It is important appreciate that not all activities of a BVI entity which involve virtual assets will necessarily fall within the VASP Act. For example, dealing, arranging deals in, or managing investments, providing investment advice, custodian and/or administration services with respect to investments, and operating an investment exchange may regulated under the BVI Securities and Investment Business Act (“SIBA”) if the virtual asset constitutes an “investment” under SIBA.

The key features of the VASP Act include:

1. details of the application and approval requirements for registration as a VASP, including additional specific requirements for VASPs seeking to provide virtual assets custody services or operate a virtual assets exchange;
2. the requirement for VASPs to appoint authorised representatives;
3. particulars of the functions of an authorised representative and the requirement for authorised representatives to be approved by the Financial Services Commission (the “Commission”) to act in relation to VASPs;
4. the requirement for VASPs to appoint an auditor approved by the Commission and the obligations of the auditor to the Commission;
5. details of the information that a registered VASP must report to the Commission on an ongoing basis;
6. the process to be adopted for disposing or acquiring a significant or controlling interest in a VASP;
7. the establishment of measures to protect clients’ assets;
8. prohibitions on making or issuing misleading advertisements;
9. AML/CFT and other regulatory compliance matters; and
10. the legal mechanism for a VASP to participate in the Regulatory Sandbox.

The benefits and advantages of establishing virtual assets businesses in the BVI include:

1. Stability and reliability. As an autonomous British Overseas Territory that applies English common law rules and principles, it has a well-tested and efficient judicial system, with a final right of appeal to the Privy Council.
2. Incorporation and maintenance costs. BVI companies are cheap to incorporate and maintain in good standing.
3. Tax neutrality. No income, corporate, capital gains or wealth taxes, withholdings or other similar taxes are imposed on BVI companies as a matter of BVI law.
4. Exchange controls. There are no exchange controls and restrictions as a matter of BVI law.
5. Confidentiality. Shareholders and directors of a BVI business company are generally a matter of private record.
6. Corporate flexibility. The objects, capacity and powers of a BVI company are generally unrestricted. Most decisions can be taken by the board of directors of the relevant company, with only certain matters requiring shareholder approval. There is considerable flexibility to tailor the memorandum of association and articles of association to meet a client’s requirements.

Subject to certain limitations, a ‘virtual asset’ is defined in the VASP Act as: “a digital representation of value that can be digitally traded or transferred, and can be used for payment or investment purposes“. This is a broad definition and will cover all types of virtual assets, including non-fungible tokens.

The VASP Act provides that a company may apply to the Commission to be regulated as a VASP in one or more of the following categories:

1. carrying on the business of providing a virtual asset service;
2. engaging in the business of providing a virtual assets custody service; and
3. operating a virtual assets exchange.

The term “virtual assets service” is defined in the VASP Act as the business of engaging, on behalf of another person, in the following activities:

1. exchange between virtual assets and fiat currencies;
2. exchange between one or more forms of virtual assets;
3. transfer of virtual assets, where the transfer relates to conducting a transaction on behalf of another person that moves a virtual asset from one virtual asset address or account to another;
4. safekeeping or administration of virtual assets or instruments enabling control over virtual assets; and
5. participation in, and provision of, financial services related to an issuer’s offer or sale of a virtual asset.

The VASP Act also states that the following activities would also be considered to be the provision of a virtual assets service:

1. hosting wallets or maintaining custody or control over another person’s virtual asset, wallet or private key;
2. providing financial services relating to the issuance, offer or sale of a virtual asset; and
3. providing kiosks (such as automatic teller machines, bitcoin teller machines or vending machines) for the purpose of facilitating virtual assets activities through electronic terminals to enable the owner or operator of the kiosk to actively facilitate the exchange of virtual assets for fiat currency or other virtual assets.

The above lists may be expanded by subsequent guidelines or regulations.

Rather helpfully, the BVI VASP Act sets out a non-comprehensive list of some of the services which are specifically excluded from its remit and these are as follows:

1. Rather helpfully, the BVI VASP Act sets out a non-comprehensive list of some of the services which are specifically excluded from its remit and these are as follows:
2. providing service as a software developer or provider of unhosted wallets whose function is only to develop or sell software or hardware;
3. solely creating or selling a software application or virtual asset platform;
4. providing ancillary services or products to a virtual asset network, including the provision of services like hardware wallet manufacturer or provider of unhosted wallets, to the extent that such services do not extend to engaging in or actively facilitating as a business any of those services for or on behalf of another person;
5. solely engaging in the operation of a virtual asset network without engaging or facilitating any of the activities or operations of a VASP on behalf of customers;
6. providing closed-loop items that are non-transferable, non-exchangeable and which cannot be used for payment or investment purposes; and
7. accepting virtual assets as payment for good or services (such as the acceptance of virtual assets by a merchant when effecting the purchase of goods).

