2000, No. 6

AN ACT to provide for the registration and regulation of
Segregated Fund International Companies as part of
the regime of off shore banking in Samoa. [6th July 2000]

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 Segregated Fund International Companies Act
2000.
(2) This Act shall come into effect on the date it is assented
to by the Head of State.
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2000, No. 6 Segregated Fund International Companies 41


2. Interpretation-(1) In this Act, unless the context other-
wise requires, -
“articles” means articles of association of a segregated fund
international company:
“charge” includes a mortgage and any agreement to give or
execute a charge or mortgage whether upon demand
or otherwise:
“company” has the meaning ascribed to it in section 2 of
the International Companies Act 1987:
“court” means the Supreme Court of Samoa:
“creditor” in relation to a segregated fund international
company means any person capable of enforcing in
Samoa any debt against that segregated fund
international company or against the segregated
assets attributable to a segregated fund of the
segregated fund international company:
“debt” means any debt, whether actual or contingent but
excludes any tax liability, fine or penalty or any
liability under any public law imposed by any
government, governmental or semi-governmental
authority of a country (other than Samoa) and any
other debt or obligation incapable of being enforced
in Samoa:
“director” has the meaning ascribed to it in section 2 of the
International Companies Act 1987:
“domestic company” means a company incorporated under
the Companies Act 1955:
“insolvent” means unable to pay debts as they become due:
“International company” means a company incorporated or
continued in Samoa pursuant to the International
Companies Act 1987:
“international trust” means a trust registered under the
International Trusts Act 1987:


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42 Segregated Fund International Companies 2000, No. 6

“legal obligation” means any contractual or other monetary
obligation which the relevant segregated fund
international company has incurred, but excludes
any taxation, fine or penalty or any liability under
any public law imposed by any foreign government
and any other debt or obligation incapable of being
enforced in Samoa:
“liability” includes any debt or legal obligation:
“memorandum” has the meaning ascribed to it in section 2
of the International Companies Act 1987:
“Minister” means the Minister of Finance:
“non-segregated assets” of a segregated fund international
company comprise the assets of the company which
are not segregated assets:
“officer” has the meaning ascribed to it under section 2 of
the International Companies Act 1987:
“other membership interest” means any interest of a person
where that interest arises from or in connection with
the fact that the person is a member of a segregated
fund international company:
“prescribed” means prescribed by or under this Act:
“receiver” includes a receiver appointed by or on behalf of
a secured creditor without the aid of the Court and
includes a manager appointed by or on behalf of a
secured creditor or by the Court:
“receivership order” means an order of the Court under
section 25 in relation to a segregated fund of a
segregated fund international company:
“registered segregated fund manager” means a person
appointed as such under section 21:
“Registrar” means the Registrar of International and
Foreign Companies appointed under the
International Companies Act 1987, and includes a
Deputy Registrar:
“regulations” means regulations made under this Act:
“resident director” means an officer of a trustee company
appointed to be such under section 20:

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2000, No. 6 Segregated Fund International Companies 43

“segregated assets” of a segregated fund international
company means the assets of the company
attributable to the company’s segregated funds
pursuant to section 13:
“segregated assets transfer order” means an order of the
Court under section 22(10) sanctioning the transfer
of the segregated assets attributable to any
segregated fund of a segregated fund international
company to another person:
“segregated fund ” means a fund created by a segregated
fund international company in the manner provided
by this Act:
“segregated fund capital” means the proceeds of the issue
of shares or other membership interests in a
segregated fund and includes segregated fund share
capital:
“segregated fund distribution” means a dividend or other
payment or distribution of property liable to be
made in respect of one or more classes of
segregated fund shares or other membership
interests pursuant to the provisions of section 14:
“segregated fund dividend” means a dividend payable by a
segregated fund international company in respect of
segregated fund shares pursuant to the provisions of
section 14:
“segregated fund international company” means a company
incorporated as, or converted into, a segregated
fund international company in accordance with the
provisions of this Act:
“segregated fund shares” means shares created and issued
by a segregated fund international company in
respect of one of its segregated funds pursuant to
the provisions of section 14, the proceeds of the
issue of which (the “segregated fund share capital”)
shall be included in the segregated assets
attributable to that segregated fund:
“segregated fund share capital” means the proceeds of the
issue of segregated fund shares:
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“transaction” means anything (including, without
limitation, any agreement, arrangement, dealing,
disposition, circumstance, event or relationship)
whereby any liability arises or is imposed; and
cognate expressions shall be construed accordingly:
“transfer” includes any form of disposition, alienation or
conveyance and includes a declaration of trust:
“trustee company” has the meaning ascribed to it under
section 2 of the International Companies Act 1987:
(2) Subject to subsection (1) expressions used in this Act
shall (unless the context requires otherwise) have the same
meanings as in the International Companies Act 1987.
(3) References in this Act to an enactment are references
thereto as re-enacted (with or without modification), amended,
extended or applied.
(4) Where the provisions of this Act are inconsistent with
the provisions of any Act, other than the Constitution of Samoa,
the provisions of this Act shall prevail.

3. Restriction on interest in segregated fund inter-
national company-(1) No natural person who is a citizen or
resident of or domiciled in Samoa and no company incorporated
or registered in Samoa under the Companies Act 1955 (NZ)
(except a trustee company), may hold shares beneficially, or
hold any other form of beneficial interest, either individually or
with another person or persons, in a segregated fund
international company or in a segregated fund of a segregated
fund international company incorporated or registered under
this Act.
(2) For the purpose of this section, “non-resident” and
“resident” shall have the same meaning as in the Off Shore
Banking Act 1987.

