Investment Funds 2024

Last Updated February 08, 2024

British Virgin Islands

Law and Practice

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The British Virgin Islands (BVI) offers a sophisticated funds market with diverse and bespoke fund structures suitable for the needs of various managers and target investors. The available funds options include open- and closed-ended vehicles, geared for:

  • sophisticated professional investors or retail investors;
  • hedge funds or private equity managers;
  • start-up managers;
  • family offices;
  • established hedge fund managers; or
  • (increasingly popular) crypto-funds managers.

BVI funds will often operate as standalone funds, but may equally form part of a greater fund structure, including:

  • master-feeders;
  • parallel structures (US and non-US parallel vehicles); and
  • mini-master fund structures (offshore feeder fund and a master entity structured as a partnership for US tax purposes). 

The forms of BVI funds vehicles also provide numerous options, and may take the form of companies (including segregated portfolio companies (SPCs), limited partnerships (LPs) and trusts.

A non-BVI fund, being a fund domiciled in a jurisdiction other than the BVI, may also apply for registration as a BVI public fund or recognised foreign fund.

2023 was an active year in the BVI funds market, particularly in the crypto-funds sector. As of 30 June 2023, the BVI had 2,096 regulated funds, of which the largest subsectors were:

  • open-ended professional funds (839), approved funds (304) and private funds (284); and
  • closed-ended private investment funds (347).

As of that date, there were 22 registered retail public funds.

The BVI’s funds offering provides a depth of experience and sophistication in diversity of legal structure, type of fund, and differing levels of supervisory oversight to accurately fit the investor risk profile. The BVI offers a wealth of professional advisers as well as ease, cost-effectiveness and speed in the funds formation process.   

BVI alternative investment funds are usually structured as a business company (including SPCs), incorporated under the BVI Business Companies Act (as amended) (BCA). LPs are also used, particularly for closed-ended funds. A unit trust structure is also available, but is used to a lesser extent in the BVI market.

BVI Fund Vehicles

BVI business company

These companies, limited by shares, are the most common structure of a BVI fund and offer a great deal of flexibility. Fund interests are constituted by shares, and are generally split between nominal numbers of non-participating voting management shares held by the manager and the larger volume in numbers of participating non-voting investor shares.

Numerous share classes may be established, as may differing series of shares within each share class. This may assist funds using series-accounting techniques in performance-fee allocations.

Creation of new or changes to the existing share classes are possible without the need to amend the constitutional documents of the BVI business company fund. 

BVI corporate law has removed the historical mandatory concepts of “share capital” or “authorised share capital” (although it provides flexibility to re-introduce these concepts in the constitutional documents of the fund should the founders so wish), providing a less formalistic approach to the financial arrangements of the fund company. 

It is permissible for the directors of a business company to grant security/collateral interests over the assets of the company, thereby facilitating fund-financing arrangements.         

BVI segregated portfolio company (SPC)

SPCs are incorporated under the BCA, as are BVI business companies. They exist as a single company limited by shares, but provide the possibility of forming individual segregated portfolios. Assets and liabilities are attributed to individual portfolios. The assets and liabilities housed in a portfolio are legally separate and distinct from the assets and liabilities, and are attributed to other portfolios by operation of law under the BCA.

Where contractual dealings of an SPC are attributed to a particular segregated portfolio, a creditor’s recourse will be limited to recovery of assets attributed and credited to that portfolio. The creditor will not be legally entitled to seek recovery against assets attributed and credited to other segregated portfolios of the SPC or (save to the extent otherwise provided in any relevant contract) against the SPC’s general assets, being those assets which have not been attributed and credited to any segregated portfolio.

It is therefore crucial that allocation of assets and liabilities between assets is carefully effected and monitored, and that security/collateral arrangements are accurately recorded and allocated.   

SPCs are often employed in multi-strategy umbrella funds. The segregation of assets and liabilities offers protection to an investor in a lower-risk, less aggressive investment strategy portfolio against the risks that may be adopted in a high-risk aggressive strategy portfolio of the same SPC.

An SPC may issue shares (including shares in one or more classes or series) attributable to a particular segregated portfolio. Therefore, the holders of such shares have an ownership right in the SPC and indirectly in the relevant portfolio. This right is governed by the constitutional documents of the SPC or by a specific contract containing the terms of issue of such shares.

Contracts entered into by the SPC which relate to or are binding on a specific portfolio must designate and identify that portfolio in the contract and in the execution block. Further, a segregated portfolio may enter into a contract with another portfolio of the same SPC. This would therefore enable cross-investment between sub-funds of the same SPC. 

It is permissible for the directors of an SPC to grant security/collateral interests over the assets of the SPC or a specific portfolio, thereby facilitating fund-financing arrangements. 

Limited partnership (LP)

The LP structure is most often utilised in the closed-ended private equity sector or by founders that are most accustomed to LP fund structures, or due to a specific flow-through tax treatment (notably the USA’s).

The BVI updated its LP laws in 2017 (the Limited Partnership Act 2017 (the “LP Act”)) providing a more modern flexible operating environment for funds structured as LPs. Founders are able to elect whether or not the LP fund is to have separate legal personality distinct from its partners (both general partner/s and its investor limited partners).

As with the corporate structures, this LP structure provides the founders with a degree of flexibility in that the LP agreement entered into between the general and limited partners acts as the governing document for the operations of the LP fund.

It is permissible for an LP to grant security/collateral interests over the assets of the LP, thereby facilitating fund-financing arrangements. 

Unit trust

This form of fund structure is less common in the BVI funds sector. Historically, BVI unit trust funds were formed for specific clients in certain jurisdiction (for instance, funds targeted at Japanese investors).

This form of fund does not enjoy separate legal personality. The trustee of the fund holds the fund assets and the operations of the fund are generally governed under the terms of the applicable trust deed. The unit holders as investors are the beneficial owners of the fund assets, but have no direct ownership rights. 

Foreign fund

A non-BVI fund, being a fund domiciled in a jurisdiction other than the BVI, may apply for registration as a BVI public fund or recognised foreign fund.

BVI Fund Types

A collective investment scheme that falls within the definition of a BVI mutual fund or closed-ended fund may fall within one of the categories of the five forms of open-ended fund or the single form of closed-ended fund. If it falls within one of those classifications, the fund must then be registered or recognised in the BVI.

