wet-ink.
8. How is personal data protected?
There is no formal legislation regulating data protection in the BVI; however, the BVI government has pledged that comprehensive data protection legislation, based on internationally recognised standards, will be enacted in the near future. Draft legislation is currently in circulation.
BVI courts recognise and subscribe to the common law duties of confidentiality and privacy, and English common law is persuasive, although not binding, in the BVI. As a result, while there is no overriding personal data protection legislation in the BVI, all entities that manage and maintain personal data will be subject to the common law duty of confidentiality described above.
The duty of confidentiality has also been codified in various aspects of BVI legislation, in particular the Banks and Trust Companies Act, 1990 (as amended), which regulates all banking and trust/fiduciary-related activities in the BVI. Licensed operators of such businesses, regulated by the FSC, are under a general obligation to maintain the confidentiality of a client’s personal data unless the individual has granted specific permission for its release or disclosure to third parties. This obligation may be limited where the licensee is required to deal with anti-money laundering and similar legislation.
For corporate entities, the Registrar of Corporate Affairs is currently permitted to release only limited information regarding the particulars of any registered company, which would include the name, type of company, date of registration/incorporation, registered office address and status of the company. Details of individual shareholders, directors and officers of the company are not available for public inspection and shall only be made available by the Registrar to competent authorities (for tax compliance or other law enforcement purposes) on written request.
1. How are virtual assets regulated?
There is no separate framework for the regulation of virtual assets in the BVI.
The primary piece of legislation regarding securities and investment businesses in the BVI is the Securities Investment Business Act, 2010 (as amended) (SIBA). SIBA provides for the licensing and control of persons engaged in investment businesses in or from within the BVI.
SIBA sets out an exhaustive list of financial instruments that constitute ‘investments’. Digital assets are not expressly included in that list. However, whether the characteristics of a token or other digital asset could nevertheless render it an investment under SIBA is a fact-specific enquiry dependent on the unique functionalities exhibited by the token or asset. If a digital asset qualifies as an investment, the issuer of the asset will be either dealing in, or arranging deals in, securities, although the issuer’s activities may fall within a list of excluded activities or safe harbours under SIBA.
In July 2020, the FSC issued further guidance on the certain elements of digital assets which may render it to be an investment. As part of this guidance, the FSC has allowed digital asset businesses which do fall within BVI financial services legislation, but have not obtained a license to date, a grace period of six months (expiring on 13 January 2021) to apply for a license under applicable legislation.
A person who is not carrying on an investment business under SIBA may still bring themselves within the licensing requirements where they hold themselves out as carrying out an investment business. Care should be taken that, among other things, no words are used, in any language, which connote a securities investment business in the description or title of the business in question and that no representation is made in any document or in any other manner that a person is carrying on investment business.
The issuer of a digital asset in the BVI will also be subject to the general criminal laws on fraud, legislation on consumer protection and common law governing intentional or negligent misrepresentation.
2. Are virtual assets subject to the local AML regime?
Generally, a utility token sale would not constitute a ‘relevant business’ and therefore would not need to adhere to the ‘enhanced’ AML due diligence requirements under the AML Code and the BVI Anti-Money Laundering Regulations, 2008. Notwithstanding this, it is recommended that issuers of tokens in the BVI prepare a KYC policy that applies to all participants in the token sale and which seeks to comply with enhanced AML procedures.
Recent changes to the AML Code permit digital verification of identities and the receipt of electronic copies of documents instead of traditional “wet ink” paper-based processes. This change is particularly important in the context of an ICO where the number of token purchasers could run into the many thousands.
3. Is a physical presence required in the BVI to conduct a virtual asset sale?
4. Are gambling platforms permitted?
The restrictions previously outlawing gambling from taking place in the BVI were repealed in August 2020 pursuant to the BVI Gaming and Betting Control Act 2020, which introduced a licensing regime for entities or persons participating in the ‘gaming and betting sectors’, including the manufacturing, selling, supplying, installing or adapting gaming software and providing facilities for betting of any kind. ‘Gaming’ captures games for prize or winnings in money or money’s worth.
The new legislation has certain requirements for licensing that are ill-suited to entities that do not operate within the BVI, and it has not yet been tested as to whether it is intended to have extra-territorial effect. We advise any BVI entities that currently operate gambling platforms or are looking to establish such a platform to contact Appleby for further updates on the recent legislative changes.
5. Can decentralised finance (DeFi) products be launched from the BVI?
Yes. Subject to the financial business licensing regimes discussed elsewhere in this Chapter, there is no general restriction on decentralised finance products being launched from the BVI.
