BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Matthew Cowman, Alex Drysdale, Rosalind Nicholson and Omonike Robinson-Pickering, Walkers
• conduct a hearing and permit any interested person to appear; and • approve or reject the plan of arrangement as proposed or with such amendments as it may direct. The court’s approval may involve two or more hearings at which the court may give directions in relation to the notifications and approvals required in relation to the Plan. In the context of an M&A transaction, such approvals will inevita - bly include that of the shareholders of the com - pany. As with Schemes, there have been very few Plans attempted under BVI law. Although it is possible to propose lower approval thresholds than those required by a Scheme, and dissent rights are at the discretion of the court, given the lack of a body of BVI precedent Plans, the possi - bility or likelihood that a court would require sim - ilar approval requirements to that of a Scheme and/or would enable dissent rights to apply has reduced their popularity. Takeover Offer A Takeover Offer is a contractual rather than statutory transaction under which an offer is made to shareholders of the target to acquire their shares. Since the BVI does not have a take - over code, there is little restriction as a matter of BVI law on the terms of such an offer and how it is made. As such, it is generally the law, regula - tions or market practice of the jurisdiction where the BVI company’s shares are listed that are fol - lowed (subject to the company’s memorandum and articles of association). Advantages of a Takeover Offer include speed (it can sometimes be the quickest route to 50%+ ownership) and its availability in a hostile bid, subject to defences in the company’s memoran -
dum and articles of association. The main disad - vantage is that it is invariably necessary to take a second step to obtain 100% control – either through a squeeze-out if 90% acceptances are reached, or through a second-stage Merger. 2.2 Primary Regulators There are no regulations specifically regulating M&A activity in the BVI, which does not have an equivalent to the UK Takeover Panel overseeing the Takeover Code. The Financial Services Com - mission is the sole financial services regulator in the BVI and is responsible for regulating busi - nesses in the banking, insurance, digital assets, trust, investment funds, investment business and corporate services sectors. In circumstances where the target is operating in the regulated spaces specified, the Financial Services Commission may be involved in a trans - action because a change of control application may need to be submitted under the applicable regulatory act as part of the M&A transaction. 2.3 Restrictions on Foreign Investments BVI companies are designed for use in inter - national transactions, and there are no foreign exchange controls or foreign exchange regu - lations under BVI law. There are generally no restrictions on a foreign buyer acquiring an inter - est in a BVI company. However, a foreign buyer acquiring real estate in the BVI or engaging in business in the BVI itself would have to obtain
the appropriate local licences. 2.4 Antitrust Regulations
There are no specific antitrust regulations that apply to business combinations in the BVI. How - ever, a change of shareholder controller of any target that is regulated by the Financial Servic - es Commission would be subject to regulatory
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