In addition to the six forms of BVI fund, a foreign fund may apply to become a recognised foreign fund in the BVI.

The obligation to be registered or recognised, and the requirements applied to each type of BVI fund, are generally provided for under the following BVI statutes and regulations:

  • the Securities and Investment Business Act (amended and revised) (SIBA);
  • the Mutual Funds Regulations 2010 (MFR);
  • the Securities and Investment Business (Incubator and Approved Funds) Regulations 2015;
  • the Securities and Investment Business (Incubator and Approved Funds) (Amendment) Regulations 2019;
  • the Financial Services Commission Act;
  • the Financial Services (Miscellaneous Exemptions) Regulations 2010;
  • the Financial Services (Miscellaneous Exemptions) (Amendment) Regulations 2019;
  • the Public Funds Code;
  • the Private Investment Funds Regulations (amended and revised) (the “PIF Regulations”); and
  • the Segregated Portfolio Companies (Mutual Funds) Regulations 2018.

Open-Ended Funds

Private fund

This is a fund with no more than 50 investors or where an invitation to subscribe by the fund is made on a private basis only, meaning:

  • to specified persons (however described) and not calculated to result in fund interests becoming available to other persons or to a large number of persons; or
  • by reason of a private or business connection between the person making the invitation and the investor.

No minimum subscription is applied. There is no requirement for local auditor sign-off. It is possible to obtain exemptions (such as requirements to appoint a custodian or to audit financial statements) from the BVI Financial Services Commission (FSC) as regulator.

Professional fund

This is a fund where interests are only issued to “professional investors”, and the initial investment of each investor in the fund (other than “exempted investors” – ie, the investment manager, administrator or promoter, or persons connected with them) shall not be less than USD100,000 or its equivalence in any other currency for all investors other than exempted investors.

A “professional investor” under the SIBA is a person:

  • whose ordinary business involves, whether for that person’s own account or the accounts of others, the acquisition or disposal of property of the same kind as the property or a substantial part of the property of the fund; or
  • who has signed a declaration that they, whether individually or jointly with their spouse, has net worth in excess of USD1 million or its equivalence in any other currency and they consent to being treated as a professional investor.

There are no applicable BVI maximum thresholds for the assets under management (AUM) or relating to the investment strategies of the public fund. No restrictions apply as to the maximum number of investors permitted to subscribe. There is no requirement for local auditor sign-off. It is possible to obtain exemptions (from requirements to appoint a custodian or to audit financial statements) from the FSC.

Public fund

This is a retail fund type whose offering of fund interests may be made to:

  • a large number of investors or persons other than experienced investors (licensed entities);
  • those who have a private or business connection to the fund; or
  • a class of persons who are not limited in such a way as to make the offering of fund interests available to persons who are “professional investors” within the meaning of the SIBA.

In addition to satisfying the requirements for recognition by the SIBA, public funds will be required to satisfy the requirements of the MFR and the Public Funds Code, including those relating to publication of a prospectus, which must be approved by and signed on behalf of the fund’s directors.

There are no applicable BVI maximum thresholds as to AUM or to the investment strategies of the public fund. Being a retail fund, a higher level of regulatory oversight is applied when compared to the other BVI fund types. 

Incubator fund

This is a fund designed for start-up managers. It provides the ability to set up and run a cost-efficient legal entity for trading an investment strategy with limited ongoing obligations. This product will appeal to the increasing number of pioneer managers who are looking to gain a track record before converting the incubator fund to a more sophisticated funds product.

Key features are:

  • a maximum of 20 investors, each of whom must be invited to invest in the fund, and minimum initial investment thresholds of USD20,000 – also, the fund cannot exceed a cap of USD20 million AUM (these features are classed as the “20-20-20 criteria”); and
  • provided it continues to meet the 20-20-20 criteria, the incubator fund can operate for a period of two years (which may, on application to the FSC, be extended by one additional year) before it needs to either convert to a more sophisticated structure (such as an approved fund, a private fund or a professional fund) or wind up its operations.

An incubator fund may be self-managed – there is no requirement to appoint a manager. Audited financial statements are not required, and no administrator is required; however, the fund itself would then be required to undertake AML checks and obtain requisite know-your-customer (KYC) on investors. A fast-track approval process is applied. 

Approved fund

An approved fund is similar to a private fund. It is, however, subject to less stringent regulation, has lower ongoing costs, and targets investment managers originating out of the family office/friends and family market.

Key features are:

  • a maximum of 20 investors, no minimum initial investment thresholds and a maximum cap of USD100 million AUM; and
  • no maximum period of operation; however, if it exceeds its number of investors or maximum cap on aggregate investors for a period of more than two consecutive months, it needs to remedy this breach within seven days of the end of such two-month period, convert to a more sophisticated product (such as a private or professional fund) or wind up its operations.

An approved fund may be self-managed – there is no requirement to appoint a manager. Audited financial statements are not required. An administrator should be appointed, and a fast-track approval process is applied.   

Foreign fund

A fund domiciled and operating in a jurisdiction other than the BVI, which is already authorised and regulated in that jurisdiction, may apply for recognition in the BVI if:

  • it provides sufficient protection to investors at least equivalent to the BVI public funds regime; and
  • adequate arrangements are in place for co-operation between the FSC and such foreign jurisdiction’s regulatory body.

Closed-Ended Funds

Private investment fund (PIF)

This is designed to lock in investors for a set time or until the occurrence of a specific exit event, and is used predominantly for investment in non-liquid assets (such as commercial property). These closed-ended PIF funds are most commonly adopted in the private equity and venture capital sectors.

Key features are as follows.

  • The PIF should distribute to investors on a private or professional basis, with the result that:
    1. the PIF must be limited to no more than 50 investors;
    2. the invitation to subscribe must be made on a private basis only, in which case there is no maximum threshold of investors; or
    3. the PIF must be limited to professional investors (see Professional fund above). 
  • The PIF must meet the criteria specified in the PIF Regulations.

It is not required that family offices, single-asset or single-investor investment funds, joint venture vehicles and special purpose acquisition companies be recognised as PIFs.

General Requirements

Irrespective of whether the fund structure is a business company, SPC or LP, or regardless of the type of BVI fund adopted, the following set-up steps are required.

