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Foreign Investment Regulations 2011

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FOREIGN INVESTMENT REGULATIONS 2011
Arrangement of Provisions
1. Short title and
commencement
2. Interpretation 3. Restricted List 4. Criteria and procedures for
removing or adding to the
Reserved and Restricted
Lists
5. Application for foreign investment registration
6. Foreign investment registration certificate
7. Foreign investment register 8. Amendment to certificates
and entries in the register
9. Service of notices 10. Fees
Schedule

__________

PURSUANT to section 18 of the Foreign Investment Act 2000,
I, TUI ATUA TUPUA TAMASESE EFI, Head of State,
acting on the advice of Cabinet, MAKE the following
regulations:


DATED this 22nd
day of July 2011.



signed: (Tui Atua Tupua Tamasese Efi)
HEAD OF STATE
2011/30 Foreign Investment Regulations 13
REGULATIONS

1. Short title and commencement-(1) These regulations
may be cited as the Foreign Investment Regulations 2011.
(2) These regulations commence in whole or in part, upon
such day or days nominated by the Minister.

2. Interpretation - In these regulations, unless the context
otherwise requires:
“Act” means the Foreign Investment Act 2000;
“applicant” means an applicant for an application for
foreign investment registration under section 8 of the
Act;
“application” means an application for foreign investment
registration under section 8 of the Act.

3. Restricted List-(1) The business or economic activities
listed in Schedule 2 to the Act may be undertaken by non-
citizens only if the Chief Executive Officer determines that the
following conditions are met:
(a) the level of foreign equity in the business or
economic activity by a non-citizen is no greater
than the level determined by the Minister
following consultation with the Chief Executive
Officer;
(b) the amount of investment by a non-citizen in the
business or economic activity is no greater than
the amount determined by the Minister following
consultation with the Chief Executive Officer;
(c) the business or economic activity contributes to the
employment and training of local citizens;
(d) 50% of the amount of investment capital required for
the business or economic activity is sourced
from outside Samoa.
(2) The Minister may determine further conditions further
to those specified under sub regulation (1) and the
determination must be provided to Cabinet within 14 days of
making the determination.

14 Foreign Investment Regulations 2011/30

4. Criteria and procedures for removing or adding to the
Reserved and Restricted Lists-(1) The criteria for removing or
adding an activity to the Reserved and Restricted Lists are set
out in Schedule 1.
(2) A person may make a written submission to the CEO for
the removal or addition of an economic activity to the Reserved
or Restricted Lists.
(3) A written submission made under sub regulation (2)
must consist of all relevant information, comprehensive data
and all other supporting documents in their original form.
(4) The CEO may reject any information or documentation
provided under sub regulation (3) or exclude such information
or documentation from its assessment of the written submission
if the CEO is not satisfied that such information or
documentation is not what it purports to be.
(5) After receiving a written submission under sub
regulation (2), the CEO shall write to the person who made the
written submission to:
(a) acknowledge receipt of the submission; and
(b) advise of the submission’s preliminary assessment;
and
(c) request further supporting information, if required;
and
(d) notify the person of how the Ministry will proceed
further with its consideration of the submission.
(6) In reviewing a written submission, the CEO must be
satisfied that the person who made the written submission
satisfies at least two (2) of the criteria set out in Schedule 1
either for adding or removing an economic activity, whichever
one applies.
(7) Depending on the complexities of the issues raised in a
written submission and where applicable the need for a further
study to ascertain a claim in the written submission, the CEO
must review a written submission within 12 months from the
date the written submission was received.
(8) After a review by the CEO under sub regulation (7),
the CEO must prepare and submit a report of the review
of the written submission to the Foreign Investment Advisory
2011/30 Foreign Investment Regulations 15

Committee, which shall make a decision on the written
submission.
(9) The Minister shall submit the Foreign Investment
Advisory Committee’s decision to Cabinet for its approval and
Cabinet may consult the Attorney General if it wants additional
alterations.
(10) The CEO shall inform the person who made the written
submission of the decision on his or her written submission as
soon as possible after Cabinet approves the decision.
(11) The Ministry is not responsible for any fees or costs
associated with the preparation of a written submission by a
person, except if it is required to commission a further study
into issues raised in the written submission.