The issuance by a BVI company of virtual assets is not included in the definition of virtual assets service. This is the opposite of the position in the Cayman Islands. Accordingly, to the extent that a BVI company is involved in a crypto project solely as the issuer of tokens, the VASP Act would not require the entity to be regulated in respect of that activity.

A VASP must at all times have the following functionaries:

1. an authorised representative;
2. an auditor; and
3. an individual approved by the Commission who acts as compliance officer, to ensure compliance by the VASP with the provisions of the VASP Act and other applicable legislation.

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This publication is not intended to be a substitute for specific legal advice or a legal opinion. If you require further advice relating to the matters discussed in this Briefing, please contact us. We would be delighted to assist.

E: gary.smith@loebsmith.com
E: robert.farrell@loebsmith.com
E: elizabeth.kenny@loebsmith.com
E: vanisha.harjani@loebsmith.com
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E: yun.sheng@loebsmith.com

Copyright protection in the BVI (for “qualified persons”) and in the Cayman Islands (for “qualifying persons”) is automatic when such person creates an original work (once the work is recorded, in writing or otherwise) such as sound and music recordings; films; when you write a book or poem; or when you develop new software. By virtue of the Copyright (Cayman Islands) Order 2015 and Order 2016 (as amended), Part 1 of the U.K.’s Copyright, Designs and Patents Act 1988, subject to certain exclusions and modifications, was extended to the Cayman Islands. The BVI has implemented its own legislation in the form of the Copyright Act (Revised 2020) which is very similar.

Patent protection in the two jurisdictions is quite similar. As it is in other jurisdictions, in order to get patent protection, the invention must be: (i) new – i.e. the first in the world, (ii) useful – i.e. the invention must serve a purpose or provide a solution, and (iii) inventive – i.e. the invention must not be obvious to persons in the industry in which the invention is intended to be used.

Both the BVI and the Cayman Islands allow for the indirect registration of patents. Once a U.K. patent is granted, an application can be made in either of the Cayman Islands or the BVI to extend the scope of protection. In the Cayman Islands, there is no deadline for the filing of the application to extend rights, whereas in the BVI, rights must be extended within three years from the date of issue of the UK patent.

IP laws are designed to protect human creations. Generative AI (AI which generates text, images, speech, video or technical inventions based on user-inputted instructions) continues to increase in capability and grow in adoption. However, most copyright and patent laws, for example, do not yet explicitly address AI’s role in authorship or inventorship, leaving a legal void requiring attention.  Traditionally, the author or inventor is the person or organisation that creates the works. If now AI is responsible for content creation autonomously without any human input, the question is who owns the copyright protecting such content.

• For countries, such as the UK, this may be answered by the fact that computer-generated works will be owned by the person who made the necessary arrangements for the creation of the work.
• An overwhelming view in the E.U. is that AI cannot be a legitimate author. However, specific ways of using AI may result in a work that is protected for the user.

We expect to see governments across the world grappling with balancing strategies aimed at encouraging the development of AI and innovation while, at the same time, attempting to modernize IP and AI legal frameworks to account for AI.

Training generative AI involves using large bodies of IP-protected works/ data in ways that may be infringing under current laws. Governments seeking to “unlock” the potential of generative AI are now more often looking to legislate to permit text and data mining (TDM) of IP-protected data in order to train AI. The intellectual property in the data used to train AI models is growing as a subject of legislative discourse and is now a key issue in matters that have flooded courts across the world, whether use of copyright-protected materials to train AI models infringes copyright.

Training AI using personal data or protected IP also provides challenges to legislators worldwide. Over the next 2-3 years we expect to see increased regulatory scrutiny of companies that create or use AI technologies which have been trained using (i) personal data and/or (ii) information/data protected by IP rights. Regulators worldwide are now paying greater attention to balancing the benefits of AI against concerns about personal data and the protection of IP, and we expect that this will continue in the next few years.

AI programs usually qualify as IP with software or computer programs being literary works. In some countries however, copyright protection will not apply for functional aspects of AI such as algorithms or system designs. AI systems function however by processing human-provided instructions to generate problem-solving outcomes. This capability makes AI-based programs highly valuable from an IP perspective, as their innovative nature and diverse utility underline their significance of IP protection.

