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Off-Shore Banking Amendment Act


Published: 1998

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1998, No. 28
Off-Shore Banking Amendment 1998, No. 28 2

An Act to amend the Off-Shore Banking Act 1987.
(16 July 1998)
BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:-
1. Short title and commencement-(1) This Act may be
cited as the Off-Shore Banking Amendment Act 1998 and shall
be read together with and deemed part of the Off-Shore
Banking Act 1987 (hereinafter referred to as the principal Act).
(2) This Act shall come into effect on the day after the date
of assent (in this Act referred to as the commencement date).
(3) Any reference in this Act to an enactment is, unless the
context otherwise requires, a reference to that enactment as
amended, extended, re-enacted, or applied by or under any other
enactment, including this Act.
2. Interpretation - Section 2 of the principal Act is
amended by-
(a) Inserting before the term “Banking business” and its
definition, the following term and definition:

“Authorised person” means any person authorised by the
Inspector pursuant to section 3A (4).

(b) Inserting after the term “Company” and its
definition, the following terms and definitions:

“Court” means the Supreme Court of Samoa;
“Director” means any person occupying the position of
director by whatever name called and includes any
person in accordance with whose directions and
instructions the directors of a company are
accustomed to act or who has been held out by a
company to be a director;

(c) Inserting after the term “Holder” and its definition,
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the following terms and definitions;

“Inspector” means the Inspector of Off-Shore Banks
appointed under section 3A and includes any officer
or employee in his department acting under his
authority:
“Judge” means a Judge of the Supreme Court of Samoa:

(d) Inserting after the term “Licensee” and its
definition, the following term and definition;

“Magistrate” means a Magistrate who is appointed under,
or whose appointment is continued by, the
Magistrate’s Courts Act 1969:

(e) Inserting in the definition of Non-resident after the
words “registered under the Trustee Companies Act
1987, the words “and any international trust
registered under the International Trusts Act 1987
and any successor legislation and any international
partnership or limited partnership registered under
the International Partnership and Limited
Partnership Act 1998;
(f) Inserting after the term “Off-shore banking business”
and its definition, the following term and definition;

“Officer”, in relation to a licensee, includes any director,
secretary or employee of the licensee:

(g) Repealing the term “Registrar” and its definition.

3. Inspector of Off-Shore Banks - The principal Act is
amended by inserting after section 3 the following new section:

“3A. Inspector of Off-Shore Banks-(1) The Inspector of
Off-Shore Banks shall be appointed by the Minister for the
regulation and supervision of licensees.
(2) It is the duty of the Inspector -
Off-Shore Banking Amendment 1998, No. 28 4
(a) To maintain a general review of off-shore banking
practice in Samoa;
(b) Whenever he thinks fit or when so required by the
Minister, to examine by way of the receipt of
regular returns or in such other manner as he
thinks necessary the affairs or business of any
licensee for the purpose of satisfying himself that
the provisions of this Act are being complied
with and that the licensee is in a sound financial
position and whenever he thinks fit or when so
required by the Minister, to report to the Minister
the results of every such examination;
(c) When required by the Minister, to assist in the
investigation of any offence against the laws of
Samoa which he has reasonable grounds to
believe has or may have been committed by a
licensee or by any of its directors or officers in
their capacity as such;
(d) To examine audited annual accounts, statements and
returns forwarded to him under section 19 and 20
and to report on them to the Minister whenever
he thinks fit or when so required by the Minister;
and
(e) To examine and make recommendations to the
Minister with respect to applications for licences
or licence renewals.
(3) In the performance of his functions under this Act and,
subject to section 25, the Inspector is entitled at all reasonable
times-
(a) To have access to such books, records, vouchers,
documents, cash and securities of any licensee;
(b) To request any information, matter or thing from
any person who he has reasonable grounds to
believe is carrying on off-shore banking business
in contravention of section 3; and
(c) To call upon any officer of the licensee for such
information and explanation,
as the Inspector may reasonably require for the purpose of
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enabling him to perform his functions under this Act:
Provided that the Inspector shall only have access to the
name or title of an account of a depositor of a licensee under the
authority of an order of a Judge of the Court made on the
ground that there is no other way of obtaining the information
required by him.
(4) The Inspector, with the approval of the Minister, may,
in writing, authorise any other person to assist the Inspector in
the performance of his functions under this Act.
(5) If it appears to him that there is reasonable grounds for
suspecting that an offence against this Act has been or is being
committed by any person, the Inspector may, with the approval
of the Court, take such action as he considers necessary in the
interests of the depositors or other creditors of the licensee
concerned, to preserve any assets held by that licensee.
(6) Whoever fails to comply with any requirement under
subsection (3) by the Inspector or any authorised person
commits an offence against this Act.”

