Law of the British Virgin Islands

Overview

The law of the British Virgin Islands is a combination of common law and statute, and is based heavily upon English law. Law in the British Virgin Islands tends to be a combination of the very old and the very new. As a leading offshore financial centre, the territory has extremely modern statutes dealing with company law, insolvency, banking law, trust law, insurance and other related matters. However, in a number of areas of law, such as family law, the laws of the British Virgin Islands are based upon very old English laws, and can cause some difficulty in modern times. Other areas of law, such as international law, are essentially regulated externally through the Foreign and Commonwealth Office in London by Order in Council. A large body of the laws of the British Virgin Islands consists of the common law, which continually updates itself through judicial precedent in the territory and in other common law countries. The British Virgin Islands is a dependent territory of the United Kingdom. Although the local legislature and courts are independent from the United Kingdom, the British government deals with most international relations on behalf of the territory, although authority has been delegated to the territory to negotiate on its own behalf in certain areas (see below under Constitutional law). The British Virgin Islands does not have a separate vote at the United Nations.

Legal history

The early legal history of the British Virgin Islands is somewhat hampered by the fact that in the days of colonisation, it was often unclear who controlled the islands. The islands were first settled in modern times by the Dutch, but in 1628 the English crown granted patents for the settlement of what is now the British Virgin Islands to Lord Willoughby. The British expelled the Dutch in 1672 during the Third Anglo-Dutch War, but later evinced an intention to return the islands to the Dutch. They later resiled from this position and in 1698 the British government took the view that the territory was a British possession (see generally: History of the British Virgin Islands). It was not until 1773 that the British Virgin Islands actually had its own legislature. Prior to that date laws were extended to the territory by the legislature of the Leeward Islands in Antigua. Some of these laws are still in force in the British Virgin Islands, such as the Common Law (Declaration of Application) Act (Cap 13), which dates from 1705. Doubts as to the validity of those statutes were removed by the Colonial Laws Validity Act 1865. The Legislative Assembly first sat on 27 January 1774, however, it took a full further decade for a constitutional framework to be settled. Part of the problem was that the islands were so thinly populated, it was almost impossible to constitute the organs of government. In 1776 George Suckling was appointed as Chief Justice, although he did not arrive until 1778, due to political maneuvering in the territory. Having arrived, the legislature eventually got rid of Suckling by declining to pass the Court Bill. The first law ever to be passed by a local legislature in the British Virgin Islands concerned punishments for runaway slaves. The second provided a mechanism for settling longstanding boundary disputes. Both no doubt reflected the concerns of the islands free inhabitants. But the Governor-General refused to assent to any bills until a Court Bill was passed. Bills passed by the Legislative Assembly needed to be approved by the Governor-General in Antigua, and early legislation was often vetoed. Laws could also still be passed by the Legislative Assembly of the Leeward Islands under a quasi-federal system, and these applied to all of the British territories in the Leeward Islands. However, the Governor-General used this veto force the Virgin Islands to pass legislation establishing a court. Eventually the Court Bill was passed in 1783 together with a Bill validating titles as a form of compromise. Nonetheless, it took some time to obtain a Chief Justice whose appointment could be confirmed. In 1867 the territory obtained its first ever written constitution in the form of the Constitution Ordinance, which abolished the previous legislative assembly and provided for a new legislative council. However, abolition of slavery and a collapse in sugar prices in the 19th century lead to the virtual economic ruin of the islands, and although the legislature limped along for some time, it was eventually formally dissolved in 1901. After the famous march of 1947 the legislature was restored in 1950, and permanent self-government was devolved in 1967. The main purpose of the 1950 Constitution was to re-devolve power back to the reformed Legislative Council in the British Virgin Islands from the Governor of the Leeward Islands. Historically it is regarded a holding measure; a part of the process that eventually led to the more fundamental constitutional government in 1967. The British Government had hoped that after the Leeward Islands Federation was abolished in 1956 the British Virgin Islands would join the new Federation of the West Indies, but there was little enthusiasm for that, and so eventually the 1967 Constitution was promulgated. The 1967 Constitution was eventually replaced by a revised and updated Constitution in 1976, and the 1976 Constitution was amended at various points, and then in turn superseded in 2007 by the current form.

Arthur Hodge

In international terms, probably the most significant event which occurred in the territory's legal history was the trial and execution of Arthur William Hodge for the murder of a slave; the only time a British subject was ever executed for killing a slave.

Common law and equity

Principles of English common law and equity are extended to the British Virgin Islands by statute. The Common Law (Declaration of Application) Act (Cap 13) provides:

That the Common Law of England, as far as it stands unaltered by any writ[t]en Laws of these Islands, or some of them, confirmed by Your Majesty ... is in force in each of these your Majesty's Leeward Charibee [Caribbean] Islands... The Eastern Caribbean Supreme Court (Virgin Islands) Act (Cap 80) provides:

In all matters in which there was formerly or is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter the rules of equity shall prevail.

