NEWS | MKS Head of Firm calls for BVI civil asset forfeiture law

A straightforward revamp of BVI business law would help combat financial crime and boost the territory’s reputation, says Martin Kenney.

Martin Kenney, Head of Firm at Martin Kenney & Co (MKS), is calling for a new civil asset forfeiture law and tweaks to the BVI’s existing business legislation to help combat financial crime and boost the territory’s reputation.

These moves could also potentially put tens of millions of dollars in the government’s coffers, argues Kenney.

“Pass a law that allows [the government] to get in the game of forfeiting — taking the proceeds of corruption — to the extent that some small number of BVI companies are being used for these kinds of grandly illicit purposes.”

Speaking exclusively to The BVI Beacon newspaper, Kenney said that civil asset forfeiture — through which law enforcement can seize property from those suspected of criminal activity without necessarily securing a conviction against them — could be used to target bad actors from other countries who misuse BVI companies.

The new law should include provisions similar to sections of the UK’s Proceeds of Crime Act dealing with unexplained wealth orders.

“All this is is a way in which a statute could be enacted, called the Civil Asset Forfeiture Act, coupled with an unexplained wealth order jurisdiction, to allow our courts and our attorney general to move forward and seek the forfeiture of the proceeds of crime, corruption and fraud happening abroad but using BVI companies either to take money illicitly or hiding it.”

Previously proposed law

The reforms were first suggested as part a proposed bill that Martin Kenney & Co helped draft about 12 years ago at the request of the then-governor.

Such legislation has been occasionally promised in successive governments’ annual Speeches from the Throne, including in January 2023, but never enacted. Kenney added that the proposed law could bring a significant boost to the government’s treasury.

“Even in a small case, $40 million recovery would be 10 percent of our public budget. And why not? What does it cost to pass the statute?”

Fraud exception

A related reform recommendation would tweak existing legislation.

“We just want [the government] to create a fraud exception to the notion that a company after a certain period of time can never be resurrected or restored. It’s a problem for older cases where you need to sue directors for dishonest breach of trust. If you can’t resurrect the company, then the victims have no legal standing to sue the bad director.”

Kenney said such moves would boost the BVI’s image on the world stage.

“It would help to burnish our reputation — that we are not here as a pirate’s cove or that we are not here to help ne’er-do-wells and miscreants to steal money and hide it. We are here with a legal system that’s rational, robust and provides access to justice.”

Martin Kenney and MKS recently organised and hosted a unique anti-fraud conference in the BVI, which brought together around 100 elite lawyers from asset recovery network ICC Fraudnet. The conference was addressed by the Hon. Lorna Smith and headline-sponsored by BVI Finance.