4. Directions - The principal Act is amended by inserting
after section 3 the following new section:

“3B. Directions - The Inspector may, from time to time,
issue, by notice to all licensees, directions in relation to the
implementation of the provisions of this Act. Failure by any
licensee to comply with such directions shall be taken into
consideration when any action is proposed to be taken under
section 33.”

5. “A” Class Off-Shore banking Licences. Section 6 of
the principal Act is amended by-(1) Repealing subsection (3)
and substituting the following subsection:

“(3) The holder of an “A” class off-shore banking licence
may apply to the Central Bank of Samoa to establish a domestic
company to transact on-shore banking business pursuant to the
Financial Institutions Act 1996.”
(2) Inserting in subsection (4) after the words “of an
Off-Shore Banking Amendment 1998, No. 28 6
“A”class off-shore banking licence” the words “or the holder of
a “B” class licence issued pursuant to section 7 (1) (a) who has
obtained the permission of the Minister to establish, maintain
and operate a business office of the licence holder in Samoa”
(3) Inserting in subsection (5) after the words “an “A”
class off-shore bank”, the words “or licensed as a “B” class off-
shore bank pursuant to section 7 (1) (a) and who has obtained
the permission of the Minister to establish, maintain and operate
a business office of the licence holder in Samoa.”
(4) Repealing subsection (6) and substituting the following
new subsections:

“(6) An “A” class off-shore banking licence shall, subject
to this Act, be valid for a period of two years from the date of
granting and may be renewed for further periods of two years
each.
(7) Any “A” class off-shore banking licence issued prior to
the commencement date of this Act shall be valid until the
expiration date specified in the said licence. Such licence may
then be renewed for further periods of two years each.”

6. “B” Class Off-Shore Banking Licences. Section 7 of
the principal Act is amended by-(1) Deleting from paragraphs
(a) and (b) of subsection (1) the word “it” wherever it appears
and substituting the words “the holder”.
(2) Inserting in subparagraph (iii) of paragraph (a) of
subsection (1) after the words “such specified business” the
word “only”.
(3) Deleting from subparagraph (ii) of paragraph (b) of
subsection (1) the words “only from those persons specified in
the licence” and substituting the words “only from those
persons or entities whose names are listed in the undertaking
accompanying the licence application.”

7. Consequential Amendments - Sections 8, 11, 14, 17,
19, 21, 22, 24, 25, 26, 31, 34, 45 and 46 of the principal Act are
amended by deleting the word “Registrar” wherever it appears
and substituting the word “Inspector”.
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8. Application for Licence-(1) Paragraph (c) of
subsection (1) of section 8 of the principal Act (as amended by
section 7 of this Act) is amended by inserting after the words
“as the Minister”, the words “or the Inspector”.
(2) Subsection (2) of section 8 of the principal Act (as
amended by section 7 of this Act) is amended by inserting after
the words “as the Minister”, the words “or the Inspector”.

9. Licence Renewal. Section 11 of the principal Act is
amended by-(1) Repealing subsection (1) and substituting the
following:

“(1) An application by a licensee for renewal of a licence
granted under this Act must be received by the Inspector not
later than two months prior to the expiration of the said
licence.”