4. Application of Act - Unless the context otherwise
requires, no provision of this Act shall apply to a domestic
company.

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2000, No. 6 Segregated Fund International Companies 45

5. Application of International Companies Act 1987 -
The provisions of the International Companies Act 1987 shall,
subject to the provisions of this Act, apply in relation to a
segregated fund international company registered under this
Act.


PART II
CONSTITUTION AND ADMINISTRATION OF
SEGREGATED FUND INTERNATIONAL COMPANIES

6. Incorporation or registration of segregated fund
international company-(1) A trustee company may apply to
incorporate or register a company as a segregated fund
international company or to convert an existing international
company, if so authorised by its memorandum, into a
segregated fund international company in accordance with the
provisions of this Act.
(2) Every segregated fund international company
incorporated or registered or converted under this Act shall be a
company limited by shares, a company limited by guarantee or
a company limited by both shares and guarantee.
(3) No segregated fund international company may issue
bearer shares or share warrants to bearer and all shares issued
by a segregated fund international company must be registered
shares.
(4) The memorandum of a company for which application
has been made to incorporate or register the company as a
segregated fund international company or to convert the
company into a segregated fund international company shall
comply with section 8.
(5) An application for incorporation or registration as a
segregated fund international company shall be accompanied
by-
(a) The documentation required to be lodged under
section 14(1) of the International Companies Act
1987;
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(b) A certificate by the trustee company lodging the
application, stating that to the best of the trustee
company’s knowledge, all of the requirements of
this Act have been complied with; and
(c) The prescribed registration fee.
(6) An application for registration as a segregated fund
international company may also be made under subsection (1)
at the same time that an application is made to register a
company by way of continuance under section 16 of the
International Companies Act 1987.
(7) The Registrar, if satisfied that the company complies
with the provisions of this Act, shall register the company as a
segregated fund international company and issue a certificate of
incorporation, or certificate of registration, if registration is
made by way of continuance under section 16 of the
International Companies Act or by conversion of an
international company, under his hand and seal. A certificate of
incorporation or registration as the case may be, shall be
conclusive evidence that all the requirements of this Act in
respect of incorporation and of matters precedent and incidental
thereto have been complied with, and that the company referred
therein was duly incorporated and registered under this Act.

7. Name of segregated fund international company -
The name of a segregated fund international company shall,
without prejudice to the provisions of section 22 of the
International Companies Act 1987, include the expression
“Segregated Fund”, “SF”, “SFC” or any cognate expression
approved in writing by the Registrar.

8. Memorandum of segregated fund international
company-(1) In addition to the matters required under the
International Companies Act 1987, the memorandum of a
segregated fund international company shall state –
(a) That it is a segregated fund international company;
(b) That each segregated fund that is created will bear
its own distinctive name or designation; and
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2000, No. 6 Segregated Fund International Companies 47

(c) The name of the trustee company that is to be the
first registered segregated fund manager of the
company.
(2) An international company may, in order to comply
with subsection (1), alter its memorandum by special resolution.

9. Legal status of segregated fund international
company-(1) Notwithstanding that a segregated fund inter-
national company may have created one or more funds pursuant
to the provisions of this Act a segregated fund international
company is a single legal person.
(2) For the avoidance of doubt, any segregated fund created
by a segregated fund international company is not a legal person
separate from that company.

10. Creation of segregated funds-(1) Subject to the
provisions of this Act a segregated fund international company
may create one or more segregated funds.
(2) A segregated fund international company may only
create segregated funds through a registered segregated fund
manager appointed pursuant to section 21 of this Act.
(3) Each segregated fund created by a segregated fund
international company shall have its own distinct name or
designation.
(4) The registered segregated fund manager shall apply to
the Registrar for registration of each fund created by a
segregated fund international company. An application for
registration of a segregated fund shall specify the name or
designation of the segregated fund and such other information
as may be prescribed by regulation. An application under this
subsection shall be accompanied by the prescribed registration
fee.
(5) Upon filing of an application under subsection (4), the
Registrar shall issue a certificate of registration under his hand
and seal which shall be conclusive evidence that the
requirements of this Act in respect of registration of a
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segregated fund have been complied with and that the
segregated fund referred to therein has been duly registered
under this Act.
(6) No segregated fund created by a segregated fund
international company shall be valid until registered by the
Registrar pursuant to the provisions of this section.
(7) The creation of a segregated fund does not of itself
create any trust and, subject to any contract, declaration of trust
or other obligation to the contrary, a segregated fund
international company remains the legal and beneficial owner
of the assets attributable to the segregated fund.

11. Renewal of registration-(1) Every segregated fund
international company shall be liable to pay to the Registrar on
the 30th
day of November in each year following the year in
which it is incorporated or registered the prescribed annual
renewal fee.
(2) Every segregated fund international company shall be
liable to pay to the Registrar on the 30th
day of November in
each year following the year in which each segregated fund was
registered the prescribed annual renewal fee for each segregated
fund registered by the segregated fund international company.
(3) In the event that a segregated fund international
company fails to renew its registration within the prescribed
period the provisions of section 197 of the International
Companies Act 1987 shall apply.

