Investment Funds in the British Virgin Islands

WHY THE BRITISH VIRGIN ISLANDS?

The British Virgin Islands (or simply BVI) is a world leader for excellence and innovation in financial services and is committed to continue playing its leading role in delivering a responsible and effectively regulated global business environment.

As a British Overseas Territory, the BVI offers all the security and stability that is traditionally associated with the United Kingdom.

The balance between a sound regulatory framework that meets and in most cases exceeds international standards, an entrepreneurial business community and a government committed to the development of cutting edge legislation and policies has produced some clear advantages for the jurisdiction including:
• Enduring political and economic stability;
• A pool of knowledgeable and qualified business and legal professionals;
• A business-friendly operating environment;
• Efficient company formation and administration processes;
• A renowned commercial court with possibility of final appeal to the Privy Council in London;
• Excellent communication services;
• Innovative legislation;
• Absence of currency controls;
• Tax neutrality (no capital gains tax, value added tax or withholding tax).

The BVI Business Companies Act (“BCA”) allows for different kind of companies to be formed. Due to its flexibility and low incorporation and recurring costs, the BVI Business Company (“BC”) is the structure most used by businesses from all over the world.
The BVI has approximately 400,000 active BCs. In addition to regular business purposes such as trading and owning real estate, the BC is used for aircraft and ship registration.

In addition, the BVI is a jurisdiction for offshore domiciled funds with approximately 2,000 investment funds. The Securities and Investment Business Act, 2010 (“SIBA”) provides an effective regulatory platform that is in tune with global regulatory standards and best practices.

REGULATORY FRAMEWORK

The statutory legislation governing most funds in the BVI is SIBA and the underlying Mutual Fund Regulations, 2010. SIBA governs all types of (open-ended) funds in the BVI.

A BVI domiciled fund vehicle is regulated in the BVI if it meets the following criteria:
• collecting and pooling of investor money for the purpose of collective investment; and
• issuing shares in a company, interests in a limited partnership or units in a unit trust (where hereinafter shares are mentioned, this includes interests or units as well, insofar applicable), which entitle the holder to receive on demand or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or part of the net assets of the fund.
Accordingly, all open-ended fund vehicles will be subject to SIBA and regulation by the Financial Services Commission (“FSC”).
Closed-ended fund vehicles (where there is no recurring possibility to redeem equity interests) are outside the scope of SIBA and consequently can be set up and launched without the need for a license from the FSC.

Under SIBA, five categories of regulated investment funds exist:
• Public funds;
• Private funds;
• Professional funds;
• Incubator funds;
• Approved funds.

Public, private and professional funds are recognized funds and accordingly will need to obtain a Certificate of Recognition from the FSC. Incubator and approved funds will merely be registered and will obtain a certificate from the FSC confirming their registered status.

Public funds
A public fund offers its shares to the public and therefore attracts the highest degree of regulation. The regulatory requirements and licensing procedure for a public fund are more stringent than those for private or professional funds, given the shares are offered to retail investors. A public fund is only able to commence business once it is registered with the FSC and it must publish a prospectus including all the information required by SIBA.

Private funds
In order to qualify as a private fund, an investment fund has either no more than 50 investors or offers shares on a strictly private basis, which has to be stated explicitly in its constitutional documents. Recognition by the FSC is required before a private fund can commence business. The invitations to subscribe in a fund to a significantly greater number of persons than 300 would cast doubt upon compliance with the “private” basis requirement, which is embodied in SIBA because a large number of investors would not be consistent with what is commonly understood to be “private”.

Professional funds
Professional funds are most suitable for sophisticated investors. A professional fund may only offer shares to professional investors:
I whose ordinary business involves, whether for its own account or the account(s) of (an)other(s), the acquisition or disposal of property of the same kind as the property, or a substantial part of the property, which is (or will be) owned by the fund; or
II whose net worth (in the case of a natural person, either individually or jointly with his/her spouse) exceeds USD one million or its equivalent in any other currency and who consents to being treated as a professional investor for the purposes of an investment in the fund.
In this type of fund, the minimum initial investment by each investor must not be less than USD 100,000 (or its equivalent in any other currency), unless an investor is an exempted investor. An exempted investor means the investment manager, administrator, promoter or underwriter of the fund or any employee of the investment manager of the fund. A professional fund may only commence its business once recognized by the FSC.