(2) Inserting in paragraph (b) of subsection (2) after the
words “as the Minister”, the words “or the Inspector”.
(3) Inserting after paragraph (b) of subsection (2) the
following new paragraph -

“(c) The prescribed annual licence fee and any penalty
fees.”

(4) Deleting from subsection (3) the words “on payment of
the prescribed annual renewal fee on or before the date of
expiration of the licence”.

10. Licence not transferable - Subsection (3) of section
12 of the principal Act is amended by deleting the words
“Unless otherwise authorised pursuant to section 6 (3)”.

11. Shares not to be issued or transferred without
approval - The principal Act is amended by inserting after
section 12 the following section:

Off-Shore Banking Amendment 1998, No. 28 8
“12A. Shares not to be issued or transferred without
approval-(1) No shares in or other securities whatsoever of a
licensee shall be issued and no issued shares or beneficial
interests in shares or other securities of any licensee shall be
transferred or disposed of in any manner without the prior
written approval of the Inspector:
Provided that the Minister may exempt any licensee from
the provisions of this section, subject to such terms and
conditions, if any, as he may deem necessary.
(2) In subsection (1) of this section, the reference to shares
of any licensee being transferred or disposed of includes any
transfer or disposition that would result in any change in
beneficial ownership of the licensee.
(3) Notwithstanding the provisions of subsection (1) of this
section, the prior written approval of the Inspector shall not be
required where shares or other securities are issued to existing
shareholders on a pro-rata basis.
(4) No bearer shares or share warrants to bearer may be
issued by a licensee.”

12. Approval of Directors - The principal Act is further
amended by inserting after section 12 the following section:

“12B. Approval of Directors-(1) Unless exempted from
such a requirement by the Minister, a licensee shall, before the
appointment of a director apply to the Inspector for his written
approval of such appointment as a fit and proper director of the
licensee.
(2) Approval granted under subsection (1) -
(a) Ipso facto lapses if the director becomes bankrupt,
makes an arrangement or composition with his
creditors or is convicted of an offence involving
dishonesty;
(b) May be revoked by the Inspector with the approval
of the Minister.”

13. Certain approvals required - The principal Act is
further amended by inserting after section 12 the following new
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section:

“12C. Certain approvals required - A licensee
incorporated under the International Companies Act 1987 shall
not, without the prior written approval of the Minister -
(a) Open outside Samoa a subsidiary bank, branch
office, agency or representative office; or
(b) Change its name.”

14. Insurance Policy - The principal Act is further
amended by inserting after section 12 the following new
section:

“12D. Insurance Policy - The Minister may require a
licensee to effect a policy of insurance with an approved
insurance company against -
(a) The dishonesty of employees of the licensee;
(b) Loss of documents; and
(c) Such other risks as the Minister may stipulate,
in such amount and of such nature as the Minister determines to
be fit and proper, having due regard to the nature and type of
business carried on by the licensee; and in the event that the
insurance is withdrawn, cancelled or not renewed, the licensee
shall immediately notify the Minister and shall cease to carry on
its business until the insurance has been reinstated or replaced.”

15. Prohibited activities-(1) Subsection (1) of section 13
of the principal Act is amended by repealing paragraph (a) and
substituting the following paragraph -

“(a) Transact any banking business with any persons
other than non-residents of Samoa;”

(2) Subsection (2) of section 13 of the principal Act is
amended by -
(a) Inserting after the words “A holder” the words “of
an “A” class off-shore banking licence or a”;
(b) Inserting in subparagraph (i) of paragraph (c) after
Off-Shore Banking Amendment 1998, No. 28 10
the words “of any one of its directors,” the words
“shareholders, beneficial shareholders or
beneficial owners” and by deleting the words
“such director” and substituting the words “such
person”;
(c) Repealing subparagraph (ii) of paragraph (c) and
substituting the following paragraphs:

“(ii) to or on behalf of any firm, partnership
or company in which the licensee, or any one or
more of its directors, shareholders, beneficial
shareholders or beneficial owners, is interested
as director, partner, manager, agent, shareholder,
beneficial shareholder or beneficial owner; or to
or on behalf of any individual, firm, partnership
or company of whom or of which any one of its
directors, shareholders or beneficial shareholders
or beneficial owners is a guarantor;
(iii) For the purposes of this paragraph, a
director, shareholder, beneficial shareholder and
beneficial owner shall include the wife, husband,
father, mother, brother, sister, son or daughter of
such a person.”