  • The BCA requires the appointment of a BVI registered agent (RA) – essentially a registered office and corporate services provider. Only an RA is permitted to file documents with the BVI Registry of Corporate Affairs (the “Registry”).
  • The SIBA requires the appointment of a BVI authorised representative (AR) – essentially a point of contact for communications with the FSC.
  • Submission of constitutional documents (the memorandum and articles of association (MAAs) for a company/SPC) to the Registry for incorporation – detailing the operations of the fund including subscription and redemption, valuation and dealing dates, and valuation methods for shares and assets.
  • At least two directors, one of whom must be a natural person.

Fund-Specific Requirements

Following incorporation or formation (in the case of an LP without separate legal personality), application is made to the FSC for recognition or registration as follows.

Professional and private funds

Application for recognition requires submission of the applicable FSC application form. In addition, the FSC requires certified copies of:

  • the certificate of incorporation or formation;
  • MAAs; and
  • subject to an exemption being granted by the FSC, the offering document.

The offering document should contain the form of prescribed investment warning. The fund valuation policy setting out the valuation methodology to be adopted by the fund administrator, with sufficient information, should also be submitted, together with letters from functionaries (confirmation letters from the fund’s BVI legal counsel and its auditor).

The application for recognition must include information as to the fund manager, custodian, auditor and fund administrator to be appointed.

Professional fund applications are to be accompanied by the draft subscription agreement.

The initial application fee is USD850. The approval fee and subsequent annual fee is USD1,200.

Public funds

Application for registration requires submission of the applicable FSC application form. In addition, the FSC requires certified copies of:

  • the certificate of incorporation or formation;
  • MAAs;
  • the prospectus (containing prescribed information);
  • a statement noting the nature and scope of the fund’s business; and
  • each fund functionary agreement.

Each functionary must satisfy the FSC’s “fit and proper” criteria.

The prospectus is registered with the FSC.

The initial application fee is USD1,200. The approval fee and subsequent annual fee is USD1,800. Additional fees apply in relation to registering prospectuses (USD600 and USD300 for registering a supplementary prospectus) and approvals as directors and functionaries (USD300).

Private investment fund (PIF)

Application for registration requires submission of the applicable FSC application form. In addition, the FSC requires certified copies of the certificate of incorporation or formation and the MAAs (if a company). If the applicant fund is a company, a register of directors and a resume for each director, director of the general partner or trustee (if an LP or unit trust) should be provided. In addition, the offering document or term sheet and fund valuation policy are should be submitted. If no offering document or term sheet is to be issued, an explanation as to the rationale for this should be provided in the application form.

The initial application fee is USD850. The approval fee and subsequent annual fee is USD1,200.

Incubator and approved funds

Application for registration entails submission of the applicable FSC application form, which requires information such as details of the administrator (for approved funds) and directors and/or general partners (including resumes).

The initial application fee is USD1,800. The approval fee and subsequent annual fee is USD1,200.

Grace Period for Operations

A grace period of up to 21 days applies, within which a professional fund or PIF may carry on its business or manage/administer its affairs without being recognised. No similar grace period applies to private or public funds.

Incubator and approved funds may commence business after two business days from submitting an application for recognition to the FSC.

A BVI LP fund has separate legal personality unless the general partner elects to register the LP fund without separate legal personality. Irrespective of whether the LP fund adopts separate legal personality, it will enjoy limited liability, except in certain limited circumstances such as the limited partners taking a direct role in management and control of the LP fund.

There are no direct disclosure or reporting requirements in the BVI relating to limited liability. However, as a matter of practise, reference is made of the limited liability nature of the fund in the citation of the fund in offering documents, contracts and other relevant documents. 

Disclosure or other reporting requirements that apply to BVI funds are as follows.

Incubator and Approved Funds

Unaudited financial statements are to be submitted to the FSC within six months of financial year-end (unless an extension or exemption is approved). In addition, annual reports are to be submitted confirming compliance with applicable legislation and semi-annual reports detailing key details of the fund (number of investors, net asset value (NAV), AUM, aggregate subscriptions and redemptions, and significant investor complaints). Additional reporting obligations apply on occurrence of certain events.

Professional and Private Funds

Audited financial statements are to be submitted to the FSC within six months of financial year-end (unless extension or exemption is approved).

The financial statements must comply with the International Financial Reporting Standards promulgated by the International Accounting Standards Board, UK GAAP, US GAAP and Canadian GAAP, or with equivalent internationally recognised and generally accepted accounting standards.

Written notice should be given to the FSC within seven days of any resignation or termination of a functionary of a professional or private fund. Subject to exceptions, no new functionary may be appointed by the fund without at least seven days’ prior notification to the FSC.

The FSC is also required to be notified of:

  • any change to the directors, AR or auditor;
  • any change in the address of the fund’s place of business;
  • any amendment to the constitutional documents of the fund;
  • the issuance of an offering document that was not previously provided to the FSC; and
  • any amendment to such offer document or the fund’s valuation policy.

Public Fund

Audited financial statements are to be submitted to the FSC within six months of financial year-end (unless extension or exemption is approved).

The financial statements must comply with the International Financial Reporting Standards promulgated by the International Accounting Standards Board, UK GAAP, US GAAP and Canadian GAAP, or with equivalent internationally recognised and generally accepted accounting standards.

Written notice should be given to the FSC within seven days of any resignation or termination of a functionary of a professional or private fund. Subject to exceptions, no new functionary may be appointed by the fund without at least seven days’ prior notification to the FSC.

The FSC must give its prior consent to any material change to the prospectus or structure, or to any changes to the directors, functionary or auditor.

In the event that any of the prescribed information contained in the prospectus (relating to the investment decision and shareholder rights) is no longer materially accurate, the public fund must file an amended prospectus within 14 days.

Private Investment Fund (PIF)

Audited financial statements are to be submitted to the FSC within six months of financial year-end (unless extension or exemption is approved). There is no requirement for local BVI auditor sign-off.

The financial statements must comply with the International Financial Reporting Standards promulgated by the International Accounting Standards Board, UK GAAP, US GAAP and Canadian GAAP, or with equivalent internationally recognised and generally accepted accounting standards.

Written notice should be given to the FSC of any:

  • changes to the directors, AR or auditor;
  • change of fund address;
  • change of custodial arrangements; or
  • material change in the fund business.

General

All BVI funds will be BVI reporting financial institutions for the purposes of compliance with:

  • the US Foreign Account Tax Compliance Act (FATCA);
  • the OECD’s common reporting standard for automatic exchange of financial account information (CRS); and
  • the intergovernmental agreements and domestic legislation implementing FATCA and the CRS in the BVI.

