International Mutual Funds Act


Published: 2008

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
rangement of Provisions

PART I
PRELIMINARY

1. Short title and commencement
2. Interpretation 3. Meaning of “fit and proper”
PART II
ADMINISTRATION

4. Registrar of International Mutual Funds
5. International Mutual Funds Advisory Committee
6. Records of the Registrar
PART III
PUBLIC FUNDS

7. Registration 8. Application for registration 9. Application for approval to
be registered
10. Power to grant registration or approval
11. Registration procedure 12. Accounting records and
financial statements
13. Duty to publish and file a prospectus
14. Certificate of compliance 15. Investors’ rights
16. Limitation of action and
amount recoverable

PART IV
PRIVATE AND
PROFESSIONAL FUNDS

17. Recognition
18. Application for recognition 19. Power to grant recognition 20. Recognition procedure
PART V
MANAGERS AND
ADMINISTRATORS

21. Licensing 22. Application for a licence 23. Power to grant licences 24. Licensing procedure 25. Restrictions on issue or
transfer of shares in licensed
manager or administrator
26. Approval of directors 27. Annual audits 28. Code of Practice
PART VI
GENERAL
29. Notices to accompany applications
30. Notification of changes
2 International Mutual Funds 2008, No.7
31. Annual fees 32. Powers of the Authority and
Registrar in relation to
international mutual funds
33. Powers of the Authority in relation to licensed managers
and administrators
34. Power of search 35. Obligations of auditors 36. Appeals 37. Power to grant exemptions 38. Restriction on the use of the
words “fund” or “mutual
fund”
39. Access to information and records
40. Immunity 41. Preservation of a
confidentiality
42. Breach of professional confidentiality
43. Exemption from taxation and stamp duties
44. Exemption from currency and exchange controls
45. No other business licence required
46. False and misleading information
47. Offences and penalties 48. Regulations 49. Transitional 50. Amendment of the
Schedule

Schedule
__________

2008, No. 7


AN ACT to provide for the licensing and supervision of
International Mutual Funds and Collective Investment
Schemes, and for managers and administrators.
[25th
March 2008]

BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:
PART I
PRELIMINARY
1. Short title and commencement-(1) This Act may be
cited as the International Mutual Funds Act 2008.
(2) This Act commences in whole or in Part or in section or
sections upon notice to that effect issued by the Minister (in this
Act referred to as the “commencement date”).

2008, No.7 International Mutual Funds 3

(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-(1) In this Act, unless the context
otherwise requires:
“administrator” means a person who:
(a) for valuable consideration provides an international
mutual fund with administrative services alone
or together with accounting services; or
(b) is entitled to provide to international mutual funds
(by whatever name called) such services and
facilities as provided in paragraph (a) under the
laws of a recognised country or jurisdiction;
“approved fee” means a fee determined by notice by the
Minister published in the Savali;
“approved form” means a form approved by the Minister;
“auditor” means a person who is a registered company
auditor under the International Companies Act 1987;
“Authority” means the Samoa International Finance
Authority established under the Samoa International
Financial Authority Act 2005;
“certificate of compliance” means a certificate issued by the
competent authority responsible for the regulation and
supervision of mutual funds in a country or jurisdiction,
other than Samoa, which verifies that the fund in
question:
(a) is registered or licensed in its country or jurisdiction;
and
(b) has paid all licence or registration fees; and
(c) is not subject to adverse regulatory review or
sanction; and
(d) is in compliance with all terms and conditions of its
prospectus;
“company” means a body corporate, wherever incorporated
or constituted;

4 International Mutual Funds 2008, No.7

“constitutional documents” means:
(a) in the case of a company, the memorandum and
articles of association or other instrument of
incorporation; and
(b) in the case of a partnership, the agreement or other
instrument by which the partnership is formed
and governed; and
(c) in the case of a unit trust, the trust deed or other
instrument by which the unit trust is organised or
governed;
“controller” has the same meaning as provided in section 2
of the International Banking Act 2005;
“Court” means the Supreme Court of Samoa;
“custodian” means the person who holds the property of the
international mutual fund in safe keeping;
“dollar and “$” means a unit of currency of the United
States of America;
“financial year” means the period not exceeding twelve
months at the end of which the balance of the accounts
is struck, and which may be up to eighteen months in the
case of the first or last period or when the period is
changed;
“fit and proper” has the meaning given in section 3;
“investor” means a person who owns or holds shares (as
herein defined) issued by an international mutual fund;
“international financial services legislation” has the same
meaning as in section 2 of the Samoa International
Finance Authority Act 2005;
“international mutual fund” or “fund” means:
(a) a company that is incorporated or registered under
the International Companies Act 1987; or
(b) a partnership registered under the International
Partnership and Limited Partnership Act 1998; or
(c) a unit trust that is registered under the International
Trusts Act 1987; or
(d) other similar body formed or organised under
international financial services legislation,
which:

2008, No.7 International Mutual Funds 5

(i) collects and pools investor funds for
the purpose of collective investment, and
(ii) issues shares (as herein defined) that
entitle the holder to receive on demand or
within a specified period after demand an
amount computed by reference to the value
of a proportionate interest in the whole or in
a part of the net assets of the company, the
partnership, the unit trust or other similar
body, as the case may be; and
(iii) solicits and accepts investments in its
fund only from non-residents of Samoa, and
includes:
(1) an umbrella fund whose shares are
split into a number of different class
funds or sub-funds; and
(2) a fund which has a single investor
which is a mutual fund not registered or
recognised under this Act, but excludes
any arrangements which are designated
by regulations as not being international
mutual funds;
“licensee” includes any public fund registered under Part III,
any private or professional fund recognised under Part
IV and any manager or administrator licensed under Part
V;
“manager” means a person, not being an officer or an
employee of a person licensed under this Act or an
international mutual fund which has delegated
management functions to a person licensed under this
Act, who:
(a) for valuable consideration, provides an
international mutual fund with
management services alone, or together
with investment advice or administrative
services; or
(b) is entitled to provide to international mutual
funds (by whatever name called), such
services or advice as provided in

6 International Mutual Funds 2008, No.7

paragraph (a) under the laws of a
recognised country or jurisdiction;
“material particular” includes such information regarding a
promoter or, investment plan or, investment products or,
terms and conditions of investment and financial
information regarding an international mutual fund that
would influence a reasonable person in a decision to
invest or not invest in the said fund, or such additional
information as may be prescribed by regulations;
“Minister” means the Minister of Finance;
“Money Laundering Authority” means the Money
Laundering Authority established under the Money
Laundering Prevention Act 2007;
“non-resident” has the same meaning as in section 2 of the
International Banking Act 2005;
“officer” includes:
(a) a director, alternate director, the president, a
vice-president, and any other person
designated as an officer of a company by
by-law, by resolution of the directors or
by any other instrument; and
(b) a general partner of a partnership; and
(c) a trustee of a unit trust;
“partnership” means a contractual relation which subsists
between persons carrying on a business in common with
a view of profit and includes a partnership formed under
the laws of Samoa or of any other country or jurisdiction
notwithstanding any statutory definition thereof to the
contrary;
“person” includes an individual natural person, an
international mutual fund, any company, partnership,
unit trust or trustee;
“private fund” means an international mutual fund:
(a) the constitutional documents of which specify that it
will have no more than two hundred and fifty
investors, who cannot act in a nominee capacity,
and that the minimum aggregate equity interest

2008, No.7 International Mutual Funds 7

purchasable by a prospective investor is twenty-
five thousand dollars or its equivalent in any
other currency; or
(b) the constitutional documents of which specify that
the making of an invitation to subscribe for or
purchase shares issued by the international
mutual fund is to be made on a private basis, and
includes an invitation which is made:
(i) to specified persons (howsoever
described) and is not calculated to result
in shares becoming available to other
persons or to a large number of investors;
or
(ii) by reason of a private or business
connection between the person making
the invitation and the investor; or
(c) which is designated as a private fund by
regulations;
“professional fund” means an international mutual fund:
(a) the shares of which are made available only to
professional investors and the initial investment
in which, in respect of the majority of each of
such investors, is not less than 100,000 dollars or
its equivalent in any other currency, provided
that the said minimum investment limit shall not
apply in respect of any investment made by the
manager, administrator, promoter or underwriter
of the professional fund; or
(b) is designated as a professional fund by regulations;
“professional investor” means a non-resident of Samoa:
(a) who has signed a declaration that the person, whether
individually or jointly with a spouse, has a net
worth in excess of one million dollars or whose
annual income in the last two years was at least
$200,000, with a reasonable expectation of at
least the same annual income for the current
year, and that the person consents to being
treated as a professional investor; or