(3) Section 13 of the principal Act is further amended by
inserting after subsection (3) the following subsection:

“(4) Notwithstanding subsection (3), any licensee, licensed
as at the commencement date of this Act, shall be allowed a
period of eighteen months from the said date to comply with the
amended provisions of paragraphs (a) and (c) of subsection
(2).”

16. Business presence or representation in Samoa-(1)
Subsection (1) of section 14 of the principal Act is amended by
inserting after the words “to any company”, the words
“incorporated outside Samoa or”.
(2) Subsection (2) of section 14 of the principal Act is
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amended by inserting after the words “which holds a licence
and”, the words “which is incorporated outside Samoa or”.
17. Qualified workers and management - Subsection (1)
of section 16 of the principal Act is amended by deleting
paragraphs (b) and (c) and substituting the following
paragraphs-

“(b) He has been sentenced by a Court in any country to
a term of imprisonment for an offence involving
dishonesty and has not received a full pardon for
that offence;
(c) He is or becomes bankrupt, suspends payment to or
compounds with his creditors; or
(d) He has been a director of a company which has gone
into bankruptcy or insolvency proceedings, other
than voluntary winding up proceedings.”

18. Notification of changes-(1) Subsection (1) of section
17 of the principal Act is amended by inserting after the words
“provisions of any other Act a licensee”, the words
“incorporated outside Samoa or ”.
(2) Subsections (4), (5) and (6) of section 17 of the
principal Act are amended by deleting the words “financial
institution” and “institution” wherever they appear and
substituting the word “company”.

19. Keeping of Accounting Records-(1) Subsection (1)
of section 18 of the principal Act is amended by deleting the
definition of the term “Accounting Records” and substituting
the following definition:

“Accounting records”, in relation to a company includes
such working papers and other documents and
records kept in a computer, on magnetic tape or by
means of any other storage device used in electronic
data processing by or on behalf of the company, as
are necessary to explain the methods and
calculations by which accounts of the company are
Off-Shore Banking Amendment 1998, No. 28 12
made up.”

(2) Paragraph (a) of subsection (2) of section 18 of the
principal Act is amended by inserting after the words “in
relation to such business”, the words “ and maintain such
accounting records at a location in Samoa notified to the
Inspector.”
(3) Section 18 of the principal Act is further amended by
inserting after subsection (2) the following subsection:

“(3) All licensees licensed as at the commencement date of
this Act, shall be required to maintain in Samoa all accounting
records for the two financial years prior to the commencement
date and all other subsequent accounting records.”

20. Quarterly statements and other returns-(1) Section
20 of the principal Act is amended by repealing subsection (1)
and subsection (2) and substituting the following subsections:

“(1) Subject to subsection (3) of this section, every
licensee shall, in relation to its operations in or from within
Samoa, submit to the Inspector in such form as the Inspector
may from time to time approve, the following statements,-
(a) In the case of holders of an “A” class banking
licence or of a “B” class banking licence issued
under section 7 (1) (a), not later than 21 days
after the last day of the quarter to which it
relates, a quarterly statement of assets and
liabilities, cash flow statement, profit and loss
statement and a return providing an analysis of
customers’ liabilities to the licensee in respect of
loans, advances and other assets of the licensee
at the close of the last business day of that
quarter;
(b) In the case of holders of a “B” class banking licence
issued under section 7 (1) (b), not later than 21
days after the six month period to which it
relates, a half-yearly statement of assets and
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liabilities, cash flow statement, profit and loss
statement and a return providing an analysis of
customers’ liabilities to the licensee in respect of
loans, advances and other assets of the licensee
at the close of the last business day of that half-
yearly period; and
(c) Such other returns as may be prescribed.
(2) Subject to subsection (3) of this section, the Inspector
may require a licensee to submit to him such further
information as may be necessary for the proper understanding
of any statement or return furnished by that licensee under
subsection (1) above and such information shall be submitted
within such period and in such manner as the Inspector may
require.”

