BVI Law and Practice Contributed by: Andrew Jowett, Patrick Gill and Jack Igglesden, Appleby
ed 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. As a result, the immutability of the blockchain cre- ates tension with certain data protection principles, requiring careful structuring of how personal data is stored and accessed, with developers having to con- sider privacy‑by‑design when building blockchain infrastructure to ensure compliance. 1.1.4 Smart Contracts There are no laws or regulations in respect of the legal enforceability of private contractual arrangements made in whole or in part utilising agreed-upon com- puter code that executes across multiple “nodes” on a blockchain-based network. The BVI’s Electronic Transactions Act, 2021 (ETA) provides the legal foundation for recognising elec- tronic records, electronic signatures, and electroni- cally formed contracts, ensuring that a contract is not denied legal effect solely because it is electronic. Provided the elements of contract formation are satis- fied – offer, acceptance, consideration or execution as a deed and certainty of terms, and intention to create legal relations – a smart contract is enforceable in the same way as any traditional agreement. There are no binding judicial decisions or recognised interpretations addressing legal enforceability of pri- BVI Finance, a group that represents the BVI’s finan- cial services sector, engages with the financial ser- vices industry, regulators, the government and the media to promote the development and use of new technologies in the BVI. In addition to the Committee (see 1.1.3 Regulation of Blockchain Technology ), whose mandate includes the consideration of regulatory challenges which exist in the VASP ecosystem as well as opportunities for BVI market advancement and technology-enhanced regulatory supervision, BVI Finance, has established a digital assets working group to engage with the finan- vate contractual arrangements. 1.1.5 Industry and Trade Bodies
cial services industry, regulators, the government and the media to promote the development and use of new technologies in the BVI. 1.2 Crypto-Assets 1.2.1 Property Considerations Historically, the BVI courts (adopting well-established English common law principles) recognised two class- es of property, namely (i) a chose in possession; and (ii) a chose in action; however, certain statutes in the BVI provide that English common law and principles of equity apply in the BVI, with English law being a highly persuasive authority in the BVI. The English High Court, in AA v Persons Unknown and Others , endorsed the view of the UK Jurisdic- tional Taskforce’s Statement (the precursor to the UK’s Property (Digital Assets etc) Act 2025, which received Royal Assent on 2 December 2025), and indicated that crypto-assets are to be treated, in principle, as prop- erty under English law. This position was cited in the BVI case of Philip Smith and Jason Kardachi in their capacity as joint liquidators of Torque Group Holdings Limited ( in liquidation ) v Torque Group Holdings Lim- ited ( in liquidation ), where Justice Wallbank in the BVI Commercial Court held that crypto-assets should be treated as “assets or property”. As to the ownership of crypto-assets in the case, Jus- tice Wallbank recognised that the test for ownership of crypto-assets should be decided on the basis of who holds the private key that facilitates dealing with those assets. He found in the case that the crypto-assets in the “User Trading Wallets” were assets that belonged to the owner of the wallets who held the private key. While this has not yet been tested in the BVI courts, subject to contractual terms, transfers of crypto- assets would likely be considered final once they have reached finality on the blockchain and are credited to the wallet of the recipient to which they hold a key (regardless of whether these can be transferred). Where digital assets represent shares in a BVI com- pany, the register of members is prima facie evidence of ownership of the shares, and, therefore, legal title to the underlying shares represented by the token will be determined (in the absence of fraud, manifest error,
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