1. Can a crypto-to-crypto exchange be established?
Yes. Currency exchanges operated by BVI-incorporated entities (whether or not operated fromwithin the territory) are governed by the BVI Financing and Money Services Act, 2009 (FMSA). Whilst no relevant definitions are set out within FMSA, the FSC have confirmed that cryptocurrency will not fall within the scope of ‘money’ or ‘currency’ within FMSA, and therefore exchanges between various cryptocurrencies and tokens will not constitute a ‘currency exchange’ and thus will not require licensing under FMSA.
Where traded tokens or cryptocurrencies constitute ‘investments’ for the purposes of SIBA (see question 1 of Section B), the exchange will need to be licensed under SIBA as an investment business. Operators of crypto-to-crypto exchanges may wish to ensure that issuers provide opinions as to the status of their token or cryptocurrency under SIBA prior to admission to the exchange.
As part of wider guidance on digital assets issued in July 2020, the FSC has allowed digital asset businesses which do fall within BVI financial services legislation, but have not obtained a license to date, a grace period of six months (expiring on 13 January 2021) to apply for a license under applicable legislation.
2. Can a crypto-to-fiat exchange be established?
Yes. However, to the extent that crypto-currencies can be both purchased and redeemed or exchanged for fiat currencies, this may fall within either the currency exchange or money transmission provisions of FMSA and therefore require licensing under such act.
3. Is a money services licence required for crypto-to-fiat conversion through an OTC desk?
We would not expect an OTC desk which trades crypto assets for fiat to require a money services licence under BVI law.
4. Can a virtual asset project establish a local bank account?
Unless the project establishes a physical presence in the BVI or otherwise can evidence a ‘nexus’ or connection between the BVI and its business operations, local banks have, traditionally, been reluctant to open accounts for BVI-incorporated entities (regardless of their line of business). Whilst BVI banks are working to increase their understanding and service offerings, we would not expect any short term change in this position.
It is typical for BVI entities to establish bank accounts elsewhere, whether in other overseas jurisdictions or onshore.
5. Can you register as a virtual asset custodian in the BVI?
There is currently no registration regime for custodians of digital assets which are not ‘investments’ for the purposes of SIBA.
Where the assets held in custody are ‘investments’ for the purpose of SIBA, a BVI custodian will require a custodian license under SIBA.
6. Are VASPs subject to the local AML regime?
As with all entities incorporated in the BVI, a BVI virtual asset service provider (VASP) would need to ensure it does not commit any offence under the BVI Proceeds of Criminal Conduct Act, 1997 (as amended).
BVI’s ‘enhanced’ AML legislation (being the BVI Anti-Money Laundering Regulations, 2008 and the AML Code) only applies to any business conducting a ‘relevant’ business. The BVI has yet to adopt the FATF recommendations on virtual assets and being a VASP is not, by itself, a “relevant business”. A VASP will only be subject to BVI’s ‘enhanced’ AML legislation to the extent it also conducts any other ‘relevant’ business, such as a licensed banking, financing or investment activities.
1. Are tokenised funds regulated in the BVI?
In a tokenised fund, an investor’s interest is represented by a cryptographic token, as opposed to shares or other interests or units offered to investors in a more traditional fund structure.
There is no separate framework for the regulation of tokenised funds in the BVI. The primary piece of legislation in the BVI regulating funds is SIBA, which is supplemented by regulations including the Mutual Fund Regulations, the Financial Services Commission (Securities and Investment Business Fees) Regulations 2010 and the Securities and Investment Business (Incubator and Approved Funds) Regulations 2015, and is regulated by the FSC.
Following amendments at the end of 2019, the legislation captures both open-ended investment funds (being those which collect and pool investor funds and issue fund interests (which would include tokens in a tokenised fund structure) that entitle the holder to receive on demand, or within a specified period thereafter, an amount calculated by reference to the net asset value of the fund) and closed-ended funds (or ‘private investment funds’, being those which collect and pool investor funds for collective investment and but whose fund interests allow the holder to receive an amount calculated by reference to the net asset value of the fund upon the occurrence of certain events, rather than on demand).
Open-ended funds are categorised in the BVI as either public funds, professional funds (with only professional investors with a minimum initial investment), private funds (with no more than fifty investors), recognised foreign funds (being open-ended funds incorporated outside the BVI but who wish to offer inside the BVI), approved funds (aimed at family offices) or incubator funds (for start-up funds). Such open-ended funds must be approved or recognised by the FSC.
Closed-ended funds must now also be recognised by the FSC as ‘private investment funds’.
2. What service providers are required for a tokenised fund?
Public, private and professional open-ended funds must each appoint an administrator and, subject to exemptions available to private and professional funds on application (and public funds, in relation to custodian), an investment manager, custodian and auditor. Approved open-ended funds require an administrator.