(2) Subsection (4) and subsection (5) of section 20 are
amended by deleting the word “Minister” and substituting the
word “Inspector” wherever it appears.

21. Inspection - Section 21 of the principal Act is
amended by inserting after the words “during the normal office
hours of the licensee”, the words “at the registered office of the
licensee or principal office of the licensee.”

22. Supply of information-(1) Subsection (1) of section
22 of the principal Act is amended by inserting after the words
“the Minister”, the words “or the Inspector”.

23. Power of search - The principal Act is amended by
inserting after section 22 the following new section:

“22A. Power of search-(1) A Judge or Magistrate who is
satisfied by information on oath of the Inspector or authorised
person that -
(a) There is reasonable ground for suspecting that an
offence against this Act has been or is being
committed and that evidence of the commission
of the offence is to be found at any premises,
Off-Shore Banking Amendment 1998, No. 28 14
building or place or in any vehicle, vessel or
aircraft so specified; or
(b) Any books, records, vouchers, documents, cash or
securities, that ought to have been produced
under section 3A, section 21 or section 22 and
have not been produced, are to be found at any
such premises or in any such vehicle, vessel or
aircraft,
May grant a search warrant authorising the Inspector or
authorised person named in the warrant, at any time within one
month from the date of the warrant, to enter the premises
specified in the warrant or, as the case may be, any premises
upon which the vehicle, vessel or aircraft so specified may be,
and to search such premises or, as the case may be, such
vehicle, vessel or aircraft.
(2) The person authorised by any such warrant to search
any premises or any vehicle, vessel or aircraft may search every
person who is found in or whom he has reasonable grounds to
believe to have recently left or to be about to enter those
premises or that vehicle, vessel or aircraft, as the case may be,
and may seize any books, records, vouchers, documents, cash or
securities found in the possession of any such person or in such
premises or in such vehicle, vessel or aircraft; which he has
reasonable grounds for believing ought to have been produced
under section 3A, section 21 or section 22.
(3) Where by virtue of this section a person has any power
to enter any premises, or a vehicle, vessel or aircraft, he may
use such force as is reasonably necessary for the purpose of
exercising that power.
(4) Every search warrant shall be exercised by day, unless
the warrant expressly authorises the execution thereof by night.
(5) It is the duty of everyone executing any search warrant
to have it with him and to produce it if required to do so.
(6) Whosoever obstructs the Inspector or any other person
in the exercise of any powers conferred on him under this
section commits an offence against this Act.”

24. False or misleading information - The principal Act
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is further amended by inserting after section 22 the following
section:

“22B. False or misleading information - Any licensee or
any director or officer of a licensee who knowingly or wilfully
supplies false or misleading information to the Minister or the
Inspector or any authorised person commits an offence against
this Act.”

25. Official examinations - Subsection (4) of section 23
of the principal Act is amended by deleting the words “who
shall forward” and substituting the words “ who may forward”.

26. Annual Audit-(1) Subsection (1) of section 24 of the
principal Act is amended by deleting the words “true and
correct statement” and substituting the words, “true and fair
statement”.
(2) Subsection (1) of section 24 of the principal Act is
further amended by inserting after the words “whether this is
satisfactory” the following sentence:

“In addition, the auditor shall report upon whether the licensee
is carrying on business in accordance with the terms of its
licence in so far as those terms relate to financial and/or
accounting matters. The auditor shall also report whether in his
opinion, the quarterly or half-yearly returns filed by the licensee
have been completed correctly in accordance with the reporting
instructions and accurately reflect the management accounts as
prepared by the licensee.”