Who owns the copyright?

Copyright laws often require that there must be a natural person to whom copyright can be attributed and many jurisdictions including the Cayman Islands and the BVI, do not provide for “computer generated” works where no human author is involved. This creates a gap in the protection of AI-generated works, which are typically produced autonomously with little or no human intervention. Many copyright laws also require that “sufficient effort” must be expended to make any literary, musical, or artistic work original in character – which involves time, human labour, and skill. What constitutes sufficient effort for AI-generated content remains largely untested, raising debates about whether crafting prompts or editing AI output meets the thresholds. Additionally, if non-human entities are recognized as “authors” then copyright duration may become complex. Generally, copyright protection is granted for an author’s lifetime plus a period of time following, potentially leading to indefinite protection for AI-generated works.

The duration of copyright protection in the Cayman Islands varies depending on the nature of the work at issue. For example:

1. For Literary, Dramatic, Musical or Artistic Works: copyright expires at the end of 70 years from the end of the calendar year in which the author dies. However, if the author is unknown, copyright expires at the end of 70 years from the end of the calendar year in which the work was made or first made public
2. For Computer Generated Literary, Dramatic, Musical or Artistic Works: copyright expires at the end of 50 years from the end of the calendar year in which the work was made.
3. For Sound Recordings: copyright expires at the end of 50 years from the end of the calendar year in which the sound recording was made or first made public.
4. For Films: copyright expires at the end of 70 years from the end of the calendar year in which the film/movie was made or first made public.
5. For Broadcasts: copyright expires at the end of 50 years from the end of the calendar year in which the broadcast was made.

Copyright Protection and Deepfakes

Most IP laws are ill-equipped to address the challenges posed by digital replicas or deepfake technology. Copyright law generally is not fit for purpose in respect of deepfakes as the source material for many deepfakes either falls outside the scope of copyright protection or the copyright owner is not the individual who is harmed by the infringement. Possible causes of action presented by deepfakes include (1) copyright infringement (if a deepfake involves unauthorized use of copyrighted material), (2) trademark infringement (if it uses a registered trademark without permission), (3) the tort of passing off (if it misrepresents a product or service as endorsed by a well-known individual), (4) personal data privacy violations or (5) defamation (if the content defames an individual).  The issue of whether the outputs of AI models – particularly where they substantially reproduce source materials – may infringe copyright and who may be responsible for such infringement, is also unresolved.

Is the person who infringed: the user of the AI generated work without the rights holder’s consent or the AI developer or AI system owner? This ambiguity poses risks for businesses. If there is no clear proprietary right in AI-generated works, businesses may be exposed to unnecessary risk.

AI programs usually qualify as IP with software or computer programs being literary works. In some countries however, copyright protection will not apply for functional aspects of AI such as algorithms or system designs. AI systems function however by processing human-provided instructions to generate problem-solving outcomes. This capability makes AI-based programs highly valuable from an IP perspective, as their innovative nature and diverse utility underline their significance of IP protection.

Fair dealing exceptions

With respect copyright infringement, some jurisdictions such as the Cayman Islands, BVI, U.S., U.K., Australia, Hong Kong and Singapore provide fair dealing exceptions for particular activities, despite the fact that many other jurisdictions do not.

Under Cayman Islands law and BVI law, some of the fair dealing exceptions permitted are:

1. Personal copying for private use
2. Non-commercial research and private study
3. Text and data mining for non-commercial research
4. Criticising, reviewing and reporting current events
5. Use for parody, caricature and pastiche
6. Making backup copies, de-compilation, observing, testing and studying, and correcting computer programme errors.

Who is the inventor? Will the requirement for “novelty” remain?

Many patent laws require the inventor to be a natural person. This requirement could exclude AI from being independently recognized as an inventor. AI-driven innovations, such as those involving algorithms and machine learning processes, face challenges in meeting the criteria for protection as an invention. Under US patent law, for example, absent at least one human inventor, an invention is not patentable. Also, the criteria for patentability in many jurisdictions (including the Cayman Islands and the BVI) usually involves requirements for novelty, an inventive step and industrial applicability. These criteria raise questions about whether AI-generated inventions can ever meet the inventive step requirement, traditionally linked to human ingenuity. AI relies on algorithms and datasets to mimic human cognitive functions, enabling it to generate patentable inventions.