Closed-ended funds must submit audited statements, unless an exemption is applied for. All public, private and professional open-ended funds must submit audited financial statements to the FSC within six months of their financial year end, subject to certain exemptions. Incubator and approved open-ended funds are not required to appoint an auditor or submit audited statements.
All corporate entities incorporated in the BVI are required to maintain both a registered agent and a registered office within the BVI. In almost all circumstances, the registered office of the entity will be that of the registered agent, who will be one of a number of registered agents operating and licensed in the BVI.
All funds are required to appoint an authorised representative (who will act as the intermediary between the fund and the FSC), who will usually be provided by the registered agent.
In addition, a tokenised fund is likely, but not required, to appoint a smart contract auditor and/or a third party KYC service provider to assist with the KYC process for subscribers. A tokenised fund may also opt to appoint trading counterparties, a distributor and/or placement agents.
3. What AML/KYC is required for token holders?
As with all entities incorporated in the BVI, a BVI tokenised fund would need to ensure it does not commit any offence under the BVI Proceeds of Criminal Conduct Act, 1997 (as amended).
BVI’s ‘enhanced’ AML legislation (being the BVI Anti-Money Laundering Regulations, 2008 and the AML Code) applies to any business conducting a “relevant’ business, which would include open- and closed-ended funds.
Accordingly, each regulated tokenised fund will need to receive KYC documentation on each subscriber and every transferee of the token, where such token represents over a certain value or beneficial ownership interest (subject to certain exemptions). Each transferee will also need to agree to the subscription terms for the tokenised fund.
Recent changes to the Anti-Money Laundering and Terrorist Financing Code of Practice 2008 permit digital verification of identities and the receipt of electronic copies of documents instead of traditional “wet ink” paper-based processes.
4. Is there a minimum investment amount?
For professional open-ended funds, the FSC requires that the initial minimum subscription per investor must be at least US$100,000 (or the currency equivalent thereof), subject to certain exemptions. For incubator open-ended funds, the initial minimum investment must be at least US$20,000 (or the currency equivalent thereof). No other open-ended funds have minimum investment amounts.
Closed ended funds (or ‘private investment’ funds) must either: (i) have no more than 50 investors; (ii) only invite investors to subscribe for, or purchase, fund interests on a private basis; or (iii) only issue fund interests to professional investors with a minimum initial investment of US$100,000 (or the currency equivalent thereof), subject to certain exemptions.
5. Can token holders redeem their tokens or transfer the tokens they hold?
Depending on the redemption rights set out in the terms of the fund, token holders may redeem their tokens for cash and/or payments in-kind (or a combination thereof).
Alternatively, or in addition, the terms of the fund may permit holders to transfer their tokens (usually with the written consent of the board). The attraction for holders of these tokens is that they also have the potential to offer liquidity through an exchange or through a peer-to-peer transfer.
In order to satisfy its requirements under AML laws, the fund will need to ensure that any potential transferee (whether pursuant to an exchange or peer-to-peer):
- provides sufficient KYC documentation to comply with BVI’s AML laws, to the extent these are triggered by the investment amount;
- where regulated as a professional, private or incubator open-ended fund or certain private investment funds, provides sufficient information to demonstrate that they are an eligible investor; and
- agrees to the terms for the fund.
1. Does the British Virgin Islands impose economic substance requirements?
Yes. The Economic Substance (Companies and Limited Partnerships) Act, 2018 (as amended, the ES Law) was brought into force on 1 January 2019 and has been supplemented by the Rules on Economic Substance in the Virgin Islands which, together with its explanatory notes, set out guidance on how the requirements of the ES Law may be met and interpreted.
The ES Law requires entities carrying on ‘relevant activities’ to show that they have an element of physical substance in the BVI in relation to certain ‘core income generating activities’. These relevant activities consist of:
- banking businesses;
- insurance businesses;
- fund management businesses;
- financing and leasing businesses;
- headquarters businesses;
- shipping businesses;
- distribution and service centre businesses;
- holding company businesses (which are subject to fewer requirements); and
- intellectual property businesses (which, in certain circumstances are subject to greater requirements).
Entities falling within the above businesses, or who are unsure if they would fall within the above businesses, should contact Appleby for guidance and for the steps that can be taken to establish economic substance.
2. Are there any reporting requirements in connection with economic substance?
Yes. All entities, regardless of whether they are conducting a ‘relevant activity’ are required to make an economic substance filing. Filings are made through an entity’s registered agent, and are due within 6 months of the end of the year to which they relate. For all entities incorporated or formed prior to 1 January 2019, the first economic substance filing will be due by the end of 2020, unless a shorter initial reporting period has been agreed with the BVI International Tax Authority (the ITA). For entities incorporated or formed on or after 1 January 2019, the first filing (which will relate to the first year of operation), will be due 18 months after incorporation, unless a shorter initial reporting period has been agreed with the ITA.
