Population
The British Virgin Islands ("BVI") has experienced steady population growth over the last decade apart from 2017 and 2021-21 (hurricanes Irma & Maria, and the COVID-19 pandemic years respectively). Despite this population figures for 2021 showed an increase of 23% over 2012. The population in 2021 was estimated at 37, 408 (52.3% men and 47.7% women). This is fueled by inward migration due to the rapid development of the BVI since the 1980’s. As of 2021, 122 of 194 nationalities were represented in the BVI’s workforce.

Location
The British Virgin Islands are in the easternmost section of the Virgin Islands archipelago between the Caribbean Sea and the Atlantic Ocean, 207 km east of Puerto Rico. The BVI shares the same time zone as the Eastern U.S., except during Daylight Savings Time. Additionally, it is four hours behind Greenwich Mean Time. The BVI is comprised of four main islands, Tortola, Virgin Gorda, Anegada and Jost Van Dyke, along with more than thirty-two smaller islands and islets. With a land area of only 151 square km, the archipelago enjoys over 80 km of coastline and 370 km of exclusive fishing waters.

Climate and Ecosystems
The British Virgin Islands enjoy a tropical climate, moderated by trade winds. Temperatures vary little throughout the year. In the capital, Road Town, on Tortola, temperatures range from 21 °C (69.8 °F) to 32 °C (89.6 °F). Rainfall averages about 1,150 mm (45.3 in) per year, higher in the hills and lower on the coast. Rainfall can be quite variable, but the wettest months on average are September to November and the driest months on average are February and March. Hurricanes occasionally hit the islands, with the hurricane season running from June to November.

Airports
The British Virgin Islands has one international airport – the Terrance B. Lettsome International Airport. Direct air access to the BVI is available from Miami. Connections through San Juan, Puerto Rico, which is only 45 minutes away by air, facilitate access from major North American and European cities. North American travelers can also reach the BVI by flying to the U.S. Virgin Islands and then connecting via ferry.

Water and Sanitation
The British Virgin Islands have limited natural freshwater resources (except for a few seasonal streams and springs on Tortola), and no inland bodies of water. Most of the islands' water supply comes from wells and rainwater catchments, supplemented by desalination operations on Tortola.

Electricity
In the British Virgin Islands, there is a peak load of 35 megawatts. In 2015 amendments were made to the British Virgin Islands Electricity Corporation ("BVIEC") Act to provide for renewable energy production, followed by regulations in 2018. However, at present, only 0.6 megawatts are produced by renewable sources. To increase the level of alternative energy generating capacity, in 2024 the BVIEC and the BVI Ministry of Communications and Works launched the Solar Technology Energy Program to provide solar installations at no cost to consumers which will allow solar generation of energy with any excess contributed back to the power grid. This will also eventually result in significant cost savings for consumers.

Tourism
The British Virgin Islands experienced a remarkable surge in cruise passenger arrivals since the summer of 2021, signaling a robust recovery in the cruise tourism sector following the challenges posed by the COVID-19 pandemic. The BVI reopened to international arrivals in June 2021 and saw 72,263 cruise passenger arrivals for the six months to year-end. 2022 total yearly arrivals were 265,723, and arrivals in the first 8 months of 2023 were almost double the 2023 total yearly arrivals at 492,481. The percentage increase from January to August 2023 (492, 481) as compared to January to August 2022 (200,221), was a 146% increase, and a 31% increase over immediate pre-pandemic arrivals for January to August 2019 (376,102). Similar growth is expected in 2024. Cruise arrivals are just one part of the tourist arrivals the BVI enjoys. The latest pre-pandemic figures from 2019 show cruise arrivals represented 64% of total arrivals (575,134 of 894,991). There are also significant arrivals via ferry and water taxi services from the neighboring United States Virgin Islands, as well as direct flights from Miami, and from San Juan which connects several major cities in the United States and Europe.

Source Note: https://bvi.gov.vg/sites/default/files/resources/central_statistics_office_-caribbean_statistics_day_oct_14th_2022_002_read-only.pdf 

Business Structures
The most common business structure is the BVI Business Company. However, general and limited partnerships and trusts are often used as well. BVI Business Companies are asset-holding vehicles that may or may not include an operating business.

The BVI Business Companies Act, 2004 (the “Act”) regulates the incorporation of a BVI Business Company. Incorporation is easily and quickly accomplished; ordinarily, incorporation is completed within 3-5 business days. A BVI Business Company may be a company limited by shares or by guarantee (with or without authorization to issue shares), an unlimited company (with or without authorization to issue shares), a segregated portfolio company or a restricted purpose company. The most common structure is a company limited by shares. Such companies must have at least one director and one shareholder.

Incorporation is achieved by filing of Memorandum and Articles of Incorporation with the Registrar of Corporate Affairs. The filing must be done by the company’s first registered agent, which must be a licensed service provider physically located in the BVI. Every BVI company is required to have a registered agent and a physical address in the BVI. The physical address is usually, but not required to be, the address of the company’s registered agent.

The incorporation is effective from the date of filing the Memorandum and Articles of Association with the Registrar of Corporate Affairs. The Registrar of Corporate Affairs Will allocate a company number to the company, issue a Certificate of Incorporation and return stamped Memorandum and Articles of Association via its electronic filing system, VIRRGIN.

Commencing 1 January 2023, most BVI Business Companies must file Annual Financial Statement Returns with their BVI registered agent. This is an example of how the robust regulatory structure keeps pace with global standards.

Robust regulation and tax-neutral status make BVI Business Companies ideal for cross-border transactions. No income, corporation, capital gains, inheritance, gift or wealth taxes, or any other form of tax would affect a company doing business outside of the BVI. This makes them attractive for special-purpose acquisitions, private equity finance and venture capital structures.

