Baker & Partners LLP

Stephen has served as an officer on the committee for several years and will, in the period 2025 -2027, co-chair the committee with Kate McMahon, founding partner of Edmonds Marshall McMahon.   We believe Stephen is the first Channel Islands practitioner appointed as chair of a committee of the International Bar Association which has been in operation for more than seventy years.  This appointment does much to reflect the fact that Stephen has worked tirelessly with successive attorneys general to craft structures  and methods of international asset recovery and repatriation which have been widely adopted elsewhere, which remain functional to this day, and which have done much to enhance the reputation of Jersey as an international finance centre.   The focus for Stephen’s tenure in office is the rule of law. This was the founding theme of the IBA when it was established in the aftermath of WW2 and with a particular aim to promote a rules-based order. The rule of law underpins democracy, human rights, and societal progress. Without it, chaos and corruption can all too easily take root, undermining the very principles that allow societies to thrive. The legal profession must actively defend these principles, educate the public, raise awareness, and hold failing systems accountable.    As Co-Chair, Stephen looks forward to progressing the agenda of the Asset Recovery committee.  This includes the development of a thriving programme of events, the production of expert publications focussed on knowledge-sharing for best practice in the field, and growing its membership.  In this way the committee will create a legal model for asset recovery specialists enabling them to play a full role in upholding the rule of law to the benefit of this and future generations.   The IBA is made up of 80,000 member lawyers and over 190 bar associations spanning over 170 countries.  Stephen is also the Jersey representative of the IBA.   Please connect with Stephen Baker on Linkedin if you would like to stay-up-to date with the Committee’s progress and plans.   

BVI Business Companies Act 2024 Amendments The amendments to the BVI Business Companies Act 2004 (as amended), aimed at enhancing the BVI’s regulatory landscape, officially came into effect on 2 January 2025 (the “Effective Date”). These amendments were first introduced in the BVI Business Companies (Amendment) Act 2024 (the “Amendment Act“), which was published in the BVI Gazette on September 26, 2024. With the Amendment Act now in force, it brings significant updates to the jurisdiction’s corporate legislative framework. This article highlights the key changes under the Amendment Act. Beneficial Ownership – Definition, Criteria, and Required Information The Amendment Act refines the definition of ‘beneficial owner’ as a natural person who ultimately owns or controls a company or limited partnership. It also specifies the criteria to be met in the context of legal entities, limited partnerships, and trusts. Every company is now required to collect, maintain, and update comprehensive and accurate information on its beneficial owners, including their name, address, and confirmation of the category of ownership held. This information must be filed with the BVI Registrar of Companies within 30 days of incorporation or continuation into the BVI, as applicable. Publicly listed companies are exempt from the requirement to file beneficial ownership details. Additionally, private, professional, public, or private investment funds, as well as incubator or approved funds, are similarly exempt, provided that: The company’s beneficial ownership information is held by: a person with a Category 6 investment business license under the Securities and Investment Business Act, Revised Edition 2020; or a person licensed by the BVI Financial Services Commission (“BVI FSC”) with a physical presence in the BVI; and The beneficial ownership information can be supplied to the Registrar within 24 hours of a request. It is important to note that the obligation to file beneficial ownership information also applies to exempted entities during the period between incorporation and approval for registration as an exempt entity. The Amendment Act further mandates that Registered Agents (“RAs“) take reasonable steps to verify that beneficial ownership information is accurate and current before filing. The Registrar is granted authority to implement additional measures to verify the information and ensure it remains up to date. Companies are also obligated to notify the Registrar of any changes in beneficial ownership within 30 days of becoming aware of the changes. Prior to the Effective Date, beneficial ownership details were filed on the Beneficial Ownership Secure Search System (BOSS), and public access is restricted. Similarly, under the Amendment Act, information filed with the Registrar remains confidential, with access granted only to competent authorities and law enforcement agencies. However, regulations may be introduced to permit limited access to ownership information where beneficial owners hold 25% or more of shares or voting rights. Register of Members Under the BCA, all companies are required to maintain a register of members, which must