(3) Section 24 of the principal Act is further amended by
repealing subsection (5) and substituting the following
subsection:

“(5) For the purposes of this section, an approved auditor
is an auditor who has been approved by the Inspector and is a
registered company auditor under the provisions of the
International Companies Act 1987.”
Off-Shore Banking Amendment 1998, No. 28 16

(4) Section 24 of the principal Act is further amended by
inserting after subsection (7) the following subsection:

“(8) Notwithstanding subsection (3) of this section, any
licensee, licensed as at the commencement date of this Act,
shall be allowed a period of six months from the said date to
comply with the provisions of this section.”

27. Duties of Auditor - The principal Act is amended by
inserting after section 24 the following new section:

“24A. Duties of Auditor-(1) In carrying out an audit of the
accounts of a licensee, it shall be the duty of the auditor where
necessary to enlarge or extend the scope of his audit of the
business and affairs of the licensee and to carry out any other
examination or establish any procedure so as to give a true and
fair view of the licensee’s financial condition and results of its
operations. Any special procedure undertaken must be
disclosed in the auditor’s report.
(2) It shall further be the duty of the auditor to report
immediately to the Inspector any information relating to the
affairs of a licensee obtained in the course of an audit, if he is of
the opinion that -
(a) The licensee is insolvent or is likely to become
insolvent or is likely to be unable to meet its
obligations or is in serious financial difficulties;
(b) A criminal offence involving fraud or dishonesty
has been committed;
(c) Serious irregularities have occurred, including
irregularities that jeopardise the interest of
depositors and creditors;
(d) Losses have been incurred which substantially
reduce the capital funds of the licensee; or
(e) He is unable to confirm that the claims of creditors
are still covered by the licensee’s assets.
(3) The auditor may be required to discuss the audit
directly with the Inspector or be asked to provide additional
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information regarding the audit.
(4) The auditor shall, before disclosing any information to
the Inspector under subsection (2), take reasonable steps to
inform the licensee of his intention to disclose the information
and the nature of such information.
(5) The Inspector, may by notice in writing to a licensee,
require it to supply him with a report, prepared by its auditor on
such matters as the Inspector may determine, which may
include an opinion on asset quality, adequacy of provisions for
losses, and the adequacy of the accounting and control systems.
(6) No civil, criminal or disciplinary proceedings shall lie
against any auditor arising from the disclosure in good faith of
information to the Inspector pursuant to this section.”

28. Preservation of Secrecy - Section 25 of the principal
Act is repealed and the following section substituted:

“25. Preservation of Secrecy-(1) Except for the purpose
of the performance or exercise of his duties or functions under
this Act or when lawfully required to do so by any court of
competent jurisdiction within Samoa neither the Minister, the
Inspector nor any officials or officers thereof, including any
authorised person and any person appointed under sections 23,
32 or 33, shall disclose any information relating to any
application by any person under the provisions of this Act or to
the affairs of a licensee or of any customer of a licensee which
he has acquired in the performance or exercise of such duties or
functions under this Act.
(2) Subsection (1) shall not apply to a disclosure by the
Inspector-
(a) Necessary for the effective regulation of a licensee;
(b) In respect of the affairs of the licensee or a customer
of a licensee with the authority of the licensee or
the customer of the licensee which has been
voluntarily given, as the case may be;
(c) Where the information is already in the public
domain.
(3) The Inspector may disclose to a foreign banking super-
Off-Shore Banking Amendment 1998, No. 28 18
visory authority or any other like regulatory authority
information about the licensee, provided that -
(a) The Inspector has satisfied himself that the intended
recipient authority is subject to adequate legal
restrictions on further disclosures which shall
include the provision of an undertaking on
confidentiality;
(b) The information provided by the Inspector does not
contain any names of individual depositors or
customers of the licensee concerned; and
(c) The information is required for the purposes of
banking supervision only and is not related
directly or indirectly to the imposition,
calculation and collection of taxes or the
enforcement of exchange control regulations.”