8 International Mutual Funds 2008, No.7

(b) whose ordinary business involves, whether for the
person’s own account or the accounts of others,
the acquisition or disposal of property of the
same kind as the property, or a substantial part of
the property, of the fund; and includes:
(i) an international bank licensed under
the International Banking Act 2005 or a bank
licensed in a recognised country or
jurisdiction; or
(ii) an international insurance company
licensed under the International Insurance
Act 1988 or an insurance company licensed
in a recognised country or jurisdiction; or
(iii) a mutual fund regulated in a
recognised country or jurisdiction; or
(iv) an international trust registered under
the International Trusts Act 1987 with a
minimum of one million dollars in assets; or
(v) any entity owned by any of the above
classes of investors;
“promoter” means a person, acting alone or in conjunction
with others, directly or indirectly, who takes the
initiative in forming or organising the business of an
international mutual fund, but does not include an
underwriter who receives underwriting commission
without taking any part in the founding or organising of
the international mutual fund business;
“prospectus” means any prospectus or similar document the
purpose of which is to make an invitation to the public
or any section thereof, to subscribe for or purchase
shares issued by a public fund;
“public fund” means an international mutual fund which is
not a private fund or a professional fund;
“recognised country or jurisdiction” means any
country or jurisdiction listed in the Schedule to this Act;
“Registrar” means the Registrar of International Mutual
Funds appointed under section 4 and includes any
person acting under the Registrar’s authority;

2008, No.7 International Mutual Funds 9

“security” means any document or instrument constituting
evidence of title to, or interest in, the capital, assets,
property, profits, earnings or royalties of any person, as
herein defined, and includes:
(a) bonds, debentures, notes, mortgages and other
evidence of indebtedness; and
(b) any share, stock, document or instrument commonly
known as a security; and
(c) any document or instrument constituting evidence of
an option, subscription or other interest in a
security or constituting evidence of an interest in
an association of legatees or heirs;
“share” means a share in the share capital of an international
mutual fund company and includes an interest in an
international mutual fund partnership and a unit in an
international fund unit trust;
“underwriter” means a person who:
(a) as principal, agrees to purchase shares issued by
international mutual funds with a view to
offering them to the public; or
(b) as agent for an international mutual fund, offers for
sale or sells to the public shares issued by the
fund;
“unit trust” means an arrangement creating a trust under the
laws of Samoa or of any other country or jurisdiction, in
which unit holders participating in the arrangement are
the beneficiaries of the trust.
(2) In this Act:
(a) every company incorporated and every partnership
formed or unit trust organised under the laws of
Samoa for the purpose of carrying on business as
an international mutual fund or as a manager or
administrator of an international mutual fund,
shall, if carrying on business anywhere outside
Samoa, be deemed to be carrying on business
from within Samoa;

10 International Mutual Funds 2008, No.7

(b) the expression “carrying on business from within
Samoa” includes carrying on business outside
Samoa from a place of business or a registered
office within Samoa; and
(c) notwithstanding the provisions of any other law,
fines may be imposed in US dollars and
expressed in dollar amounts.

3. Meaning of “fit and proper” - For the purposes of this
Act, in determining whether a person is a “fit and proper”
person, regard shall be had to all circumstances, including that
person’s:
(a) honesty, integrity and reputation; and
(b) competence and capability; and
(c) financial soundness.

PART II
ADMINISTRATION

4. Registrar of International Mutual Funds-(1) There
shall be a Registrar of International Mutual Funds who shall be
appointed by the Authority to administer this Act.
(2) It is the duty of the Registrar:
(a) to supervise and regulate international mutual funds,
managers and administrators in accordance with
this Act and any other applicable law; and
(b) to maintain a general review of the international
mutual fund industry, including the maintenance
of adequate policies and procedures for “know
your customer” and anti-money laundering; and
(c) whenever the Registrar thinks fit, to examine, and in
such manner as the Registrar thinks necessary,
the affairs or business of any international
mutual fund, manager or administrator for the
purpose of satisfying the Registrar that the
provisions of this Act and any other applicable
law are being complied with and that the said
fund, manager or administrator is in a sound
financial position; and

2008, No.7 International Mutual Funds 11

(d) to examine and make recommendations to the
Authority with respect to applications for
registration and licences granted under this Act.
(3) The Registrar has the power for the purposes of this
Act or the regulations:
(a) to determine the forms to be used for the purposes of
this Act and the matters to be specified in such
forms; and
(b) to issue directions and policy guidelines; and failure
by any licensee to comply with such directions
or policy guidelines shall be taken into
consideration when any action is proposed to be
taken under sections 32 or 33.
(4) The Registrar may delegate any of the Registrar’s
powers or duties under this Act to another officer of the
Authority and thereupon this Act shall be read as if those
powers or duties were originally conferred or imposed upon that
officer.
(5) The Registrar may, upon request by any person to
whom this Act applies and upon payment of the prescribed fee,
issue to such person a certificate of compliance in such form as
the Registrar thinks fit, verifying the registration, recognition or
licensing of the person, as the case may be, and that no actions
provided under sections 32 or 33 have been instituted against
the person.
(6) The Registrar or any employee of the office of the
Registrar or the Authority shall not knowingly have any
financial interest in any person registered, recognised or
licensed under this Act.

5. International Mutual Funds Advisory Committee -
(1) The Authority may appoint a committee, called the
International Mutual Funds Advisory Committee, which shall
consist of not more than five persons from the private sector
with adequate knowledge and experience in the mutual funds
industry and the Registrar who shall be an ex-officio member of
the Committee.

12 International Mutual Funds 2008, No.7

(2) The Authority shall designate one of the persons
appointed under subsection (1) as Chairperson of the
Committee.
(3) The International Mutual Funds Advisory Committee
shall:
(a) advise the Authority on any matter referred to it by
the Authority relating to the mutual funds
industry; and
(b) on its own motion, report and make
recommendations to the Authority on any matter
relating to international mutual funds as it sees
fit; and
(c) have power to establish, subject to the approval of
the Authority:
(i) its own working rules and procedures;
and
(ii) sub-committees as it thinks necessary.
(4) The Authority shall make provision in its annual
budget to fund the operations of the Committee.

6. Records of the Registrar-(1) The Registrar shall keep
separate registers for all:
(a) registered public funds; and
(b) recognised private or professional funds; and
(c) licensed managers and administrators.
(2) The registers required under subsection (1) shall show:
(a) the information required under section 29 (a), (b) and
(c) with respect to each registered public fund,
recognised private or professional fund and
licensed manager or administrator; and
(b) the date of registration, recognition or licence, as the
case may be; and
(c) the status of such registration, recognition or licence
and if cancelled, the date of such cancellation.
(3) Registers kept by the Registrar shall be in electronic
form, or any other form the Registrar determines.
(4) Subject to section 41, the Register shall be open to
public inspection during ordinary office hours on payment of
the approved fee.

2008, No.7 International Mutual Funds 13

PART III
PUBLIC FUNDS

7. Registration-(1) No public fund shall carry on its
business or manage or administer its affairs in or from within
Samoa unless it is registered under this Act.
(2) Every person, including every officer of the public fund
commits an offence where, not being a registered public fund
under this Act, knowingly:
(a) acts as a public fund and carries on its business or
manages or administers its affairs in or from
within Samoa; or
(b) holds itself out as being registered or otherwise
entitled to act as a registered public fund; or
(c) takes or uses any name, title, addition or description
implying or likely to lead any person to believe
that the fund is so registered.
(3) In any proceedings in respect of an offence under this
section, the following shall, in the absence of proof to the
contrary, be sufficient evidence of the matters contained therein:
(a) a certificate signed by the Registrar to the effect that
at the time of the alleged offence, the defendant
was not a registered public fund in Samoa; and
(b) a certificate signed by the Authority to the effect that
the defendant was at the time of the alleged
offence acting as a registered public fund or
holding itself out in such capacity.
(4) Any person convicted of an offence under this section
shall be liable for imprisonment for a term not exceeding two
years or to a fine not exceeding 50,000 dollars or to both such
fine and imprisonment.