Incubator funds
The incubator fund is aimed at managers who do not necessarily have the benefit of seed investor capital, but who wish to set up quickly and establish a track record with minimal costs and without having to comply with onerous regulatory obligations. Under the conditions that the fund (I) is only suitable for sophisticated investors, with a minimum investment of USD 20,000, (II) will have no more than USD 20 million in net assets and (III) will have a maximum of 20 investors. It can operate for a period of two years (which period can be extended by one additional year). Prior to the end of this period it will be necessary to make an application to the FSC for the fund to be recognized as either a private fund or a professional fund or to be registered as an approved fund. There is no requirement to appoint functionaries (i.e. administrator, custodian, manager or auditor). An incubator fund may commence business two days after receipt by the FSC of a completed application and it therefore does not need to await the actual registration.

Approved funds
The approved fund is aimed at managers who wish to establish a fund for the longer term, but on the basis of a more private offering, which may appeal to family offices or an investor base of close connections. The fund is similar to a private fund, but subject to less regulation and may have a maximum of 20 investors and a maximum of USD 100 million in aggregate investments. An administrator must be appointed, but there is no need to appoint a custodian, manager or auditor. Conversion to a private or professional fund is required if the threshold of 20 investors or maximum investments of USD 100 million is exceeded for a period of more than two consecutive months, unless remedied within seven days. Two days after receipt by the FSC of a completed application, an approved fund may commence business and therefore it does not need to await the actual registration.

INVESTMENT FUND VEHICLES

Investment funds can be structured as one of the following:
• A BVI Business Company;
• A segregated portfolio company;
• A limited partnership;
• A unit trust.
The vast majority of investment funds in the BVI are established as a BVI Business Company limited by shares under the BCA. Limited partnerships are the second most popular, while unit trusts are rare.

BVI Business Company
A BC is the most popular vehicle for a couple of reasons. It has legal personality and enters into its own legal obligations. Shareholders have no direct legal interest in any of the assets of the investment fund, which are owned by the company itself. A shareholder’s liability is limited to the amount paid-up for the shares purchased. There is ample flexibility in terms of drafting the memorandum and articles of association and the directors may designate different series of shares within each class without the necessity to amend the constitutional documents. A BC only has to state the maximum number of shares that it may issue and shares can be issued with or without par value.

Segregated portfolio company
In a segregated portfolio company (or simply an SPC), there is a legal segregation by statute between the different investment portfolios. As a result, the assets of a certain portfolio will not be at risk from creditors of another portfolio within the same fund structure. This feature makes the SPC attractive for managers and promoters of so-called umbrella funds.

Limited partnerships
A limited partnership is established by a general partner and at least one limited partner, together executing articles of partnership, which are submitted to the registered agent named in the articles of partnership and the relevant partnership documents are then filed with the local registry in the BVI.
The articles of partnership usually stipulate partnership contributions and withdrawals and the day-to-day governance principles of the partnership. A disadvantage of this structure is that the general partner is liable for all debts and obligations relating to the limited partnership. A limited partner on the other hand is not liable in this way insofar it does not participate in the control of the limited partnership’s business (its liability is limited to its capital contribution).

Unit trust
Unit trusts are established by a deed of trust and do not have legal personality. The trustee has legal capacity and holds the assets of the fund based on the terms of the deed of trust for the investors in the scheme. Thus, the investors holding the units in this scheme are the beneficial owners of the trust assets.

INVESTMENTS

Under SIBA, there are no pre-set prohibitions or limitations on the types of financial instruments or geographical markets that a fund may invest in or on the use of leverage, although the FSC will require certain safeguards, mainly for public funds. In particular, the FSC will require that a fund’s investments will match its liquidity profile in order to meet possible redemption requests.