The Act also provides for the continuation of a foreign company into the BVI. It also allows companies incorporated in the BVI to continue to a jurisdiction outside of the BVI. From our experience, the former is usually the case and therefore this guide will only focus on continuations into the BVI.

Statutory Basis and Reasons for Continuation
Section 180 of the Act provides that a foreign company may continue as a company incorporated under the Act in accordance with the Act if the laws of the jurisdiction in which it is registered permit it to continue in another jurisdiction.

Pursuant to that section of the Act, many companies from various jurisdictions have over the years continued into the BVI, including companies from Barbados, the Cayman Islands, Bermuda and Canada. The reasons for their continuation vary but typically include:

• reducing maintenance costs (for example, in Bermuda maintenance fees can be more than US$20,000 per year but are less than USD 1,000 per year in the BVI),
• ease of restructuring where the process in their current jurisdiction is complex and typically involves court application procedures;
• standardizing company domiciles across a group to simplify their audit process and add cost-saving elements; and
• choosing a more user-friendly jurisdiction for corporate transactions generally.
  Additional reasons to continue into the BVI include the BVI’s internationally recognized reputation (e.g., BVI companies are listed on some of the world’s largest stock exchanges including the New York Stock Exchange, NASDAQ, the London Stock Exchange and the Hong Kong Stock Exchange) plus the quality of service providers in the BVI including legal, fiduciary, accounting and other financial services providers.

Continuation Restrictions
A company will not be permitted to continue into the BVI if:

• the laws of the jurisdiction in which the company is registered do not expressly allow it to continue to a foreign jurisdiction;
• the company is in liquidation, or subject to equivalent insolvency proceedings, in another jurisdiction;
• a receiver or manager has been appointed in relation to any of the company’s assets;
• the company has entered an arrangement with creditors that has not been concluded; or
• 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, has not been determined.

Continuation Process
Having determined that a company can continue into the BVI then the next step would be to comply with the continuation process under the Act which is straightforward.

The application to continue must be submitted by the company’s proposed registered agent in the BVI to the Registrar of Corporate Affairs (the “Registrar”) and must include the following documents:

• a certified copy of the company’s certificate of incorporation or equivalent document that evidences its incorporation, registration or formation;
• the form of memorandum and articles of association to be adopted;
• evidence that the application to continue and the proposed form of memorandum and articles of association have been approved by a majority of the directors (or other persons who exercise the power of the company) or in such other manner as may be established by the company for exercising the powers of the company; and
• evidence that the company is not disqualified from continuing into the BVI (this usually takes the form of a legal opinion issued by a lawyer practicing in the jurisdiction where the company is incorporated).

If the Registrar is satisfied that the requirements for continuation have been complied with, the Registrar of Corporate Affairs registers the company, allocates a BVI company number and issues with certificate of continuation. The certificate of continuation is conclusive evidence that the company is continued as a BVI Business Company under the Act on the date specified in the certificate of continuation. All shares in the company that were outstanding prior to the issue by the Registrar of a certificate of continuation the Act recognizes these shares as issued in conformity with the Act.

From the date of issue of the certificate of continuation, that company is treated as a company incorporated under the Act and is therefore capable of exercising all relevant powers applicable to BVI Business Companies under the Act.

Effect of Continuation
The continuation of a foreign company under the Act does not affect the company’s continuity as a legal entity or the assets, rights, obligations or liabilities of the company. In addition: (a) no conviction, judgment, ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing, against the company or against any member, director, officer or agent, is released or impaired by its continuation as a company under the Act; and (b) no proceedings, whether civil or criminal, pending at the time of the issue by the Registrar of Corporate Affairs of a certificate of continuation by or against the company, or against any member, director, officer or agent, are abated or discontinued by its continuation as a company under the Act, but the proceedings may be enforced, prosecuted, settled or compromised by or against the company or against the member, director, officer or agent thereof, as the case may be.

Other Investment Vehicles
BVI limited partnerships are also popular as investment vehicles, primarily in the private equity space. In 2018, the laws related to limited partnerships were refreshed by the enactment of the BVI Limited Partnerships Act, leading to additional flexibility for the limited partnership as an investment vehicle. As such, new limited partnerships will have legal personality by default, (though they can opt-out) enabling the limited partnership to enter into transactions and own assets in its name. The Act contained additional improvements, including rules relating to the merger and consolidation of partnerships including with foreign partnerships, the continuation of foreign partners into the BVI and the widening of activities a limited partner can engage in without losing its status as a limited partner.

BVI trusts are also a popular and flexible vehicle for asset protection and estate planning. BVI trusts carry strong regulatory provisions for governing law in disputes and a streamlined process to resolve trustee decisions with adverse (tax and other) consequences without having to resort to archaic breach of fiduciary duty claims. The BVI has unique VISTA Trusts and highly utilized private trust companies, which offer ways to combine the corporate benefits of limited liability and perpetual existence with the flexibility of a trust.

There is no income, corporation, capital gains, inheritance, gift or wealth tax, or any other form of tax that would affect a company doing business outside of the BVI. Companies doing business within the BVI are subject to the contributions detailed in the ‘Labor’ section below.

Governing Legislation and National Policy
The law governing employment and labor relations in BVI is statutorily based. The overarching legislation which sets out the minimum standards of employment that must be observed by all employers in respect of employment in or from within the BVI (regardless of any contrary agreement between the employer and employee) is the Virgin Islands Labour Code, 2010 (the "Code"). Among the expressions of national policy which is to be used in interpreting the Code is that the “legitimate employment interests of Virgin Islanders and Belongers (effectively BVI citizens) shall be paramount and shall override all other competing expression on national policy.”

The foregoing therefore reveals the very first thing that one needs to understand when trying to enter the BVI employment market- that is that BVI citizens have first preference in relation to all employment opportunities/vacancies in BVI. This is by no means mere lip service; all employment vacancies in BVI must be advertised locally in order that BVI citizens are made aware of the same and have the opportunity to apply for the position.