This will entail annual reporting responsibilities.

Investment funds business does not fall within one of the nine categories of relevant activities for the purposes of economic substance reporting under the Economic Substance (Companies and Limited Partnerships) Act 2018 and the regulations and rules applicable thereunder. This notwithstanding, the fund RA is required to make an annual economic substance filing to the effect that the fund is not caught.

To the extent that company or LP funds grant security/collateral over their assets, these interests are to be recorded in the private register of charges maintained by the fund. These charges may also be registered publicly on the file for the company or LP fund maintained by the Registry.

A BVI company is required to file a copy of its register of directors (and any changes thereto within 30 days) with the Registry. The Business Companies (Amendment) Act and the Business Companies (Amendment) Regulations 2022 introduced a facility whereby any users of the BVI Registry online VIRRGIN filing platform will be able to access the names of the current directors of the company, for a fee.

The identities of shareholders in a company and limited partners in an LP, and the amounts of their capital commitments, are not publicly available. However, both a limited partner and a member of a company is entitled to inspect (on giving written notice):

  • the records;
  • the register of limited partners (in the case of an LP and subject to the LP agreement); and
  • the registers of members and directors (in the case of a company).

For an LP, the LP agreement may restrict these inspection rights. For a company, subject to its MAAs, a director may refuse an inspection request if they are satisfied that it is contrary to the company’s interests.

The articles of a company, or the LP agreement for an LP, may allow for further inspection or information rights for investors.

The BVI has a centralised system for recording the beneficial owners of BVI entities (being persons who ultimately own or control more than 25% of an entity). While open-ended mutual funds and any licensed BVI entities are exempt from this regime, closed-ended funds (PIF) are not. The system is not available to the public and can only be accessed following a formal request from the BVI Financial Investigation Agency, the FSC, the BVI International Tax Authority or the Attorney General’s Chambers, who will in turn be bound by strict confidentiality rules. Non-compliance can result in a fine, imprisonment or both.

The valuation policy of a BVI fund must include details on how valuation information and reports shall be disseminated to investors, but there are no minimum requirements for such reports.

BVI funds will frequently incorporate wholly owned subsidiary BVI companies as single or multiple asset-holding vehicles for the fund. To the extent that such subsidiary asset-holding vehicles are employed, these non-regulated companies are now required to submit an annual financial return to their registered agent within nine months after the end of the fiscal year to which it relates. 

Private Investment Fund (PIF)

This is designed to lock in investors for a set time or until the occurrence of a specific exit event, and is used predominantly for investment in non-liquid assets such as commercial property. These closed-ended PIF funds are most commonly adopted in the private equity and venture capital sectors.

Approved Fund

An approved fund targets start-up investment managers originating out of the family office/friends and family market. This is increasingly used by crypto-fund managers.

Private Fund

This is a fund with a broad cross-section of appeal to investors.

Professional Fund

This is designed for professional investors and is the most-used type of BVI fund, being utilised across all sectors.

Public Fund

This is designed for retail investors.

Incubator Fund

This is designed for start-up managers looking to gain a track record before converting the incubator fund to a more sophisticated fund product. This is increasingly used by crypto-fund managers.

See also 2.1.1 Fund Structures.

BVI fund managers are predominantly structured as companies and, to a lesser extent, as LPs. 

See 2.1.1 Fund Structures.

See 2.1.1 Fund Structures.

Generally, non-local service providers (including administrators, custodians, auditors and director services providers) are not subject to BVI regulation/registration requirements; however, the requirements below relating to certain BVI fund types should be noted.

Professional, Private, Incubator and Approved Funds

These must ensure that persons controlling the fund’s investment function are independent from the persons controlling the valuation process, provided that if this cannot be achieved any conflicts are identified and disclosed to investors.

Public Funds

Each functionary must be functionally independent, and public funds must establish a policy for identifying and managing conflicts of interest.

Professional, Private and Public Funds

Auditors (who need not be BVI auditors) must be approved by the FSC.

Non-local managers are permitted to manage BVI funds, provided the manager is located in a “recognised jurisdiction” and meets the FSC’s “fit and proper” criteria.

Where fund managers, advisers, administrators or appointed persons are established outside the BVI, they (and their directors and officers) will not normally need to be registered or licensed in the BVI, provided they have no physical presence in the BVI and the fund has no presence in the BVI (save for its registered office and agent).

Where a manager, adviser, administrator or appointed person either is BVI-incorporated or physically operates within the BVI, such persons will normally be required to obtain an investment business licence under the SIBA.

Licensees under the SIBA are required to (among other things) file audited financial statements and seek approval from the FSC for any change in their directors, officers or significant interest-holders, for any business carried on outside the BVI and any establishment of a subsidiary.

For BVI-incorporated investment managers or advisers, an alternative option to SIBA licensing is to register as an approved manager under the BVI Investment Business (Approved Managers) Regulations, which impose lighter requirements (including no requirement to appoint an auditor). The approved manager regime is available for BVI-incorporated investment managers or advisers to closed-ended funds whose aggregate AUM does not exceed USD1 billion, or to open-ended funds whose aggregate AUM does not exceed USD400 million (or its equivalence in another currency).

Registration under either the SIBA or the approved manager regime will require payment of an initial application fee and a recurring annual fee.

Incubator and Approved Funds

These may commence business after two business days from submitting an application to the FSC.

Professional Funds

These may operate for 21 days prior to FSC approval, provided an application for recognition is submitted to the FSC within 14 days of commencing business. Up to three months for approval should be expected.

Public and Private Funds

These may not commence business until FSC approval is granted. Up to three months for approval should be expected for private funds, and up to six months for public funds.

The BVI legal and regulatory regime does not apply specific requirements to firms pre-marketing funds in the BVI. However, it is likely that such activities would be regarded by the FSC as conducting licensed investment business in or from within the BVI, requiring the fund and/or distributer to be licensed within the BVI.     

The BVI fund would need to be recognised and/or registered and entitled to market and conduct business to the class of investors to which the fund is being marketed.

See 2.1.1 Fund Structures.

Apart from the grace periods permitted in relation to incubator, approved, PIF and professional funds (see 2.1.2 Common Process for Setting Up Investment Funds), pre-authorisation is required by the FSC prior to the marketing of funds in the BVI and is always subject to distribution only to permitted classes of investors.