be filed with the Registrar except in certain cases. The register must contain: The names and addresses of individuals holding registered shares, guarantee members, and unlimited members; The number of each class and series of shares held by each member, including (unless provided for in the company’s memorandum or articles) any voting rights attached to such shares; The date when a person was added to the register; and The date of cessation of membership The Amendment Act provides clarity on the definition of nominee shareholders, describing them as individuals who hold shares and exercise voting rights under the direction of another person (the nominator) or receive dividends on behalf of the nominator. Companies with nominee shareholders must file additional details, including the nominator’s name and address, the date the nominee ceased to hold shares, and the date a person ceased to be a nominator. Every company, except listed companies and funds, must file their initial register of members, including nominee shareholder information (where applicable), with the Registrar within 30 days of incorporation or continuation. Updates to the register must also be filed within 30 days of any changes. Exempted entities must adhere to this requirement during the period between incorporation and the granting of exempt status. Companies that are struck off and later restored are not required to refile their register of members. The register of members remains private unless the company chooses to make it publicly available. Companies may also opt to include additional relevant information. Companies must comply with the filing requirements within six months from the Effective Date, with a possible six-month extension if deemed necessary by the Registrar. Appointment of First Directors The timeline for appointing the first director(s) has been significantly reduced from six months to 15 days. The company’s initial register of directors must also be filed with the Registrar within 15 days of the first director’s appointment, or within 15 days of the company’s continuation into the BVI. Director Services When a licensed director service provider, as regulated by the BVI FSC, serves as a director, the company must indicate whether the director acts in a corporate capacity or as an individual representing the licensed director service provider. This information must be filed with the Registrar along with the register of directors. Additionally, the company must provide the name of the licensed director service provider and, if applicable, the name and address of the individual represented by the provider. Rectification of the Register of Directors The Amendment Act allows any aggrieved party, including members or directors, to apply to the High Court for rectification of the register of directors if there is an omission, inaccuracy, or unreasonable delay in correcting an error. Continuation of a BVI Company under Foreign Law Companies intending to re-domicile outside the BVI must include additional declarations in their notice of intention, including confirmation that there are no outstanding requests from competent authorities for documents or further information, no receiver has been appointed over the company or in relation to any of its assets, and there are no pending legal proceedings concerning the company or its key personnel. Restoration for Struck-Off Companies The process for restoring companies that have been struck off and dissolved has been simplified, making it easier for creditors and other eligible individuals to apply for the company’s reinstatement to the Register of Companies. Importantly, current or former RAs are explicitly excluded from applying for a company’s restoration. Prior to the Effective Date, restoring a struck off company required a declaration from the RA confirming that the company’s records had been updated. The new provisions allow an alternative, where the proposed RA may provide an undertaking to update company records within 14 days of restoration, failing which the company will be struck off again. Moreover, restored companies must file their register of members and directors within 14 days unless previously filed prior to the company being struck off and dissolved. Under the new provisions, dissolution will occur on the same date as the strike-off, as stated in the Registrar’s notice, eliminating confusion caused by previous requirements. The deadline for submitting a sealed Court order for restoration has also been extended from 30 to 60 days, with penalties for non-compliance instead of invalidation of the order. Conclusion In conclusion, the amendments to the BVI Business Companies Act serve to further solidify the British Virgin Islands’ standing as a jurisdiction committed to transparency and the observance of international best practices. These legislative enhancements not only improve the regulatory framework but also strengthen the jurisdiction’s ability to combat financial crime, particularly money laundering. By aligning its practices with global standards, the BVI reinforces its position as a reputable and secure financial centre, ensuring its continued competitiveness and compliance in the evolving international regulatory landscape.

