Section 2
of International Business Companies Order, 2000
Section 2
(1)
In this Order, unless the context otherwise requires –
“approved auditor” means a person approved by the Authority under section 95(4);
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“Articles” means the Articles of Association or other constituent documents of a company incorporated, registered or converted under Parts III, XI or XII respectively;
“audit period” means the period in respect of which the financial statements of a company are made up;
“Authority” means the Autoriti Monetari Brunei Darussalam established by the
Autoriti Monetari Brunei Darussalam Order, 2010;
“certificate of due diligence” means a certificate completed and filed by a registered agent under any of sections 10, 50, 134(2)(g) or 144(1)(f);
“the Court” means the High Court or an Intermediate Court;
“charge” includes a debenture, mortgage and any agreement to give or execute a debenture, charge or mortgage;
“Companies Act” means the Companies Act (Chapter 39);
“DCC” means a company incorporated as, or converted into, a DCC in accordance with Part XIIA;
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“debenture” includes debenture stock, bonds and other debt securities or obligations of a company whether constituting a charge on the assets of a company or not and includes the right or option to acquire debt obligations;
“director” includes an alternate director and any person occupying the position of a director by whatever name so called;
“domestic company” means a company incorporated or registered under the
Companies Act (Chapter 39);
“FIC” means a foreign international company registered under Part XI;
“foreign company” includes a company or other body incorporated or registered outside Brunei Darussalam;
“foreign international company” means a foreign company registered under Part
XI;
“IBC” means an international business company incorporated under Part III or converted under Part XII;
“international trust” shall have the meaning ascribed thereto in section 3 of the
International Trusts Order, 2000;
“limited by shares” and “limited by guarantee” shall be construed in accordance with section 5(3);
“limited life company” means an IBC which complies with section 8(1)(f);
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“member” means a person who holds shares in a company and, in the case of a company limited by guarantee, any person who is liable to contribute to the assets on a winding-up;
“Memorandum” means the Memorandum of Association of a company or any analogous constituent documents however described;
“the Minister” means the Minister of Finance;
“person” includes, as well as an individual, any company or association or body of persons, corporate or unincorporate, including a trust notwithstanding that a trust lacks a separate legal personality;
“preference share” means a share in an IBC entitling the holder to any preference over holders of other classes of shares, including without limitation any preferential entitlement upon liquidation, or in respect of payment of dividend or other payment or right conferred including voting rights;
“prescribed” means prescribed by regulations made under section 164;
“Register” means the Register of International Business Companies maintained under section 11, and references to “registered” and “registration” shall be construed accordingly;
“register of members” means the register of members of an IBC limited by guarantee which is required by section 47;
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“registered agent” in relation to an IBC or FIC, means a person duly licensed to conduct international companies management business under the Registered
Agents and Trustees Licensing Order, 2000 which is the registered agent for the time being of that IBC or FIC and where the context so admits includes a wholly-owned subsidiary of a registered agent authorised under section 3(3) of the Registered Agents and Trustees Licensing Order, 2000;
“Registrar” means such person as is appointed by His Majesty the Sultan and
Yang Di-Pertuan as the Registrar of International Business Companies for the purposes of this Order;
“relevant modification” shall be construed in accordance with subsection (2);
“resident in Brunei Darussalam” means a person ordinarily residing in Brunei
Darussalam or being a company or other body corporate or unincorporated, organised under the laws of Brunei Darussalam;
“resolution” in relation to the directors or a committee of directors of an IBC, shall be construed in accordance with subsection (3) and, in relation to the members of an IBC or any other company, shall be construed in accordance with subsection (4);
“75 per cent resolution” in relation to the members of an IBC or any other company, shall be construed in accordance with subsection (5);
“securities” includes shares, debt obligations of every kind, and options, warrants and rights to acquire debt obligations;
“series”, in relation to securities, means a division of a class of security;
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“shares” means shares in the capital of a company and (where the content so admits) includes stock, units, options, warrants, rights to acquire shares and dedicated shares;
“surplus” in relation to a company, means the excess of net assets of the company over its issued capital;
“treasury shares” means shares of a company that were previously issued but were repurchased, redeemed or otherwise acquired by the company and not cancelled;
“written law” includes all Acts, Enactments and Proclamations, and subsidiary legislation, or any part thereof, but does not include any Act of Parliament nor any Order of Her Britannic Majesty in Council, Royal Charter or Royal Letters
Patent nor any law which no authority in Brunei Darussalam is empowered to amend.
