It has long been acknowledged that schemes of arrangement are a flexible and often vital tool in restructuring companies. This is due in part to the binding nature of the court's order if the proposed arrangement is successful.

Since the advent of the International Business Companies (IBC) Ordinance Act more than 20 years ago, companies legislation in the British Virgin Islands (BVI) has made express provision for such schemes, so it may seem strange that they have been rarely used in the jurisdiction.

One reason for this may be a lack of appreciation that the process is available in the BVI although, given the marked increase in the number of completed court-approved arrangements and enquiries that we have received relating to this process this year alone, it is clear that it can have wide and significant application in the jurisdiction.

The uses of arrangements under the IBC Act and the BVI Business Companies Act 2004 (BVIBCA) are numerous. Section 82 of the IBC Act, as substantially mirrored in section 177 of the BVIBCA, provides that a court-approved arrangement may be used to effect:

. an amendment to the memorandum or articles of association;

. a reorganisation or reconstruction of a company;

. a merger or consolidation of one or more companies;

. the separation of two or more businesses carried on by a company (this includes the demerger of subsidiary companies);

. any sale, transfer, exchange or other disposition of any part of the assets or business of a company;

. the sale, transfer, exchange or other disposition of shares, debt obligations or other securities in a company;

. the dissolution of a company; and

. any combination of the things specified above.

The breadth of these possibilities lends a high degree of flexibility to the possible outcomes that the process may yield. The ability to combine any of the outcomes means that the arrangement process can condense the timescales required to complete these steps individually.

Although many of these outcomes may be achieved out of court, the possibilities of merger and demerger through a court-approved process have benefits of a financial and regulatory nature in a number of jurisdictions.

The arrangement process has two primary stages. First, the directors of the BVI company must approve a plan of arrangement and then make an application to the court for approval of the proposed arrangement. At the initial hearing, the court will give directions, such as a requirement that certain approvals be obtained (typically shareholder approval) or that certain notices be given or advertisements be made, typically for the benefit of creditors.

The second stage is the final hearing at which interested parties may appear and be heard. At this final hearing, the court will reject or approve the plan of arrangement with or without amendments.

Following approval of the plan of arrangement by the court, articles of arrangement must be executed by the BVI company and submitted to the Registrar of Corporate Affairs. On registration of the articles of arrangement, the Registrar will issue a certificate of arrangement certifying the arrangement has been effected.

The potential benefits of an arrangement must be examined on a jurisdiction by jurisdiction basis. There are clear merits in the BVI of using such a process, including the ability to bring about outcomes not otherwise available under statute, the speed with which the process can deliver an outcome – subject to court availability and court requirements as laid down at the interim hearing, we would expect to be able to complete an arrangement within a two-month timescale – and the finality and binding nature of the court order.

However, perhaps the more interesting answers lie in the onshore benefits which are likely to be available from the process.

While we are not in a position to set out the benefits that may arise in other parts of the world, as the leading firm in the jurisdiction, we can point to some recent examples in which we have become involved to illustrate the usefulness of the process.

. Merger and reverse takeover. One such arrangement involved a merger coupled with an exchange of securities in the form of a reverse takeover of a Canadian corporation. As part of the arrangement, two BVI companies merged and the shareholders of the surviving BVI company simultaneously exchanged their shares and other securities for shares and other securities in the Canadian corporation. Importantly, some of the shareholders were based in the US and the use of the court-approved arrangement process allowed the client to seek exemption from registration under the Securities Act 1933, which provides for an exemption in respect of court-approved transactions.

. Demerger. Another arrangement involved the demerger of eight BVI subsidiaries of a BVI holding company into the hands of newly-created BVI entities held personally by individuals in Russia. Utilising a scheme of arrangement enabled the parties to mitigate significant income tax charges arising in Russia in the hands of the recipient individuals. Such charges would have arisen on the receipt of proceeds of a sale or other disposal of the subsidiaries by the holding company. These charges were mitigated by using the court sanctioned process which facilitates the use of an exemption pursuant to Russian tax law.

As these examples demonstrate and as the enquiries that we are receiving indicate, the availability of such a flexible court-approved process can be exceptionally valuable. It is certainly our belief that these provisions will become increasingly utilized in the BVI as they have been in other offshore jurisdictions.

Simon Dinning is an associate in corporate and commercial department and Emma Sparshott an associate in the litigation department at Harneys in BVI.