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Voidable Transactions – BVI Companies

Many businesses are currently experiencing unprecedented pressure on their cash flow as a result of the COVID-19 pandemic and the governmental restrictions which are being implemented around the world. It is very important therefore that directors of British Virgin Islands (BVI) companies which may be approaching insolvency take steps to evaluate the position of the company with a view to avoiding personal liability. A director can be personally liable if such director fails to take appropriate steps to commence formal liquidation where there is no reasonable prospect of the company avoiding insolvent liquidation.

Part VII of the Insolvency Act, 2003 (the “Act”) sets out the circumstances under which the High Court of the BVI may make an order setting aside a transaction or disposition of property in whole or in part. 1 For these purposes, a company is regarded as being insolvent if:

  • it is unable to pay its debts as they fall due (cash flow insolvency);2
  • it is taken to be insolvent because it fails to comply with a valid statutory demand; or
  • execution of a judgment or other order of a BVI court against it is returned wholly or partly unsatisfied.

Under the Act transactions may be set-aside where they constitute “insolvency transactions” that are entered into during the “vulnerability period”.

  • An “insolvency transaction” is a transaction entered into at a time when the relevant company is insolvent or the transaction causes the relevant company to become insolvent.
  • The “vulnerability period” generally commences six months prior to the onset of insolvency (normally the date of an application to appoint a liquidator) 3 and ends on the appointment of the liquidator.  For connected persons, the period is two years prior to the onset of insolvency.  For extortionate credit transactions the period is five years.

It is important to determine whether a creditor falls within the definition of a connected person. Transactions with connected persons increase the vulnerability period and shift the burden of proof in determining whether a transaction is voidable. The connected person definition is broad and includes promoters of the relevant company, directors or members of the relevant company or a related company, a related company, a company with common directors, a partner, nominee or relation of a connected person and certain trustees and beneficiaries. The definition of related companies includes subsidiaries, holding companies and those entities under common control.

 

To continue reading full articles in PDF format:
Voidable Transactions – BVI Companies

 


Robert J.D. Briant
Partner, Head of BVI Corporate

British Virgin Islands   +1 284 852 1100


Anton Goldstein
Partner

British Virgin Islands   +1 284 852 1119


Marcus Hallan
Associate

British Virgin Islands   +1 284 852 1110


1 For completeness, The Conveyancing and Law of Property Ordinance 1961 provides a separate basis for setting-aside a transaction: any conveyance of property made with the intention of defrauding creditors is voidable at the option of any person prejudiced by it. It is not necessary that the company was insolvent at the time the property is conveyed. This is not considered further in this note.
2 The balance sheet insolvency is specifically excluded for the purposes of the voidable transactions regime, although balance sheet insolvency must to some extent be taken into account in considering cash flow insolvency.
3 Where a liquidator was appointed by the members of a company, the onset of insolvency is the date of such appointment.

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