Foreign Investment Amendment Act – 2011

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

1. Short title and commencement
2. Interpretation
3. Reserved List
4. Restricted List
5 Activities not otherwise
restricted
6. Insertion of new section 6A
7. Functions of the Chief Executive
Officer
8. Insertion of new section 7A
9. Receipt and approval of
applications for foreign
investment registration

10. Insertion of new section 8A
11. Duration of certificates
12. Register of Foreign Investment
13. Reports by Foreign Investors
14. Insertion of new section 11A
15. Cancellation of certificates
16. Offences and Penalties
17. Regulations
18. Insertion of new section 19
19. Schedules

__________

2011, No. 8

AN ACT to amend the Foreign Investment Act 2000.
[11th
August 2011]

BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:

1. Short title and commencement-(1) This Act may be cited as
the Foreign Investment Amendment Act 2011 and shall be read
together with and form part of the Foreign Investment Act 2000
(“Principal Act”).
(2) This Act commences on the date it is assented to by the Head
of State.

2 Foreign Investment Amendment 2011, No. 8

2. Interpretation-(1) In section 2(1) of the Principal Act:
(a) insert the following in correct alphabetical order:
““Committee” means the Foreign Investment Advisory
Committee established under section 6A;
“CPC Code” means the United Nations Central Product
Classification Code as applied by the Ministry;
“Investment Report” means the Annual Foreign Investment
Report described in section 11A”; and
(b) in the interpretation of “Reserved List” for “the Schedule”
substitute “Schedule 1”.
(2) After section 2(3) of the Principal Act insert:
“(3A) An applicant with dual citizenship who decides to use
his or her foreign citizenship other than Samoan citizenship is
required to register under section 8.”.
3. Reserved List-(1) In sections 3(1) and (3) of the Principal Act,
for every mention of “the Schedule” substitute “Schedule 1”.
(2) After section 3(1) of the Principal Act, insert:
“(1A) The business or economic activities listed in
Schedule 1 are clarified under the CPC Code where
applicable.”.
(3) After section 3(3) of the Principal Act, insert:
“(4) Regulations may provide the criteria and procedures for
removing or adding an economic activity to the Reserved List in
Schedule 1 and the Reserved List may be amended accordingly by
regulations.”.
4. Restricted List - In section 4 of the Principal Act:
(a) in subsection (1):
(i) for “Regulations may prescribe business and
economic activities which” substitute “The
business or economic activities listed in Schedule
2”; and
(ii) in paragraph (a), after “joint venture” insert
“which is owned exclusively by a citizen”; and
2011, No. 8 Foreign Investment Amendment 3

(b) after subsection (1) insert:

“(1A) The business or economic activities listed in Schedule 2
are clarified under the CPC Code where applicable.”; and

(c) in subsection (2), after “business venture” insert “or
economic activity”; and
(d) after subsection (3), insert:

“(4) A business or economic activity listed in Schedule 2
must, in addition to meeting the prescribed conditions, also satisfy
all relevant requirements under any other relevant law before the
business or economic activity may be undertaken.
(5) Regulations may provide the criteria and procedures for
removing or adding an activity to the Restricted List in Schedule
2 and the Restricted List may be amended accordingly by
regulations.”.

5. Activities not otherwise restricted - In section 5 of the
Principal Act:
(a) in paragraph (a), for “Listed in the Schedule” substitute
“Reserved under section 3”; and
(b) in paragraph (b), for “Prescribed” substitute “Restricted”.