Where not eligible BVI citizen fits the bill, a non-BVI citizen may be offered the role. What’s next?

Work Permit, Immigration and Visa Requirements

Who needs a work permit?
Any person who does not belong to the BVI requires a work permit and immigration clearance from the relevant authorities in the BVI to engage in employment or self-employment in the BVI. This requirement also applies to British citizens. In addition to the work permit and immigration clearance, a BVI visa may also be required depending on the prospective employee’s country of origin.

How Do You Obtain a Work Permit?
The intended employer (such being an individual or entity duly authorized and licensed to do business in the BVI) will need to apply for the necessary work permit, immigration clearance and visa on your behalf. All these processes must be completed before entering the BVI. The application for the work permit is made in writing to the Commissioner of Labor and must be accompanied by the relevant application forms, and identification documents and credentials in respect of the prospective employee. Approval once granted will be communicated in writing to the employer who in turn advises the employee and thereafter, appropriate travel arrangements may be made for the employee to come to the BVI.

What Kind of Work Permit do you Need?
The most common type of work permit is the annual work permit (loosely referred to in BVI as the “full-time” work permit). As the name implies, once issued, this permit is valid for one year and must be renewed annually.

However, there are other types of work permits available that may be more appropriate for the type of employment/engagement contemplated, such as the Part-time work permit which is ideal for an individual who is engaged in part-time employment (usually working less than 20 hours per week) and the Periodic work permit which contemplates irregular or intermittent employment.

Employment Agreements/Minimum Standards of Employment

While the Code does not require that an employment contract be in writing and in fact contemplates oral employment contracts, it does mandate that certain core elements of the employment be communicated by the employer to the employee in writing before or immediately after the employment commences. The employer is under an obligation to furnish his employee with a written statement containing, at the very least, the following details:

• the name and address of the employer and employee and the general responsibilities and related duties for which the employee is hired (in keeping with the underlying policy that an employee should know what his or her job duties are, what his or her employment conditions are, and if his or employment is terminated);
• the regular hours of work (there is a limitation upon working hours of employees but to the extent that circumstances dictate that the normal hours of work be reasonably extended, premium pay ought to be received) and rest periods (an employee is entitled to reasonable breaks in employment, whether because of physical disability or for meals, rest and rehabilitation);
• the starting pay and methods of computing the same;
• the interval between payment of wages;
• the term of employment, if other than indefinite;
• the period of probation, if any (the maximum probation period is four months except in the case of an employee of a supervisor or manager rank whose probation period may be extended to 6 months); and
• the employee’s leave and vacation entitlement.

Employer Obligations and Employee Entitlements

• Payment of Salary
  The Code specifies that wages must be in legal tender. The minimum wage in BVI is currently USD 6.00 per hour but provisions are being made to increase this to USD 8.50.
• Payroll Taxes
  Each employer must pay to the BVI Government, a tax known as “payroll tax” in respect of remuneration paid by the employer to the employee. To be clear, the tax is an employer tax, but the employer is entitled to recover a portion from the employee. Payroll tax is levied at either 10% or 14% depending on the category of employer but in each case, the employer is entitled to recover 8% of such sum from the employee. Each year, the first USD 10,000 of an employee’s salary is exempt from payroll tax.
• Other Statutory Payments/Deductions
  There also exists in BVI (a) a Social Security system to which both employer and employee are obligated to make monthly contributions (employer pays 4.5% and employee pays 4% but unlike the payroll taxes, are capped on an annual basis) and (b) the National Health Insurance scheme, which, comparable to the social security structure, both employer and employee are obligated to pay (employer and employee each pay 3.75%) and is capped on an annual basis.
• Pension
  The Code requires each employer to provide retirement benefits to be paid to their permanent employees through a pension scheme, an annuity, provident fund or other form of retirement scheme which may be contributory. While there is currently no prescribed mandate for the pension scheme, the Code provides a formula for the calculation of retirement benefits payable to the employee at retirement. The age of retirement in BVI is 65 years.
• Sick Leave
  Paid leave for up to 12 working days per annum. An employee who has suffered wage loss due to illness beyond the 12 days and is current and up-to-date with his social security contributions may submit a claim to the Social Security Board for appropriate compensation.
• Vacation
  Increases based on years of service - at minimum, 12 working days per annum.
• Severance
  Payable to an employee whose period of continuous employment is at least twelve months and whose employment is terminated on account of redundancy, permanent ill health/disability affecting the employee’s ability to perform his duties or death of employer where the personal or legal position of the employer formed the basis of the contract of employment between the employer and employee.

Principle of Foreign Exchange Freedom
The British Virgin Islands operates without foreign exchange controls. Renowned for its accommodating regulatory framework in international business and finance, the jurisdiction generally permits unrestricted capital movement, including foreign exchange transactions. Nonetheless, it is crucial to remain informed about any alterations to regulations or policies impacting foreign exchange operations within the BVI.

Trade Licenses
Companies doing business within the British Virgin Islands must obtain a trade license. Trade license fees depend on the category of business and whether the applicant is a citizen or a foreign-owned business. Processing times and required forms for the different categories of businesses vary. Other considerations for international investors, including incentives for investment are detailed in the ‘Specific Matters’ section below.

The British Virgin Islands has a comprehensive framework for customs administration, covering the roles and duties of customs authorities, secrecy obligations, and customs-controlled areas. Customs procedures are set out under the Customs Management and Duties Act 2010 of the Virgin Islands. His Majesty’s Customs Department, responsible for administering the legislation, is under the Ministry of Finance’s direct supervision and control. A single Customs Automated Processing System ("CAPS") interface centralizes all activities governed by the legislation.