29. Breaches of Professional Secrecy-(1) Subsection (1)
of section 26 of the principal Act is amended by inserting
before the words “Every person commits an offence”, the words
“Except as provided in section 25,”.
(2) Subsection (3) of section 26 of the principal Act is
amended by inserting after paragraph (f) the following
paragraph-

“(g) To the Inspector by the auditor or former auditor of
a licensee with respect to the audited accounts or
returns of the licensee.”

30. Profits and Dividends - Paragraph (b) of section 28 of
the principal Act is amended by deleting the words “or paid to a
depositor by a licensee” and by inserting after paragraph (b) the
following paragraph -

“(c) No income tax, nor any other direct or indirect tax
or impost shall be levied in Samoa upon any
interest paid to a non-resident depositor (other
than interest paid to a trustee company registered
under the Trustee Companies Act 1987 in their
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own right which is taxable in Samoa) by a
licensee.”

31. Suspension of Licence - Section 31 of the principal
Act is repealed.

32. Enforcement of examination findings. Section 32 of
the principal Act is amended by-(1) Inserting in subsection (1)
after the words “in a manner detrimental to” the words “the
public interest or”.
(2) Deleting paragraphs (a), (b) and (c) of subsection (1)
and substituting the following paragraphs -

“(a) Require the licensee forthwith to take such
measures as he may consider necessary in
relation to its business;
(b) Impose conditions, or further conditions, as the case
may be, upon the licence and may amend or
revoke any such condition;
(c) Require the removal and replacement of any director
or officer of the licensee;
(d) Appoint a person who, in his opinion, has had
adequate training and experience to advise the
licensee in the proper conduct of its business and
fix the remuneration to be paid by the licensee to
such person;
(e) Appoint a person to assume control of the licensee’s
affairs who shall mutatis mutandis have all the
powers of a person appointed as receiver or
manager of a business under the Bankruptcy Act
and fix the remuneration to be paid by the
licensee to such person; or
(f) Unless he is satisfied that the licensee is taking
adequate measures to put its affairs in order,
make an order under section 33 canceling the
licence.”

(3) Deleting from subsection (2) and subsection (3) the
Off-Shore Banking Amendment 1998, No. 28 20
words “paragraph (a) of” wherever they appear.

33. Licence May Be Cancelled - Section 33 of the
principal Act is repealed and the following section substituted:


“33. Powers of the Minister-(1) Whenever the Minister
is of the opinion that a licensee -
(a) Is carrying on business in a manner detrimental to
the public interest, or to the interest of the
depositors or other creditors of the licensee;
(b) Is or appears likely to become unable to meet its
obligations as they fall due;
(c) Has failed to comply with the terms and conditions
of its licence;
(d) Has failed to comply with any directive issued by the
Minister under this Act; or
(e) Is in breach of any duty or obligation imposed upon
it by this Act or commits an offence under this
Act,
he may forthwith take one or more of the following actions, as
may seem necessary to him, -
(i) require the licensee forthwith to take such
measures as he may consider necessary in
relation to its business;
(ii) impose conditions, or further conditions,
as the case may be, upon the licence and may
amend or revoke any such condition;
(iii) require the removal and replacement of
any director or officer of the licensee;
(iv) appoint a person who, in his opinion, has
had adequate training and experience to advise
the licensee in the proper conduct of its business
and fix the remuneration to be paid by the
licensee to such person;
(v) appoint a person to assume control of the
licensee’s a person appointed as receiver or
manager of a business under the Bankruptcy Act
1998, No. 28 Off-Shore Banking Amendment