5. Application for foreign investment registration-(1) An
application made under section 8 of the Act shall be in a form
approved by the Chief Executive Officer and shall include the
following:
(a) the enterprise or business name;
(b) the form of ownership, whether it is a company,
partnership, or sole proprietor;
(c) the business trading name;
(d) personal information on shareholders including a
brief background about the shareholders;
(e) the shareholder’s contact details including -
(i) overseas residence address; and
(ii) address in Samoa;
(f) the enterprise registration number and date of
approval issued by the Registrar of Companies;
(g) the exact location of the proposed place of business
or activity and details;
(h) submission by each shareholder of the following -
(i) one (1) recent passport size photo;
(ii) a certified true copy of the photo page
of his or her valid passport;
(i) a certified true copy of the certificate of
incorporation;
16 Foreign Investment Regulations 2011/30

(j) confirmation of the source of funds and the total
initial working capital for the proposed business
or economic activity;
(k) any other relevant supporting document required by
the Chief Executive Officer.
(2) If the Chief Executive Officer considers an application
to be incomplete, he or she must, within five (5) working days,
return the application to the applicant with a notice providing
reasons for non-acceptance of the application.
(3) If the Chief Executive Officer considers an application
to be complete, he or she must, within five (5) working days
after receiving the application, issue a receipt to the applicant
which includes the date on which the application was registered
and a registration number.
(4) The time for the issue of a certificate shall be five (5)
working days from the date of registration under subsection (3).

6. Foreign investment registration certificate - A
certificate issued under section 8 of the Act shall be in a form
approved by the Chief Executive Officer and shall include the
following:
(a) the name of the applicant;
(b) the registration number of the certificate;
(c) the name and nominated address in Samoa of the
certificate holder;
(d) the business, economic activity or approved
investment;
(e) the details of any prescribed conditions applying to
the approval of the certificate;
(f) the date of the issue of the certificate;
(g) the signature of the Chief Executive Officer or the
Chief Executive Officer’s delegate.

7. Foreign investment register-(1) The register required to
be kept under section 10 of the Act of applications made and
certificates granted may be in written or electronic form, or
both, as approved by the Chief Executive Officer.
2011/30 Foreign Investment Regulations 17

(2) The Ministry shall keep the register open for public
inspection during normal business hours upon payment of the
fee specified in Schedule 2.
(3) The Ministry shall record in the register the information
specified in regulation 6 except the signature of the Chief
Executive Officer.
(4) If a certificate lapses pursuant to section 9 of the Act or
is cancelled pursuant to section 12 of the Act, the Chief
Executive Officer must remove the business from the register
and accord details of the lapse or cancellation in summary form.

8. Amendment to certificates and entries in the
register-(1) Where a holder of a certificate granted under the
Act changes his or her circumstances in which the original
certificate was granted or is aware of a mistake in the
certificate, the holder must notify the Chief Executive Officer
by notice in writing of the change or mistake as soon as
possible.
(2) If the Chief Executive Officer receives a notice pursuant
to sub-regulation (1), the Chief Executive Officer may:
(a) amend the Register; or
(b) issue an amended certificate to the holder after
payment by the holder of the fee specified in
Schedule 2.
(3) If the Chief Executive Officer amends the register, the
Chief Executive Officer shall provide a notice in writing
specifying the amendment to the holder affected by the
amendment.

9. Service of notices-(1) Any notice or document required
to be served on or given to the Minister or the Chief Executive
Officer may be deposited at the office of the Chief Executive
Officer during normal business hours.
(2) Any notice or document required or authorized to be
served on or given to an applicant or a certificate holder or any
business registered under the Act or regulations may be
deposited at the nominated address in Samoa of the applicant or
certificate holder or the business, as the case may be, during
normal business hours.
18 Foreign Investment Regulations 2011/30

(3) A document signed by an applicant, certificate holder or
a representative of any business registered under the Act or their
agency, indicating the place and time of service, shall be
sufficient to prove service of a notice or document.