The Customs Management and Duties Act defines procedures for the appointment and control of customs ports, wharves, and airports, as well as regulations for the movement of uncleared goods. The Act outlines detailed arrival and control procedures for imported goods, addresses warehousing operations and duty charges, and specifies the entry, clearance, and offenses related to exportation. Additionally, it sets forth the collection of duties, prohibited goods, relief measures, and the process for claiming drawbacks and refunds. The legislation grants customs officers extensive powers, including the right to access and search premises, arrest individuals, and carry firearms. It lists various customs offenses, outlines the process for legal proceedings, and details procedures for the forfeiture, seizure, and condemnation of goods. The Commissioner is authorized to redeem and sell forfeited goods, and a framework for dispute resolution regarding valuation and appeals is established. The Act also includes provisions for regulations, forms, expenses, and transitional measures, and it incorporates schedules detailing specific procedures and additional regulations relevant to customs management and duties. The Customs Department is also responsible for the cruise industry's clearance processes and ensuring that policies and procedures are followed for importing petroleum products.

Duty-free programs are available and monitored by His Majesty’s Customs Department. These include hotel aid and tourist duty-free concessions at the Cyril B. Romney Pier Park. Each has specific governing legislation that provides significant tax concessions to the relevant types of business operations.

Similarly to other sovereign nations, protecting its borders naturally forms part of the BVI Government’s mandate. Therefore, with the growing interest in BVI and the corresponding desire of many to relocate here (whether on a permanent or transient basis), certain procedures must be adhered to in relation to an individual’s initial entry into BVI as well as their continued stay:

• Visas
  Nationals of certain countries require a visa to enter the BVI. A Visa only allows for entry to the territory; it does not authorize any economic activity.
• Visitors
  Subject to any visa requirement (depending on the nationality of the individual aforesaid), a landing tourist is permitted a maximum of 30 days' stay in the BVI. Such an individual will need to present to the officer at the port of entry in BVI evidence of return/exit travel arrangements within the said 30-day timeframe. Where intervening circumstances require the individual to remain in the BVI beyond the permitted 30 days, such an individual may apply to the Chief Immigration Officer for an extended stay.
• Foreign Employees
  As indicated above, in addition to the work permit, all foreign nationals require certain immigration clearances in order to enter and remain in BVI. The immigration clearance in respect of an expat employee is invariably tied to the duration of the work permit and must be renewed/updated at the same interval as the work permit. This process also applies to expat self-employed persons who hold a self-employed work permit, and family members and/or dependents of expat employees who reside in BVI.
• Retirees
  Reference here is made to not only persons who have retired from years of work but also self-sufficient persons of any age desirous of living in the BVI long-term. For persons within this category, the Annual Permit to Reside, which is effectively a permission granted by the Chief Immigration Officer upon application, is the best option! Like the “full-time” work permit, the Annual Permit to Reside is valid for one year and must be renewed yearly. A successful application necessarily involves an applicant demonstrating to the BVI Government that he is of decent character and repute and, equally importantly, will be financially self-sufficient while residing in the BVI. The holders of this Permit are not eligible for work permits and cannot legally work in the BVI.
• Citizenship by Economic Investment
  At present, the BVI does not offer citizenship by economic investment. However, within the last few years, legislation has passed suggesting that the BVI Government may consider citizenship by investment, encouraging and fostering more significant foreign investment in the BVI.

The "Green Paper on Environmental Management and Climate Adaptation" for the Virgin Islands outlines the government's proposed legislation to safeguard the environment and enhance climate resilience. Key elements include:

• Establishing a Legal Framework
  • Creation of a Council on Sustainable Development and Climate Adaptation to coordinate policies.
  • Formation of an Environment Authority to oversee environmental clearance and impact assessments.
  • Establishment of a Department of Environment, Conservation, and Climate Adaptation within the Ministry of Natural Resources and Labour.
• Environmental Management
  • Introduction of Environmental Impact Assessments ("EIA") and Certificates of Environmental Clearance ("CEC") for development projects.
  • Regulation of pollution from land-based sources and vessels, with standards for discharges and a requirement for pump-out stations at marinas.
  • Management of marine and coastal zones, including public beaches, through licensing and guidelines.
• Biodiversity and Ecosystem Protection
  • Designation of Environmentally Sensitive Areas ("ESAs") and Species ("ESSs") to protect critical habitats like mangroves, coral reefs, and seagrasses.
  • Frameworks to manage invasive species and to ensure fair access and benefit sharing of biological resources.
• Institutional and Policy Measures
  • Establishment of an Environmental Registry and various environmental inventories and indices.
  • Implementation of monitoring, reporting, and verification systems to track policy effectiveness.
  • Creation of an Environmental Tribunal to hear disputes and enforce penalties for environmental violations.
• Climate Change Adaptation
  • Legal requirements for climate adaptation policies and strategies are linked to financing mechanisms like the Virgin Islands Climate Change Trust Fund.

This comprehensive approach aims to balance development needs with environmental conservation, ensuring a sustainable and resilient future for the Virgin Islands.

All privately owned property in the British Virgin Islands is registered in the central land registry and each parcel is allocated a block and parcel number within a specific registration section. Registration is administered under a Torrens-based title system which provides a state guarantee backed by a statutory fund to compensate any person who has suffered damage as a result of fraud, or title errors or omissions in the register. Due to the state guarantee, title insurance is not used. The guarantee is based on the register of titles serving as conclusive evidence of the validity of ownership and interests in land, with limited exceptions e.g., fraud. Third parties acting in good faith who do not have knowledge of any fraud, or title error or omission are fully entitled to rely on the contents of the land register as it stands at the applicable time. Registration (not merely execution) of the instrument of transfer is what creates title to the land.