Cayman Islands Partner Jennifer Colegate, restructuring and insolvency specialist and co-chair of IWIRC Cayman Islands, has been admitted to the bar of the British Virgin Islands. Jennifer’s admittance comes shortly after Counsel Tara Liao and Associate Arthur Preget, both of whom are based in London, were admitted in 2024 to the Bar of the British Virgin Islands. These recent BVI admissions reinforce the firm’s ability to provide BVI legal advice from a range of locations and time zones. Partner Jennifer Colegate will work closely with our on-the-ground team in Tortola in the British Virgin Islands led by Partner Shaun Reardon-John, and our BVI qualified team members in Jersey, London and the Cayman Islands. Jennifer advises a range of corporate entities, directors, fiduciaries and officeholders in respect of issues arising under the laws of the Cayman Islands, having previously worked in Hong Kong and London. She is a commercial litigator specialising in cross-border litigation with expertise in insolvency and restructuring, investigations, asset tracing and enforcement and recovery across a variety of industry sectors. Jennifer advises stakeholders across the board from corporates in financial distress, family offices, directors, noteholders and court appointed officeholders. Jennifer is a well-respected lawyer in the Cayman Islands and is described by clients as “…whip-smart and super-responsive; she is a major asset (Chambers & Partners). With Jennifer’s admittance, the BVI legal team includes 10 qualified practitioners: Partners: Stephen Baker, Shaun Reardon-John, Lynne Gregory, and Jennifer Colegate . Counsel: Tara Liao, Gurprit Mattu and Christopher Howitt. Associates: Jodi-Ann Stephenson, Nia Statham and Arthur Preget.

Baker and Partners (BVI), acting on behalf of Angela Barkhouse and Toni Shukla (Kroll) as Liquidators of a BVI company, successfully obtained an unprecedented ruling allowing the restoration of a dissolved British Virgin Islands (BVI) company to the Register of Companies despite the expiration of the statutory limitation period prescribed under the BVI Business Companies Act, 2004 (the “BCA”). The Court’s order marks the first successful application under such circumstances, providing clarity on the interpretation of section 218(5) of the BCA. At the time of the company’s dissolution, section 218(5) stipulated that an application for the restoration of a dissolved company “[m]ay not be made more than ten years after the date that the company was dissolved.” The Court examined the precise wording of this provision, particularly the term “may not,” and its legislative intent within the context of the historical language of this section, which had previously employed the word “shall.” In coming to its decision, the Court also considered Counsel’s submissions on jurisprudence from other jurisdictions involving misuse of the voluntary liquidation process. Given that the period for restoring a company has since been reduced to five years, the significance of this decision is particularly relevant to practitioners dealing with allegations of misconduct in voluntary liquidations. Key Court Findings and Reasoning 1. Interpretation of “May Not” The Court held that the words “may not” in section 218(5) should be interpreted as “permissive empowering,” granting the Court limited discretion in exceptional circumstances. This interpretation aligns with section 37(1) of the Interpretation Act, which generally construes “may” in legislative texts as permissive unless the context dictates otherwise. 2. Exceptional Circumstances The Court determined that exceptional circumstances justified the exercise of discretion in this case, including: Evidence of Fraud: Prima facie evidence indicated that the dissolved company was involved in a multi-billion-dollar large-scale fraud. Abuse of Process: The company had purportedly utilised the voluntary liquidation process to conceal its fraudulent activities. Asset Recovery: Restoration would enable the liquidators to investigate the company’s records and seek recovery of misappropriated assets. 3. Policy Considerations The Court emphasised that the policy objectives of the BCA favour restoring companies where allegations of fraud exist, enabling transparency, investigation, and recovery efforts. While the Court did not issue a written judgment, the reasoning behind its decision was set out in the recitals of its order, highlighting the exceptional nature of this ruling and its implications for the interpretation of section 218(5) of the BCA. Court Order and Policy Implications The Court declared the company’s voluntary liquidation and subsequent dissolution void, rescinded the dissolution, and appointed liquidators to investigate its affairs. In reaching its decision, the Court considered the broader legislative purpose of the BCA, which aims to uphold the integrity of the corporate register while balancing justice and public policy objectives. The Court’s order underscores that statutory interpretation must align with fairness and the legislative framework’s purpose. Where the framework is abused, the Court will intervene to prevent individuals from benefitting from improper use of the BVI corporate system at others’ expense. Implications of the Decision This ruling carries significant implications for the restoration of dissolved companies in the BVI, especially in cases involving fraud or misconduct. The Court’s interpretation of section 218(5) confirms that the statutory limitation period for restoration is not absolute, allowing restorations in exceptional circumstances. This decision signals a clear warning to individuals who attempt to evade accountability for fraudulent activities by relying on the expiration of statutory periods. The decision highlights the Court’s willingness to scrutinise voluntary liquidations, particularly those marked by rapid dissolutions or suspected impropriety. Voluntary liquidators must ensure they fulfil their statutory duties diligently to avoid potential consequences, even years after closing their files. While recent legislative amendments aim to prevent abuse of the voluntary liquidation process, historical abuses, such as those alleged in this case, may continue to surface. The Court’s order equips creditors, liquidators, and other stakeholders with a powerful tool to seek justice and recover assets, reaffirming the BVI’s role as a jurisdiction that values corporate integrity.