Firms are required to be licensed and authorised to market funds to the relevant permitted class of investors, whether restricted or a private offering.

See 2.1.1 Fund Structures.

The FSC encourages direct interaction with its licensees, and it is possible to arrange face-to-face meetings. 

See 2.1.1 Fund Structures and 2.3.2 Requirements for Non-local Service Providers.

Fund financing is a well-used leveraging technique for BVI funds. There is a predominance of fund finance lenders to BVI funds not operating out of the BVI but being domiciled in and operating out of well-established financing jurisdictions, including the USA and UK. The lenders to BVI funds may be private, banks or other forms of lending vehicles.

There are no direct legislative or regulatory restrictions and limitations on BVI funds entering into financing arrangements, subject to solvency, constitutional and offering-document limitations being applied. In the context of BVI economic substance requirements, credit funds should undertake a detailed analysis of their operations to ensure that they are not classified as carrying on the relevant activity of “finance and leasing business”. 

The BVI is an attractive jurisdiction for financing structures with lender-friendly insolvency laws (modelled on the English legal system) and comprises a simple, yet robust, regime for secured financing transactions.

Under the BCA, and subject to the constitutional documents of a BVI company or LP, the BVI entity may (by an instrument in writing) create a mortgage, charge or other encumbrance over any of its assets situated in any part of the world in accordance with the law of the relevant jurisdiction. The mortgage, charge or other encumbrance will be binding on the BVI entity to the extent, and in accordance with the requirements, of the chosen law.

Assuming that the execution and delivery of a foreign law security document (“Foreign Security Document”) creates a valid charge under the chosen foreign law, such security interest will be recognised in the BVI. Upon registration of the Foreign Security Document with the Registrar, all registrations, filings and other actions necessary or desirable to protect priority of the Foreign Security Document in the BVI will have been taken, subject to any priority being afforded to pre-existing registered charges.

With the majority of BVI investment funds being structed as companies, a BVI security package will typically include an equitable mortgage or charge over shares in the BVI company. Under BVI law, there are no steps required to “perfect” a security interest; however, in order to protect a security interest granted by a chargor over shares that it holds in a BVI company, the chargor should deliver to the secured party a signed but undated share transfer form and signed directors’ resolutions authorising the registered agent of the company to register the name of the secured party in the company’s share register.

The BVI company’s register of members is prima facie evidence of title, so it is important to ensure that steps are taken to include the entry of the secured party’s name in the BVI company’s register of members. If the shares are over 100% of the BVI company, or are a significant enough percentage to allow the shareholder to control the board of directors, it is prudent to also request signed but undated letters of resignation from the current directors (should the secured party wish to change the board upon enforcement of the charge).

A BVI chargor will typically also grant security over:

  • bank accounts into which any distributions are placed from the underlying investments;
  • contract rights under any custodian agreement (including security over the relevant custodian accounts); and
  • any other asset security.

The authors would not normally expect the relevant security instruments for the above assets to be governed by BVI law, since these assets are generally not located in the BVI.

Where a BVI investment fund or obligor grants security over any of its assets, to establish the priority of a security interest created by that BVI company, the secured party should request that particulars of the security interest be publicly registered with the Registry, in accordance with the BCA. Under BVI law, public registration of a security is not necessary to perfect the security interest; however, where there are two security interests that relate to the same collateral, the timing of the public registration of the security interest will, in most cases, determine priority. Public registration in the register of registered charges also provides constructive notice to third parties.

As previously noted, an LP may be constituted with or without legal personality. Where an LP does not have legal personality, the partnership merely reflects a contractual agreement between the partners, where the general partner is vested with certain duties and powers with respect to the partnership’s business and assets. Conversely, a partnership that is registered with legal personality, which is the default position unless the general partners elect not to have legal personality on registration, will be able to grant security over its assets. The legal treatment of a partnership and the corresponding role of the general partner will therefore have a number of implications for lenders offering subscription credit facilities to BVI vehicles when structuring the related security package.

Subject to the LP agreement, a partnership with legal personality may (by an instrument in writing) create a charge over the assets of the partnership, including uncalled capital commitments (“Uncalled Capital”). The contractual obligation of a limited partner to make capital contributions, to the extent that they have not already been called, and the corresponding right of the general partner on behalf of the LP to call for any Uncalled Capital (“Capital Call Rights”), are at the core of the typical subscription credit facility security package. Security over the Uncalled Capital and/or Capital Call Rights would be granted in respect of a BVI obligor’s contractual obligations/rights under the subscription agreement (rather than the MAA or LP agreement). The authors note that security over contractual rights is only granted by way of an equitable assignment, since it is not possible to grant a legal assignment of contractual rights under BVI law.

The BVI applies a zero corporate income or gains tax rate and a zero dividends or investment gains personal tax rate. 

As a tax-neutral jurisdiction, the BVI operates a zero-rated income tax regime for all entities established in the BVI. Similarly, there is no capital gains tax payable in the BVI on any gains realised by a BVI entity or with respect to any shares, debt obligations, partnership interests or other securities of a BVI entity. Furthermore, no withholding tax is levied on interest or distributions paid by BVI entities to investors. BVI funds should consider any potential US withholding tax that may be applied under FATCA. 

If a BVI fund employs anyone within the BVI, such person will be subject to payroll tax of between 10% and 14% (8% being paid by the employee, and the remainder being paid by the employer) on remuneration (including severance pay, bonuses and money paid under profit-sharing schemes) for services rendered wholly or mainly in the BVI. Contributions are also required to social security and national health insurance. It is rare for a BVI fund to have employees within the territory.

If the fund invests in real estate within the BVI, it would be required to pay BVI stamp duty at a rate of 4% for “belonger” entities and 12% for “non-belonger” entities on the appraised value of the land. Non-belonger companies, in simplified terms, are those with over one third of their members being non-BVI citizens or with any directors that are not BVI citizens. Similarly, the transfer of shares or partnership interests in a BVI entity that holds, directly or indirectly, an interest in land situated in the BVI would attract BVI stamp duty at the same rate. Property tax may also be payable on any BVI land held by a fund.

See 2.1.1 Fund Structures.

See 2.1.2 Common Process for Setting Up Investment Funds.