6. Insertion of new section 6A - After section 6 of the Principal
Act insert:

“6A. Foreign Investment Advisory Committee-(1) The
Foreign Investment Advisory Committee is established.
(2) The role of the Committee is to:
(a) review the Reserved and Restricted Lists in accordance
with the criteria and procedures set out in
regulations; and
(b) review the criteria and procedures referred to under
paragraph (a);
(c) provide advice to the Minister regarding paragraphs (a)
or (b) or on any other related matter under this
section.
(3) The Committee shall provide to the Minister advice
concerning:
(a) this Act and possible amendments of this Act; and
(b) the administration of this Act; and
(c) any other matter concerning this Act.
4 Foreign Investment Amendment 2011, No. 8

(4) The membership of the Committee shall be comprised of
the following:
(a) the Chief Executive Officer, who is also the
Chairperson;
(b) the Chief Executive Officer of the Ministry responsible
for finance, who is also the Deputy Chairperson;
(c) the Attorney General;
(d) the Governor of the Central Bank;
(e) the Chief Executive Officer of the Ministry responsible
for revenue;
(f) the Chief Executive Officer of the Ministry responsible
for agriculture and fisheries;
(g) the Chief Executive Officer of the Ministry responsible
for the Prime Minister and Cabinet;
(h) the Chief Executive Officer of the Ministry responsible
for foreign affairs and trade;
(i) the Chief Executive Officer of the Samoa Tourism
Authority;
(j) the President of the Samoa Chamber of Commerce and
Industry Incorporated;
(k) the President of the Samoa Association of
Manufacturers and Exporters Inc.
(5) A member may nominate a representative from his or her
organisation to attend a meeting of the Committee on his or her
behalf if he or she is unable to attend a meeting.
(6) The Committee may allow a representative from other
Ministries or private sector organisations that are not represented
in the Committee to attend as observers at its meeting and to make
presentations and take part in discussions as required.
(7) The Chief Executive Officer shall convene a meeting of
the Committee at least annually and thereafter as he or she
considers necessary.”.

7. Functions of the Chief Executive Officer - In section 7(a) of
the Principal Act, for “coordination” substitute “coordination,
establishment, maintenance and review”.

8. Insertion of new section 7A - After section 7 of the Principal
Act insert:

“7A. Functions of the Ministry-(1) In relation to foreign
investment in Samoa, the functions of the Ministry shall include
but are not limited to the following:
2011, No. 8 Foreign Investment Amendment 5

(a) providing policy advice on foreign investment
promotion and industry development to the
Minister and Cabinet;
(b) providing advice on the application of this Act and
foreign investment schemes administered by the
Ministry;
(c) consulting with relevant government and non-
governmental organisations in relation to areas in
paragraph (a) and (b);
(d) providing advice to overseas bodies and agencies
including regional and international organisations
in relation to areas in paragraph (a) and (b);
(e) monitoring and enforcing compliance with the
requirements of this Act;
(f) coordinating or carrying out investigation relating to a
foreign investment query or complaint;
(g) providing a Secretariat for the Trade, Commerce and
Industry Development Board and the Foreign
Advisory Committee;
(h) maintaining a register of foreign investors and their
investments;
(i) coordinating information on the state of industry and
economic development;
(j) consulting with Ministries and other relevant
stakeholders on issues related to trade, commerce
and industry;
(k) disseminating information on the functions of the
Ministry on foreign investment and the related
schemes administered by the Ministry;
(l) assessing and attending to the training needs of the
Ministry on foreign investment;
(m) creating and updating foreign investment promotional
tools for Samoa;
(n) engage in joint coordination with other Ministries and
agencies in the facilitation of foreign investment
activities that promote Samoa as an investment
location;
(o) any other functions to implement the provisions of this
Act.
(2) Further functions of the Ministry in relation to foreign
investment may be prescribed by regulations.”.

6 Foreign Investment Amendment 2011, No. 8

9. Receipt and approval of applications for foreign investment
registration-(1) In section 8(1) of the Principal Act:
(a) for “to be undertaken” substitute “against the Reserved,
Restricted and Prohibited Lists, following the relevant
process prescribed by regulations”; and
(b) for paragraph (a)(i) substitute:

“(i) are not included in the Prohibited and
Reserved Lists; or”.

(2) In section 8(4) of the Principal Act, for “Commissioner for
Inland Revenue” substitute “Commissioner for Inland Revenue, the
Chief Executive Officer, the Attorney General or any other Ministry
or agency which the Minister deems necessary”.
(3) After section 8(5) of the Principal Act insert “(6) A certificate
issued under this section is non transferable”.