We expect to see a continuing updating of guidance as to the level and type of human contributions that are necessary to support patentability as new cases make their way through courts in various jurisdictions. A vital question that arises is whether AI can be regarded as a legitimate author of content that it generates or an inventor in case of patents, given the want of legal personality of the AI itself.

A particularly effective legal structure for an AI-driven entity is the Cayman Islands foundation company. Such foundation companies do not require shareholders, allowing them to function with a governance model that can be tailored to an AI’s decision-making models. Key advantages of using such foundation companies include the following.

• Legal recognition: foundation companies can provide a defined legal entity that can interact with traditional financial institutions, sign contracts and meet compliance obligations.
• Decentralised governance: the ability to structure the foundation company without shareholders allows for governance mechanisms that can adopt smart contract-based decision-making or AI-driven decision-making.
• Asset protection and Tax mitigation: foundation company can be tax resident in the Cayman Islands, hold and manage assets and ensure legal clarity in asset ownership.
• Regulatory compliance: foundation companies can be designed to comply with regulations, including AML and CFT requirements, making them suitable for global transactions.
• Economic substance rules: foundation companies limited by guarantee are specifically exempted from the economic substance rules and can therefore hold and even make profits from intellectual property without coming under the relevant economic substance compliance regime.

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This publication is not intended to be a substitute for specific legal advice or a legal opinion. For specific advice on the matters covered above, please contact your usual Loeb Smith attorney or any of the following: 

E: gary.smith@loebsmith.com
E: robert.farrell@loebsmith.com
E: elizabeth.kenny@loebsmith.com
E: vanisha.harjani@loebsmith.com
E: edmond.fung@loebsmith.com
E: vivian.huang@loebsmith.com
E: faye.huang@loebsmith.com
E: yun.sheng@loebsmith.com

Trigger events are directly linked to the key features of these funds. For an Incubator Fund, the most common triggering event for conversion is the expiration of its Term. At the end of the initial 24 months (“Validity Period”) of the Term, there is a decision to be made in terms of whether the Incubator Fund wishes to terminate its business or continue operation as an investment fund.  The other triggering events include (i) the total number of investors close to exceeding 20 and (ii) the net assets exceeding US$20 million over a period of two consecutive months.

For an Approved Fund, as there is no limit on the Term for the Approved Fund, the only triggering events for conversion are the total number of investors exceeding 20 or the net assets exceeding US$100 million over a period of two consecutive months.

Incubator Fund

Upon occurrence of a triggering event, if the Incubator Fund decides to continue its operation as a mutual fund, an application for conversion must be submitted by the Incubator Fund to convert into and be recognised as a Private Fund or a Professional Fund or be approved as an Approved Fund either at least 2 months before the expiry of its Validity Period, or within 7 days after the end of the second month where its number of investors or the net assets exceed the threshold.

In the application, the Incubator Fund should:

1. 1. 1. complete the application form and submit the updated fund documentation for the Fund to be recognised as a Private Fund or a Professional Fund or be approved as an Approved Fund;
      2. if the Incubator Fund intends to be converted into a Private Fund or a Professional Fund, prepare and submit to the FSC an audit of its (i) current financial position; and (ii) compliance with the requirements of the Regulations. The aforesaid audit should be performed by either a person approved by the FSC under SIBA or pursuant to section 56 of the Regulatory Code, 2009, as an auditor, or a person, if not an approved auditor, who is independent of the Incubator fund and whose normal duties include the performance of such an independent audit function; and
      3. in case of conversion to a Private Fund or Professional Fund, appoint an auditor, a fund manager, and a custodian pursuant to Mutual Funds Regulations (As Revised) of the BVI (the “MFR”) if it does not have these roles already filled (which in most cases it will not have had filled as they are not compulsory for an Incubator Fund). It may apply for exemption from the custodian or fund manager requirement along with the conversion application.

Where an Incubator Fund converts into an Approved Fund, the existing sophisticated private investors in the Incubator Fund shall be treated like any other investor in the Approved Fund.

Where an Incubator Fund converts into a professional fund, the existing investors are grandfathered and do not need to comply with the minimum initial investment amount requirement of US$100,000. This requirement would only apply to new incoming investors.

Approved Fund

Similar to the Incubator Fund, upon a triggering event, if the Approved Fund decides to continue its operation as a mutual fund, an application for conversion must be submitted by the Approved Fund to the FSC to convert into and be recognised as a Private Fund or Professional Fund within 7 days of the end of the second month where its total number of investors or the net assets exceed the threshold.