12. Revocation of registration and consequences- (1)
The Registrar shall revoke the registration of a segregated fund
where the segregated fund international company which created
the segregated fund has failed to renew its registration and that
company has been dissolved under the provisions of section 197
of the International Companies Act 1987.
(2) Where the registration of a segregated fund has not
been renewed by the segregated fund international company as
required by section 11(2) of the Act and the segregated fund
manager has not filed notice of dissolution of that segregated
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2000, No. 6 Segregated Fund International Companies 49

fund pursuant to section 22(14), the Registrar shall send by
registered post addressed to the segregated fund international
company at its registered office in Samoa a notice to that effect
and stating that if the said breach of section 11(2) is not
rectified or notice of dissolution under section 22(14) is not
filed within two months from the date thereof the Registrar
shall revoke the registration of the segregated fund.
(3) Where the Registrar has reasonable cause to believe
that -
(a) A segregated fund international company does not
have a resident director as required by section
20; or
(b) A segregated fund international company does not
have a registered fund manager as required by
section 21,
he may send by registered post addressed to the segregated fund
international company at its registered office in Samoa a notice
to that effect and stating that if the said breach of section 20 or
section 21 as the case may be is not rectified within two months
from the date thereof the Registrar will revoke the registration
of each segregated fund created by that segregated fund
international company.
(4) At the expiration of the time specified in the notice
sent to a segregated fund international company pursuant to
either subsection (2) or (3), or such further time as the Registrar
deems fit, he may, unless cause to the contrary has been
previously shown, revoke the registration of each segregated
fund created by that segregated fund international company.
(5) Where registration of a segregated fund -
(a) Is revoked under subsection (1); or
(b) Has been revoked under subsection (4) and the
segregated fund international company that
created that segregated fund has been dissolved
subsequent to such revocation,
and there remains any property, real or personal, including
those in action, and whether inside or outside Samoa, which
formed part of the segregated assets of that segregated
fund and
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which has not been disposed of or otherwise dealt with prior to
revocation of registration or dissolution of the segregated fund
international company, such property, notwithstanding any
enactment or rule of law to the contrary and by the operation of
this section, shall be and become vested in the Registrar for all
the estate and interest therein, legal or equitable, of the
segregated fund international company or its liquidator at the
date the segregated fund international company was dissolved,
together with all claims, rights and remedies which the
segregated fund international company or its liquidator then had
in respect thereof.
(6) Notwithstanding any enactment or rule of law to the
contrary and subject to the provisions of subsection (5), where
the registration of a segregated fund has been revoked pursuant
to subsection (4) and a receiver has not been appointed under a
receivership order made pursuant to Part III of this Act, any
property, real or personal, including chooses in action, and
whether inside or outside Samoa, which formed part of the
segregated assets of that segregated fund and which has not
been disposed of or otherwise dealt with by the segregated fund
manager within six months after the date of revocation of
registration, shall by operation of this section, be and become
vested in the segregated fund international company on that
date being six months after the date of revocation of
registration. Any segregated assets of a segregated fund so
vested in the segregated fund international company shall be
held by the segregated fund international company in trust for a
further period of 2 years to satisfy the valid claims of creditors
and members against such segregated assets. Upon the expiry
of the said 2 year period any remaining segregated assets which
have not been so distributed and are not subject to any valid
claim by the creditors or members of the deregistered
segregated fund shall vest absolutely in the segregated fund
international company.
(7) The Registrar may sell or otherwise dispose of or deal
with property vested in him pursuant to subsection (5) either
solely or in concurrence with any other person who may have
an
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interest in the same in such manner, for such consideration and
upon such terms and conditions as he thinks fit with power to
rescind any contract and resell or otherwise dispose of or deal
with such contracts, instruments and documents as he thinks
necessary.
(8) The moneys received by the Registrar in the exercise
of any the powers conferred on him by this section shall be
applied first in defraying all costs, expenses, fees and
commissions incidental thereto and thereafter shall be dealt
with under the Unclaimed Money Act 1964.
(9) Any action for or in respect of any moneys paid under
the provisions of subsection (8) shall be against the Registrar as
the nominal defendant and shall be instituted within 2 years
next after the date of revocation of registration of the segregated
fund after which time no such action shall be instituted and the
claim shall be absolutely barred.

13. Assets of segregated fund international company-
(1) The assets of a segregated fund international company shall
be divided into segregated assets and non-segregated assets.
(2) The segregated assets of a segregated fund
international company comprise the assets of the company
attributable to the segregated funds of the company.
(3) The assets attributable to each segregated fund of a
segregated fund international company comprise-
(a) Assets represented by the proceeds of the issue
pursuant to section 14 of segregated fund capital
and reserves attributable to that segregated fund;
and
(b) All other assets attributable to that segregated fund.
(4) The directors of a segregated fund international
company shall -
(a) Keep segregated assets separate and separately
identifiable from non-segregated assets; and
(b) Keep segregated assets attributable to each
segregated fund separate and separately
identifiable from segregated assets attributable to
other segregated funds.
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(5) For the purposes of subsection (3), the expression
“reserves” includes retained earning, capital reserves and share
premiums.
(6) The non-segregated assets of a segregated fund
international company comprise the assets of the company
which are not segregated assets.
(7) Income, receipts and other property or rights of or
acquired by a segregated fund international company not
otherwise attributable to any segregated fund shall be applied to
and comprised in the company’s non-segregated assets.