10. Insertion of new section 8A - After section 8 of the
Principal Act, insert:

“8A. Confidentiality - Information provided in an application
shall be kept confidential and shall be used only for the purposes
of this Act.”.

11. Duration of certificates - In section 9 of the Principal Act,
for “two years if the Minister is satisfied that by that time the
operations of the business have not commenced” substitute “not less
than two (2) years from the date of issue if, before that time lapses,
the certificate holder has not communicated to the Chief Executive
Officer reasons for the delay in the commencement of business.”.

12. Register of Foreign Investment - In section 10 of the
Principal Act, after “Chief Executive Officer” insert “in accordance
with the process to be prescribed by regulations”.

13. Reports by Foreign Investors - For section 11 of the
Principal Act, substitute:

“11. Reports by Foreign Investors - It shall be a condition
of every foreign certificate granted under this Act that the
certificate holder provide a report of its operations, including
an audited financial report, to the Chief Executive Officer no later
2011, No. 8 Foreign Investment Amendment 7

than six (6) months after the end of each financial year in order
for the Chief Executive Officer to assess and report on the status
of foreign investment in Samoa to Cabinet.”.

14. Insertion of new section 11A - After section 11 of the
Principal Act, insert:

“11A. Annual Foreign Investment Report by the Chief
Executive Officer-(1) Within six (6) months after the end of each
financial year, the Chief Executive Officer shall provide the
Minister with an Annual Foreign Investment Report.
(2) Without limiting its form and content, the Investment
Report shall include a summary of the foreign investment climate
and trends for the reporting period.
(3) The Minister may publish and distribute copies of the
Investment Report through the Chief Executive Officer.”.

15. Cancellation of certificates-(1) In section 12 of the Principal
Act, after the section title “Cancellation of certificates - ” insert
“(1)”.
(2) In section 12(b) of the Principal Act, after “Prohibited List”
insert “, Reserved List”.
(3) After section 12(d) of the Principal Act insert:

“(e) The business has not commenced operation within
two (2) years from the date the certificate was
issued; or
(f) The business has ceased operations in Samoa; or
(g) The business has wound up under the provisions of any
applicable law; or
(h) The holder of the certificate requests cancellation; or
(i) The holder of the certificate is convicted of an offence
under any other law of Samoa; or
(j) The holder of the certificate becomes a Samoan citizen;
or
(k) The holder of the certificate has acted in breach of the
conditions for the Restricted List.
(2) Where the Chief Executive Officer proposes to cancel a
certificate or forms a view that there are grounds for a certificate
to be cancelled, the Chief Executive Officer shall:
(a) inform the certificate holder by notice in writing of the
reasons for the proposed cancellation; and
8 Foreign Investment Amendment 2011, No. 8

(b) allow the certificate holder to make a written
submission within 10 working days from the date
of receipt of the notice.
(3) After five (5) working days from the date of receipt of the
written submission from the certificate holder, the Chief
Executive Officer shall:
(a) make a decision whether to cancel or confirm validity
of the certificate; and
(b) inform the certificate holder in writing of the decision
and where applicable, the reasons for the decision
and the certificate holder’s right to appeal.
(4) A decision under subsection (3) by the Chief Executive
Officer to cancel a certificate comes into effect:
(a) in the case of a certificate holder who does not exercise
a right of appeal, five (5) days after the decision
has been made and notified;
(b) in the case of a certificate holder who lodges an appeal
with the Court, the date upon which the appeal is
determined or an appeal is withdrawn.
(5) The Ministry shall publish in the Savali or any other local
newspaper a list of the certificates cancelled pursuant to this
section at the end of every financial year.”.