In the BVI, locals and foreigners alike can acquire property. They enjoy many of the same rights except that foreigners must obtain a Non-Belonger Land Holding Licence before the property can be recorded in their name. Their use/development and disposal of the property is also subject to conditions. Additionally, locals are given a right of first preference on all property purchases by foreigners.

The most common agreements executed over real estate in the BVI are sale and purchase agreements and leases which grant different types of rights to the contracting parties and are subject to particular requirements. Leases to foreigners for one year or less are exempt from the requirement for a Non-Belonger Landholding Licence.
 
Prior to entering into any type of agreement that involves real property, prospective purchasers are advised to conduct a title search on the intended property to confirm ownership, size, access rights, encumbrances, covenants or any other restrictions on title.

Ownership of property in the BVI takes effect upon registration of the Transfer of Land which must be executed by the owner and transferee in the presence of a notary public. The Transfer will be subject to payment of stamp duty which is assessed at 4% for locals or 12% for foreigners on the purchase price or market value, whichever is higher.

Trademarks
In the British Virgin Islands trademarks are governed by the Trade Marks Act 2014, which covers any sign that is capable of being represented graphically and distinguishing the goods or services of one person from those of another person. A sign is liberally interpreted to include a brand, color, device, figurative element, heading, label, letter, name, numeral, shape, signature, smell, sound, taste, ticket or word (including foreign numbers, text, or words). The Trade Marks Act sets out qualifications for registration, disqualifying factors and the rights attached upon registration of a trademark. Disqualifying factors are marks that:

• are prohibited by law, or contrary to public policy;
• lack distinctive character;
• are merely descriptive;
• exclusively consist of customary terms;
• exclusively consist of a shape that results from the nature of the goods themselves, shapes necessary to obtain a technical result or shapes that give substantial value to the goods;
• are misleading geographical indications, state flags or emblems, national flags and royal arms; or
• are identical or similar to earlier trademarks, especially when such similarity is likely to cause confusion among the public regarding the goods or services.

These provisions ensure that trademarks maintain their distinctiveness, do not mislead the public, and adhere to legal and moral standards.

The Trade Marks Act introduced several enhancements to the industry. It applies the provisions of the Paris Convention to the BVI, including provisions for well-known trademarks and provides protection and priority for owners of trademarks that have been registered in a Paris Convention country or a WTO member country for six months after the first application without the need for registration in the BVI. The Trade Marks Act also introduced a licensing requirement for trademark agents, bringing enhanced security and an electronic filing system to improve efficiency.

Trademark registration affords protection for ten years from the date of registration. The holder may renew the trademark for further periods of ten years in accordance with the provisions of the Trade Marks Act. The rights protected include exclusive use, the right to authorize others to use the trademark, and the right to assign and transmit use of the trademark either with the goodwill of the business or separately. Acts infringing these rights involve the unauthorized use of a sign identical or similar to the trademark in ways that may cause confusion or harm the reputation of the trademark. Specific acts include using the infringing sign on goods, packaging, business papers, or in advertising without due authorization, and any use that unfairly exploits or damages the trademark's distinctive character or reputation.

To register a trademark a licensed trademark agent must file an application including:

• The applicant's name and address
• A representation of the trademark
• A list of goods or services for which the trademark is to be registered
• The class of the goods or services according to the classification system
• Any additional information, document, or matter as may be prescribed

Additionally, the application must state whether the trademark is being used by the applicant or with their consent in relation to the goods or services for which it is sought to be registered or if the applicant honestly intends to use the trademark in relation to those goods or services. The application is advertised and if there is no opposition the trademark is registered, and the applicant is issued a certificate of registration.

Patents and Designs
A patent can be registered in the British Virgin Islands pursuant to the Registration of United Kingdom Patents Act which provides for applications to extend rights under a United Kingdom (UK) patent, or UK-registered European patent. The application for an extension of registration must be made within three years from the date of issue of the UK (or UK-registered European) patent. The duration and validity of protection in the BVI are dependent on the duration and validity of the underlying UK or (UK-registered European) patent.

Designs registered in the United Kingdom enjoy protection in the British Virgin Islands automatically pursuant to the UK legislation which has been extended to the BVI. The current legislation governing designs is the United Kingdom Designs (Protection) Act.

In BVI, the Consumer Protection Act, 2020 (the "Act") is the governing legislation for the protection of consumer rights. It provides for the promotion and protection of consumer interests, in relation to the supply of goods and the provision of services; to ensure the protection of life, health and safety of consumers and for connected matters. The consumer is defined as "a person who acquires any (a) goods under an agreement or transaction and includes any other user of the goods when such use is made with the consent of the person who acquires the goods but does not include a person who acquires the goods for resale or for any business; and (b) services under a consumer agreement and includes any other beneficiary of the services, when the services are used with the consent of the person who acquires the services but does not include a person who acquires the services under any agreement or transaction for any business.”

Some consumer rights are: (i) right to select suppliers and products; (ii) right to authorize services; (iii) right to choose and examine goods; (iv) rights with respect to delivery of goods or supply of services; (v) right to information in English Language; (vi) right to cancel reservation; (vii) right to rescind or cancel agreement; (viii) right to authorize services; and (ix) rights in relation to unsolicited goods or services.

Suppliers also have duties under the Act such as: (i) to inform consumers of the origin, care, terms, components, hazards, proper use, weight, size and instructions for assembly and installation of goods; (ii) to display price of goods or services; (iii) to disclose environmental facts affecting goods, and (iv) to supply sales record.

The Act applies to all persons involved in trade or business whether through the purchasing, acquisition or supplying of goods or services.

The BVI is a founding member of the Caribbean Financial Action Task Force ("CFATF") a group of 24 Caribbean and Central and South American countries dedicated to addressing Money Laundering, Terrorist Financing and Proliferation Financing. The CFATF ensures its members follow the Financial Action Task Force ("FATF") 40 Recommendations.