14. Share and membership capital of segregated fund
international company-(1) A segregated fund international
company may allocate part or all of its registered share capital
to any of its segregated funds and may, in respect of any of such
segregated funds, create and issue shares or other membership
interests. The segregated fund shares issued in respect of each
segregated fund shall constitute a separate class of shares. The
proceeds of the issue of such segregated fund shares shall be
included in the segregated assets attributable to the segregated
fund in respect of which the segregated fund shares were
issued. The proceeds of the issue of other membership interests
shall be included in the capital of the segregated fund in respect
of which they were issued or, if there be no such fund, the
proceeds shall be treated as non-segregated assets of the
company.
(2) The proceeds of the issue of shares other than
segregated fund shares created and issued by a segregated fund
international company shall be comprised in the company’s
non-segregated assets.
(3) A segregated fund international company may pay a
dividend or other payment in respect of one or more classes of
segregated fund shares or other membership interests.
(4) Segregated fund distributions may be paid in respect of
segregated funds shares or other membership interests by
reference only to the profits attributable to the segregated fund
in respect of which the segregated fund shares or other
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2000, No. 6 Segregated Fund International Companies 53

membership interests were issued or in respect of the segregated
assets and liabilities attributable to the segregated fund in
respect of which the segregated fund shares or other
membership interests were issued, and may include capital
distributions, dividends and bonus shares.
(5) Unless the context requires otherwise, references in the
International Companies Act 1987 to shares include references
to segregated fund shares.
(6) For the avoidance of doubt, nothing in this section shall
be construed to prevent a payment to a person who is not a
member of a segregated fund where that payment arises out of a
legal obligation in respect of that segregated fund.

15. Limitation of liabilities of segregated fund inter-
national company-(1) Where a liability of a segregated fund
international company to a creditor of that segregated fund
international company arises from a transaction, or is otherwise
imposed by this Act, in respect of a particular segregated fund –
(a) That liability of the company shall extend only to,
and that creditor shall, in respect of that liability,
be entitled to have recourse only to, the
segregated assets attributable to that segregated
fund; and
(b) That liability of the company shall not extend to, and
that creditor shall not, in respect of that liability,
be entitled to have recourse to, the segregated
assets attributable to any other segregated fund.
(2) Where a liability of a segregated fund international
company to a creditor –
(a) Arises otherwise than from a transaction in respect
of a particular segregated fund; or
(b) Is imposed by this Act otherwise than in respect of a
particular segregated fund,
that liability of the company shall extend only to, and that
creditor shall, in respect of that liability, be entitled to have
recourse only to, the company’s non-segregated assets.


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(3) Liabilities of a segregated fund international company
not otherwise attributable to any of its segregated funds shall be
discharged from the company’s non-segregated assets.
(4) Nothing in this section shall be construed to grant to
any person security over any assets or to affect that priority of
any security granted to any secured creditor of a segregated
fund or of a segregated fund international company.

16. Creditors of segregated fund international
company-(1) For the purposes of section 15, a transaction shall
be deemed to be in respect to a particular segregated fund if the
segregated fund international company has identified or
specified that the transaction is in relation to that segregated
fund, or if the creditor had actual or constructive notice that the
segregated fund international company had entered into the
transaction or agreement on behalf of that segregated fund.
(2) Segregated assets attributable to a segregated fund of a
segregated fund international company –
(a) Shall only be available to the creditors of the
company who are creditors in respect of that
segregated fund and who shall thereby be
entitled, in conformity with the provisions of this
Act, to have recourse to the segregated assets
attributable to that segregated fund; and
(b) Shall be absolutely protected from the creditors of
the company who are not creditors in respect of
that segregated fund and who accordingly shall
not be entitled to have recourse to the segregated
assets attributable to that segregated fund.

17. Company to inform persons they are dealing with
segregated fund international company-(1) A segregated
fund international company shall –
(a) Inform any person with whom it transacts where
such transaction creates any liability against the
segregated fund international company, that it is
a segregated fund international company; and

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(b) For the purposes of that transaction, identify or
specify the segregated fund in respect of which
that person is transacting, unless that transaction
is not a transaction in respect of a particular
segregated fund.
(2) If, in contravention of subsection (1), a segregated fund
international company –
(a) Fails to inform a person that he is transacting with a
segregated fund international company, and that
person is otherwise unaware that, and has no
reasonable grounds to believe that, he is
transacting with a segregated fund international
company; or
(b) Fails to identify or specify the segregated fund in
respect of which a person is transacting, and that
person is otherwise unaware of, and has no
reasonable basis of knowing, which segregated
fund he is transacting with;
then, in either such case –
(i) the directors shall (notwithstanding any
provision to the contrary in the company’s
articles or in any contract with the company or
otherwise) incur personal liability to that person
in respect of the transaction; and
(ii) the directors shall have a right of
indemnity against the non-segregated assets of
the company, unless they were fraudulent,
reckless or negligent, or acted in bad faith.
(3) Notwithstanding the provisions of subsection (2)(i), the
Court may relieve a director of all or part of his personal
liability thereunder if he satisfies the Court that he ought fairly
to be so relieved because –
(a) He was not aware of the circumstances giving rise to
his liability and, in being not so aware, he was
neither fraudulent, reckless or negligent, nor
acted in bad faith; or
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(b) He expressly objected, and exercised such rights as
he had as a director, whether by way of voting
power or otherwise, so as to try to prevent the
circumstances giving rise to his liability.
(4) Where, pursuant to the provisions of subsection (3), the
Court relieves a director of all or part of his personal liability
under subsection (2)(i), the Court may order that the liability in
question shall instead be met from such of the segregated or
non-segregated assets of the segregated fund international
company as may be specified in the order.
(5) Any provision in the articles of a segregated fund
international company, and any other contractual provision
under which the segregated fund international company may be
liable, which purports to indemnify directors in respect of
conduct which would otherwise invalidate an indemnity against
non-segregated assets by virtue of subsection (2)(ii), shall be
void.
(6) The provisions of this section are without prejudice to
section 89A of the International Companies Act 1987.