TAXATION

BVI funds are not subject to any income, withholding or capital gains taxes in the BVI and there are no capital or stamp duties levied in the BVI on the issue, transfer or redemption of shares, interests or units of the fund. Additionally, investors in BVI funds will not be subject to any income, withholding or capital gains taxes in the BVI with respect to the shares, interests or units of the fund owned by them and distributions (if any) received on such shares, interests or units, nor will they be subject to any estate or inheritance taxes in the BVI.
Certain legal entities carrying out relevant activities need to comply with economic substance requirements. These requirements have been introduced to ascertain that such legal entities have sufficient economic substance in the jurisdiction in which they are tax resident (which jurisdiction often subjects corporate profits to a (near) zero tax rate, such as the BVI). The legal entities in scope of the requirements are companies (including SPCs) and limited partnerships. However, the business of an investment fund is not a relevant activity. Investment funds therefore are normally outside the scope of applicability and do not need to comply with the economic substance requirements (unless they perform other relevant activities). These requirements however do apply in most cases to investment managers. In those cases, the core income generating activity is carried on in the BVI, which inter alia means that the relevant activity must be directed and managed from the BVI. Depending on whether or not a legal entity classifies as such and whether or not it performs relevant activities, certain information needs to be reported to the applicable tax authority

KEY SERVICE PROVIDERS

BVI funds, recognized or registered under SIBA, are generally required to appoint the following functionaries:

Investment manager
A BVI domiciled investment manager can either be licensed under SIBA or be approved under the Investment Business (Approved Managers) Regulations, 2012 (the “AMR”).

Licensed under SIBA
In order to manage mutual funds under SIBA, a legal entity has to obtain the appropriate license. Under this regime, each director, shareholder (holding a significant interest of 10%) and officer of the person seeking a license must satisfy the FSC’s fit and proper criteria. The application also requires a detailed business plan. Multiple ongoing requirements are in place, such as the appointment of an anti-money laundering reporting officer and compliance officer, appropriate compliance systems and controls, the preparation of financial statements in accordance with certain accounting standards and the appointment of an authorized representative.

Approved under AMR
The AMR offers a lighter regulation and licensing process whereby the manager may carry on business 7 days after submitting the application form to the FSC, without having to await the outcome. After being approved under the AMR, an investment manager may serve an unlimited number of private, professional, incubator or approved funds, being restricted only by the amount of aggregated assets under management, which for open-ended funds cannot exceed USD 400 million. An approved manager may also manage funds domiciled outside of the BVI, provided these funds will meet similar criteria as private, professional, and incubator or approved funds.
The advantages of this regime are substantial. Although an approved investment manager needs to submit financial statements to the FSC, there is no audit requirement. This is therefore a cost effective option.

Administrator
With the exception of incubator funds, all BVI funds must appoint an administrator. The administrator will typically oversee the day-to-day operations of the fund, calculate and determine the net asset value of the fund, process subscriptions and redemptions of the fund, act as the registrar and transfer agent, keep various records of the fund and undertake anti-money laundering procedures on behalf of the fund. There is no requirement for the administrator to be based in the BVI.

Custodian
All recognized funds must appoint a custodian. The custodian must be functionally independent from the manager and the administrator. A fund may apply for an exemption to engage a custodian, but in such an event the FSC will want to be informed about the custodianship arrangements for the fund (for instance, whether a prime broker or the fund’s directors will be responsible for the safekeeping of the fund’s assets).

Auditor
All public, private and professional funds are required to appoint, and at all times have, an auditor for the purposes of auditing their financial statements. They are required to submit, in electronic format, a final copy of their audited financial statements to the FSC within six months of the end of each financial year (an extension or exemption may be granted under certain conditions). The auditor does not need to be based in the BVI and a local sign off is not required.

Public, private and professional funds are also required to file a Mutual Fund Annual Return within six months of the calendar year end (i.e. on or before June 30th). Incubator funds are required to file a semi-annual return on or before July 31 and January 31. Approved funds are required to file an annual return on or before January 31.

Directors
Each private, professional, incubator or approved fund has to appoint at least two directors, of whom at least one needs to be a natural person. Public funds have to appoint at least two natural persons as directors (and no legal person can be appointed as director of a public fund).

Authorized representative
All funds, whether recognized or registered, must appoint an authorized representative in the BVI. It functions as conduit between the fund and the FSC.

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