BVI Beschränkung bei bearer-shares

Money Laundering: Restricting the use of Bearer Shares in the British Virgin Islands

Offshore jurisdictions are attractive to money launders because these jurisdictions offer some amount of anonymity and are generally tax free. There are three stages to money laundering; placement, layering and integrating. Placement takes effect when the illegal money is placed into the financial system, usually by placing it in a bank. During the layering process, typically, the layers are created by moving monies in and out of accounts of bearer share shell companies. This process is usually done electronically. Integration is often done by establishing anonymous companies in offshore countries. Incorporated as legal entities with limited liability, these individuals commonly use bearer shares and nominee shareholders and directors provided when incorporating the company. Bearer share companies in secrecy havens are owned by the bearer of shares. The name of the bearer is not known and not supplied even to the registration office. The ownership of the company passes with the certificate. As such a company can be incorporated and then passed to the money launders, by literally giving the bearer share to them. Doing so allows the launderers to legitimize their affairs.

The global business community therefore saw the need to restrict the use of bearer shares and as such urged the offshore jurisdictions within the Caribbean to reduce the availability of bearer share companies.

The International Business Companies Act Cap. 291 (the “IBC Act”) did not define the term ‘bearer share’. The IBC (Amendment) Act 2003 did however introduce a definition for bearer shares. It was then defined as a share represented by a certificate which states that the bearer of the certificate is the owner of the share.

The new BVI Business Companies Act, 2004 (the “BVIBC”) has kept the 2003 definition with a little modification. The BVIBC defines a “bearer share” as a share represented by a certificate which states that the bearer of the certificate is the owner of the share and includes a share warrant to bearer. The BVIBC has broadened the definition to include a share warrant to bearer.

A bearer certificate confers ownership of the share on the person with physical possession of the certificate. Transfer of these shares generally takes effect when the certificate is passed from one person to another. Whoever has physical possession therefore, can exercise the rights of a shareholder of the corporation. Shareholders have the rights granted to them under the memorandum of association, the articles of association and the BVIBC. The BVIBC specifically provide that a shareholder has the right to vote, the right to equal share in any dividend paid in accordance with the BVIBC and the right to an equal share in any distribution of surplus assets of the company. A company is however allowed to issue shares in which such rights are modified, as stated in their memorandum and articles of association.

A bearer share is different to a registered share. Registered shares are transferred by an instrument of transfer and the name of the holder is registered in the register of members of the company. As such bearer shares allow greater flexibility and anonymity. It is no doubt this advantage which has caused great concern in offshore jurisdictions such as the British Virgin Islands (the “BVI”).

The BVIBC provides that unless expressly stated in the company’s memorandum and articles of association, a company has no power and shall not issue bearer shares, convert a registered share to a bearer share, or exchange a registered share for a bearer share. Companies are however allowed to convert bearer shares to registered shares providing the memorandum and articles of association allow.

Companies that have decided to issue bearer shares are under an additional obligation to deposit these shares with a custodian. The BVIBC defines a custodian as an authorized custodian, and this in turn means a person approved by the Commission as an authorized custodian under section 50A (1) or section 50A (2) of the Financial Services Commission Act. This statutory requirement ensures that individuals do not keep bearer certificates, and ensures a greater monitoring of these certificates and thus reducing the level of anonymity that was once afforded, as custodians are required to be provided with the full name of the beneficial owner of the shares, the full name of any other person having an interest in the shares and any other information required. Also, a custodian may refuse to accept a bearer share if they are not supplied with this information.

A bearer share cannot be transferred to any person other than another authorized custodian who has agreed to hold the share, the registered agent or the company where the bearer shares are to be; converted or exchanged to a registered share, redeemed, purchased or otherwise acquired by the company or cancelled and forfeited.

It may be safe to say therefore that the BVI on recognizing the problem of anonymity in this context, has taken strict measures to ensure that the bearer of all shares of BVI companies are known and that the information is readily available to law enforcement officials.

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tropico


tropico@safe-mail.net

Tropico Ltd. - Belize - Offshore Services


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"inhaberaktien" müssen schon seit mehr als 3 jahren bei einem LOKALEN AGENTEN hinterlegt werden resp. diesem die dahinterstehenden wirtschaftlich berechtigten bekannt sein


im übrigen sind die bvi nicht "eine der erfolgreichsten offshore-jurisdictions dieses planeten", sondern ein hort für alle mehrfach-gescheiterten, die in einem einigermassen anständig strukturierten land nicht einmal ein einreisevisum erhalten würden


... fragen sie 'mal ihre bank zum thema "british virgin islands" - köstlich!


ffbkdavid@creatrustconsult.com