8. Application for registration-(1) A public fund shall
apply to the Authority for registration to carry on business in or
from within Samoa.
(2) Every application for registration shall be submitted to the
Registrar in the approved form and shall be accompanied by:
(a) a certified copy of the instrument by which the
applicant is constituted; and

14 International Mutual Funds 2008, No.7

(b) the approved fee; and
(c) evidence, in such form as the Authority or the
Registrar shall specify, verifying:
(i) that the laws of the jurisdiction under
which the applicant is constituted have been
complied with; and
(ii) the nature and scope of the business
to be carried on by the applicant in or from
within Samoa, including the name of any
other country or jurisdiction where the
applicant is carrying on or intends to carry on
business; and
(iii) that the promoters are of sound
reputation and fit and proper to form or
organise the business of an international
mutual fund; and
(iv) that the administration of the
international mutual fund will be undertaken
by persons who have sufficient expertise to
administer the international mutual fund and
who are fit and proper to be directors or, as
the case may be, managers or officers in their
respective positions; and
(v) that the business of the international
mutual fund and any offer of equity interests
in it will be carried out in a proper manner;
and
(d) the notices required under section 29.
(3) In addition to the documents, information, and evidence
which shall accompany an application under subsection (1), an
applicant shall, if required to do so by the Authority or the
Registrar, furnish to the Registrar such additional documents,
information or evidence as the Authority or the Registrar may
require.

9. Application for approval to be registered-(1) The
promoters of a public fund that is proposed to be formed, may
apply to the Authority for approval to register such proposed
public fund upon being lawfully constituted under the laws of

2008, No.7 International Mutual Funds 15

Samoa or of any other country or jurisdiction and upon
complying with the requirements of this Act.
(2) An application for approval under subsection (1) shall
be:
(a) in the approved form, setting out the particulars of
the proposed public fund; and
(b)accompanied by the approved fee.
(3) The approval of the Authority shall:
(a) be in such form as the Authority may direct; and
(b) be valid for a period of three months from the date it
is granted, subject to there being no change that
the Authority considers material in any of the
particulars contained in the application for
approval.
(4) The promoters of a proposed public fund may, upon the
expiry of the three months period referred to in subsection
(3)(b), apply for the renewal of the Authority’s approval subject
to:
(a) supplying such documents or information as the
Authority may require; and
(b) payment of the approved fee.

10. Power to grant registration or approval-(1) The
Authority may, in its discretion, grant or refuse to grant:
(a) registration under section 8; or
(b) approval to be registered under section 9.
(2) Notwithstanding subsection (1), the Authority shall
refuse to grant registration or approval, as the case may be, if:
(a) the public fund has a name which the Authority
determines to be undesirable or misleading; or
(b) the Authority determines that it is not in the interest
of investors or in the public interest that such
registration or approval be granted.
(3) The Authority may grant registration or approval to be
registered subject to such terms and conditions, if any, as it
thinks fit.

16 International Mutual Funds 2008, No.7

(4) If terms and conditions are imposed under subsection
(3), the Authority may from time to time, vary or revoke any of
those terms and conditions or impose any additional terms or
conditions.
(5) The Authority need not give reasons for any decision
made under this section.
(6) Despite any other law, the Court of Appeal, the Supreme
Court and the District Court shall not have jurisdiction to hear
and determine any matter touching upon or concerning this
section excepting any matter concerning Part II of the
Constitution (Fundamental Rights).

11. Registration procedure-(1) Where the Authority
grants registration pursuant to section 10, it shall direct the
Registrar accordingly and the Registrar shall:
(a) register the public fund in the register maintained
under section 6; and
(b) issue a certificate to the registered public fund as
directed by the Authority showing the date of
registration.
(2) Where the Authority grants approval to be registered
under section 9, the promoters of the proposed public fund
shall, within the three months period referred to in section 9 (3)
(b), deliver to the Registrar:
(a) satisfactory proof that the proposed public fund is
lawfully constituted in Samoa or elsewhere; and
(b) the approved fee; and
(c)the notices required under section 29.
(3) If the Registrar is satisfied that the proposed public fund
has complied with the requirements of subsection (2), the
Registrar shall register the public fund and issue to it a
certificate of registration in accordance with the procedure set
out in subsection (1).
(4) The Registrar shall not register the proposed public fund
if the public fund:
(a) has not received the approval for registration
pursuant to section 9; or
(b) has not complied with any of the requirements of
subsection (2).

2008, No.7 International Mutual Funds 17

12. Accounting records and financial statements-(1)
Every registered public fund shall:
(a) maintain adequate accounting records and prepare
financial statements in respect of each financial
year in accordance with generally accepted
accounting principles; and
(b) keep such accounting records and financial
statements available for examination by the
Registrar or any person authorised by the
Registrar at:
(i) its place of business or registered
office in Samoa; or
(ii) such other place as its officers may
see fit, provided that copies of such records
and statements or such other documents or
information as the Registrar may consider
adequate are kept at its place of business or
registered office in Samoa.
(2) The financial statements required under subsection (1)
shall be:
(a) audited by an auditor acceptable to the Registrar (in
this Act called “the approved auditor”) in
accordance with generally accepted auditing
standards; and
(b) accompanied by the report of the approved auditor
which shall include a statement of the accounting
principles under which the statements have been
prepared and a statement of the auditing
standards which have been applied in the audit of
such statements; and
(c) provided to or made available for examination by all
investors of the registered public fund; and
(d) filed with the Registrar within 6 months of the end of
that financial year.
(3) If default is made by a registered public fund in
complying with the provisions of this section, the said fund and
every officer of the fund who is knowingly in default commits
an offence and is liable on conviction to a fine not exceeding
1,000 dollars for every day during which the offence continues.

18 International Mutual Funds 2008, No.7

13. Duty to publish and file a prospectus-(1) No
registered public fund shall in or outside Samoa make an
invitation to the public or any section thereof to purchase its
shares unless, prior to such invitation, it publishes in writing a
prospectus signed by or on behalf of the board of directors (by
whatever name called) or, in the case of a partnership, unit trust
or other similar body, the equivalent governing body of the fund
which approved the contents of the prospectus or authorised its
publishing, and files a copy thereof with the Registrar.
(2) Every prospectus shall:
(a) provide full and accurate disclosure of all such
information as investors would reasonably
require and expect to find for the purpose of
making an informed investment decision; and
(b) contain a summary statement of investors’ rights as
provided in section 15; and
(c) be accompanied by or contain reference to the
availability of the financial statements for the last
financial year of the fund and the auditor's report
thereon if the fund has completed a financial
year in operation.
(3) If all or any part of the prospectus is not in the English
language, the Registrar may require that an English translation
of the prospectus or that part of the prospectus, verified in a
manner satisfactory to the Registrar, be filed along with the
prospectus.
(4) Where in a prospectus any of the disclosures required
under subsection (2) (a) ceases to be accurate in a material
particular, the registered public fund shall, within twenty-one
days of the change occurring, publish an amendment thereto
giving accurate disclosures and provide a copy thereof to each
of its investors and to the Registrar.
(5) If default is made by a registered public fund in
complying with the provisions of subsection (4), the said fund
and every officer of the fund who is knowingly in default
commits an offence and is liable on conviction to a fine not
exceeding 1,000 dollars for every day during which the offence
continues.

2008, No.7 International Mutual Funds 19

14. Certificate of compliance - (1) Every registered public
fund, wherever it is constituted, which carries on business
outside Samoa under the laws of another country or jurisdiction,
shall every year, within three months of the end of its financial
year, file with the Registrar a certificate of compliance from the
competent authority that is responsible for the regulation and
supervision of the conduct of its business in that other country
or jurisdiction.
(2) A registered public fund to which subsection (1) applies
is deemed to have complied with that subsection if such fund
provides evidence to the satisfaction of the Registrar that the
required certificate could not be obtained for reasons beyond the
control of the public fund.
(3) Where a registered public fund which carries on business
outside Samoa carries on business in more than one country or
jurisdiction other than Samoa, the certificate required to be filed
under subsection (1) shall be from the competent authority in
the country or jurisdiction in or from which it carries on its
principal business.
(4) If default is made by a registered public fund in
complying with the provisions of subsection (1), the said fund
and every officer of the fund who is knowingly in default
commits an offence and is liable on conviction to a fine not
exceeding one 1,000 dollars for every day during which the
offence continues.