16. Offences and Penalties - For section 14(1) of the Principal
Act, substitute the following:

“(1) Subject to this Act, it shall be an offence for a non-citizen
or a company having a shareholder who is a non-citizen, to
engage in or be employed at any business or economic activity in
Samoa, which is:
(a) specified in the Prohibited List or the Reserved List; or
(b) specified in the Restricted List and in respect of which
the prescribed conditions have not, at any time,
been met; or
(c) required by this Act to be registered but for which no
certificate has been issued under this Act.”.

17. Regulations-(1) In section 18(2)(a) of the Principal Act, for
“Schedule” substitute “Schedules”.
(2) In section 18(2)(h) of the Principal Act, for “must be made.”
substitute “must be made;”.
2011, No. 8 Foreign Investment Amendment 9

(3) After section 18(2)(h) of the Principal Act, insert:

“(i) The service of notices made pursuant to this Act.”.

18. Insertion of new section 19 - After section 18 of the
Principal Act insert:

“19. Monitoring-(1) For the purposes of ensuring compliance
with this Act, the Chief Executive Officer and officers of the
Ministry authorised by the Chief Executive Officer shall have the
following powers:
(a) to require a holder of a certificate, or his or her agent,
to provide written or oral answers to questions on
any matter relevant to the provisions of the Act and
regulations which the Chief Executive Officer or
the officers may put to the holder of a certificate;
(b) to require a holder of a certificate or his or her agent to
produce to the Chief Executive Officer any
document or record which is in the holder of the
certificate’s possession and is relevant to the
provisions of the Act and regulations, whether such
document or record is in written, printed,
electronic or any other form;
(c) subject to subsections (2) and (3), to enter any
premises where the holder of a certificate conducts
or is believed to conduct his or her business,
without notice and with reasonable force where
necessary, to conduct a search of the premises and
to seize any document or record relating to the
provisions of the Act and regulations, whether such
document or record is in written, printed,
electronic or any other form;
(d) subject to subsections (2) and (3), to examine and
access any computer or other electronic equipment,
device or facility which is used or is believed to be
used in any business conducted by or owned by the
holder of a certificate, and to take copies of any
document or record which may be stored within
such computer or other electronic equipment,
device or facility;
(e) subject to subsections (2) and (3), to require
any bank, financial institution, accountant or
lawyer to produce any document or record in their
10 Foreign Investment Amendment 2011, No. 8

possession or control concerning a business which
is believed to be conducted by or owned by the
holder of a certificate and to provide the Chief
Executive Officer or officer with a copy of any
such document or record if requested to do so,
unless the information is subject to legal
professional privilege.
(2) The powers in subsections (1)(c), (d) and (e) can only be
exercised pursuant to a warrant issued by the Supreme Court.
(3) Despite subsection (2), where under the circumstances an
immediate search is to be carried out and there is no time to apply
for a search warrant, the written approval of the Attorney-General
is required before the powers in subsections (1)(c), (d) and (e) can
be exercised.
(4) The Chief Executive Officer or officers of the Ministry
authorised by the Chief Executive Officer may be assisted by
police officers in the exercise of his or her or their powers under
this section.
(5) A person who hinders the Chief Executive Officer or
officers of the Ministry authorised by the Chief Executive Officer
in the exercise of their powers under this section is guilty of an
offence and is punishable, upon conviction, by:
(a) if the offender is a corporation, a fine not exceeding
100 penalty units; or
(b) if the offender is a natural person, a fine not exceeding
10 penalty units or imprisonment for a term not
exceeding one (1) year, or both.”.

19. Schedules - For the Schedule to the Principal Act, substitute
the following:
2011, No. 8 Foreign Investment Amendment 11


“SCHEDULE 1
RESERVED LIST

(Section 3(1))
Activity Description Related activities
excluded
Bus transport
services for the
general public

Urban, suburban and rural
regularly scheduled multi-stop
passenger transportation on
land. Services classified here
are motor-bus, and similar
services generally rendered on
a license basis within the
confines of a single area or
group of contiguous villages.
These services are provided
over predetermined routes on a
predetermined time schedule,
may provide pick-up and
discharge of passengers at any
scheduled stop, and are open
to any user.
Bus services for
private schools,
hotels & tours
airport shuttles and
buses for private
businesses for
transporting shift
workers. These
services are
provided over
predetermined
routes, time
schedule and
restricted category
of user.
Taxi transport
services for the
general public

Motorized taxi-cab services,
including urban, suburban and
interurban. These services are
generally rendered on a
distance travelled basis, for a
limited duration of time, and to
a specific destination.