When filing the application, the Approved Fund should:

1. 1. 1. complete the applicable application form and submit the updated fund documentation for the Fund to the FSC to be recognised as a Private Fund or Professional Fund; and
      2. appoint the auditor, the fund manager, the fund administrator and the custodian, or apply for applicable exemptions as mentioned above.

Different to that for an Incubator Fund, an Approved Fund is not, at the time of applying for conversion, subject to a statutory requirement to submit an audit of its current financial position and compliance with the Regulations.

If the Approved Fund converts into a Professional Fund, each investor is required to demonstrate that it is a professional investor and has a minimum investment amount of US$100,000. There is no exemption for existing investors as in the case of an Incubator Fund.

The Incubator Fund or the Approved Fund should notify all of its investors of the conversion and keep them informed about the proposed change of regulatory status. The FSC may also raise queries about the details of the trigger event and the current circumstances of the Fund.

When a trigger event occurs, if the Incubator Fund or Approved Fund decides not to proceed with conversion as discussed above, under the Regulations, it should:

1. 1. 1. commence the process for a voluntary liquidation under the BVI Business Companies Act (As Revised); or
      2. take necessary steps to amend its constitutional documents to cease to be a Fund and remove all references from its constitutional documents to being an Incubator Fund or Approved Fund (as applicable).

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This publication is not intended to be a substitute for specific legal advice or a legal opinion. For specific advice on the matters covered in this Legal Insight, please contact your usual Loeb Smith attorney or any of the following: 

E: gary.smith@loebsmith.com
E: robert.farrell@loebsmith.com
E: elizabeth.kenny@loebsmith.com
E: vanisha.harjani@loebsmith.com
E: frost.wu@loebsmith.com

Subscription credit facilities are secured credit arrangements that enable fund managers to access short-term financing (i.e. short-term loans) against the capital commitments of fund investors.

Unlike traditional fund financing, these facilities are typically structured as revolving credit lines, allowing funds to bridge capital calls, manage liquidity, or seize investment opportunities, therefore allowing quick access to cash for investment without having to call on capital commitments from investors immediately.

1. Security and collateral arrangements. The foundation of subscription credit facilities is the security interest over the fund’s unfunded capital commitments. Under Cayman Islands and BVI law, the enforceability of security interests such as a pledge and/or charge over unfunded capital commitments (as collateral for a loan) relies on the proper drafting of security agreements and registration procedures. It is crucial to clearly define the scope of security, including any guarantees or other security interests created to ensure priority and enforceability.
2. Intercreditor arrangements. Given that subscription credit facilities often coexist with other fund financing or investor arrangements, establishing clear intercreditor agreements is vital. Intercreditor agreements safeguard funds and investors by defining the payment hierarchy and security rights among multiple lenders. These agreements are essential for ensuring orderly enforcement and mitigating conflicts, particularly in multi-lender scenarios. Offshore jurisdictions facilitate sophisticated intercreditor arrangements, supported by well-established legal frameworks.
3. Fund governance and limited partnership agreements. Cayman Exempted Limited Partnerships (ELPs) or BVI Limited Partnerships (LPs) are the typical structure, offering flexibility and strong creditor protections. A fund’s constitutional documents determine the scope of authority its general partner or manager has. In the case of an ELP or LP, this is detailed in the limited partnership agreement (LPA).
   Accordingly, to ensure compliance and mitigate legal risks, a fund’s LPA must explicitly authorise the general partner or manager to pledge investor capital commitments as security. It is advisable to include provisions that address the express borrowing authority, mechanics of security, enforcement procedures and investor consent processes (such as through side letters) and any transfer restrictions.
4. Regulatory and Anti-Money Laundering (AML) considerations. The BVI and Cayman Islands have AML regimes requiring the appointment of AML officers. As subscription facilities often involve large capital commitments from institutional investors, enhanced customer due diligence may be required, in addition to measures such as verifying the source of funds, sanctions screening, record keeping and reporting obligations. Proper due diligence, know your customer procedures and compliance measures are essential to prevent regulatory issues and ensure legality of security interests and transaction structure.

Flexibility and speed. Offshore jurisdictions have efficient legal processes and flexible corporate structures, enabling funds to implement subscription credit facilities swiftly. This agility is critical in investment environments.

Tax neutrality and confidentiality. Both the Cayman Islands and BVI offer tax-neutral regimes and strong confidentiality protection, which are attractive for international fund managers seeking discreet and efficient financing arrangements.