18. Registration of charges over assets of segregated
fund international company-(1) Any person who has an
interest in a charge created by a segregated fund international
company may apply for registration of the charge pursuant to
the provisions of Division 4 of Part IV of the International
Companies Act 1987. Any application for registration of a
charge against the assets of a segregated fund international
company shall specify whether the assets are non-segregated
assets or segregated assets and if against segregated assets shall
state the name of the registered segregated fund to which such
segregated assets are attributed.
(2) A charge created against the segregated assets of a
registered segregated fund of a segregated fund international
company shall be registered as a separate and separately
identifiable charge against the registered segregated fund and
not against the other segregated and non-segregated assets of
the segregated fund international company.

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2000, No. 6 Segregated Fund International Companies 57

(3) The provisions of Division 4 of Part IV of the
International Companies Act 1987 when applied to a segregated
fund international company shall be interpreted and applied
separately to distinguish between segregated and non-
segregated assets of a segregated fund international company.

19. Prohibited activities of segregated fund inter-
national company - A segregated fund international company
shall not carry on the business of banking, insurance or acting
as a trustee company unless it is licensed or otherwise permitted
to do so under the laws currently in force in Samoa. The
provisions of section 7(2) of the International Companies Act
1987 shall apply to a segregated fund international company.

20. Resident director - Every segregated fund
international company shall appoint and maintain at all times a
resident director who shall be an officer of a registered
segregated fund manager. A corporation shall not be the sole
resident director of a segregated fund international company.

21. Registered segregated fund manager-(1) Every
segregated fund international company shall appoint and
maintain at all times a registered segregated fund manager in
Samoa who shall be a trustee company registered under the
Trustee Companies Act 1987.
(2) The registered segregated fund manager shall -
(a) Ensure segregated funds are created and registered
in accordance with this Act;
(b) Ensure that segregated funds are administered in
compliance with this Act;
(c) Keep records and accounts which shall identify
shares or membership interests of shareholders
or other members in respect of each segregated
fund; and
(d) Keep records and accounts which shall identify all
creditors, liabilities and assets of each segregated
fund.

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(3) Any contract under which a segregated fund manager
is appointed shall be deemed to include a covenant imposing
upon the segregated fund manager the duty to pay from the
assets of the segregated fund all fees or fines required or
prescribed for registration of that segregated fund and
authorising that segregated fund manager to have recourse to
the assets of that segregated fund for the purpose of ensuring
that such fees or fines for registration are paid. Where the
segregated fund manager pays any fees or fines for registration
out of its own funds it shall have a corresponding lien on any
asset of the segregated fund under its management.

22. Transfers or distributions of segregated assets from
segregated fund international company-(1) Except as
hereunder provided, no transfer or distribution of segregated
assets attributable to any segregated fund of a segregated fund
international company shall be made, otherwise than in the
course of business or for adequate consideration or pursuant to a
legal obligation, unless the segregated fund manager of that
segregated fund is satisfied on reasonable grounds that the
provisions of the Articles, if any, requiring member approval of
the proposed transfer or distribution have been complied with,
and that either -
(a) All creditors of that segregated fund have had at least
30 days notice of the proposed transfer or
distribution and no such creditor has objected to
the proposed transfer or distribution; or
(b) That the segregated fund will, immediately after the
making of the transfer or distribution, satisfy the
solvency test prescribed under subsection (15) in
relation to that segregated fund.
(2) For the purposes of subsection (1), notice of a
proposed transfer or distribution may be given to the relevant
creditors in respect of a segregated fund in the same manner as
provided for a general meeting of members of the segregated
fund international company and any notice of objection to the
proposed transfer or distribution must be lodged at the
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registered office of the segregated fund manager no later than
30 days after notice of the proposed transfer or distribution was
first given to the objecting creditor. Any remaining period of
notice required for objections to be lodged under this section
may be waived by unanimous consent in writing of creditors
entitled to notice of the proposed transfer or distribution after
they have received actual notice of the proposed transfer or
distribution.
(3) Before any transfer or distribution is made pursuant to
subsection (1)(b), the segregated fund manager must sign a
certificate stating that, in its opinion, the company will,
immediately after the transfer is made, satisfy the solvency test
in relation to that segregated fund and the grounds for that
opinion.
(4) If, before the transfer or distribution is made, the
segregated fund manager ceases to be satisfied on reasonable
grounds that the company will, immediately after the transfer is
made, satisfy the solvency test in relation to that segregated
fund, any transfer made by the company is deemed not to have
been authorised.
(5) Every segregated fund manager who fails to comply
with subsection (3) of this section commits an offence and is
liable to the penalty set out in section 30 of this Act.
(6) Notwithstanding the foregoing provisions of this
section and in the alternative thereto the directors or the
registered segregated fund manager of a segregated fund
international company, or any other interested party may apply
to the Registrar for approval to transfer or distribute segregated
assets attributable to any segregated fund of a segregated fund
international company to another person, wherever resident or
incorporated outside Samoa, (including an international
company) and whether or not a segregated fund international
company. Such application shall be in the prescribed form and
shall -
(a) Specify whether a majority by value of the creditors
of the company who are entitled to recourse
against the segregated assets attributable to the

