1. the appointment of inspectors will not be made "as of right" upon the application of a dissentient shareholders (see In re Mercantile Finance), nor is it appropriate for an examination to be ordered "merely to satisfy disgruntled shareholders that there is no legitimate cause for complaint";
   
   
2. whether it is appropriate to appoint inspectors will depend upon the facts of the particular case: "the determination by the [Cayman] Court as to whether the facts in a particular case are sufficiently serious to warrant such an order and whether the [Cayman] Court should exercise its discretion to appoint inspectors is a particularly fact-sensitive issue, which will vary depending on the circumstances";
   
   
3. the appointment of inspectors is "a serious step" and the Cayman Court should "balance the competing interests of the parties and exercise its discretion in a principled way". Parker J noted that the appointment of inspectors can have serious reputational implications on the company and the applicant will need to show they have a "good reason" for requiring an investigation;
   
   
4. an order for the appointment of inspectors (on a contested basis) should only be made where there is "a strong likelihood, well founded on a solid and substantial basis, of serious misconduct and/or mismanagement, or concealment" relating to the conduct, management and/or operation of the company based on "undisputed facts". A mere “feeling” that something is wrong or that there might be something that is dishonest or improper will not suffice; and
   
   
5. relevant considerations will include whether:

• the applicant has sought an explanation (of the issues the subject of the proposed inspection) from the directors of the company and such explanation has not been forthcoming and/or the directors have concealed facts from the shareholders;

• the application is being pursued for a genuine reason (i.e. not for a collateral or improper purpose);

• some useful object will be achieved by the appointment of inspectors; and

• the applicant has some other available remedy.

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The Beneficial Ownership Secure Search System (Amendment) (No.2) Act, 2021 (“Amendment Act”) was gazetted in the BVI on 31 December 2021 and came into force on 1 January 2022. The Amendment Act amends the BVI’s Beneficial Ownership Secure Search System Act 2017 (“BOSS Act”).

The BOSS Act is the BVI’s key legislation relating to the confidential reporting of beneficial ownership (“BO”) information to regulators. Since the BOSS Act’s implementation in 2017, it has also come to include economic substance (“ES”) information reporting in connection with the Economic Substance (Companies and Limited Partnerships) Act 2018 (the “ESA”). The BOSS Act also covers the circumstances in which BO and ES information may also be spontaneously exchanged with overseas competent authorities under the OECD substantial activities standard and related guidance (“OECD Guidance”).

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