Transparency of the Regulatory System
The Government uses transparent policies and effective laws to establish “clear rules of the game.” Accounting, legal and regulatory procedures are all consistent with international norms. According to the Samoa Institute of Accountants, businesses adhere to International Financial Reporting Standards (IFRS) and International Standards on Auditing and Quality Assurance.
Draft bills are made available through the parliamentary website, http://www.palemene.ws/new/parliament-business/bills/ , but are not made available for formal public comment. Those who wish to make a comment on the bill are given the opportunity to do so before a Parliamentary Committee. Public notices are televised and printed on local newspaper for the awareness of the public that there is an avenue to voice their opinions on drafted Government policies.
The Office of the Regulator (OOTR) was established in 2006 under the Telecommunications Act 2005 to provide regulatory services for the telecommunications sector in Samoa. However, the Broadcasting and Postal Services Acts 2010 were recently approved by Parliament, which also provide regulatory framework for broadcasting and postal sectors in Samoa. These Acts require the Regulator to establish a fair, unbiased and ethical regime for implementing the objects of these Acts including licensing of telecommunications, broadcasting and postal services, promotion of new services and investment, consumer protection, prevention of anti-competitive activities by service providers, and management of the radio spectrum and national number plans. OOTR also approves the Electric Power Corporation’s Power Purchase Agreements with Independent Power Providers and reviews EPC’s Power Extension Plan.
Finances and expenditures of the government are published twice on an annual basis, and available through the parliament website. Debt obligations are published on a quarterly basis by the Samoa Bureau of Statistics through its quarterly reports.
International Regulatory Considerations
Samoa is a member of the Pacific Islands Forum, which is an 18-member inter-governmental organization that aims to enhance cooperation between the independent countries of the Pacific Ocean.
Samoa’s system of government is based on the Westminster Parliamentary system. Samoa’s Companies Act 2001 contains a modern regulatory regime based on New Zealand company law.
Legal System and Judicial Independence
The Samoan legal system has its foundations in English and Commonwealth statutory and common law. Various business structures utilized in common law are recognized: sole traders, partnerships, limited liability companies, joint ventures and trusts (including unit trusts). These structures are regulated by legislation including the Companies Act 2001, Partnership Act 1975, Trustee Act 1975 and Unit Trusts Act 2008. Samoa’s Companies Act 2001 contains a modern regulatory regime based on New Zealand company law. It allows the incorporation of a sole person company (i.e. one person being both shareholder and director) and directors need not be resident in Samoa.
A Samoa incorporated private company is a separate legal entity and a corporation under Samoan law. It must file an annual return with the Registrar of Companies specifying details of directors, shareholders, registered office etc. There is no requirement for private companies to file annual financial reports with the Companies Registry nor are there any minimum capital requirements.
The judicial system is largely independent from the executive branch. On December 15, 2020, the National Parliament passed into law three controversial bills that fundamentally changed country’s constitution and judicial system. The three bills, the Constitution Amendment Bill 2020, Lands and Titles Bill 2020, and Judicature Bill 2020, were introduced in March 2020 and passed by Parliament with a vote 41-4. The bills were opposed by the judiciary and the Samoa Law Society for lack of consultation and the impact on human rights and rule of law. The Australian and New Zealand Law Societies, and other international organizations issued statements in support of the judiciary and the law society.
The new laws have in effect divided the judicial system into parallel courts of equal standing. One to deal with criminal and civil matters, and the other with customary land and titles. The Lands and Titles Court (LTC) would have a new appellate court comprised of a retired Supreme Court Judge, a Supreme Court Judge and a retired Lands and Title Court Judge that would have authority to review the decisions of the Lands and Titles Court.
Prime Minister Tuilaepa Sailele Malielegaoi stated that the bills would implement the recommendations of the Special Inquiry Committee of Parliament into the LTC that was conducted in 2016. Following the passing of the bills, former Attorney-General, Ms. Taulapapa Brenda Heather-Latu, informed the Office of the Attorney-General that her clients intend to challenge the constitutionality of the new laws.
Laws and Regulations on Foreign Direct Investment
The Ministry of Commerce, Industry, and Labor administers Samoa’s foreign investment policy and regulations under the Foreign Investment Act 2000. All businesses with any foreign ownership require foreign investment approval by MCIL. ( https://www.mcil.gov.ws/ ).
Competition and Anti-Trust Laws
The Ministry of Commerce, Industry, and Labor’s Fair Trading and Codex Alimentarius Division (FTCD) handles competition related concerns. The main pieces of legislation regarding competition are Fair Trading Act 1998, Consumer Information Act 1989, and Measures Ordinance 1960.
Expropriation and Compensation
Expropriation cases in Samoa are not common; however, there was one significant case that occurred in 2009 over land designated for a new six-story government building. A business signed a 20-year lease with the government in 2005 but was then asked to move in 2008 to make way for the new building. The business moved but won a settlement in the Court of Appeals against the government for a much larger sum than the government initially offered the business for vacating the land.
The Alternative Dispute Resolution Act of 2007 (amended 2013) outlines ADR procedures for both criminal and civil proceedings. Samoa has an Accredited Mediators of Samoa Association that was put in place to help resolve (largely commercial) disputes.
ICSID Convention and New York Convention
Samoa has been party to the ICSID since 1978. Samoa is not party to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.
Investor-State Dispute Settlement
The provisions of the Labour and Employment Relations Act 2013 have full effect in relation to disputes that involve foreign investors in Samoa. Foreign investors are subject to this Act.
The Alternative Dispute Resolution Act 2007 also provides alternative dispute resolution procedures where civil or criminal cases may arise.
International Commercial Arbitration and Foreign Courts
The provisions of the Arbitration Act 1976 have full effect in relation to disputes that involve foreign investors in Samoa. Subject to this Act and to any other law in Samoa, the Convention Settlement of Investment Disputes signed in Washington on the 3rd of February 1978 and ratified by Samoa on the 25th of April 1978, shall have the force of law in Samoa. The Alternative Dispute Resolution Act 2007 also provides alternative dispute resolution procedures where civil or criminal cases may arise.
The Bankruptcy Act 1908 is in effect in Samoa. According to World Bank Doing Business 2019 survey, in terms of resolving insolvency, Samoa was ranked at 140 out of 190. The survey estimated that it took two years at a cost of 38 percent of the estate to complete the process, with an estimated recovery rate of 18.5 percent of value.