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60 Segregated Fund International Companies 2000, No. 6

segregated fund have not objected to the transfer
or distribution;
(b) If any creditors have objected to the proposed
transfer or distribution, the reasons why the
transfer or distribution would not unfairly
prejudice the rights and interests of those
creditors; and
(c) Include such documentation as may be required to
evidence (a) and (b).
(7) An application under subsection (6) must be
accompanied by the prescribed application fee.
(8) Upon receipt of an application pursuant to subsection
(6) the Registrar may -
(a) Approve a transfer or distribution of segregated
assets attributable to a segregated fund of a
segregated fund international company if he is
satisfied -
(i) that the creditors of the company entitled
to have recourse to the segregated assets
attributable to the segregated fund have
consented to the transfer or distribution; or
(ii) that those creditors would not be unfairly
prejudiced by the transfer or distribution;
(iii) that the company will, immediately
after the making of the transfer or distribution,
satisfy the solvency test in relation to that
segregated fund;
(b) If the Registrar is not so satisfied, he may -
(i) decline the application; or
(ii) determine that the application should be
heard by the Court in accordance with sub-
section (9).
(9) If the Registrar has declined an application in
accordance with subsection (8) of this section or has determined
that the application should be heard by the Court in accordance
with subsection (8)(b)(ii) or if the applicant is otherwise not
satisfied with the decision of the Registrar under that
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2000, No. 6 Segregated Fund International Companies 61

subsection, the segregated fund manager or the directors of a
segregated fund international company may apply to the Court
for an order approving the transfer or distribution (“segregated
assets transfer order”).
(10) The Court, on hearing an application for a segregated
assets transfer order -
(a) May make or decline to make a segregated assets
transfer order; or
(b) May make an interim order or adjourn the hearing,
conditionally or unconditionally;
(c) May dispense with any of the requirements of
subsections (1)(6) or (8)(a).
(11) The Court may attach such conditions as it thinks fit
to a segregated assets transfer order, including conditions as to
the discharging of claims of creditors entitled to have recourse
to the segregated assets attributable to the segregated fund in
relation to which the order is sought or the holding of reserves
against contingent liabilities.
(12) The Court may make a segregated assets transfer order
in relation to a segregated fund of a segregated fund
international company notwithstanding that -
(a) A liquidator has been appointed to act in respect of
the company or the company has passed a
resolution for voluntary winding up;
(b) A receivership order has been made in respect of the
segregated fund or any other segregated fund of
the company.
(13) The provisions of this section are without prejudice to
any power of a segregated fund international company lawfully
to make payments from the segregated assets attributable to any
segregated fund of the company to a person entitled, in
conformity with the provisions of this Act, to have recourse to
those segregated assets.
(14) Where a transfer or distribution of segregated assets
attributable to a segregated fund of a segregated fund
international company made pursuant to this section results in
the dissolution of the segregated fund, the registered segregated

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62 Segregated Fund International Companies 2000, No. 6

fund manager shall file with the Registrar a notice of dissolution
in the prescribed form.
(15)(a) For the purposes of this Act, a company satisfies
the solvency test in relation to a segregated fund if -
(i) the company is able to pay, in accordance
with this Act, all the debts attributable to that
segregated fund as they become due in the
normal course of business; and
(ii) the value of the assets attributable to that
segregated fund is greater than the value of the
liabilities attributable to that segregated fund
including contingent liabilities.
(b) In determining for the purposes of this Act whether
the value of the assets attributable to a
segregated fund is greater than the value of the
liabilities attributable to that segregated fund
including contingent liabilities, the segregated
fund manager -
(i) must have regard to -
(aa) The most recent financial statements
of the company that comply with
the International Companies Act
1987; and
(bb) All other circumstances that the
directors know or ought to know
affect, or may affect, the value of
the company’s assets and the
value of the company’s liabilities,
including its contingent liabilities;
and
(ii) may rely on valuations of assets or
estimates of liabilities that are reasonable in the
circumstances.
(16) In determining, for the purposes of this section, the
value of a contingent liability, account may be taken of -
(a) The likelihood of the contingency occurring; and


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2000, No. 6 Segregated Fund International Companies 63

(b) Any claim the company is entitled to make and can
reasonably expect to be met to reduce or
extinguish the contingent liability.
(17) Where a transfer or distribution is made in
contravention of the requirements of this section, that transfer
or distribution is not void but voidable within 2 years of the date
of the contravening transfer or distribution at the instance of any
member or creditor of the relevant segregated fund but not so as
to prejudice the rights of any party to a transaction who has
acted without notice of any defect.
(18) Nothing in this section shall be taken to limit the
operation of any trust or to authorise any transfer or distribution
of assets which would constitute a breach of trust.
(19) Nothing in this section shall be construed to authorise
the non-compliance by a segregated fund international company
with any legal obligation attaching to the company in respect of
the assets or business or undertakings or liabilities of a
segregated fund.