Leading offshore law firm Baker & Partners has welcomed Jennifer Colegate as Partner in the Cayman Islands. In addition to Jennifer’s appointment, Tara Liao has joined the firm's London office to support clients in cross border disputes. Jennifer is a commercial litigator specialising in cross-border insolvency and restructuring. Jennifer’s expertise encompasses contentious workouts and distressed debt situations as well as investigations, asset tracing and enforcement and recovery work. Jennifer is named in the 2024 Legal 500 rankings as a Next Generation Partner. She is also ranked in Band 5 in the Chambers & Partners directory where clients have described her as ‘a standout practitioner’ as well as ‘whip-smart and super-responsive.’ She previously practiced with Mayer Brown in London and Hong Kong before relocating to the Cayman Islands in 2016. Jennifer’s appointment marks the third Partner appointment to the firm’s Cayman Islands office. The continued growth of the office is a result of continued client demand and complex offshore instructions covering restructuring, insolvency and commercial litigation matters. Tara is joining Baker & Partners as Counsel while maintaining her practice as a barrister in the UK and Hong Kong. She is fluent in Cantonese and Mandarin and is dual qualified in the UK and in Hong Kong. She sat as a Deputy District Judge in Hong Kong in 2021 and 2023 and is ranked as a leading junior in the Commercial Disputes category by Legal 500 Asia-Pacific from 2021 to 2024. This year marks the firm's 20th anniversary celebrations. Since its inception by Jersey Advocate Stephen Baker, Baker & Partners has expanded from Jersey into the Cayman Islands, London and BVI and now employs over 50 people. Managing Partner, Stephen Baker commented: “This is an exciting time for the firm as we continue to grow our offices globally. Jennifer has been involved in cases of significant Cayman and international interest spanning a number of industries from investments funds and banking and finance to petrochemicals and commercial real estate. I’m delighted she has made the move to Baker & Partners. Tara is an accomplished lawyer with invaluable expertise, and I look forward to working with her. It has been a great year to celebrate and reflect on our achievements over the past 20 years, and to build the firm to be ready for the next 20. I have no doubt that Jennifer and Tara will play a key role in our continued success for clients.” For over 20 years, Baker & Partners has been at the forefront of some of the most complex and high value offshore commercial and trust litigation. Baker & Partners is unique among offshore law firms in being led by a partnership of very experienced courtroom advocates who have between them conducted a very large number of trials in England, Jersey, the Cayman Islands and the BVI.  