15. Investors’ rights - (1) If a registered public fund
publishes a prospectus or any amendment thereto that contains
any misrepresentation relating to any of the disclosures required
under section 13 (2) (a), a person who purchased any shares
pursuant to such prospectus or amendment thereto is deemed to
have relied upon the misrepresentation and shall have the rights
provided in subsection (2).
(2) A person referred to in subsection (1) may elect to
exercise a right of action:
(a) for the rescission of the purchase; or
(b) for damages,
jointly and severally against the fund, and every member of the
board of directors (by whatever name called) or, in the case of a

20 International Mutual Funds 2008, No.7

partnership, unit trust or other similar body, every member of
the equivalent governing body who, while aware of the
misrepresentation, or would have been aware of the
misrepresentation had the person made reasonable
investigations consistent with the person’s duties, authorised the
signing of or approved the prospectus or amendment thereto and
consented to its publication and filing or caused it to be signed
or published and filed.
(3) For the purposes of this section, "misrepresentation"
means:
(a) an untrue or misleading statement of any of the
disclosures required under section 13 (2) (a); or
(b) an omission to disclose any of such disclosures.
(4) No person is liable under this section if the person
proves that the purchaser purchased the shares offered by the
prospectus or amendment thereto with knowledge of the
misrepresentation.
(5) The right of action for rescission or for damages
conferred by subsection (2) is in addition to and without
derogation from any other right the plaintiff may have at law.

16. Limitation of action and amount recoverable-(1)
Notwithstanding any law to the contrary, any action pursuant to
section 15(2) may not be commenced after:
(a) one hundred and eighty days from the day that the
plaintiff first had knowledge of the
misrepresentation; or
(b) one year from the date of the purchase transaction
that gave rise to the cause of action,
whichever is later.
(2) In any action under section 15 (2), the amount
recoverable shall not exceed the amount at which the shares
were purchased or subscribed, including any fees or other
charges paid by the plaintiff.

2008, No.7 International Mutual Funds 21

PART IV
PRIVATE AND PROFESSIONAL FUNDS

17. Recognition-(1) Subject to subsection (5), no private or
professional fund shall carry on its business or manage or
administer its affairs in or from within Samoa unless it is
recognised under this Act.
(2) Subject to subsection (5), every person, including every
officer of the private or professional fund who is knowingly in
default, commits an offence against this Act who, not being
duly recognised under this Part:
(a) acts as a private or professional fund and carries on
its business or manages or administers its affairs
in or from within Samoa; or
(b) holds itself out as being recognised or otherwise
entitled to act as a recognised private or
professional fund; or
(c) takes or uses any name, title, addition or description
implying or likely to lead any person to believe
that the fund is so recognised.
(3) In any proceedings in respect of an offence under this
section, the following shall, in the absence of proof to the
contrary, be sufficient evidence of the matters contained therein:
(a) a certificate signed by the Registrar to the effect that
at the time of the alleged offence, the defendant
was not a recognised private or professional fund
in Samoa; and
(b) a certificate signed by the Authority to the effect that
the defendant was at the time of the alleged
offence acting as a recognised private or
professional fund or holding itself out in such
capacity.
(4) Any person convicted of an offence under this section
shall be liable for imprisonment for a term not exceeding two
years or to a fine not exceeding 50,000 dollars or to both such
fine and imprisonment.

22 International Mutual Funds 2008, No.7

(5) Despite subsection (1), a professional fund may carry on
its business or manage or administer its affairs in or from within
Samoa for a period of up to fourteen days without being
recognised under this Act.

18. Application for recognition-(1) A private or
professional fund that is constituted under the laws of Samoa
shall apply to the Registrar for recognition under this Act.
(2) Every application for recognition pursuant to subsection
(1) shall be submitted to the Registrar in the approved form and
shall be accompanied by:
(a) the approved fee; and
(b) evidence, in such form as the Registrar shall specify,
verifying that it:
(i) is a private or professional fund within
the meaning of this Act; and
(ii) is lawfully constituted under the laws
of Samoa; and
(c) the notices required under section 29.

(3) A private or professional fund that is constituted outside
Samoa may apply for recognition under this Act.
(4) Every application for recognition pursuant to subsection
(3) shall be submitted to the Registrar in the approved form and
shall be accompanied by:
(a) the approved fee; and
(b) evidence, in such form as the Registrar shall specify,
verifying that it:
(i) is a private or professional fund within
the meaning of this Act; and
(ii) is lawfully constituted under the laws
of another country or jurisdiction; and
(c) the notices required under section 29; and
(d) a statement setting out the nature and scope of its
business.
(5) In addition to the documents, information and evidence
which shall accompany an application under subsections (2) or
(4), an applicant shall, if required to do so by the Registrar,

2008, No.7 International Mutual Funds 23

furnish such additional documents, information or evidence as the
Registrar may require.
(6) In the case of a professional fund, the matters required
by subsections (2) and (4) shall be provided to the Registrar
within fourteen days of the commencement of its business.

19. Power to grant recognition-(1) The Registrar may, in
the Registrar’s discretion, grant or refuse to grant recognition
under section 18.
(2) Notwithstanding subsection (1), the Registrar shall
refuse to grant recognition if:
(a) the applicant fails to comply with the requirements of
section 18; or
(b) the fund has a name which the Registrar determines
is undesirable or misleading; or
(c) the Registrar determines that it is not in the interest
of investors or in the public interest that such
recognition should be granted.
(3) The Registrar may grant recognition subject to such
terms and conditions, if any, as the Registrar thinks fit.
(4) If terms and conditions are imposed under subsection
(3), the Registrar may from time to time, vary or revoke any of
those terms and conditions or impose any additional terms or
conditions.
(5) Where the Registrar refuses to grant recognition on any
of the grounds set out in subsection (2), the provisions of
section 10 (5) and 10 (6) shall apply mutatis mutandis.

20. Recognition Procedure - Where the Registrar grants
recognition to a private or professional fund, the Registrar shall:
(a) enter the particulars relating to the private or
professional fund in the register maintained
under section 6; and
(b) issue a certificate of recognition to the private or
professional fund showing the date of
recognition.



24 International Mutual Funds 2008, No.7

PART V
MANAGERS AND ADMINISTRATORS

21. Licensing-(1) No person shall, in or from within Samoa,
carry on or hold themselves out as carrying on business as a
manager or administrator of an international mutual fund unless
that person is licensed for the purpose under this Act.
(2) Subsection (1) does not apply to a person who:
(a) is not ordinarily resident or domiciled in Samoa; and
(b) is a manager or administrator of a mutual fund (by
whatever name called) under the laws of a
recognised country or jurisdiction; and
(c) has received written permission from the Authority
to carry on business as a manager or
administrator of a mutual fund in or from within
Samoa.
(3) Every person, including every officer who is knowingly
in default, commits an offence against this Act who, not being
duly licensed under this Part or exempted from licensing under
subsection (2):
(a) acts as a manager or administrator of an international
mutual fund; or
(b) holds themselves out as being licensed or otherwise
entitled to act as a licensed mutual fund manager
or administrator; or
(c) takes or uses any name, title, addition or description
implying or likely to lead any person to believe
that the person is so licensed or entitled.
(4) In any proceedings in respect of an offence under this
section, the following shall, in the absence of proof to the
contrary, be sufficient evidence of the matters contained therein:
(a) a certificate signed by the Registrar to the effect that
at the time of the alleged offence, the defendant
was not a licensed fund manager or
administrator; and
(b) a certificate signed by the Registrar to the effect that
at the time of the alleged offence, the defendant
was not exempted from licensing under
subsection (2); and

2008, No.7 International Mutual Funds 25

(c) a certificate signed by the Authority to the effect that
the defendant was at the time of the alleged
offence acting as a licensed fund manager or
administrator.
(5) Any person convicted of an offence under this section
shall be liable for imprisonment for a term not exceeding two
years or to a fine not exceeding 50,000 dollars or to both such
fine and imprisonment.