As a founding member of the CFATF, the BVI has a long history of compliance with international standards. Indeed, its first set of Anti-Money Laundering legislation dates back to the late 1990s. Today BVI entities and persons are regulated for AML purposes by the BVI Financial Services Commission ("BVI FSC") and the BVI Financial Investigation Authority ("BVI FIA").

The BVIFSC’s primary mandate is the supervision of financial services in the BVI including the monitoring and detecting of financial crime. The FSC monitors regulated businesses including insurance companies, corporate administrators, investment funds, banks and investment business entities for compliance with local and international laws.

However, the main responsibility for detecting and preventing AML, Proliferation Financing ("PF") and Terrorist Financing ("TF") activity falls to the BVI FIA which is empowered to investigate suspicious activity and take enforcement action. While the BVI FSC has primary responsibility for regulated entities that have traditionally been supervised for AML compliance, the BVI FIA has the primary responsibility for supervising Designated Non-Financial Businesses or Professionals ("DNFBPs") and Non-profit organizations for AML compliance. DNFBPs include professionals such as law firms and accounting firms but also include businesses that may receive cash such as real estate professionals, casinos and dealers in precious metals or stones.

The BVI has a comprehensive compliance framework for detecting and preventing ML, TF and PF. This includes the BVI Proceeds of Criminal Conduct Act, 1997 which creates criminal offenses related to money laundering including tipping off the target of a money laundering investigation, concealing the proceeds of crime and failing to report suspicious behavior to the BVI FIA; the Anti-Money Laundering Regulations and Anti Money Laundering and Terrorist Financing Code of Practice which set out the general compliance requirements to be taken to identify persons with whom an entity is doing business and sets out the various procedures to be followed to combat ML.

In 2014 the BVI established its National Risk Assessment Council in accordance with FATF recommendations. The Council is responsible for identifying, assessing and understanding AML risks specific to the BVI industries and sectors and for implementing measures to mitigate those risks. The Council undertakes regular country and sectoral risk assessments and makes recommendations to improve BVI’s ability to manage and mitigate AML risks which are subsequently incorporated into BVI law.

In 2023, the CFATF reviewed the BVI’s AML measures to assess its progress in implementing FATF recommendations. While certain recommendations for improvement were made, the BVI remains on the FATF ‘whitelist.’

In 2021, the BVI’s Data Protection Act, 2021 ("DPA") came into force. Under the DPA personal data is defined to mean “any information in respect of commercial transactions, which-
(a) is being processed wholly or partly by means of equipment operating automatically in response to instructions given for that purpose; (b) is recorded with the intention that it should wholly or partly be processed by means of such equipment; or (c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, that relates directly or indirectly to a data subject, who is identified or identifiable from that information, or from that and other information in the possession of a data user, including any sensitive personal data and expression of opinion about the data subject.”

The DPA sets out six major principles for dealing with data:

• The Notice and Choice Principle requires the data controller to notify the data subject of the reason for the data collection, how the data controller will use it, and the data subject’s rights to access and correct the data.
• The Disclosure Principle prevents data controllers from disclosing a data subject's personal data without the data subject’s consent to any party or for any purpose that differs from that disclosed at the time the data controller collected the data.
• The Security Principle requires the data controller to take appropriate measures to ensure the integrity and security of personal data.
• The Retention Principle requires data controllers not to keep data longer than is necessary.
• The Data Integrity Principle requires the controller to ensure data is correct, complete and not misleading.
• The Access Principle requires the data controller to give access to the data subject to correct inaccurate, incomplete, misleading, or out-of-date data.

These principles, along with the DPA’s General Principle, which places the data subject’s consent at the center of the processing of personal data, including transferring personal data out of the BVI, constitute a comprehensive framework for protecting personal data.

The DPA also includes other rules for sensitive personal data which includes data about a person’s health, sexual orientation, political opinion, religious belief, criminal convictions, criminal allegations and any other personal data that might be designated by the government as sensitive personal data.

The Act also establishes the Office of the Information Commissioner, whose duty is to supervise private and public bodies for compliance with the DPA, receive and investigate complaints about breaches of the DPA, undertake research, promote educational programs about the DPA, and manage cooperation and information exchange with foreign data protection authorities.

The DPA has whistleblower protections for employees who may notify the Commissioner of breaches of the DPA by their employer. It also creates offenses for obstructing the Information Commissioner, willfully disclosing personal information, and breaching confidentiality provisions of the DPA, with the most severe fine being USD 100,000 or a five-year prison term.

There are no specific antitrust laws in the BVI.

In the British Virgin Islands, the procurement processes of public entities are governed by the Public Procurement Act of 2021. This Act establishes a structured framework for conducting public procurement in the Virgin Islands, ensuring compliance with international standards, and promoting integrity and fairness in procurement processes. The Act applies to all procuring entities and state-owned enterprises, aiming to maximize economy and efficiency in public procurement, promote fair treatment of tenderers, encourage competition, ensure transparency, and support national development.

The Act:

• Establishes the Central Tenders Board and outlines its responsibilities, including reviewing tender evaluations, registering suppliers, and advising on procurement policies.
• It lists methods such as open tendering, restricted tendering, request for quotations, request for proposals, and single-source procurement and specifies conditions for each method's use.
• Establishes the procurement appeals board and outlines the right to challenge and appeal procurement decisions, procedures for reconsideration, and confidentiality requirements.
• Contains provisions covering communication in procurement, qualifications of tenderers, rules concerning procurement contracts, and evaluation.

The accompanying Public Procurement Regulations, 2022, provide detailed procedures and guidelines for public procurement processes. The Public Procurement Regulations mandate compliance with environmental and employment legislation and establish the role of procurement coordinator who heads the procurement unit and acts as Secretary to the central tenders board. The procurement unit is within the Ministry of Finance. These regulations also provide for a procurement committee within each procuring entity and set threshold values for differing types of procurement.