Leading offshore law firm Baker & Partners has welcomed Fleur O’Driscoll as Partner.  This appointment comes at a time when the firm is increasingly supporting clients in Asia with disputes involving significant offshore jurisprudence.  Fleur, who has spent the last 14 years in either the Cayman Islands or Asia, is qualified in both the Cayman Islands and the British Virgin Islands and has experience of large-scale commercial work and cross-border insolvency in both jurisdictions. The addition of Fleur to the team follows the appointment of Tara Liao as Counsel in 2024 and illustrates the firm’s commitment to existing and future clients in Asia. Fleur has spent extensive time in the Asia-Pacific region, including mainland China, since 2017, building on her experience living and working in the Cayman Islands since 2011. Fleur’s practice includes both commercial litigation and contentious insolvency mandates. She is experienced in acting for companies with regards to section 238/dissenter fair value claims and in winding up proceedings for Cayman incorporated, listed companies. She has acted in a number of listed company disputes and proxy battles, including Convoy Global, Fang Holdings Limited and Global Cord Blood Corporation. Her previous experience also includes acting for the liquidators of China Evergrande Group, the world’s most indebted property developer with liabilities in excess of US$300 billion. Fleur’s appointment marks the continued growth of Baker & Partners and is because of continued client demand and complex offshore instructions covering restructuring, insolvency and commercial litigation matters. Managing Partner, Stephen Baker commented: “Increasingly, our clients in Asia want to access litigators in their time zone with an in depth understanding of their local needs, alongside the appropriate credentials and track record in Cayman Islands and BVI cross-border disputes. Fleur’s expertise in this area is firmly established and I am delighted that she has joined us to assist with our growth aspirations.” Partner, Fleur O’Driscoll added “I am very much looking forward to playing a part in Baker & Partners future growth, leveraging my offshore experience and network to expand the firm's capabilities and relationships. Baker & Partners is a specialist, independent dispute resolution firm so I was drawn to the conflict-free and independent model they have in place. There is a commitment to excellence here, with the firm consistently ranked as a top offshore law firm and, as a result, I am delighted to join the firm as a partner, working alongside fantastic teams in the Cayman Islands, BVI, London and Jersey.” For over 20 years, Baker & Partners has been at the forefront of some of the most complex and high value offshore commercial and trust litigation. Baker & Partners is unique among offshore law firms in being led by a partnership of very experienced courtroom advocates who have between them conducted a very large number of trials in England, Jersey, the Cayman Islands and the BVI. Press contact: Kezia Lightfoot, Switch Digital [email protected] +44 (0)1534 708646 About Baker & Partners Baker & Partners is a specialist independent offshore litigation and dispute resolution law firm, headquartered in Jersey, Channel Islands with offices in the Cayman Islands, the British Virgin Islands and London. Since 2003, Baker & Partners has been at the forefront of some of the most complex and high value offshore commercial, trust, and asset recovery litigation.

Baker & Partners in conjunction with Baker Regulatory Services Limited have successfully negotiated Jersey’s first deferred prosecution agreement following the introduction of the Criminal Justice Deferred Prosecution Agreements (Jersey) Law 2023 that came into force on the 3rd of March 2023. This is the first deferred prosecution agreement in Jersey and was ratified by the Royal Court. Given that the case will act as a template for future cases the Royal Court issued a comprehensive judgment setting out why it believed the case met the legal thresholds for a deferred prosecution agreement and endorsed the content of the agreed statement of facts and the level of financial penalty agreed between the entity and the Attorney General. Read the full judgment here. So, what is a DPA and the process for securing such an agreement? A Deferred Prosecution Agreement (“DPA“) is an agreement reached between the Attorney General and a corporate entity which could be prosecuted for specific offences including breaches of the Money Laundering (Jersey) order 2008. The agreement is subject to approval by the Royal Court. It is a discretionary tool which enables a corporate to make full and carefully structured reparation for its conduct and avoid the damaging consequences of a conviction. A corporate that enters into a DPA with the Attorney General may avoid a complex, lengthy and costly trial. A DPA can also have a significant adverse impact on a business and such drawbacks need to be considered and discussed with a client before embarking on the process. Attorney General guidance The Attorney General issued helpful and high-level guidance setting out the process for securing a deferred prosecution agreement. The Royal Court must be satisfied that the DPA is in the interests of justice and that the terms are fair, reasonable and proportionate. The effect of the DPA is that a prosecution is suspended for a defined period provided the corporate meets certain specified conditions. A DPA is an exceptional criminal justice tool and is not a routine measure. In the event that the terms of the DPA are breached the proceedings can be revived. All DPAs must start with a self-report that is compliant with the Law.  