BVI Law and Practice Contributed by: Andrew Jowett, Patrick Gill and Jack Igglesden, Appleby
Act 2021 (Substance Legislation). All BVI entities are advised to seek advice in relation to economic substance, particularly any companies that might be deemed to be engaging in “intellectual property busi- ness”, “fund management business”, “finance and leasing business”, “distribution and service centre business” or “headquarters business”. Additionally, the BVI FSC can, under the VASP Act, having regard to the nature and risk associated with a VASP, require the VASP to have an individual director physically resi- dent in the BVI if it does not already have one. In order to engage in any business, profession or trade in the BVI, as distinct from establishing an offshore trust, limited partnership or company, all persons and companies must obtain a business licence under the Business Licensing Act. However, a person who is a licensee under SIBA or the VASP Act is exempt from the need to obtain a business licence to carry on any class of investment business in respect of which they are licensed or to carry on the business of providing a virtual assets service in and from within the BVI. To the extent that a business licence is required, applicants are encouraged to start the process early and engage a local service provider to assist with the licensing process. A work permit must be obtained for any expatriate who wishes to engage in employment in the BVI, whether it is paid or unpaid, full-time or part-time. Employers must advertise any position in a local newspaper in the BVI for two consecutive weeks and give preference to any belonger or Virgin Islander who has applied and is qualified for the position. Subject to obtaining a work permit for individuals, there are no quotas or caps. 3.3 Change of Control A person owning or holding a significant interest or a controlling interest in a VASP is not permitted to, whether directly or indirectly, sell, transfer, charge or otherwise dispose of their interest in the VASP, or any part of their interest, unless the prior written approval of the FSC has been obtained. A person is not permitted, whether directly or indi- rectly, to acquire a significant interest or controlling interest in a VASP unless the prior written approval of the FSC has been obtained.
A VASP is not permitted, unless the prior written approval of the FSC has been obtained, to cause, permit or acquiesce in a sale, transfer, charge or oth- er disposition or issue or allot any shares or cause, permit or acquiesce in any other reorganisation of its shares that results in a person acquiring a significant interest or controlling interest in the VASP, or a person who already owns or holds a significant interest or controlling interest in the VASP increasing or decreas- ing the size of their interest. An application to the FSC for approval is to be made by the VASP, and any fees payable for the application and any approval of the application in that regard shall be paid by the VASP. The FSC shall not grant approval unless it is satisfied that, following the acquisition or disposition, any person who will acquire a significant interest or controlling interest in the VASP satisfies the fitness and propriety criteria outlined in the Regulatory Code (Regulatory Code). The preceding paragraphs do not apply to a VASP that is listed on a recognised exchange. A “significant interest”, in relation to an entity, means a holding or interest in the entity or any holding com- pany of the entity held or owned by a person, either alone or with any other person and whether legally or equitably, that entitles or enables the person, directly or indirectly to: • control 10% or more of the voting rights of that entity at a meeting of the entity or of its members; • a share of 10% or more in any distribution (if appli- cable) made by the entity; • a share of 10% or more in any distribution (if appli- cable) of the surplus assets of the entity; or • appoint or remove one or more directors of the entity. A “controlling interest” means interest in an entity whereby: • the person holding the interest has an influence over the activities of any undertaking of the entity without having a significant interest in the under- taking; or
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