A BVI company is treated as an entity separate from its investors, and the limited liability of shareholders will generally be respected. An investor’s liability in a BVI company fund will generally be limited to:

  • the amount, if any, unpaid on the shares it holds;
  • any liability expressly set out in the MAA of the company; and
  • any liability to repay a distribution.

A shareholder will be liable to repay a distribution if at the time of the distribution the company was insolvent, unless:

  • the shareholder received the distribution in good faith, without knowledge of the company’s insolvency;
  • the shareholder has altered its position in reliance on the distribution; and
  • it would be unfair to require repayment.

Similar to other English-law-based jurisdictions, there may be extremely unusual circumstances where the BVI courts “pierce the corporate veil” and seek to find shareholders liable for debts of a company, such as cases involving fraud or a deliberate attempt to evade legal obligations. English case law regarding this topic will have persuasive effect in the BVI.

A limited partner will be liable for the debts and liabilities of the LP only if:

  • the limited partner takes part in the management of the LP; and
  • at the time the liability was incurred, the person to whom the liability was incurred knew that the limited partner took part in the management of the LP and reasonably believed, based on the limited partner’s conduct, that the limited partner was, in fact, a general partner.

This two-step process provides additional certainty to limited partners.

The legislation provides for a number of safe harbours for the loss of liability, including the following activities, which do not constitute “taking part in the management” of the LP, as follows.

  • Holding an office (including a directorship) or interest in (including as a shareholder or partner), acting as a consultant, contractor or agent for, being an employee of, or being engaged in business with, a general partner.
  • Consulting or advising a general partner about the business or activities of the LP, including as a member of an investment or advisory committee of the LP.
  • Actng as a surety or guarantor for the LP.
  • Serving on, appointing a person to, or removing any person from, any board or committee of the LP, or calling, requesting, attending or participating in any meeting of the partners.
  • Giving advice about, or consenting or withholding consent regarding, any action proposed with respect to the LP in accordance with the LP agreement, or taking part in decisions concerning:
    1. the winding-up of the LP;
    2. any amendments to the LP agreement;
    3. the acquisition or disposal of any assets or businesses by or of the LP (whether to approve or veto investments in the capacity of a member of an investment or advisory committee of the LP);
    4. incurrence of debt;
    5. appointment or removal of a general or limited partner; or
    6. change in senior employees of the LP or the general partner.

The carve-out for membership of an investment or advisory committee provides greater certainty for investors who have representatives on such committees. If limited liability is lost, a limited partner will be liable to the same extent as a general partner.

A limited partner who has been repaid all or part of their contribution, or who has been released from their commitment to fund the LP, may have renewed liability for that amount or commitment if the LP was insolvent at the time of and immediately following the repayment or release, and if the limited partner was aware of this insolvency. The limited partner will only be liable to the extent that the renewed liability is necessary in order to discharge a debt or liability of the LP incurred while the contribution or commitment represented an asset of the LP. Further, the risk of renewed liability expires six months after the date of the repayment or release. Both of these requirements provide a level of certainty to the limited partner.

Aside from the above, as further provided in the LP agreement or in the event of fraud committed by or with the consent of the limited partner, the limited partner has no liability in respect of a contribution repaid or a commitment released by the LP.

See 2.1.4 Disclosure Requirements.

The BVI is a small island, British overseas territory with a population of approximately 35,000. Notwithstanding its small size, the BVI has one of the highest average incomes per capita, at approximately USD45,000.

Due to its demographics, the BVI-resident appetite for retail funds being distributed within the BVI is questionable. As of 30 June 2023, there were 22 retail public funds registered in the BVI.     

See 2.2.2 Legal Structures Used by Fund Managers.

See 2.1.1 Fund Structures.

See 2.1.1 Fund Structures.

In addition to satisfying the requirements for recognition by the SIBA, public funds will be required to satisfy the requirements of the MFR and the Public Funds Code, including those relating to publication of a prospectus, which must be approved by and signed on behalf of the fund’s directors.

See 2.3.2 Requirements for Non-local Service Providers.

See 2.3.3 Local Regulatory Requirements for Non-local Managers.

See 2.3.4 Regulatory Approval Process.

See 2.3.5 Rules Concerning Pre-marketing of Alternative Funds.

See 2.3.6 Rules Concerning Marketing of Alternative Funds.

See 2.3.7 Marketing of Alternative Funds.

See 2.3.8 Marketing Authorisation/Notification Process.

Firms are required to be licensed and authorised to market the funds to the relevant retail class of investors.

A public fund must issue a prospectus, which must comply with the MFR and the Public Funds Code, and which must be approved by and signed by or on behalf of the fund’s board of directors. A copy thereof must be filed with the FSC. The prospectus must contain full and accurate disclosure of all information as investors would reasonably require and expect to find for the purpose of making an informed investment decision (where any such disclosure ceases to be accurate, the fund must apply to the FSC within 14 days to register an amended prospectus).

An investor in a retail public fund has a statutory right of action for rescission or damages against the fund and its directors in respect of any misrepresentation (which includes an omission to disclose required information) in the fund’s prospectus; the prospectus must contain a summary statement of the investors’ statutory rights under the SIBA to action for rescission or damages in the event the prospectus contains misrepresentations.

See 2.3.11 Approach of the Regulator.

See 2.4 Operational Requirements.

See 2.5 Fund Finance.

See 2.6 Tax Regime.

The BVI has developed into a global hub for digital assets. A number of crypto-exchanges, currency and coin/token issuers, and other digital asset sponsors have chosen the BVI as their jurisdiction of domicile. As a result, the Virtual Asset Service Provider Act 2022 (VASP) has been promulgated to govern digital asset service providers.

Initial indications are that BVI crypto funds are not caught under VASP, but managers are encouraged to analyse the fund operations and functionaries to ensure that they are operating in accordance with VASP.

The AIMA/PwC Fifth Annual Global Crypto Hedge Fund Report (2023) notes that the BVI is the third largest jurisdiction of choice for the formation of crypto funds, with 11% of the market. The Cayman Islands and the USA are cited as first and second, with 34% and 28% market share, respectively. 

The impact of economic substance requirements being imposed on managers, coupled with the fact that the BVI-approved manager falls outside the economic substance regime, has resulted in a large number of managers relocating to the BVI and setting up as approved managers. This has in turn resulted in an increase in the number of BVI funds being formed and managed by those redomiciled managers.