Any contract with an estimated value exceeding $10,000.00 is subject to open tender and restricted tender. If the estimated value is less than $100,000.00 the procurement process can be conducted by the entity’s internal procurement committee. If the estimated value is $100,000.00 or greater, the procurement process must be conducted by the procurement unit. For contracts with an estimated value not exceeding $100,000.00 tenders may be restricted to domestic entities provided that the goods, works, services or consulting services sought are readily available within the country and meet the quality levels required by the solicitation documents.

Recent infrastructure projects include the completion of the Huntum’s Ghut Economic Zone on the outskirts of Road Town, Tortola. Funding has been allocated to expand the Terrance B Lettsome International Airport and the West End Ferry dock, the latter of which is a major arrival destination for US visitors via the neighboring US Virgin Islands by ferry. In addition, for 2024, $2.6 million has been allocated under the development budget for road improvements. The road improvement program includes the upgrade and rehabilitation of thirty-eight miles of primary roads throughout Tortola, Virgin Gorda and Jost Van Dyke. A comprehensive reconstruction of the road network is slated for completion within a two-year period, which should see the construction of new curb and slipper drains and short retaining walls to ensure the roads are secured; a comprehensive overhaul of the roads to include provisions for rebuilding the road base, drainage, and road markings.

Currently, the BVI Electricity Corporation is embarking on a major initiative in conjunction with the Ministry of Communications and Works where consumers will be able to have a grid-tie solar system installed at no upfront cost – the Solar Technology Energy Program. Renewable energy legislation was introduced in 2015, however, the current utilization of alternative energy generation is a fraction of the peak load. Under the new program, the BVIEC will purchase the equipment and cover the installation cost. This is a bid to significantly reduce the cost of electricity generation, particularly as it relates to imported fuel.

The Ministry of Communications and Works has been allocated 15.9% of the 2024 budget to fund a variety of infrastructural development projects.

Prior to recent updates to the BVI Business Companies Act, a BVI company that has not paid its license fees for a period of seven consecutive years would be deemed dissolved. This was changed by the BVI Business Companies (Amendment) Act, 2022 so that a company that is struck off the register of companies for non-payment of fees will be deemed dissolved immediately once the Registrar of Corporate Affairs publishes a striking-off notice in the Gazette. This has ramifications for any assets held by the Company and therefore an orderly liquidation and dissolution of the company is the preferable route.

To begin voluntary liquidation, the directors must make a solvency declaration (the declaration) pursuant to the provisions of the BVI Business Companies Act, 2004 (as amended). The declaration must confirm that the company can discharge its debts as they fall due and that the value of the company’s assets equals or exceeds its liabilities. The directors must also approve a liquidation plan (the plan) and approve the appointment of a voluntary liquidator. Shareholders must adopt resolutions approving the liquidation, including the Plan and the appointment of the voluntary liquidator. Note that the voluntary liquidator must be an individual and consent to the appointment in writing.

The declaration must be dated no more than four weeks earlier than the date of the resolution appointing the voluntary liquidator, and a statement of assets and liabilities must be attached. The Plan has no effect unless it is approved by the directors no more than six weeks prior to the resolution date appointing the voluntary liquidator.

When all the above is in place, then a notice of appointment of the voluntary liquidator, the declaration, and a copy of the plan must be filed at the Registry of Corporate Affairs within fourteen days of the liquidator’s appointment. The liquidation commences upon the filing of the notice of the voluntary liquidator’s appointment at the Registry of Corporate Affairs. Notice of the voluntary liquidator’s appointment must be advertised in the BVI and in the jurisdiction where the company has its principal place of business.

Upon completion of the liquidation, the voluntary liquidator must prepare a statement confirming that the liquidation has been completed and file a Notice of Completion of Liquidation with the Registrar of Corporate Affairs. The Registrar will then strike the company off of the Register of Companies and issue a Certificate of Dissolution to that effect. A notice that the company has been struck off and dissolved must also be published in the BVI Gazette. For a company with minimal assets or no assets at all, the process can be completed within a month, while for more complex companies will take a little more time. The voluntary liquidation process is the best way to terminate a BVI company as it properly terminates the company’s affairs and the directors’ fiduciary responsibilities cease. The company can no longer be sued, nor can it incur liabilities.

The Insolvency Act governs the insolvency of BVI companies.

Voluntary Insolvent Liquidation
If during a voluntary liquidation, a liquidator forms the view that the company is insolvent, the liquidator must notify the Official Receiver and, if the company is regulated, then also the BVI FSC. The liquidation will then proceed under the provisions of the Insolvency Act and the liquidator is required to call a meeting of creditors which shall be treated as the first meeting of creditors required to be called by a liquidator under the Insolvency Act.

The members may also commence an insolvent liquidation. The members will do so by passing a resolution appointing a liquidator. The members may not appoint a liquidator if the court has appointed a liquidator, or an application to appoint a liquidator is before the court. The liquidator must also give his written consent in writing to being appointed as a liquidator of the company. The company must notify the liquidator of his appointment as soon as is practicable. A member’s resolution that does not comply with any of the above conditions is deemed void. Any resolution purporting to appoint the Official Receiver as liquidator is likewise also deemed to be void.

Once appointed, the liquidator must call a first meeting of creditors of the company to be held within 21 days of his appointment. The liquidator must provide the liquidators with a list of creditors known to the liquidator and any other information concerning the affairs of the company that the creditor might reasonably require, and that the liquidator is reasonably able to provide. At the first creditors’ meeting, the members may appoint another liquidator to replace the current liquidator or apply to the court to appoint a replacement liquidator. The creditors must also appoint a creditors’ committee.

After the first meeting of creditors, the liquidation will proceed in an identical fashion to an insolvent compulsory liquidation brought in court and as detailed in the section entitled “Insolvency” below.