22. Application for a licence-(1) Every person who desires
to obtain a licence under this Part shall make application to the
Authority to carry on business in or from within Samoa as:
(a) a manager of a mutual fund; or
(b) an administrator of a mutual fund; or
(c) both a manager and administrator of a mutual fund.
(2) Every application shall be submitted to the Registrar in
the approved form and shall be accompanied by:
(a) the approved fee; and
(b) a statement of the financial and human resources and
administrative facilities available to the applicant
for the competent and efficient conduct of its
business; and
(c) evidence, in such form as the Authority shall specify,
verifying:
(i) that the applicant and every person
who is, or is to be, a controller of the
applicant is a fit and proper person to be
engaged in the proposed business; and
(ii) that the applicant has sufficient
expertise, resources and facilities to
administer or manage a mutual fund; and
(iii) that the business will be administered
by persons who are fit and proper persons to
be directors or, as the case may be, managers
or officers in their respective positions; and
(d) such other documents or information as the
Authority may reasonably require for the
purpose of considering the application.


26 International Mutual Funds 2008, No.7

23. Power to grant licences-(1) The Authority may, in its
discretion, grant or refuse to grant a licence to any applicant.
(2) The Authority shall refuse to grant a licence if it is
determined that it is not in the public interest that such licence
should be granted.
(3) The Authority may grant a licence subject to such terms
and conditions, if any, as it thinks fit.
(4) If terms and conditions are imposed under subsection
(3), the Authority may from time to time, vary or revoke any of
those terms and conditions or impose any additional terms or
conditions.
(5) Where the Registrar refuses to grant a licence on the
ground set out in subsection (2), the provisions of section 10 (5)
and 10 (6) shall apply mutatis mutandis.

24. Licensing procedure - Where the Authority grants a
licence to an applicant, it shall direct the Registrar accordingly
and the Registrar shall:
(a) enter the particulars of the applicant in the register
maintained under section 6; and
(b) issue a licence to the applicant as directed by the
Authority showing the date on which the licence
is granted.

25. Restriction on issue or transfer of shares in licensed
manager or administrator-(1) Subject to this section, where a
licensed fund manager or administrator is a company, no shares
in or other securities whatsoever of the said company shall be
issued and no issued shares or the beneficial interest in shares or
other securities of the company shall be transferred or disposed
of in any manner without the prior written approval of the
Registrar.
(2) In subsection (1), the reference to shares being issued or
transferred or disposed of, includes any issue or transfer or
disposition that would result in any change in beneficial
ownership or control of the said company.
(3) Notwithstanding the provisions of subsection (1), the
prior written approval of the Registrar shall not be required
where shares or other securities are issued to existing

2008, No.7 International Mutual Funds 27

shareholders on a pro-rata basis that results in no change in
beneficial ownership or control.
(4) The Registrar may, in respect of a licensed mutual fund
manager or administrator that is a company and whose shares
are publicly traded on a stock exchange recognised by the
Authority, waive the obligation to obtain approval under
subsection (1), and any such waiver:
(a) shall be subject to a condition that the licensed
mutual fund manager or administrator shall, as
soon as reasonably practicable, notify the
Registrar of:
(i) any change in control of the said
company; or
(ii) the acquisition by any person or
group of persons of shares representing more
than ten per cent of the issued share capital or
total voting rights of the said company; or
(iii) the acquisition by any person or
group of persons of shares representing more
than ten per cent of the issued share capital or
total voting rights of the parent company of
the said company; and
(b) shall be subject to a condition that the said licensed
fund manager or administrator shall, as soon as
reasonably practicable, provide such information
to the Registrar, and within such period of time,
as the Registrar may require for the purpose of
enabling an assessment as to whether the persons
acquiring control or ownership of the said
company in the circumstances set out in
paragraph (a) are fit and proper persons to have
such control or ownership; and
(c) shall be subject to such terms and other conditions as
the Registrar may deem necessary.
(5) If default is made by a licensed fund manager or
administrator in complying with the provisions of this section,
the said fund manager or administrator and every one of its
officers who is knowingly in default commits an offence.

28 International Mutual Funds 2008, No.7

26. Approval of directors-(1) A licensed fund manager or
administrator shall not appoint a director, chief executive officer
or similar senior officer or a general partner, as the case may be,
unless:
(a) the Registrar’s prior written approval has been
obtained; or
(b) the Registrar has exempted the licensed fund
manager or administrator from the obligation to
obtain the Registrar’s approval.
(2) If default is made by a licensed fund manager or
administrator in complying with the provisions of this section,
the said fund manager or administrator and every one of its
officers who is knowingly in default commits an offence.

27. Annual audits-(1) Every licensed fund manager or
administrator shall:
(a) maintain adequate accounting records and prepare
financial statements in respect of each financial
year in accordance with generally accepted
accounting principles; and
(b) keep such accounting records and financial
statements available for examination by the
Registrar or any person authorised by the
Registrar at:
(i) its place of business or registered
office in Samoa; or
(ii) such other place as its officers may
see fit, provided that copies of such records
and statements or such other documents or
information as the Registrar may consider
adequate are kept at its place of business or
registered office in Samoa.
(2) The financial statements required under subsection (1)
shall be:
(a) audited by an auditor acceptable to the Registrar (in
this Act called “the approved auditor”) in
accordance with generally accepted auditing
standards; and

2008, No.7 International Mutual Funds 29

(b) accompanied by the report of the approved auditor
which shall include a statement of the accounting
principles under which the statements have been
prepared and a statement of the auditing
standards which have been applied in the audit of
such statements; and
(c) filed with the Registrar within 6 months of the end of
that financial year.
(3) The Authority may exempt a licensed mutual fund
manager or administrator from complying with the provisions
of this section, where the Authority determines that it would not
be contrary to the public interest and where all interested
parties, including potential investors, have been informed that
such an exemption has been granted.
(4) Unless an exemption from the requirements of this
section has been granted under subsection (3), if default is made
by a licensed fund manager or administrator in complying with
the provisions of this section, the said fund manager or
administrator and every one of its officers who is knowingly in
default commits an offence.

28. Code of Practice-(1) The Authority may by Order
prescribe a Code of Practice directing the holder of a licence
under section 23 to comply with the requirements of the Code,
which may include but is not limited to matters relating to:
(a) conduct of business; and
(b) financial resources; and
(c) the giving of notice of specified events; and
(d) advertising; and
(e) clients’ money and custody of investments; and
(f) accounting records and audit requirements.
(2) The Code of Practice prescribed under subsection (1)
may provide for such enforcement mechanisms as the Authority
may consider necessary to ensure compliance with the
provisions of the Code and such enforcement mechanisms may
include the creation of offences punishable in accordance with
the provisions of section 47.

30 International Mutual Funds 2008, No.7

PART VI
GENERAL
29. Notices to accompany applications - In addition to
any other requirement under this Act, every application made
under this Act for registration, recognition or a licence made
under this Act shall be accompanied by a notice of:
(a) the address of the applicant's place of business and
its address for service in Samoa; and
(b) the name and address of a person resident in Samoa
who is authorised to represent the applicant and
to accept service on its behalf; and
(c) the address of any place of business that the
applicant has outside Samoa.

30. Notification of changes-(1) A licensee shall notify the
Registrar in writing of any material change in the particulars set
out in the application for registration, recognition or licence, as
the case may be, or in the documents, information or evidence
accompanying that application or in any documents,
information or evidence given under sections 8, 9, 22 or 29.
(2) Notification of any material change pursuant to
subsection (1) shall be given within 21 days of the date of the
said material change.
(3) Every person who fails to comply with the provisions of
subsections (1) or (2) commits an offence and is liable on
conviction to a fine not exceeding 1,000 dollars for every day
during which the offence continues.

31. Annual Fees-(1) Where:
(a) a public fund is granted registration under Part III; or
(b) a private or professional fund is granted recognition
under Part IV; or
(c) a person is granted a licence under Part V,
there shall be payable for the year in which such registration,
recognition or licence is granted the approved fee.
(2) On or before the 31st day of March every year following
the year in which the registration or, recognition or licence is
granted, there shall be payable the approved annual renewal fee.

2008, No.7 International Mutual Funds 31

(3) In any case where the approved fee for annual renewal
has not been paid by the due date, the amount shall be
recoverable together with the prescribed penalty in any court of
competent jurisdiction (including the Supreme Court and the
District Court) as a debt due to the Authority.