Rental vehicles

Renting, hiring or leasing
services concerning private
motor cars without operator,
principally designed for the
transport of persons.
Renting or hiring
services of private
cars with operator
such as rental
services of
passenger cars with
operator.

12 Foreign Investment Amendment 2011, No. 8

Retailing

Retail sales of fruit and
vegetables - Retailing services
of fresh, dried, frozen or
canned fruits, nuts and
vegetables.

Retail sales of dairy products
and eggs - Retailing services
of dairy products and eggs.

Retail sales of meat (incl.
poultry) and meat products -
Retailing services of meat,
poultry and game, and meat
products.

Retail sales of fish and other
seafoods - Retailing services
of fresh, prepared and
preserved fish, and other
seafoods.

Retail sales of bread and flour
confectionery - Retailing
services of bread and other
bakery products.

Retail sales of sugar
confectionery - Retailing
services of sugar
confectionery, e.g. fruit or nuts
preserved by sugar.

Retail sales of beverages not
consumed on the spot -
Retailing services of
non-alcoholic or alcoholic
beverages.


































Retailing services of
beverages for
consumption on the
premises

2011, No. 8 Foreign Investment Amendment 13



SCHEDULE 2
RESTRICTED LIST
(Section 4(1))
The direct or indirect carrying on of any aspect of business or activity
in an economic sector specified in column 1 or economic sub-sector
specified in column 2 is subject to the conditions specified in
column 3.
Economic Sector Economic Sub-sector Conditions
Fishing Commercial fishing vessels
– vessels categories A (≤
11m in length), B (11m ≤
12.5m in length), C (12.5m
≤ 15m in length), D (15m ≤
20.5m in length) & E
(≥20.5m in length)
categorized by the Ministry
responsible.
A foreign investor
must have a maximum
40% equity.

A license issued for
commercial fishing
vessels is limited in
different categories
listed by the Ministry
responsible for
fisheries, except for
Category A with no
limit.
Retail sales of tobacco
products - Retailing services of
tobacco products.

Specialized retail sales of food
products n.e.c. - Retailing
services of food products, not
elsewhere classified, e.g./rice,
edible oils and fats, salt,
coffee, tea, sugar, cocoa and
spices, noodles and similar
farinaceous products.


Saw milling Facility where logs are cut into
timber.

Traditional elei
garment
designing and
printing
Garment printing and
designing using carved board
(Upeti).

14 Foreign Investment Amendment 2011, No. 8
Manufacturing Nonu (known scientifically
as Morinda citrifolia, is a
tropical fruit processed as
juice for many folk remedy
uses).
A foreign investor
must establish a joint
venture with a local
partner.
Coconut Virgin Oil (oil
from the coconut that is in
its unrefined and natural
form (without fragrance
and other added
preservatives etc).
A foreign investor
must establish a joint
venture with a local
partner.
Services








Architectural






Professional engineering





General construction



Sewage





Refuse disposal






A foreign investor
providing an
architectural service
must establish a joint
venture with a local
partner.

A foreign investor
providing an
engineering service
must be incorporated
in Samoa.

Only through
incorporation in
Samoa.

A foreign investor
providing a sewage
service must establish
a joint venture with a
local partner.

A foreign investor
providing a refuse
disposal service must
establish a joint
venture with a local
partner.

2011, No. 8 Foreign Investment Amendment 15
Sanitation and similar services

A foreign investor
providing a
sanitation and
similar service must
establish a joint
venture with a local
partner.



__________

The Foreign Investment Amendment Act 2011 is administered
by the Ministry of Commerce, Industry and Labour.

Related Laws