BVI

Corporate Migration to and from the BVI

Walkers, the international law firm, discusses corporate migration

Migration to the BVI

Pre-requisites to migration to the BVI

A company incorporated under the laws of a jurisdiction outside the British Virgin Islands may continue as a VI Business Company incorporated in the BVI under the BVI Business Companies Act, 2004.
Pursuant to Part X of the Act, the pre-requisites for continuation are set out below.
1. The laws of the jurisdiction in which the company is currently registered must permit it to continue in another jurisdiction, including the British Virgin Islands.
2. The company must not be in liquidation or subject to equivalent insolvency proceedings in another jurisdiction.
3. A receiver or manager must not have been appointed in relation to any of the company's assets.
4. The company must not have entered an arrangement with its creditors that has not been
concluded.
5. There must not have been an application made to a court in another jurisdiction for the liquidation of the company or for the company to be subject to equivalent insolvency proceedings which has not been determined.

Process of migration to the BVI

When the above conditions are satisfied, the following steps should be followed to effect the migration.
1. Check the availability of the proposed name in the BVI. If the name is currently on the Register of
Companies, the company will need to continue in the BVI under a new name.
2. Reserve the name of the company at the Registry of Corporate Affairs in the BVI.
3. Obtain certified copies of the current certificate of incorporation of the company (or such other
documents as evidence the company's incorporation, registration or formation in its current
jurisdiction).
4. Prepare the new Memorandum and Articles of Association which the company will use upon
continuation in the BVI. The new Memorandum and Articles of Association must comply with the
requirements of the Act.
5. Prepare evidence that the application for the company to continue in the BVI and the proposed
new Memorandum and Articles of Association have been approved:
(a) by a majority of the directors of the company or such other persons who are charged with
exercising the powers of the company; or
 (b) in such other manner as has been established by the foreign company for exercising the
powers of the company.
This evidence would normally be a resolution of the directors or members of the company.
6. Obtain evidence that the company is not disqualified from continuing in the BVI. The company will be disqualified if the laws of the foreign jurisdiction do not allow the company to continue in the BVI or the company is subject to those insolvency related proceedings outlined above. This
evidence could take the form of:
(a) a legal opinion from a law firm in the foreign jurisdiction that the laws of the foreign
jurisdiction allow the company to continue in the BVI; and
(b) a company and court search in the jurisdiction of the foreign company's incorporation
showing that:
(i) the company is not in liquidation (and an application for liquidation of the
company has not occurred); and
(ii) the company is not subject to insolvency proceedings, does not have a receiver
or manager appointed in relation to any of its assets and has not entered into an
ongoing arrangement with its creditors.
7. Submit an application to the Registrar of Corporate Affairs in the BVI (the "Registrar") (in the
prescribed form) which includes the documents outlined above.
If the Registrar is satisfied that the requirements of the Act have been complied with, the Registrar shall issue a certificate of continuation to the company. From the time of the issue of the certificate of continuation, the company is continued as a BVI Business Company incorporated under the Act.

Effect of continuation in the BVI

The effect of continuation in the BVI is exactly as if the company had been incorporated under the Act with the consequences that:
1. the company is capable of exercising all the powers of a company incorporated under the Act;
and
2. the company is no longer treated as a company incorporated under the laws of its former
jurisdiction.
Continuation of the company in the BVI does not affect:
1. the continuity of the company as a legal entity; or
2. the assets, rights, obligations or liabilities of the company.
The Act contains additional provisions which are aimed at ensuring that legal actions against the
company, its members, directors and officers are unaffected by the migration and that their obligations and liabilities also remain unaffected.
All shares in the company that were outstanding prior to the issue by the Registrar of a certificate of continuation in respect of the company are deemed to have been issued in conformity with the Act.
The directors, members and officers of the company remain the same following continuation and there is no requirement to file these particulars with the Registrar.

Migration from the BVI

A company incorporated under the Act and in good standing may, subject to its memorandum and
articles of association and upon the passing of a resolution of directors or a resolution of members, continue under the laws of a jurisdiction outside the BVI in the manner provided by those laws.
A company seeking to continue in another jurisdiction will not cease to be a company incorporated under the Act unless the laws of the new jurisdiction permit its continuation and the company has complied with such laws.
To give effect to the migration under BVI law, the BVI registered agent of the company may file notice of the company's continuation to a jurisdiction outside of the BVI in the approved form with the Registrar.
If the Registrar is satisfied that the Act has been complied with in respect of the continuation, the Registrar will issue a certificate of discontinuance of the company, strike the name of the company off the Register of Companies with effect from the date of the certificate of discontinuance, and publish the striking-off of the company in the BVI Gazette.

Effect of continuation to another jurisdiction

Notwithstanding continuation of a BVI Business Company to another jurisdiction, clients should be aware that the Act continues to have effect in relation to the circumstances set out below.
1. The company continues to be liable for its liabilities and obligations prior to the continuation, but as a company under the laws of the new jurisdiction.
2. No conviction, judgment, cause of action, ruling, claim liability or other obligation against the
company or a member, director or officer of the company is released or impaired by its
continuation in the new jurisdiction.
3. No proceedings by or against the company or against any member, director or officer of the
company are abated or discontinued.
4. Service of process may continue to be effected on the registered agent of the company in the BVI in respect of any claim, debt liability or obligation of the company during its existence as a
company in the BVI.

For further information please refer to your usual contact or:

British Virgin Islands
Jack Boldarin, Partner
T: 284 852 2247
E: jack.boldarin@walkersglobal.com
Cayman Islands
Philip Paschalides, Partner
T: 345 814 4675
E: philip.paschalides@walkersglobal.com
Hong Kong
Andy Randall, Partner
T: 852 2596 3305
E: andy.randall@walkersglobal.com
Singapore
John Rogers, Partner
T: 65 6622 5929
E: john.rogers@walkersglobal.com
London
Linda Martin, Partner
T: 44 (0) 207 220 4990
E: linda.martin@walkersglobal.com
Jersey
James Gaudin, Partner
T: 44 (0) 534 700 788
E: james.gaudin@walkersglobal.com
Dubai
Linda Martin, Partner
T: 44 (0) 207 220 49900