British Virgin Islands
| Jurisdiction | United Kingdom |
| Pages | 355-376 |
| Author | Arabella di Iorio |
22
BRITISH VIRGINISLANDS
Arabella di Iorio
A. Jurisdiction 22.01
Introduction 22.01
e Hague Convention on the Law
Applicable to Trusts and on their
Recognition 22.05
Conicts of Laws Rules 22.10
Additional Conventions 22.15
B. Recognition and Enforcement of
Foreign Judgments and Orders 22.16
Letters Rogatory/ Letters of Request 22.20
Mutual Legal Assistance Treaties 22.22
C. Reserved Powers, Protectors, and
Managing Trustees 22.23
D. Asset Protection and Insolvency 22.27
E. Appointment, Removal, and
Retirement of Trustees and
Protectors 22.28
Pursuant to Statute 22.31
At Common Law 22.33
Indemnities 22.34
F. Rights to Information 22.36
Condentiality Statutes 22.36
Statutory Provisions in Relation to
Rights to Information 22.42
VISTA Trusts 22.44
Purpose Trusts 22.45
G. Guidance to Trustees, Protectors,
and Enforcers 22.47
Statutory Provisions 22.47
Administration Actions 22.49
H. Involvement of Charitable Interests 22.51
I. Alternative Dispute Resolution 22.54
J. Procedural Issues 22.55
e Court Structure 22.55
e Local Bar 22.56
Representation and Capacity 22.57
Appea ls 22.58
Costs 22.61
K. Special Legislation 22.62
VISTA Trusts 22.62
L. Non- charitable Purpose Trusts 22.77
Private Trust Companies 22.81
M. Variation of Trusts 22.84
A. Jurisdiction
Introduction
e legal system of the British Virgin Islands is a common law system based on the English
model, comprising statute law and binding case precedents. e principles of English
common law and equity apply in the BVI (subject to modication by BVI statutes) pursuant
to the Common Law (Declaration of Application) Act (Cap 13)and the Eastern Caribbean
Supreme Court (Virgin Islands) Act (Cap 80)1 respectively. e general principles of trust
law are based on English law.
1 Originally the West Indies Associated States Supreme Court (Virgin Islands) Ordinance, its name was changed
by amendment in 1993.
22.01
Arabella di Iorio, British Virgin Islands In: International Trust Disputes. Second Edition.
Edited by: Steven Kempster, Morven McMillan, Alison Meek, Oxford University Press (2010).
© Oxford University Press. DOI: 10.1093/oso/9780198832737.003.0022
356 :
Litigation is conducted on the adversarial system, and the Civil Procedure Rules 2000 (as
amended) are modelled on the current English Civil Procedure Rules.2
e following statutes and statutory instrument contain the principal provisions of BVI
trust law :
(a) e Trustee Act 1961 (as amended in 1993, 2003, and 2013)3 (‘the Act’);
(b) e Virgin Islands Special Trusts Act 2003 (as amended in 2013);
(c) e Recognition of Trusts Act (Overseas Territories) Order 1987; and
(d) e Trustees’ Relief Act 1877.
Class 1 licensed trust companies may act as trustees under a will or settlement, or as an executor
or administrator of a deceased person (subject to certain qualifying conditions including
having a place of business in the BVI and satisfying the relevant capital requirements) pursuant
to the Trust Corporation (Probate and Administration) Act 1947 (as amended in 2013).
e Hague Convention onthe Law Applicable toTrusts and
ontheirRecognition
Most of the provisions of the Hague Convention on the Law Applicable to Trusts and on their
Recognition form part of BVI law. Section 2 of the Recognition of Trusts Act 1987 (Overseas
Territories) Order 1989 extended the majority of the provisions of the Recognition of Trusts
Act 1987 to the BVI. Legislation was introduced in 1993 and 20044 to address some of the
important issues that are excluded from the Hague Convention, notably Art 4, which states
that the Convention does not apply to preliminary issues relating to the validity of wills or of
other acts by virtue of which assets are transferred to the trustee. is is dealt with at para-
graph 22.07 below.
In the absence of a clause in the trust deed providing for the trust to be governed by BVI
law, its proper law will be that of the jurisdiction which may reasonably be inferred from the
terms of the trust as being its proper law. If no such inference can be drawn, then the proper
law will be that of the jurisdiction with which the trust, when created, had the closest con-
nection. Important factors in assessing that connection will be:
(a) the place of the administration of the trust, as designated by the settlor;
(b) the situs of the assets of the trust;
(c) the place of residence or business of the trustee; and
(d) the objects of the trust and the place or places where those objects are to be fullled.5
e proper law may be changed to or from that of the BVI, however in the case of a change
from BVI law, only if the new proper law recognizes the validity of the trust and the re-
spective interests of the beneciaries.6 Flee clauses are expressly permitted.7
2 e Civil Procedure Rules have been modied with regard to commercial court cases as explained in
paragraph 22.51.
3 e Act was based on the English Trustee Act 1925 and on the Variation of Trusts Act 1958 and was signi-
cantly updated in 1993, 2003, and 2013.
4 Trustee (Amendment) Act 1993 and the Trustee (Amendment) Act 2003.
5 Trustee Act 1961 (as amended), s 80.
6 Ibid s 81(1).
7 Ibid s 81(3).
22.02
22.03
22.04
22.05
22.06
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