10. Fees - The fees payable under the Act and these
regulations are provided in Schedule 2.
SCHEDULE 1
CRITERIA FOR „REMOVING OR ADDING‟
AN ECONOMIC ACTIVITY TO THE RESTRICTED
LIST OR RESERVED LIST

(Regulation 4(1))

Criteria for
adding new
activities to
the list
Benchmark
Criteria for
removing
activities
from the list
Benchmark
1. The
economic
activity is
sufficiently
taken care of
by domestic
investors and
that
additional
entries would
render
unprofitable
returns to
existing
operators.
At least
50% of
existing
businesses
carrying out
the same
economic
activity are
locals.
1. The
economic
activity is
insufficiently
taken care of
by domestic
investors and
that additional
entries would
improve the
supply of
service; and
creation of
employment.
 At least 100 new job
opportunities
would be
created.
 Evidence of high level of
skills and
technology
transfer that
would result
from the
additional
businesses.
2.
Availability
and
sufficiency of
local capital
investment to
All
businesses
involved
provides
certified
evidence of
2.
Unavailability
and
insufficiency
of local capital
to establish
Certified evidence
of existing capital
and funds to be
injected into the
economy from
overseas to a
2011/30 Foreign Investment Regulations 19
establish
large scale
commercial
activities.
existing
funds of at
least
$1,000,000
tala or
equivalent.
large scale
commercial
activities.
minimum of
$2,000,000.00 tala
or equivalent.
3. Local
business
operators can
meet national
development
strategies
objectives
and less
dependent on
Government
assistances.
Evidence of
improved contributions
to
employment
creation at a
consistent
rate of 2%
growth on a
five (5) year
basis or;

Evidence of
planned
activities
especially
for capacity
building for
employees;
as well as
that relating
to increased
allocated
budgets for
research and development.
3. Local
business
operators
cannot meet
national
development
strategies
objectives and
are always
reliant on
Government
support.
No evidence of
any additional
employment
opportunities over
a five (5) year
basis; no concrete
budgets intended
for expansionary
and other related
developments to
improve operation.

Less contribution
to value adding
efforts; including
inconsistent tax
contributions.
4. When
there is
sufficient
local
suppliers of a
particular
activity/
service and a healthy
competition
exists.
At least
50% of
existing
businesses
are carrying
out the same
economic
activity in a
competitive
manner.

4. When a
local operator
is
monopolizing
the market
discouraging
competition.
Evidence that
additional investor
would be
supplying the
same product or
services as
provided in an
approved Foreign
investment
certificate and a
valid business
20 Foreign Investment Regulations 2011/30
No
complaints
of any
unfair
practices.
license.

Confirmation of
business license.



SCHEDULE 2
TABLE OF FEES

(Regulations 7(2), 8(2)(b), and 10)

Item Legislative
provision
Matter for which fee is
payable

Amount
1. Section 18(2)(c)
of the Act
For lodgment of an
application for a Foreign
Investment Registration
Certificate.
SAT$20.00
2. Section 18(2)(c)
of the Act
For issuing a Foreign
Investment Registration
Certificate.
Free of
charge
3. Regulation 7(2) For Inspection of a
Foreign Investment
Register.
SAT$50.00
4. Regulation
8(2)(b)
For Issuing an amended
Foreign Investment
Registration Certificate.
SAT$50.00


__________
Issued under the authority of the Regulations Ordinance 1953.
Date of Commencement: These regulations commence in whole
or in part, upon such day or days nominated by the Minister.
These Regulations are administered by the Ministry of
Commerce, Industry and Labour.
Copies of these Regulations can be purchased from
the Office of the Clerk of the Legislative Assembly.