23. Provisions in relation to liquidation of segregated
fund international company-(1) Notwithstanding any statutory
provision or rule of law to the contrary, in the liquidation of a
segregated fund international company, the liquidator -
(a) Shall be bound to deal with the company's assets in
accordance with the requirements set out in
paragraphs (a) and (b) of section 13(4); and
(b) In discharge of the claims of creditors of the
segregated fund international company, shall
apply the company's assets to those entitled to
have recourse thereto in conformity with the
provisions of this Act.
(2) Section 154 of the International Companies Act 1987
(which provides that a company's assets in a winding up shall
be realised and applied in satisfaction of the company's
liabilities and debts equally) shall not apply to the liquidation of
a segregated fund international company, and the provisions of
subsection (3) shall apply in lieu thereof in respect of the
liquidation of a segregated fund international company.
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64 Segregated Fund International Companies 2000, No. 6

(3) The property of a segregated fund international
company shall, on its winding up, be applied as follows -
(a) The segregated assets attributable to each of the
segregated funds of the segregated fund
international company shall be applied firstly in
satisfaction of the liabilities to the creditors of
the company entitled to have recourse to those
segregated assets attributable to the relevant
segregated fund. The segregated assets of each
separate segregated fund shall only be applied to
satisfy the liabilities attributable to that
segregated fund and not to satisfy the liabilities
to creditors of any other segregated fund;
(b) The surplus segregated assets, if any, attributable to
each segregated fund after satisfaction of the
liabilities to creditors of the company pursuant to
subsection (a) shall be distributed in accordance
with the Articles to the holders of the segregated
fund shares attributable to the relevant
segregated fund or to such other persons who
hold the membership interest in such segregated
fund. The surplus segregated assets of each
separate segregated fund shall only be distributed
to the holders of the segregated fund shares or
other membership interests in that segregated
fund and shall not be distributed to the holders of
the segregated fund shares or other membership
interest in any other segregated fund;
(c) The non-segregated assets of the segregated fund
international company shall be applied in
satisfaction of all of its remaining liabilities
equally and subject to that application shall,
unless the articles otherwise provide, be
distributed among the members according to
their rights and interests in the company.

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2000, No. 6 Segregated Fund International Companies 65

PART III
RECEIVERS

24. Receivers generally-(1) In carrying out his duties a
receiver shall be bound by section 15.
(2) Notwithstanding any provision to the contrary in any
debenture or other instrument pursuant to which a receiver is
appointed, a segregated fund international company may only
grant a charge over the segregated assets and undertakings held
by the company for the segregated fund specified in the
debenture or other instrument. A charge over the segregated
assets of a segregated fund may only be granted in relation to
the liabilities, assets and activities of that segregated fund.
(3) If a receiver is appointed over the non-segregated assets
of a segregated fund international company the powers, duties
and responsibilities of that receiver shall, unless a further
receivership order or appointment or receivership orders or
appointments is or are made, only apply to the non-segregated
assets of the segregated fund international company and not to
any segregated assets or to the business or undertakings of any
segregated fund.
(4) If a receiver is appointed over the segregated assets of
a segregated fund of a segregated fund international company,
the powers, duties and responsibilities of that receiver under the
International Companies Act 1987 shall be taken to apply only
to the assets or business or undertakings or liabilities of that
segregated fund and not to any segregated assets or business or
undertakings or liabilities of any other segregated fund nor to
the non-segregated assets or business or undertakings or
liabilities of the segregated fund international company.

25. Receivership orders in relation to segregated funds-
(1) Subject to the provisions of this section, if in relation to a
segregated fund international company the Court is satisfied -
(a) That the segregated assets attributable to a particular
segregated fund of the company (when account
is taken of the company's non-segregated assets,
unless there are no creditors in respect of that
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66 Segregated Fund International Companies 2000, No. 6

segregated fund entitled to have recourse to the
company's non-segregated assets) are or are
likely to be insufficient to discharge the claims
of creditors in respect of that segregated fund;
(b) That the making of an order under this section would
achieve the purposes set out in subsection (3); or
(c) That registration of the particular segregated fund
has been revoked, pursuant to section 12, no
more than 6 months prior to the date of the
application,
the Court may make an order under this section (a “receivership
order”) in respect of that segregated fund.
(2) A receivership order may be made in respect of one or
more segregate funds provided that that if the order is made in
respect of more than one segregated fund, the Court must be
satisfied that subsection (1) applies to each segregated fund in
relation to which an order is made.
(3) A receivership order is an order directing that the
business and segregated assets of or attributable to a segregated
fund (and no other assets) shall be managed by the receiver
specified in the order for the purposes of -
(a) The orderly winding up of the business of or
attributable to the segregated fund; and
(b) The distribution of the segregated assets attributable
to the segregated fund to those entitled to have
recourse thereto.
(4) A receivership order -
(a) May not be made if -
(i) a liquidator has been appointed to act in
respect of the segregated fund international
company; or
(ii) the segregated fund international
company has passed a resolution for voluntary
winding up; and
(b) Shall cease to be of effect upon the appointment of a
liquidator to act in respect of the segregated fund
international company, but without prejudice to
prior acts.
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2000, No. 6 Segregated Fund International Companies 67

(5) No resolution for the voluntary winding up of a
segregated fund international company any segregated fund of
which is subject to a receivership order shall be effective
without leave of the Court.

