International Business Companies Act
February 2012

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    In a recent decision, the Supreme Court of the Bahamas clarified amendments made to the International Business Companies (Amendment Act) 2010.

    The Court held that there is no statutory bar on the Applicant when applying for the restoration of an International Business Company ('IBC') even though the IBC was struck off prior to the commencement of the IBC Act of 2000. *

    Amendments made to the IBC Act in 2010 stipulate that notwithstanding that a company has been struck off the Companies Register for non-payment of fees for a period exceeding five years, an application could still be made to the Court for the IBC to be restored, and upon restoration, the name of the company shall be deemed never to have been struck off the register.

    The recent decision considered the case of Tenesheles Trust et al v BDO Mann Judd et al [2009] 2 BHS J. No. 17 which held that under the IBC Act of 2000 if an IBC had been struck off the register of companies for non-payment of fees the Registrar of Companies had no power to restore the Company.  Following the Tenesheles Trust case, the 2010 Act amended Sections 165, 169 and 176 of the IBC Act of 2000 and repealed and replaced Section 166 of the 2000 Act.

    As a result of these amendments, the power to restore an IBC is retroactive, and has the effect of saving all IBCS struck off the Register between the years 2000 and up until the commencement of the 2010 Act.

    Furthermore, with respect to IBC's struck off before the commencement of the 2000 Act, because the transitional provision in Section 196 (2) of the 2000 Act provides that, "All benefits accruing to any International Business Company registered in The Bahamas prior to the commencement of this Act shall not be affected by the coming into force of this Act"  the entitlement to be restored under the 1989 Act does not expire despite the commencement of the 2000 Act which repealed and replaced its predecessor.

    In conclusion, Section 166 of the IBC Act 2010 is retroactive and is deemed to have come into force at the time of the commencement of the IBC Act of 2000.  Thus, Companies struck off under the IBC Act of 1989 may too apply to be restored to the Companies Register so long as the IBC Act 2000 commenced prior to the expiry of 3 years from the date that the Company was struck off under the IBC Act of 1989 see In the Matter of the International Business Companies Act 2000 and In the Matter of Benton Management Ltd.  And the Registrar General COM/com/00031 of 2011.

    The case of Tenesheles Trust et al v BDO Mann Judd et al [2009] 2 BHS J. No. 17 was argued by Ms. Metta MacMillan-Hughes of LennoxPaton, while the decision of In the Matter of the International Business Companies Act 2000 and In the Matter of Benton Management Ltd.  And the Registrar General COM/com/00031 of 2011 was argued by Miss. Sophia T. Rolle of LennoxPaton.

    *In the Matter of the International Business Companies Act 2000 and In the Matter of Benton Management Ltd. And the Registrar General COM/com/00031 of 2011

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