32. Powers of the Authority and Registrar in respect of
mutual funds-(1) Whenever the Authority, in the case of a
registered public fund, or the Registrar, in the case of a
recognised private or professional fund, is of the opinion that
the said fund:
(a) has ceased to carry on business in or from within
Samoa; or
(b) has contravened any provision of this Act, the
regulations or any term, condition, restriction or
limitation attached to the fund’s certificate; or
(c) has been convicted of an offence under this Act or of
a criminal offence in any country or jurisdiction;
or
(d) has knowingly supplied false, misleading or
inaccurate information or failed to disclose
information required for the purposes of any
provision of this Act or the regulations; or
(e) is or is likely to become unable to meet its
obligations as they fall due; or
(f) is carrying on business or attempting to carry on
business or is winding up its business voluntarily
in a manner detrimental to the interests of its
investors or creditors or to the public interest; or
(g) is declared bankrupt or is being wound up or
otherwise dissolved; or
(h) is not being managed or directed in a fit and proper
manner or that a person holding the position of
promoter, director, manager or officer of the
fund is not a fit and proper person to hold the
respective position,
the Authority or the Registrar, as the case may be, may
forthwith take one or more of the following actions:

32 International Mutual Funds 2008, No.7

(i) require the international mutual fund
forthwith to take such measures as
considered necessary in relation to its
business;
(ii) impose conditions or further
conditions, as the case may be, upon the
certificate and may amend or revoke any
such condition;
(iii) require the removal and replacement
of any promoter, director, manager or officer
of the fund;
(iv) appoint a person to advise the fund
on the proper conduct of its business;
(v) appoint a person to assume control of
the affairs of the fund;
(vi) if the international mutual fund is a
company, apply to the Court for an order
winding up the company;
(vii) if the international mutual fund is a
unit trust governed by the laws of Samoa,
apply to the Court for an order directing the
trustee to wind up the fund;
(viii) if the international mutual fund is a
partnership governed by the laws of Samoa,
apply to the Court for an order to dissolve the
partnership;
(ix) apply to the Court for an order to
take such action as the Authority or the
Registrar, as the case may be, considers
necessary to protect the interests of the
investors and creditors of the international
mutual fund;
(x) cancel the certificate of registration or
recognition, as the case may be.
(2) Where the Court makes an order on an application made
in accordance with subsection (1) (vii), the Court may grant the
trustee such indemnity as it considers appropriate out of the
assets of the international mutual fund.

2008, No.7 International Mutual Funds 33

(3) A person appointed under subsection (1) (iv) or (v)
(hereinafter referred to as the “appointee”) is appointed at the
expense of the relevant fund and any expenses incurred by the
Authority or the Registrar (hereinafter referred to as the
“appointor”), by virtue of the appointment, is an amount due to
the Authority and payable by the said fund.
(4) Any amount due to the Authority under subsection (3)
shall be recoverable in any court of competent jurisdiction
(including the Supreme Court and the District Court) as a debt
due to the Authority.
(5) A person appointed under subsection (1) (v) has the duty
and all powers necessary, to the exclusion of any officer, to
administer the affairs of the international mutual fund in the
best interests of the investors and creditors of the said fund,
including the power to terminate the business of the
international mutual fund.
(6) An appointee shall:
(a) supply the appointor with such information in respect
of the international mutual fund as is specified
by the appointor; and
(b) within three months of the appointment, or within
such other period as the appointor may specify,
submit a report on the affairs of the international
mutual fund to the appointor with
recommendations, where appropriate; and
(c) if the appointment is not terminated after submitting
the report referred to in paragraph (b), shall
subsequently supply to the appointor such other
information, reports and recommendations as the
appointor may specify.
(7) If the appointee fails to comply with any obligation
under subsections (5) and (6), or in the appointor’s opinion is
not carrying out the obligations in respect of the relevant mutual
fund satisfactorily, the appointor may revoke the appointment
and appoint some other person in the appointee’s place.
(8) On receipt of any information or a report under
subsection (6) in respect of an international mutual fund, the
appointor may:


34 International Mutual Funds 2008, No.7

(a) require the international mutual fund to reorganise its
affairs in a manner specified by the appointor; or
(b) take any action provided for in subsection (1).
(9) If it appears to the Authority that an international mutual
fund is carrying on or attempting to carry on business in or from
within Samoa and is doing so in breach of sections 7(1) or
17(1), the Authority has the power to apply to the Court for
such orders as it thinks fit to preserve the assets of the investors
in the international mutual fund, and the Court has power to
grant such orders.

33. Powers of the Authority in respect of licensed
managers and administrators-(1) Whenever the Authority is
of the opinion that a licensed manager or administrator:
(a) has ceased to carry on business in or from within
Samoa; or
(b) has contravened any provision of this Act, the
regulations or the Code of Practice prescribed
under section 28 or any term, condition,
restriction or limitation attached to their licence;
or
(c) has been convicted of an offence under this Act or of
a criminal offence in Samoa or any other
country or jurisdiction; or
(d) has knowingly supplied false, misleading or
inaccurate information or failed to disclose
information required for the purposes of any
provision of this Act or the regulations; or
(e) is or is likely to become unable to meet their
obligations as they fall due; or
(f) is carrying on business or attempting to carry on
business or is winding up its business voluntarily
in a manner detrimental to the interests of the
investors or creditors of any mutual fund they are
managing or administering or detrimental to the
interests of its creditors or to the public interest;
or
(g) is declared bankrupt or is being wound up or
otherwise dissolved; or

2008, No.7 International Mutual Funds 35

(h) is not being managed or directed in a fit and proper
manner or that a person holding the position of
controller, director, manager or officer of the
fund management or administration business is
not a fit and proper person to hold the respective
position,
the Authority may take one or more of the following actions:
(i) require the fund manager or
administrator forthwith to take such measures
as considered necessary in relation to its
business; or
(ii) impose conditions or further
conditions, as the case may be, upon the
licence and may amend or revoke any such
condition; or
(iii) require the removal and replacement
of any controller, director, manager, officer
or general partner of the said business; or
(iv) appoint a person to advise the
manager or administrator on the proper
conduct of its business; or
(v) appoint a person to assume control of
the affairs of the manager or administrator
relating to its fund business; or
(vi) where the manager or administrator
is a company, make application to the Court
for the winding up of the said company; or
(vii) where the manager or administrator
is a partnership governed by the laws of
Samoa, apply to the Court for an order to
dissolve the partnership; or
(viii) make application to the Court for
such other order as the Authority considers
necessary to protect the interests of the
investors or creditors of any mutual fund
under their administration or management or
the interests of its creditors or of the public
interest; or

36 International Mutual Funds 2008, No.7

(ix) cancel the licence of the manager or
administrator, as the case may be.
(2) A person appointed under subsection (1)(iv) or (v)
(hereinafter referred to as the (“appointee”) is appointed at the
expense of the relevant manager or administrator and any
expense incurred by the Authority by virtue of the appointment
is an amount due to the Authority and payable by the said
manager or administrator.
(3) Any amount due to the Authority under subsection (2)
shall be recoverable in any court of competent jurisdiction
(including the Supreme Court and District Court) as a debt due
to the Authority.
(4) A person appointed under subsection (1) (v) has the duty
and all the powers necessary, to the exclusion of any other
person (other than a liquidator or receiver) to administer the
affairs of the said business in the best interests of the investors
and creditors of any mutual fund under its management or
administration and the creditors of the said manager or
administrator, including the power to terminate the said
business.
(5) An appointee shall:
(a) supply the Authority with such information in
respect of the manager or administrator and its
business as is specified by the Authority; and
(b) within three months of the appointment, or within
such other period as the Authority may specify,
submit a report on the affairs of the manager or
administrator to the Authority with
recommendations, where appropriate; and
(c) if the appointment is not terminated after submitting
the report referred to in paragraph (b), shall
subsequently supply to the Authority such other
information, reports and recommendations as the
Authority may specify.
(6) If the appointee fails to comply with any obligation
under subsections (4) and (5), or in the Authority’s opinion is
not carrying out the obligations in respect of the relevant
manager or administrator satisfactorily, the Authority may

2008, No.7 International Mutual Funds 37

revoke the appointment and appoint some other person in the
appointee’s place.
(7) On receipt of any information or a report under
subsection (5) in respect of a manager or administrator, the
Authority may:
(a) require the manager or administrator to reorganise its
affairs in a manner specified by the Authority; or
(b) take any action provided for in subsection (1).
(8) If it appears to the Authority that a person is acting or
carrying on business as a manager or administrator and is doing
so in breach of section 21(1), the Authority has the power to
apply to the Court for such orders as it thinks fit to preserve the
assets of the investors in any mutual fund being administered or
managed by that person, and the Court has power to grant such
orders.