26. Applications for receivership orders-(1) An
application for a receivership order in respect of a segregated
fund of a segregated fund international company may be made
by -
(a) The company;
(b) The directors of the company;
(c) Any creditor of the company in respect of that
segregated fund;
(d) Any holder of segregated fund shares or other
membership interests in respect of that
segregated fund;
(e) The registered segregated fund manager of that
segregated fund; or
(f) The Registrar.
(2) The Court, on hearing an application -
(a) For a receivership order; or
(b) For leave, pursuant to section 25(5), for a resolution
for voluntary winding up,
may make an interim order or adjourn the hearing, conditionally
or unconditionally.
(3) Notice of an application to the Court for a receivership
order in respect of a segregated fund of a segregated fund
international company shall be served upon -
(a) The company;
(b) The registered segregated fund manager of the
segregated fund;
(c) The Registrar; and
(d) Such other persons (if any) as the Court may direct,
who shall each be given an opportunity of making
representations to the Court before the order is made.
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68 Segregated Fund International Companies 2000, No. 6

27. Functions of receiver and effect of receivership
order-(1) The receiver of a segregated fund appointed pursuant
to an order of the Court -
(a) May do all such things as may be necessary for the
purposes set out in section 25(3); and
(b) Shall have all the functions and powers of the
registered segregated fund manager and the
directors in respect of the business and
segregated assets of or attributable to the
segregated fund.
(2) The receiver may at any time apply to Court -
(a) For directions as to the extent or exercise of any
function or power;
(b) For the receivership order to be discharged or varied;
or
(c) For an order as to any matter arising in the course of
his receivership.
(3) In exercising his functions and powers the receiver is
deemed to act as the agent of the segregated fund international
company, and shall not incur personal liability except to the
extent that he is fraudulent, reckless or grossly negligent, or acts
in bad faith.
(4) Any person dealing with the receiver in good faith is
not concerned to enquire whether the receiver is acting within
his powers.
(5) When an application has been made for, and during the
period of operation of, a receivership order -
(a) No proceedings may be instituted or continued by or
against the segregated fund international
company in relation to the segregated fund in
respect of which the receivership order was
made; and
(b) No steps may be taken to enforce any security or in
execution of legal process in respect of the
business or segregated assets of or attributable to
the segregated fund in respect of which the
receivership order was made,

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2000, No. 6 Segregated Fund International Companies 69

except by leave of the Court, which may be conditional or
unconditional.
(6) During the period of operation of a receivership order -
the functions and powers of the directors shall cease in respect
of the business and segregated assets of or attributable to the
segregated fund in respect of which the order was made.

28. Discharge and variation of receivership orders-(1)
The Court shall not discharge a receivership order unless it
appears to the Court that the purpose for which the order was
made has been achieved or substantially achieved or is
incapable of achievement.
(2) The Court, on hearing an application for the discharge
or variation of a receivership order, may make any interim order
or adjourn the hearing, conditionally or unconditionally.
(3) Upon the Court discharging a receivership order in
respect of a segregated fund of a segregated fund international
company on the ground that the purpose for which the order
was made has been achieved or substantially achieved, the
Court may direct that any payment made by the receiver to any
creditor of the company in respect of that segregated fund shall
be deemed full satisfaction of the liabilities of the company to
that creditor in respect of that segregated fund; and the
creditor's claims against the company in respect of that
segregated fund shall be thereby deemed extinguished.
(4) Nothing in subsection (3) shall operate so as to affect
or extinguish any right or remedy of a creditor against any other
person, including any surety of the segregated fund international
company.

29. Remuneration of receiver - The remuneration of a
receiver appointed by order of the Court and any expenses
properly incurred by him shall be payable, in priority to all
other claims, from -
(a) The segregated assets attributable to the segregated
fund in respect of which the receiver was
appointed; and

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(b) To the extent that these may be insufficient, the
non-segregated assets of the segregated fund
international company.


PART IV
GENERAL PROVISIONS

30. Offences-(1) Any person who knowingly and wilfully-
(a) Does or authorises anything which by or under this
Act he is forbidden to do;
(b) Does not do or refuses to do something which by or
under this Act he is required or directed to do; or
(c) Otherwise contravenes or fails to comply with any
provision of the Act,
commits an offence against this Act and, save as hereinafter
provided in this section, shall be liable on conviction to a fine
not exceeding 5 penalty units and in the case of a second or
subsequent offence to a fine not exceeding 10 penalty units.
(2) Any person who commits an offence against the
provisions, or any part of the provisions, of any one of section
13 or 22 shall be liable on conviction to a fine not exceeding 10
penalty units or to imprisonment for a term not exceeding 3
months or both in respect of each such offence and for each
second or subsequent offence to a fine not exceeding 50 penalty
units or to imprisonment for a term not exceeding 6 months or
to both.

31. Regulations - The Head of State, acting on the advice
of Cabinet, may from time to time, make regulations
prescribing all matters and things required or authorised by this
Act to be prescribed or provided or which the necessary or
convenient to be prescribed or provided, for the carrying out of,
or the giving full effect to, the provisions of this Act and its due
administration including all or any of the following particular
purposes -
(a) The conduct of the business of segregated fund
international companies;
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2000, No. 6 Segregated Fund International Companies 71

(b) The manner in which segregated fund international
companies may carry on, or hold themselves out
as carrying on, business;
(c) The winding up or receivership of segregated fund
international companies;
(d) Prescribing forms to be used for the purposes of this
Act and the matters to be specified in such
forms;
(e) Prescribing forms of applications and other notices
under this Act; and
(f) Fixing fees and charges to be paid under this Act and
the penalties for breaches thereunder, or
delegating the power of fixing such fees, charges
and penalties to prescribed persons or bodies.

32. Immunity - No action shall lie against the
Government or any statutory body or authority of Samoa, the
Minister, the Registrar or any person acting pursuant to any
authority conferred by the Minister or the Registrar, 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.

33. Privacy - For the avoidance of doubt, the provisions of
section 227 of the International Companies Act 1987 are hereby
expressed to be applicable to a segregated fund international
company and to a segregated fund of a segregated fund
international company.