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21
and fix the remuneration to be paid by the
licensee to such person; or
(vi) cancel the licence.
(2) A person appointed under subparagraph (iv) or (v) of
subsection (1) or whose appointment has been extended under
paragraph (b) of subsection (3) shall from time to time at his
discretion and in any case within three months of the date of his
appointment or of the extension of his appointment (as the case
may be), prepare and furnish a report to the Minister and the
Inspector of the affairs of the licensee and his recommendations
thereon.
(3) On receipt of a report under subsection (2), the Minister
may -
(a) Revoke the appointment of the person appointed
under subparagraph (iv) or (v) of subsection (1);
(b) Extend the period of his appointment;
(c) Subject to such conditions as he may impose, allow
the licensee to reorganise its affairs in a manner
approved by him; or
(d) Cancel the licence.
(4) Notwithstanding any other provisions herein, the
Minister may cancel a licence if the licensee -
(a) Has ceased to carry on offshore banking business or
does not within six months after the issuance of
its licence commence offshore banking business;
or
(b) Goes into liquidation or is wound up or otherwise
dissolved.
(5) When the Minister intends to cancel a licence under
subsection (1) of this section, he shall give the licensee notice
of his intention and a reasonable opportunity to show cause why
the licence should not be cancelled.
(6) The Inspector shall give notice in writing to the
licensee and through such means as he deems fit to creditors,
depositors, shareholders and employees of the licensee and
relevant banking authorities elsewhere of the cancellation of the
licence.”

Off-Shore Banking Amendment 1998, No. 28 22
34. Minister may apply to the Court - The principal Act
is further amended by inserting after section 33 the following
section:

“33A. Minister may apply to the Court - The Minister
may, in any case in which a licensee or a person who has at any
time been a licensee, is being wound up voluntarily, apply to
the Court if he considers that the winding up is not being
conducted in the best interests of its depositors or other
creditors, and the Court shall make such order as it shall
consider appropriate.”

35. Surrender of Licence - The principal Act is further
amended by inserting after section 33 the following section:

“33B. Surrender of Licence-(1) A licensee who has
ceased to carry on the business in respect of which the licence
was granted may apply to the Minister to surrender its licence if
it -
(a) Has ceased to carry on such business, and produces
evidence that it has repaid all deposits held by it
and has transferred all trust assets held or
administered by it; or
(b) Is being wound up voluntarily and produces
evidence that it is solvent and able forthwith to
repay all deposits held by it and all its other
creditors and has transferred all trust assets held
or administered by it,
and the Minister may thereupon approve the surrender.
(2) In the case of an application under paragraph (b) of
subsection (1) of this section, the Minister may apply to the
Court for the licensee to be wound up by the Court, and on the
making of such an order the provisions of the International
Companies Act 1987 relating to the winding up of a company
by that Court shall mutatis mutandis apply.”

36. Appeal against Suspension, Enforcement Action or
Cancellation-(1) Section 34 of the principal Act is amended by
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23
deleting the Heading and substituting the following Heading:

“34. Appeals”.

(2) Paragraphs (a), (b) and (c) of subsection (1) of section
34 are repealed and the following paragraphs substituted:

“(a) Any decision to cancel a licence under section
33(1), (3) or (4);
(b) Any decision by the Minister to enforce
examinations findings under section 32 (1); or
(c) Any decision by the Minister to take any of the
actions under section 33(1).”

(3) Section 34 of the principal Act is further amended by
inserting after subsection (4) the following subsection:

“(5) An appeal against a decision of the Minister shall not
have the effect of suspending the execution of such a decision.”

37. Immunity - The principal Act is further amended by
inserting after section 44 the following section:

“44A. Immunity - No action shall lie against the Govern-
ment or any statutory body or authority of Samoa, the Minister,
the Inspector or any person acting pursuant to any authority
conferred by the Minister or the Inspector, as the case may be,
in respect of any act or matter done or omitted to be done in
good faith in the exercise or purported exercise of their
respective functions conferred by or under this Act or any
regulations made thereunder.”




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Off-Shore Banking Amendment 1998, No. 28 24





Printed under the authority of the Legislative Assembly,
by the Clerk of the Legislative Assembly.