Any breaches identified in a self-report must be supported with evidence of the breach. The contents of the self-report are private and confidential. Once the Entity has compiled an acceptable and comprehensive self-report in accordance with the guidelines, the Attorney General is obliged to carry out a determination as required in Article 5 (1). No determination will commence unless the Entity undertakes to meet the costs of the Attorney General. The quality of the report is key to securing the Attorney General’s approval to enter into DPA negotiations. Next steps after an agreement Once such agreement has been secured the next step and a key part of the process is negotiating the content of an agreed statement of facts. The statement of facts will ultimately represent a full public record of the wrongdoing in which the Entity has engaged. The guidance issued by the Attorney General states that “The public are entitled to a full statement of the facts in order to understand why the Entity is not being prosecuted”. The following standards apply to a statement in Article 3 (1) (b): The particulars relating to each alleged offence must be clearly set out. The statement must give details of any financial gain or loss, with reference to key documents. Mitigation or explanations for misconduct should not be included, save where remediation steps have been taken since the self-report or where it is necessary to explain a complex programme of remediation. The Entity should take care to avoid assertions relating to matters wholly outside the knowledge of the Attorney General or irrelevant matters of fact that would not make a material difference to any financial penalty Where the mens rea for particular offences requires alternative states of mind (intention or recklessness, knowledge or suspicion), the Entity must make it clear which applies to the misconduct alleged in the indictment and the Attorney General must agree which applies before any statement of facts is agreed. There is no requirement for formal admissions of guilt in respect of the offences alleged in the indictment. However, it will be necessary for the Entity to admit the contents and meaning of key documents referred to in the statement of facts. Where admissions are made, these should be clearly stated and explained. If possible, they should mirror the misconduct alleged in the indictment. The statement of facts will explain that in the event the DPA proceedings are terminated, and the Entity is subsequently prosecuted for the alleged offences in the self-report or, where the Entity, for example, misled the Attorney General during DPA proceedings the statement of facts is admissible against the Entity in those subsequent criminal proceedings. Financial Penalty Any financial penalty must be broadly comparable to a fine that the Royal Court could have imposed upon an Entity if had pleaded guilty to all of the offences in the Indictment. The following will normally be requirements of the DPA: A financial penalty. that the DPA relates only to the offences particularised in the counts of the draft indictment. an undertaking provided by the Entity that the information provided to the Attorney General throughout the DPA negotiations and upon which the DPA is based does not knowingly contain inaccurate, misleading or incomplete information relevant to the conduct the Entity has disclosed in its self-report or at any stage to the Attorney General; a requirement on the Entity to notify the Attorney General and to provide where requested any documentation or other material that it becomes aware of whilst the DPA is in force which an Entity knows, or suspects would have been relevant to the offences in the draft indictment. the payment of the reasonable costs of the Attorney General; and Co-operation with any investigation into the alleged offence(s). Royal Court Approval The Royal Court is required to approve the DPA in its final form. The Attorney General is likely to bring to the Court’s attention the Entity’s conduct and the extent of its cooperation during the DPA process. In the first DPA the excellent level of cooperation from the entity was recognised in the Court judgment and by the Attorney General. Unlike other jurisdictions, the appointment of an independent monitor is not optional and represents an essential part of the process. The content of the DPA must provide for the appointment of such a monitor and is subject to approval by the Court. The scope of the appointment is negotiated during the DPA process. The entity incurs the cost of the appointment that the update reports that the Monitor will be expected to make during the term of the appointment. The Attorney General may make an application to the Court if, at any time while a DPA is in force, he has reasonable grounds to suspect that the entity has failed to comply with the terms of the DPA. Factors which may influence the exercise of the Attorney General’s discretion under Article 10 include the contents and findings of the reports made by the independent monitor. DPA Advice The first DPA case creates the foundations for future settlements, and it is clear from the judgment that the prospect of a DPA should, wherever possible, be explored before any entity is placed under formal investigation. If you are considering seeking a deferred prosecution agreement and would like to discuss the benefits and drawbacks of a DPA contact either Barry Faudemer or Simon Thomas.