An area of increased focus, globally and not only in the BVI, is ESG funds. The BVI has not yet introduced regulations pertaining to investment parameters or disclosure requirements for ESG funds that have, for instance, been introduced in the European Union under the Sustainable Finance Disclosure Regulation. Whether a formal ESG regulatory framework is to be introduced, or whether the current flexible individual fund constitutional ESG framework will continue, remains to be seen.

Appleby

Appleby (BVI) Limited
Jayla Place
Wickham’s Cay 1
PO Box 3190
Road Town, Tortola
British Virgin Islands
VG1110

+1 284 393 531 28

jkirk@applebyglobal.com www.applebyglobal.com
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Trends and Developments


Author



Appleby is one of the world’s leading international law firms. Its global teams of legal specialists advise public and private companies, financial institutions and private individuals. It is a full-service law firm providing comprehensive, expert advice and services across corporate, dispute resolution, property, regulatory, and private client and trusts practice areas. The firm has offices in ten highly regarded, well-regulated global locations, operating in nine and practising the laws of eight jurisdictions. Its office locations include the key international jurisdictions of Bermuda, the British Virgin Islands, the Cayman Islands, Guernsey, Isle of Man, Jersey, Mauritius and the Seychelles, as well as the international financial centres of Hong Kong and Shanghai. Its global presence enables it to provide comprehensive, multi-jurisdictional legal advice at the most beneficial times to clients. The firm is regularly recognised for its professionalism, integrity and excellent client service, and these are the values that it prides itself on and that are at the core of its business.

Introduction

The British Virgin Islands (BVI) funds market has continued its growth and evolution amidst challenging times. The lingering financial impact of COVID-19 and the inflationary trends in the market leading to the current cost-of-living crisis, which thankfully appear to be waning, have not dampened the attractiveness of BVI funds offering.

The BVI has been known for its flexibility of operations and is one of the most popular international financial centre jurisdictions for the launch of alternative investment funds and managers. The jurisdiction has historically offered sophisticated fund products with diverse and bespoke fund structures:

  • comprising open- and closed-ended vehicles;
  • targeted at sophisticated professional, private offering or retail investors;
  • geared for the hedge fund or private equity venture capital manager; and
  • suited for the start-up manager, family office, established hedge fund manager or (increasingly popular) crypto-fund manager.

The market has adapted over recent years to meet the needs of pioneer start-up founders, particularly in digital asset classes, while continuing to grow its core funds offering of open-ended professional and private funds. It has also introduced the closed-ended private investment fund (PIF).

Digital Asset Funds

2023 was an active year in the BVI funds market, particularly in the crypto-funds sector. As of 30 June 2023 the BVI had 2,096 regulated funds, of which the largest subsectors were:

  • open-ended professional funds (839), approved funds (304) and private funds (284); and
  • closed-ended PIFs (347).

The focus on alternative investment funds compared to retail funds is shown by the fact that at the end of Q2 2023 there were 22 registered retail BVI public funds.

The BVI has developed into a global hub for digital assets. A number of crypto-exchanges, currency and coin/token issuers, and other digital asset sponsors have chosen the BVI as their jurisdiction of domicile. The growth of the BVI digital assets sector has continued irrespective of the collapse of FTX. However, the BVI has introduced the Virtual Asset Service Provider Act 2022 (VASP) to govern digital assets service providers.

Initial indications are that BVI crypto-funds are not caught under VASP, but managers are encouraged to analyse the fund’s operations and functionaries to ensure that they are operating in accordance with VASP.

The AIMA/PwC Fifth Annual Global Crypto Hedge Fuld Report (2023) notes that the BVI is the third largest jurisdiction of choice for the formation of crypto-funds, with 11% of the market. The Cayman Islands and the USA are cited as first and second, with 34% and 28% market share, respectively. Due to the nature of the underlying assets, open-ended incubator, approved and professional funds are the vehicles of choice for BVI crypto-funds.   

ESG Funds

An area of increased focus, globally as well as in the BVI, is environmental, social and governance (ESG) funds. The BVI has not yet introduced regulations pertaining to investment parameters or disclosure requirements for ESG funds that have, for instance, been introduced in the European Union under the Sustainable Finance Disclosure Regulation. Whether a formal ESG regulatory framework will be introduced, or whether the current flexible individual funds constitutional ESG framework will continue, remains to be seen.

In November 2023, the BVI government initiated its Blue Economy Roadmap with the support of the United Nations Development Programme. The Blue Economy Roadmap sets out an integrated approach to ocean-based sustainable development, which brings together economy, environment and society, consistent with the Sustainable Development Agenda (2030), Aichi Target 11 of the Convention on Biological Diversity and the Paris Agreement on Climate Change (2015).

The roadmap outlines the pathways for future investment in and development of a sustainable ocean-based economy in the BVI. Specifically, the roadmap aims to create a revitalisation process that results in healthy ecosystems able to sustain growth in a number of economic sectors, and to provide an opportunity for building equitable societies.

This Blue Economy initiative represents a unique ESG opportunity for funds to be established in the BVI and invested in a BVI environmental programme. 

Investment Manager and Economic Substance

The market has also seen growth in the investment manager sector. The impact of economic substance requirements being imposed on managers, coupled with the fact that the BVI-approved manager falls outside the economic substance regime, has resulted in a large number of managers relocating to the BVI and setting up as approved managers. This in turn has resulted in an increased number of BVI funds being formed and managed by those redomiciled managers.

Fund Subsidiary Companies and Annual Financial Returns

Regarding held downstream assets, BVI funds will frequently incorporate wholly owned subsidiary BVI companies as single or multiple asset-holding vehicles for the fund. To the extent that such subsidiary asset-holding vehicles are employed in the fund structure, these non-regulated companies are now required to submit an annual financial return in prescribed form to their BVI registered agent within nine months after the end of the fiscal year to which it relates.

Fund Finance

An additional area of growth is in the BVI fund finance market. This has been driven in part by:

  • expansion into a broader range of fund types;
  • increasing take-up by fund sponsors who had not traditionally used the product in their fund families;
  • record levels of fundraising; and
  • an increasing number of bespoke transaction structures, including net asset value and hybrid facilities, and equity commitment deals.

It is apparent that as the demands and needs of sponsors and funds have diversified, lenders have become more innovative and specialised in their approach. While certain banks have continued to build their books of business, new alternative lenders have also emerged on the scene. The BVI has also seen steady increases in funds focused on climate tech (as ESG factors become an increasing priority for investors) as well as significant numbers of blockchain and cryptocurrency funds.