(2)
In relation to any provision of this Order, the expression “subject to any relevant modification” means subject to any modifications, limitations or provisions in the
Memorandum or Articles.
(3)
Unless otherwise defined in the Articles, in this Order the expression
“resolution” in relation to directors of an IBC, means –
(a)
a resolution approved at a duly constituted meeting of directors or of a committee of directors of the IBC, by affirmative vote of a simple majority, or such larger majority as may be specified in the Articles, of the directors present at the meeting who voted and did not abstain; or
(b)
a resolution consented to in writing by a simple majority, or such larger majority as may be specified in this Order or in the Articles, of all the directors or, as the case may be, of all the members of the committee,
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but where a director is given more than one vote in any circumstances, he shall in those circumstances be counted for the purposes of establishing majorities by the number of votes he casts.
(4)
Unless otherwise defined in the Articles, in this Order the expression
“resolution”, in relation to the members of an IBC or any other company, means –
(a)
a resolution approved at a duly constituted meeting of the members of the company by the affirmative vote of a simple majority, or such larger majority as may be specified in the Articles, of those votes of the shares which were present at the meeting and entitled to vote on the subject matter of the resolution and which were voted and did not abstain; or
(b)
a resolution approved at a duly constituted meeting of the members of the company by the affirmative vote of –
(i)
a simple majority, or such larger majority as may be specified in the Articles, of those votes of each class or series of shares which were present at the meeting and entitled to vote on the subject matter of the resolution as a class or series and which were voted and did not abstain; and
(ii)
a simple majority, or such larger majority as may be specified in the Articles, of the votes of the remaining shares so entitled to vote which were present at the meeting and which were voted and did not abstain; or
(c)
a resolution passed or consented to in writing by a simple majority, or such larger majority as may be specified in the Articles, of the votes of members entitled to vote on the subject matter of the resolution; or
(d)
a resolution passed or consented to in writing by –
(i)
a simple majority, or such larger majority as may be specified in the Articles, of the votes of each class or series of shares entitled to vote on the subject matter of the resolution as a class or series;
and
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(ii)
a simple majority, or such larger majority as may be specified in the Articles, of the votes of the remaining shares so entitled to vote.
(5)
In this Order, the expression “75 per cent resolution”, in relation to the members of an IBC or any other company, means a resolution which would fall within one of paragraphs
(a)
to (d) of subsection (4) if for the words “simple majority”, in each place where they occur in those paragraphs, there were substituted the words “75 per cent majority”.
(6)
Any reference in this Order to voting in relation to shares shall be construed as a reference to voting by members holding the shares except that it is the votes allocated to the shares that shall be counted and not the number of members actually voting; and a reference to shares being present at a meeting shall be given a corresponding construction.
(7)
In this Order, a company is a subsidiary of another company if –
(a)
it is controlled by –
(i)
that other company;
(ii)
that other company and one or more companies each of which is controlled by that other company; or
(iii)
two or more companies each of which is controlled by that other company; or
(b)
it is a subsidiary of a subsidiary of that other company.
(8)
In this Order, a company is the holding company of another only if that other company is its subsidiary.
(9)
In this Order, one company is affiliated with another company only if one of them is the subsidiary of the other or both are subsidiaries of the same company or each of them is controlled by the same person.
(10)
In this Order, a company is controlled by another company or person or by two or more companies only if –
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(a)
shares of the first-mentioned company carrying more than fifty per cent of the votes for the election of directors are held, otherwise than by way of security only, by or for the benefit of that other company or person or by for the benefit of those other companies; and
(b)
the votes carried by such shares are sufficient, if exercised, to elect majority of the board of directors of the first-mentioned company.