A solution to an unusual predicament

The Company had attempted to continue out of the BVI as a company incorporated under the laws of Cyprus. However, the procedures required by the laws of Cyprus to secure its incorporation there were not completed with the consequence that the Company was not incorporated in Cyprus. In the meantime, as she was entitled to do, the BVI Registrar of Corporate Affairs, relying on a Temporary Certificate of Continuation issued by the Cyprus Registrar, issued a certificate of discontinuance in the BVI and struck the name of the Company from the BVI Register of Companies. In the result, at the time of the application to the Court, the Company was not incorporated or treated as incorporated anywhere.

The BVI Commercial Court (Mr Justice Michael Green QC (Ag.)) held that the scheme of the Business Companies Act ("the Act") was to require three conditions to be satisfied before a company discontinuing under the Act ceased to be a company incorporated in the BVI. The first of these conditions is that the laws of the jurisdiction outside the Virgin Islands permit the continuation and the company has complied with those laws. He also held that the opening words of s.184 of the Act which contains those conditions imply a fourth condition: that the company is actually continuing in another jurisdiction. The Judge found that the conditions in subparagraphs (a) to (c) of s. 184(2) are cumulative and that they must all be satisfied, together with the preliminary condition, before a company will cease to be incorporated under the Act. In the circumstances, therefore, the Judge found that Company had not ceased to be incorporated in the BVI.

The Judge went on to consider whether the Act provided a mechanism whereby a company struck off in the course of a discontinuance might be restored to the Register of Companies. He was persuaded that section 217 does give power to the Court and to the Registrar to restore a company in such a case and, accordingly, made an Order rescinding and declaring void the Company's discontinuance and restoring the Company to the Register.

Walkers (Rosalind Nicholson (Partner) and Rhonda Brown (Associate)) appeared for the successful Applicants

Click to view judgment - Nikolay Artemenko v The Registrar of Corporate Affairs BVIHC (COM) 0213/2018, Judgment 20 March 2019


BRITISH VIRGIN ISLANDS
Rosalind NicholsonPartnerT +1 284 852 2237rosalind.nicholson@walkersglobal.com