The BVI has ingrained its position as an attractive jurisdiction for financing structures and arrangements, with lender-friendly insolvency laws and a robust regime for secured financing transactions. With the Limited Partnership Act 2017 introducing a modern, flexible limited partnership vehicle (providing an alternative to the successful BVI business company fund vehicle), coupled with the introduction of the PIF regime in 2019, it is not surprising that this more conducive environment has led to the increase in BVI fund-financing transactions.     

More Complex Fund Infrastructure

While the majority of BVI funds exist as standalone funds, these funds increasingly form part of a greater fund structure, including master-feeder, parallel structures (US and non-US parallel vehicles) and mini-master fund structures (offshore feeder fund and a master entity structured as a partnership for US tax purposes). The rationale for these more complex structures is driven by the tax and cost efficiencies achieved. 

Access to Information

With effect from December 2019, the BVI regulator (the Financial Services Commission (FSC)) has maintained a register of recognised funds, identifying:

  • each fund’s service and business address (within and outside the BVI), authorised representative, date and status of recognition;
  • whether the fund is up to date with its FSC fees; and
  • such other information as the FSC considers appropriate.

This information is available for public inspection, for which the FSC may charge a fee.

Other than as set out above, limited information is publicly available regarding entities established in the BVI. Such documents are generally only accessible through the FSC’s online database, which requires registration with the FSC to access and the payment of fees. The available information includes:

  • registered office and agent details;
  • name and registered number; and
  • any publicly registered charges over the assets.

For companies, the memorandum and articles (and any resolutions amending these) will also be available.

For limited partnerships, the identities of general partners will be available (but not the limited partnership agreement).

Entities are required to keep filed information up to date and any failure to do so may result in a fine.

A BVI company is also required to file a copy of its register of directors (and any changes thereto within 30 days) with the BVI Registry. The register of directors has not previously been publicly available, except by order of the court, by written request of a competent authority (for tax compliance or other law enforcement purposes) or upon the election of the company.

However, from 1 January 2023, certain authorised users of the BVI Registry’s system (generally, only BVI service providers) are now able to search for the names of the current directors of a BVI company. The search results are limited in scope to including the name of the current directors; accordingly, it will not be possible to obtain the date of birth, nationality, address and other personal information of a director or the names of former directors.

Although this remains to be determined, some form of fee to access the names of directors (as with all company searches in the BVI) is expected.

The identities of shareholders in a company and limited partners in a partnership, and the amounts of their capital commitments, are not publicly available. However, both a limited partner and a member of a company is entitled to inspect (on giving written notice):

  • the records;
  • the register of limited partners (in the case of a partnership and subject to the limited partnership agreement); and
  • the registers of members and directors (in the case of a company).

For a partnership, the limited partnership agreement may restrict these inspection rights. For a company, subject to its memorandum and articles, a director may refuse an inspection request if they are satisfied that it is contrary to the company’s interests. The articles of a company, or the limited partnership agreement for a partnership, may allow for further inspection or information rights for investors.

The BVI has introduced a centralised system for recording the beneficial owners of BVI entities (being persons who ultimately own or control more than 25% of an entity). While open-ended mutual funds and any licensed BVI entities are exempt from this regime, closed-ended funds are not. The system is not available to the public and can only be accessed following a formal request from the BVI Financial Investigation Agency, the FSC, the BVI International Tax Authority or the Attorney General’s Chambers, who will in turn be bound by strict confidentiality rules. Non-compliance can result in a fine, imprisonment or both.

It is anticipated that there will be further developments over the course of 2024 in respect of disclosure of beneficial ownership in BVI entities.

Where to Now?

The BVI’s attraction for fund sponsors has historically been based on the tax neutrality of the territory, with it being politically and economically stable and providing a depth of experience and sophistication to clients. This environment includes diversity of legal structure, types of fund and appropriate levels of supervisory oversight to accurately fit investors’ risk profiles. Prominent examples are seen in the incubator and approved funds options. 

In addition, the BVI offers a wealth of professional advisers and regulators at the FSC, offering ease, cost-effectiveness and speed in the fund-formation process.

The one constant is change. The BVI has always been flexible in its offerings and operations, and it must be more so now. As in the case of cryptocurrency funds, opportunities and sponsor/client needs must be identified and acted upon in a measured but nimble manner.

Appleby

Appleby (BVI) Limited
Jayla Place
Wickham’s Cay 1
PO Box 3190
Road Town, Tortola
British Virgin Islands
VG1110

+1 284 393 531 28

jkirk@applebyglobal.com www.applebyglobal.com
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Law and Practice

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Appleby is one of the world’s leading international law firms. Its global teams of legal specialists advise public and private companies, financial institutions and private individuals. It is a full-service law firm providing comprehensive, expert advice and services across corporate, dispute resolution, property, regulatory, and private client and trusts practice areas. The firm has offices in ten highly regarded, well-regulated global locations, operating in nine and practising the laws of eight jurisdictions. Its office locations include the key international jurisdictions of Bermuda, the British Virgin Islands, the Cayman Islands, Guernsey, Isle of Man, Jersey, Mauritius and the Seychelles, as well as the international financial centres of Hong Kong and Shanghai. Its global presence enables it to provide comprehensive, multi-jurisdictional legal advice at the most beneficial times to clients. The firm is regularly recognised for its professionalism, integrity and excellent client service, and these are the values that it prides itself on and that are at the core of its business.

Trends and Development

Author



Appleby is one of the world’s leading international law firms. Its global teams of legal specialists advise public and private companies, financial institutions and private individuals. It is a full-service law firm providing comprehensive, expert advice and services across corporate, dispute resolution, property, regulatory, and private client and trusts practice areas. The firm has offices in ten highly regarded, well-regulated global locations, operating in nine and practising the laws of eight jurisdictions. Its office locations include the key international jurisdictions of Bermuda, the British Virgin Islands, the Cayman Islands, Guernsey, Isle of Man, Jersey, Mauritius and the Seychelles, as well as the international financial centres of Hong Kong and Shanghai. Its global presence enables it to provide comprehensive, multi-jurisdictional legal advice at the most beneficial times to clients. The firm is regularly recognised for its professionalism, integrity and excellent client service, and these are the values that it prides itself on and that are at the core of its business.

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