34. Power of search-(1) A Judge or Registrar of the Court
who is satisfied by information on oath of the Registrar, the
Authority or a police officer:
(a) that there are reasonable grounds for suspecting that an
offence against this Act has been, is being or is
about to be committed and that evidence of the
commission of the offence is to be found at any
premises or place so specified; or
(b) that any books, records or documents (hereinafter
referred to as “records”), that ought to have been
produced under section 39 and have not been
produced, are to be found at any such premises or
place,
may grant a search warrant authorising the Authority, the
Registrar or a police officer and such other persons as may be
reasonably necessary for assistance:
(i) to enter those premises or place, using
reasonable force, if necessary; and
(ii) to search the premises or place and
any person in the premises or place; and

38 International Mutual Funds 2008, No.7

(iii) if it is necessary to do so, to break
open and search anything on the premises or
place in which records may be stored or
concealed; and
(iv) take possession of, and secure
against interference any records or computer
or electronic system or other storage system
which the Authority or the Registrar or a
police office believes to contain or store any
records that appear to indicate that any
offence against this Act has been, is being or
is about to be committed or that ought to
have been produced under section 39.
(2) In this section, “premises” includes:
(a) land, whether or not covered by buildings; and
(b) any structure, whether or not attached to land; and
(c) any means of transport.
(3) Nothing in this section authorises a person to personally
body search a person of the opposite sex.
(4) Any person who obstructs or interferes with the
Authority, the Registrar or any other person in the exercise of
any powers conferred under this section commits an offence.

35. Obligations of auditors-(1) If an auditor, in the course
of carrying out an audit on the accounts of a public fund or of a
licensed manager or administrator, becomes aware or has reason
to believe that the international mutual fund, manager or
administrator:
(a) is or is likely to become unable to meet its
obligations as they fall due; or
(b) is carrying on or attempting to carry on business or is
winding up its business voluntarily in a manner
that is prejudicial to its investors or creditors, or
to the investors or creditors of any mutual fund it
is managing or administering; or
(c) is carrying on or attempting to carry on business
without keeping sufficient or any accounting
records to allow its accounts to be properly
audited,

2008, No.7 International Mutual Funds 39

the auditor shall immediately give the Authority written notice
of the auditor’s knowledge or belief and the reasons for that
knowledge or belief.
(2) Despite any other law, no civil, criminal or disciplinary
proceedings shall lie against any auditor arising from the
disclosure in good faith of information to the Authority
pursuant to this section.

36. Appeals-(1) Subject to subsection (2), any person
affected adversely may, within 21 days of the date of the
decision appealed from, appeal to the Court, from:
(a) any decision to cancel a certificate under section 32;
or
(b) any decision to cancel a licence under section 33; or
(c) any decision by the Authority to take any of the
actions under section 32(1) or 33(1); or
(d) any decision by the Registrar to take any of the
actions under section 32(1),
PROVIDED THAT any person affected adversely by a
decision of the Authority or the Registrar may, upon notice to
the Authority or the Registrar, as the case may be, apply to the
Court for leave to extend the time within which the notice of
appeal must be filed, and the Court, upon hearing such
application, may extend the time prescribed by this section, as it
deems fit.
(2) The only grounds for an appeal under this section shall
be that the decision was ultra vires or was an unreasonable
exercise of the powers of the Authority or the Registrar, as the
case may be.
(3) In determining any appeal under this section the Court
may, if it thinks fit:
(a) exercise any of the powers conferred on the Authority
or the Registrar, as the case may be; or
(b) cancel or amend any decision to which the appeal
relates; or
(c) confirm any such decision.
(4) The decision of the Court on appeal proceedings brought
before it under this section shall be final.

40 International Mutual Funds 2008, No.7

(5) An appeal against a decision of the Authority or the
Registrar, as the case may be, shall not have the effect of
suspending the execution of such a decision.
(6) Despite any other law, the Court of Appeal, the Supreme
Court and the District Court shall not have jurisdiction to hear
and determine any matter touching upon or concerning this
section excepting for such jurisdiction as is explicitly conferred
on such Court by this section and any matter concerning Part II
of the Constitution (Fundamental Rights).

37. Power to grant exemptions-(1) Upon the
recommendation of the Registrar, the Authority may, if it is
satisfied that to do so would not be prejudicial to the public
interest, direct that all or any of the provisions of this Act or the
regulations shall:
(a) not apply; or
(b) apply subject to such modifications as the Authority
may specify in the direction,
to any person or any class of persons.
(2) A direction under this section may:
(a) be subject to any conditions as the Authority may see
fit to specify therein; and
(b) be revoked at any time at the discretion of the
Authority.

38. Restriction on the use of the words “fund” or
“mutual fund”-(1) Except with the written consent of the
Registrar, no person, other than the holder of a valid
international mutual fund certificate or licence issued under this
Act, or with respect to the use of the word “fund” only, a
segregated fund international company, incorporated or
registered under the Segregated Fund International Companies
Act 2000, shall:
(a) use or continue to use the words “fund”, “mutual
fund” or “international mutual fund” either in
English or in any other language, in the name,
description or title under which that person is
carrying on business in or from within Samoa;
and

2008, No.7 International Mutual Funds 41

(b) make or continue to make any representation in any
advertisement, billhead, circular, letter,
letterhead, notice, paper or in any other manner
that that person is carrying on business as a fund,
mutual fund or international mutual fund.
(2) Every person who contravenes this section commits an
offence.

39. Access to information and records-(1) For the
purpose of discharging their duties under this Act and the
regulations and subject to section 41, the Registrar or any
person acting under the Registrar’s authority, may at all
reasonable times, in writing, direct any person to whom this Act
applies to:
(a) furnish information; or
(b) provide access to any records, books, or other
documents,
relating to the business of that person being carried or purported
to be carried on under this Act which, in the opinion of the
Registrar, are necessary to enable the Registrar to ascertain or
ensure compliance with the provisions of this Act or the
regulations.
(2) The Registrar can request any information, explanation,
matter or thing from any person who the Registrar has
reasonable grounds to believe is carrying on or purports to be
carrying on international mutual fund business in contravention
of sections 7 (1) or 17 (1) or is carrying on or purports to be
carrying on business as a manager or administrator in
contravention of section 21 (1).
(3) Any person who fails to comply with a direction or
request given in accordance with subsection (1) or (2) is guilty
of an offence.

40. Immunity-(1) No civil, criminal or administrative
liability, including damages or penalties shall be imposed
against Samoa, the Government of Samoa, the Minister, the
Authority, the Registrar or any officer, servant or agent of the
Authority or the Registrar or any person acting pursuant to any
authority conferred by the Authority or the Registrar, as the case

42 International Mutual Funds 2008, No.7

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
regulations.
(2) The legal costs of defending any action instituted against
the Minister, the Authority, the Registrar, or any board member,
officer, servant or agent of the Authority or any person acting
pursuant to any authority conferred by the Authority or the
Registrar, as the case may be, shall be borne by the Authority.