3. What penalty provisions apply in the case of non-compliance?
Non-compliance with the ES Law may result in an initial warning and fine. Penalties shall be subject to a minimum of US$5,000 and a maximum of US$20,000 (or US$50,000 for those IP businesses which are deemed higher risk).
Failure to act upon recommendations in a warning may result in a further penalty and a referral of the matter to the FSC. Such further penalties shall be subject to a minimum of US$10,000 and a maximum of US$200,000 (or US$400,000 for those IP businesses which are deemed higher risk).
Following the second warning (or at any point following the first warning, if the ITA determines that there is no realistic possibility of the entity complying with the ES Law), the FSC may strike the entity off the register. Where an entity is struck off, the entity and its directors, partners, members or liquidators may not carry on any business or otherwise deal with its assets.
The BVI is a common law jurisdiction that has a robust IP protection regime.
The main IP rights available under BVI law to protect branding are registered trade and service marks. FinTech companies will generally own a combination of an established brand or trade name, which can include logos or icons, protected as registered trademarks in the British Virgin Islands.
Copyright protection in the BVI is based on the United Kingdom’s Copyright Act of 1956. The BVI does not have its own copyright registry.
Open-source code is not separately regulated or protected in the BVI.
2. Trade Marks
On 1 September 2015, the British Virgin Islands’ Trademarks Act 2013 and Trademarks Rules 2015 came into effect, which allow the direct registration of service marks without an existing UK registration. Another significant aspect of the legislation sees the BVI align its classification system with the Nice Classification.
The Patents Act (Chapter 155), provides for local patent applications and applications to extend rights under a UK registration. In practice, the BVI Registrar of Trade Marks, Patents and Copyright will only re-register UK registered patents. A UK-based patent registration is valid for the same period as specified on the underlying UK registration on which it is based.
4. Trade Secrets
Currently, rules on confidentiality fall back on English common law principles. Where trade secrets have commercial value, a duty of confidentiality will be imposed in three primary circumstances:
- where there is an agreement between the parties that information should be kept confidential;
- where the relationship between the parties is one that the law imposes a duty of confidentiality with respect to; and
- where the nature and circumstances of the person obtaining the information make it such that the law will require that they keep the information confidential.
Whilst BVI is an attractive jurisdiction for international business, holding and investment companies whose physical operations are located elsewhere, the BVI currently presents challenges for entities wishing to establish a physical presence within the BVI.
1. Trade Licences
In order to conduct business within the BVI and subject to the below, entities must obtain a trade license under the Business, Professions and Trade Licences Act 1989. Trade license applications are typically processed in six to eight weeks from the date of application, but can take significantly longer if the proposed entity is not wholly or partially owned by BVI Belongers.
No trade licence is required for companies who wish to be incorporated within the BVI, without any physical presence or operations within the jurisdiction or for entities already licensed under SIBA, FMSA or certain other licensing regimes.
2. Tax Matters
The BVI is a tax-neutral jurisdiction with zero income, corporate or capital gains taxes for any entities incorporated within the BVI. Furthermore, there is no withholding tax on interest or distributions paid by BVI entities to investors, and investors will not otherwise be subject to income or capital gains tax within the BVI. Assuming the company does not hold, directly or indirectly, any real property in the BVI, no stamp duties or similar documentary taxes are imposed by or in the BVI.
If an entity employs anyone within the BVI, such person will be subject to payroll tax of between 10 and 14 per cent (8 per cent of which is paid by the employee, and the remainder paid by the employer) on remuneration (including severance pay, bonuses and money paid under profit-sharing scheme) for services rendered wholly or mainly in the BVI. Contributions will also be required for social security and national health insurance.
Certain persons who conduct money transmission activities from physically within the BVI to overseas jurisdiction will be subject to a withholding tax introduced in 2020.
3. Visas and Work Permits
Any persons travelling to the BVI for business may request to stay for up to seven days at a time, without the need to obtain a temporary work permit. This exemption does not apply to foreign-admitted lawyers, not admitted in the BVI. For longer visits, or where the exemption does not apply, a temporary work permit or periodic work permit may be required. Temporary work permits can be issued for up to a three-month period. Periodic work permits allows for a number of visits over a one year period (subject to renewal).
In addition to work permits, visas may be required depending on the residency of the visitor. No visa is currently required for visitors from, among other places, the United States, the United Kingdom, Canada and most EU member states.
For any expatriate who wishes to engage in more long-term employment within the BVI (whether self-employed, paid or unpaid, full-time or part-time), work permits must be obtained from the BVI Labour Department. Employers must give preference to any BVI Belonger who has applied and is qualified for the position. Work permits are typically issued for a one-year period.