Legislation

Local statutes are passed by the House of Assembly in the British Virgin Islands. Statutes are subject to Royal Assent by the Governor as the King's representative in the territory, but a refusal to grant Royal Assent has never yet occurred in the jurisdiction during the modern era. Periodically, the statutes of the British Virgin Islands are consolidated and issued as the Revised Laws of the Virgin Islands. This was most recently done in 1991. In such revisions, all laws are given a specific chapter number (usually abbreviated to "Cap."). Hence the Limitation Act is usually cited as the Limitation Act (Cap 43). Legislation passed after 1991 is usually referred to by year, so the Merchant Shipping Act is usually referred to as the Merchant Shipping Act, 2001, but may be referred to in long form as the Merchant Shipping Act (No 13 of 2001). On several occasions since 1991 there has been discussion of producing a new revised set of the laws of the Virgin Islands, and in 2014 legislation was passed to facilitate the process.

Orders in Council

Orders in Council are a form of promulgated legislation issued by the British Government. Usually they deal with routine matters which it would be impractical to burden the local legislature with, such as implementing United Nations Security Council resolutions into law. Various other highly technical aspects of legislation are dealt with by way of Order in Council; for example, all of the jurisdiction's laws relating to civil aviation are promulgated in this manner. However, orders-in-council are also sometimes used by the United Kingdom government to push through measures which are unpopular locally, and would be difficult to pass using the normal democratic process. Recent examples of this include the abolition of the death penalty for murder in 1991 with the Caribbean Territories (Abolition of Death Penalty for Murder) Order 1991, and the decriminalisation of homosexuality in 2000.

Commercial law

Generally speaking, commercial law, including insolvency law, is relatively well developed in the British Virgin Islands. New legislation has been introduced to try to foster e-commerce in the jurisdiction. Other legislation is slightly variable; legislation relating to arbitration and bills of exchange date from the nineteenth century, but still operate effectively. Some legislation needs updating. The Conveyancing and Law of Property Act (Cap 220) dates from 1961, and still contains provisions clarifying when a wife may hold property in her own name.

Competition law

In the British Virgin Islands, there is almost no competition law to speak of. In fact, the position is actually the reverse. A number of specific statutory monopolies are protected and preserved by legislation in the territory, and in other areas, new entrants to the markets are carefully scrutinised, and may be barred from entering where they might provide competition for local businesses.

Company law

The British Virgin Islands has one of the most sophisticated company law codes in the world. Up until 1984 all incorporations in the British Virgin Islands were made under the Companies Act (Cap 285), which was originally passed in 1885. In 1984, the territory incorporated the International Business Companies Act, which provided a sophisticated and updated legal structure in which to incorporate international business companies, and was widely copied by other tax havens. In 2004, the BVI Business Companies Act, 2004 was incorporated, and for a year it was possible to incorporate a company under any of the three acts. However, from 1 January 2006 it was no longer possible to incorporate under the International Business Companies Act (which was subsequently repealed), and from 1 January 2008 it will no longer be possible to incorporate under the Companies Act, leaving the BVI Business Companies Act, 2004 as the sole corporate statute. The BVI Business Companies Act is based largely on New Zealand company law, but has been modified to include many of the characteristic features of offshore financial centres (such as removing restrictions on financial assistance and thin capitalisation, and permitting distribution in specie). It has also adopted some slightly novel and radical steps, such as abolishing the concept of share capital and rules relating to share premium. Some of these developments were a little advanced even for the offshore market, and have taken some time to bed down. The Act has now been copied wholesale by the Isle of Man, and it remains to be seen if the act becomes as widely copied as the old International Business Companies Act. It is also possible to form limited liability partnerships in the British Virgin Islands under the Partnership Act, 1996.

Insolvency law

The law relating to insolvency, bankruptcy and liquidation is regulated by the Insolvency Act, 2003 and the Insolvency Rules, 2005 in the British Virgin Islands. The act is broadly based upon the Insolvency Act 1986 of the United Kingdom (without the changes brought into effect by the UK's Enterprise Act 2002), but modified in certain specific regards in relation to the jurisdiction's role as an offshore centre. The Insolvency Act is "predicated heavily towards the protection of secured creditors' rights". The legislation includes the ISDA model netting laws to facilitate set-off upon a credit event in derivatives transactions. It also contains specific "safe harbour" provisions relating to vulnerable transactions (principally undervalue transactions, unfair preferences and voidable floating charges) on an insolvency, to protect structured finance transactions.

Financial services

A substantial body of British Virgin Islands law is dedicated to the regulation of what are collectively referred to as financial services. This broadly means offshore business which requires specific regulation. The key statutes dealing with financial services are:

Securities and Investment Business Act, 2010 Banks and Trust Companies Act, 1990 Insurance Act, 2008 Company Management Act, 1990 Financing and Money Services Act, 2009 Financial services in the British Virgin Islands are regulated by the BVI Financial Services Commission (usually abbreviated to FSC).

Tax law

The British Virgin Islands has almost no taxation. Although there is technically income tax in the British Virgin Islands, the effective rate is zero. There is no capital gains tax, gift tax, sales tax, value added tax or inheritance tax. The only real tax burdens imposed in the jurisdiction are:

Payroll tax on employees within the territory. Stamp duty, which usually only applies to transfers of land, and transfers of shares in companies which own land. Customs import duty. Land tax and house tax. Various minor ancillary taxes and permit fees. The British Virgin Islands generally appears on most lists of recognised tax havens.