41. Preservation of confidentiality-(1) Subject to this
section and except for the purpose of the performance or exercise
of their duties or functions under this Act or when lawfully
required to do so by any court of competent jurisdiction within
Samoa, the Authority, the Registrar or any officials or officers
thereof, including any person acting under their authority, shall
not 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 the Authority, the
Registrar or other person, as the case may be, has acquired in the
performance or exercise of such duties or functions under this
Act.
(2) Subsection (1) shall not apply to a disclosure:
(a) to the Minister, the Attorney General or an officer of
the Authority; or
(b) to any person for the purpose of discharging any
duty or exercising any power under this Act or
regulations; or
(c) in respect of the affairs of a licensee or a customer of
a licensee with the authority of the licensee or
the customer of a licensee, as the case may be,
which has been voluntarily given; or
(d) where the information is already in the public
domain; or
(e) where the information disclosed is in a summary
form or in statistics expressed in a manner that
does not enable the identification of any
particular individual or transaction; or

2008, No.7 International Mutual Funds 43

(f) for the purpose of legal proceedings in connection
with:
(i) the winding up or dissolution of a
licensee; or
(ii) the appointment or duties of a
receiver of a licensee.
(3) The Authority or the Registrar may disclose to a foreign
or domestic regulatory authority, including a trading or a
security or exchange authority, or a domestic or foreign agency
responsible for the prevention and suppression of terrorism, or
the Money Laundering Authority or any other like agency
responsible for the prevention of money laundering, information
about a registered or recognised international mutual fund or a
licensed manager or administrator, provided that:
(a) the Authority or the Registrar, as the case may be,
has been satisfied that the intended recipient
agency or authority is subject to adequate legal
restrictions on disclosures which shall include
the provision of an undertaking on
confidentiality; and
(b) the information is required for the purposes of
mutual fund regulation or the prevention and
suppression of terrorism or the enforcement of
the Money Laundering Prevention Act 2007 or
any other like law only and is not related directly
or indirectly to the imposition, calculation or
collection of taxes or the enforcement of
exchange control regulations.
(4) Every person who commits an offence under this
section shall be liable upon conviction to imprisonment for a
term not exceeding five (5) years or to a fine not exceeding
50,000 dollars or both such fine and imprisonment.

42. Breach of professional confidentiality-(1) Except as
required by or provided for under the laws of Samoa, every
person commits an offence who:
(a) divulges any information, in Samoa or elsewhere,
which the person has become aware of in the
person’s capacity as an officer, employee, or

44 International Mutual Funds 2008, No.7

authorised agent of a licensee, or as an officer or
employee of an approved auditor, in relation to:
(i) any international mutual fund business
transacted in or from within Samoa; or
(ii) the transfer of money and property into
or out of Samoa in the course of any
international mutual fund business; or
(iii) the account of any person with a
licensee or any item of such an account or the
fact of any person having, or having had such
an account; or
(b) attempts to induce others to breach professional
confidentiality in relation to any such matters.
(2) Notwithstanding subsection (1), it shall not be an offence
under this section to divulge the information referred to in
subsection (1)(a):
(a) to the Registrar if directed to do so by the Registrar
pursuant to section 39; or
(b) to the person on whose behalf the international mutual
fund business is being carried out; or
(c) to any person, with the express written consent of the
person on whose behalf the international mutual
fund business is being carried out; or
(d) to an officer or employee of the same licensee in the
performance of the person’s duties as an officer or
employee; or
(e) to the Authority or the Registrar by the auditor or
former auditor of a licensee with respect to the
audited accounts or returns of the licensee; or
(f) to ensure compliance with the Money Laundering
Prevention Act 2007 and the Prevention and
Suppression of Terrorism Act 2002 or like laws;
or
(g) to the Authority or the Registrar in the best interests
of Samoa and to uphold the integrity of the
jurisdiction.
(3) Nothing in this section shall prevent the Court from
requiring any person to give evidence or produce documents in
any proceedings in the Court of any facts relevant in those

2008, No.7 International Mutual Funds 45

proceedings that the person could otherwise be required to give or
produce.
(4) Every person who commits an offence under this
section shall be liable upon conviction to imprisonment for a
term not exceeding five (5) years or to a fine not exceeding
50,000 dollars or both such fine and imprisonment.

43. Exemption from taxation and stamp duties -
Notwithstanding anything contained in any other enactment:
(a) an international mutual fund; and
(b) an investor in any such international mutual fund
(other than a trustee company, registered under
the Trustee Companies Act 1987, who invest
funds in an international mutual fund, in their
own right and not on behalf of non-residents of
Samoa),
are in all respects exempt from any and all of the provisions of
the Income Tax Act 1974 and the Stamp Duty Ordinance 1932.

44. Exemption from currency and exchange
controls-(1) Notwithstanding anything contained in any other
enactment, an international mutual fund shall be exempt from
any currency and exchange control restrictions or regulations.
(2) No foreign exchange levy shall be imposed or be
payable in respect of fund business conducted by an
international mutual fund.

45. No other business licence required - Except as
provided by this Act, no other business licence, including a
licence under the Business Licences Act 1998, shall be required
to operate as an international mutual fund or a manager or
administrator in or from within Samoa.

46. False or misleading information - Any person who:
(a) wilfully makes a misrepresentation in any document
required to be filed, furnished or delivered under
this Act or the regulations; or

46 International Mutual Funds 2008, No.7

(b) wilfully makes any statement or gives any
information required for the purposes of this Act
or the regulations that the person knows to be
false or misleading; or
(c) knowingly fails to disclose any fact or information
required to be disclosed for the purposes of this
Act or the regulations,
commits an offence.

47. Offences and penalties-(1) Every person who commits
an offence against this Act and any regulations issued hereunder
for which no penalty is provided, otherwise than in this section,
is liable upon conviction to imprisonment for a term not
exceeding one year or to a fine not exceeding 10,000 dollars or
to both and, if the offence is a continuing one, to a further fine
not exceeding 500 dollars for every day on which the offence
continues.
(2) A prosecution for an offence under this Act may be
commenced within five years from the date of the commission
of the offence but not thereafter.

48. Regulations - The Head of State, acting on the advice
of Cabinet, may make regulations:
(a) prescribing fees, charges and penalties payable under
this Act; or
(b) designating arrangements which are not mutual
funds; or
(c) designating mutual funds or a class or classes thereof
as private or professional mutual funds; or
(d) designating a class or sub-classes of a public fund; or
(e) defining, for the purposes of this Act, terms or
expressions used in this Act that are not defined
in this Act; or
(f) prescribing any matters relating to:
(i) the constitution, powers and duties of
the manager, administrator and custodian; or
(ii) the issue and redemption of shares; or
(iii) the appointment, removal and
powers and duties of auditors; or

2008, No.7 International Mutual Funds 47

(iv) the restriction or regulation of
investment and borrowing powers; or
(v) the preparation of periodical reports;
or
(vi) the rights of investors; or
(vii) the contents of constitutional
documents, in respect of a public fund or a
sub-class of such fund; or
(viii) the contents of the prospectus of a
public fund or a sub-class of such fund; or
(g) prescribing any matter required to be or which may
be prescribed under this Act; or
(h) generally for the better administration of the Act and
for carrying out the intent and purpose of the
provisions of the Act.

49. Transitional-(1) Any person performing the functions
of a manager or an administrator who, on the commencement
date, is carrying on any business or engaged in any activity in
relation to which the person is required to be licensed under this
Act shall, within three (3) months of the commencement date,
comply with the requirements of this Act.
(2) Any person who, on the commencement date, is carrying
on any business or engaged in any activity as an international
mutual fund shall, within nine (9) months from that date,
comply with the provisions of this Act.
(3) Where a person fails to comply with subsection (2), it
shall pay a non-compliance penalty of 5,000 dollars for each
month or part thereof during which it fails to comply with that
subsection up to a period of twelve months from the
commencement date.
(4) Notwithstanding any other provision of this Act, if after
the period of twelve months referred to in subsection (3) a
person fails to comply with subsection (2), the person commits
an offence and may be proceeded against under sections 7, 17
or 21, as the case may be.

48 International Mutual Funds 2008, No.7

(5) Where a person is proceeded against under subsection
(4), it shall, in addition to any other penalty imposed on it, pay
the non-compliance penalty to which it is liable under
subsection (3).

50. Amendment of the Schedule – The Authority may, by
notice published in the Savali, amend the Schedule where the
Authority deems fit.


SCHEDULE

Recognised Countries or Jurisdictions
(Section 2)

The following Countries or Jurisdiction are recognised for the
purposes of this Act:

1. All countries that are members of the European
Union from time to time
2. Australia 3. Bahamas 4. Barbados 5. Bermuda 6. British Virgin Islands 7. Brunei 8. Canada 9. Cayman Islands 10. China 11. Chinese Taipei 12. Dubai 13. Gibraltar 14. Guernsey 15. Hong Kong
16. India
17. Isle of Man
18. Japan
19. Jersey

2008, No.7 International Mutual Funds 49

20. Malaysia
21. Mexico
22. New Zealand
23. Panama
24. Singapore
25. South Africa
26. Switzerland
27. United States of America



_________

The International Mutual Funds Act 2008 is administered by the
Samoa International Finance Authority.

Related Laws