Insolvency
Under BVI law a company is insolvent when:

• it fails to comply with, or set aside, a statutory demand;
• execution or process of a judgment, decree or order is returned unsatisfied;
• the company is unable to pay its debts as they fall due; or
• the value of its liabilities exceeds that of its assets.

In such circumstances, an application to put the company in compulsory liquidation may be made to the courts by the company, a creditor, a member, the supervisor of an arrangement, the Financial Services Commission or the Attorney General of the BVI. A company may oppose the application if there is a genuine and substantial dispute over the debt(s) or if the agreement giving rise to the debt(s) is subject to arbitration. If the company does not dispute the debt but cannot pay it in the time frame agreed, restructuring is also another option to insolvency – see the ‘Restructuring’ section below.

Even if insolvency proceedings against the company have been started in another jurisdiction, an application may still be made and the BVI insolvency proceedings are treated as the primary proceedings. All insolvency proceedings fall under the jurisdiction of the BVI Commercial Court, with a right of appeal to the Eastern Caribbean Court of Appeal. The Eastern Caribbean Supreme Court, (along with Singapore, Delaware, Bermuda, England and Wales, and the Southern District of New York) has adopted the Judicial Insolvency Network’s Guidelines for Communication and Cooperation. The move is expected to increase efficiency and reduce costs through the sharing of information among courts supervising the administration of a debtor’s estate (including the assets of an insolvent company or other entity), and by more readily recognizing and accepting foreign court orders, laws, regulations, and practices. Although voluntary, under the Guidelines parties can establish specific court-approved protocols or orders for dealing with a debtor’s estate and continue litigation in accordance with those terms and protocol. In addition, courts may now communicate on procedural, administrative, and preliminary matters in joint proceedings by telephone, video conference call, or other electronic means, which becomes part of the record. Overall, when adopted, all parties vying for a share of the debtor’s estate where the estate is located in more than one country should reap greater benefits. Implementation of the Guidelines is being piloted in the BVI and if successful, the Chief Justice may choose to extend them to the other States and Territories of the Eastern Caribbean.

Where an application is successful, the court will appoint a licensed insolvency practitioner as a liquidator. Upon appointment, the liquidator has custody and control of the assets of the company and the directors and members of the company can no longer exercise their powers in the company other than those required or permitted under the Insolvency Act or otherwise authorized by the liquidator, and a moratorium on lawsuits against the company and its assets takes effect. The moratorium also applies to pending legal proceedings although a party may seek permission of the court to continue a pending proceeding. All claims must be made in the liquidation.

The liquidator has the power to sell the business and assets of the company to satisfy its obligations. The liquidator can also continue the company's business but only as far as is necessary and beneficial for the liquidation. Any costs or expenses incurred by the liquidator in carrying on the business will take priority to all claims in the liquidation, other than secured claims.

An insolvency does not affect the rights of secured creditors over the assets securing the company’s obligations, unless the transaction falls within the class of voidable transactions, entered into when the company was already insolvent or classed as an extortionate credit transaction.

Directors may incur personal liability for trading while the company is insolvent or causing the company to make distributions (dividends etc.) while it is insolvent. The liquidator can bring claims against directors in respect of voidable transactions, insolvent trading, misfeasance or breach of fiduciary or other duties. A court can order directors to make personal contributions to the assets of the company.

Priority of claims in a liquidation are prescribed by Section 207 of the Insolvency Act and are as follows:

• the costs and expenses properly incurred in the liquidation;
• the preferential claims admitted by the liquidator;
• all other unsecured claims admitted by the liquidator (which rank equally and are paid pro-rata if the company’s assets are insufficient to meet all claims in full); and
• interest on admitted claims for the period after the commencement of the liquidation.

Preferential claims are set out in Schedule 2 of the Insolvency Rules and include (a) prescribed amounts due to a person as a present or past employee of the company including salary, commissions and holiday pay; (b) prescribed amounts due to the social security board; (c) any amount due in respect of pension or medical insurance contributions; (d) sums due to the Government of the British Virgin Islands for any tax, duty or license fee; and (e) sums due to the Financial Services Commission for any fee or penalty. These rank equally between themselves and are paid pro-rata if the company’s assets are insufficient to meet all preferential claims in full. Any surplus assets remaining after payment of the costs, expenses and claims shall be distributed to the members in accordance with their rights and interests in the company.

After completing the liquidation, the liquidator must prepare a final report and deliver it to each admitted creditor and all shareholders of the company and deliver it to the BVI Registrar. This terminates the liquidation and the dissolution of the company i.e.; the company ceases to exist.

Restructuring
The Insolvency Act also provides for Plans of Arrangement, Schemes of Arrangements and Creditor’s Arrangements. Different provisions govern these options, but they can be used by a company working in conjunction with all (or in some instances, most) of its creditors to restructure the company’s debts. The appointment of the provisional liquidator is key. Ideally, a company will want a liquidator who understands its business and is willing to manage the operations pending a successful restructuring of its debt.
When implemented properly, a restructuring under one of the abovementioned procedures will buy the company time to negotiate with its creditors and avoid dissolution. A properly drawn-up and executed restructuring will allow the company to return to solvency and avoid insolvent liquidation. For this to happen, though, the principals of the company (its directors and officers) must devise a plan for the debts owed to creditors. That may involve getting buy-in from creditors, whether by extending the repayment date for the debt, getting a partial debt write-off, obtaining new capital, or a combination of these and other strategies.

The court will be wary of allowing a company to withdraw the insolvent liquidation application only for it or a creditor to re-apply a few months later. The plan must, therefore, demonstrate that the company can again stand on its own two feet. Once the plan is properly documented with the relevant agreements prepared and executed, the company can seek court approval and withdraw the insolvent liquidation application from the court.