Legal certainty and established frameworks. With mature legal systems, both jurisdictions provide a high degree of legal certainty for security enforcement, contractual validity and dispute resolution, backed by a wealth of case law and legal expertise. The final court of appeal for both is the Privy Council in the UK.

Tips for structuring

1. Draft clear security documents. Ensure security interests over capital commitments are precisely defined and properly registered.
2. Obtain investor consent. Incorporate provisions in the LPA or side letters to facilitate or confirm investor approval for security grants.
3. Plan for enforcement. Establish enforcement procedures like notice periods and rights of first refusal.
4. Co-ordinate with creditors. Negotiate intercreditor arrangements early to prevent conflicts.

Subscription credit facilities represent a powerful tool for offshore funds seeking liquidity and operational flexibility, offering a flexible and efficient mechanism aligning well with the governance and operational frameworks of private equity funds in the Cayman Islands or BVI.

The article was first published by Asia Business Law Journal – https://law.asia/cayman-bvi-subscription-credit-facilities/

This publication is not intended to be a substitute for specific legal advice or a legal opinion. If you require further advice relating to the matters discussed in this Legal Insight, please contact:

Partner:  Vanisha Harjani
E: vanisha.harjani@loebsmith.com

An application to restore a dissolved company to the Register may be made where:

1. The company was struck off the Register and dissolved following the completion or termination of its liquidation (whether voluntary or involuntary);
2. On the date of dissolution, the company was not carrying on business, or in operation;
3. The purpose of restoration is to:
   1. 1. initiate, continue or discontinue legal proceedings in the name of or against the company; or
      2. make an application for the company’s property that has vested in the Crown bona vacantia to be returned to the company; or
4. In any other case, or where an application cannot be made to the Registrar of Corporate Affairs (Registrar), the court considers that it is just and fair to restore the company to the Register.

An application has to be made within five years of the date of the company’s dissolution.

The application is made by way of a fixed date claim form together with an affidavit (by the claimant), exhibit and a draft order. The affidavit should set out, inter alia, the purpose of the restoration, and the claimant’s standing to restore the company.

Examples of those who have standing to make an application include:

1. A creditor, former director, former member or former liquidator;
2. A person who, but for the company’s dissolution, would have been in a contractual relationship with the company;
3. A person with a potential legal claim against the company, or its former directors or former members, or in respect of any assets of the company or issued shares; and
4. Any other person who can establish an interest in having the company restored to the Register.

Where the purpose of the restoration is to make an application for the company’s property that has been vested in the Crown bona vacantia to be returned to the company, such application shall not be made unless it is accompanied by, in writing:

1. Consent of the Crown, signified by the Financial Secretary, that the Crown has no objection to the company’s restoration;
2. Response of the Financial Secretary objecting to the company’s restoration; or
3. A declaration of the applicant that the Financial Secretary has not responded to a request for consent to the company’s restoration within seven days after receipt of the request.

Notice of the application must be served on the Registrar, the Financial Secretary and, where the company was a regulated person, the Financial Services Commission.

Upon an application, the court may exercise its discretion and restore the company. The court may:

1. Make an order to restore the company to the Register subject to:
   1. being satisfied that a licensed person has agreed to act as a registered agent (RA) of the company;
   2. the proposed RA making a declaration that the company’s records have been updated or an undertaking that the company’s records will be updated or procured and maintained within 14 days from the date of restoration of the company;
   3. the company filing, or undertaking to file, within 14 days from the date of restoration, copies of its register of members and register of directors; and
   4. the company paying the restoration fee and any outstanding penalties; and
2. Give such directions or make such orders as it considers necessary.

Evidence from the RA should be included in the exhibit to the affidavit.

The restoration will usually not take effect immediately when the court orders the restoration of the company to the Register (subject to the wording of the order in question). There are usually several steps that need to be taken before this can happen, including:

1. Filing a sealed copy of the order with the Registrar; and
2. Paying all outstanding fees and penalties due and payable to the Registrar.

To avoid any delays or complications in the restoration of a company, it is therefore prudent for the claimant to comply with the terms of the order once it has been made by the court.

The article was first published in Asia Business Law Journal. https://law.asia/bvi-company-restoration-court-process-requirements/ dated 11 Feb 2026. 

This publication is not intended to be a substitute for specific legal advice or a legal opinion. If you require further advice relating to the matters discussed in this Insight, please contact us.  We would be delighted to assist.

E: Edmond.fung@loebsmith.com