REPUBLIC OF VANUATU

FOREIGN INVESTMENT (AMENDMENT) ACT
NO. 1 OF 1999

Arrangement of Sections

1.	Insertion of new section 1A
2.	Amendment of section 2
3.	Amendment of section 3
4.	Amendment of section 6
5.	Amendment of section 7
6.	Amendment of section 8
7.	Insertion of new sections
8.	Amendment of section 10
9.	Amendment of section 12
10.	Amendment of section 15
11.	Amendment of section 19
12.	Amendment of section 20
13.	Amendment of section 21
14.	Insertion of new section
15.	Amendment of Schedule 1
16.	Amendment of Schedule 2
17.	Application
18.	Commencement.

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REPUBLIC OF VANUATU

Assent 20/06/99
Commencement 19/07/99

FOREIGN INVESTMENT (AMENDMENT) ACT
NO. 1 OF 1999

An Act to amend the Foreign Investment Act No. 15 of 1998 ("the Principal Act").

BE IT ENACTED by the President and Parliament as follows:

INSERTION OF NEW SECTION 1A

1. After section 1 of the Principal Act the following section is inserted:

“PRINCIPLE OF JOINT VENTURES, PARTNERSHIPS AND OTHER ASSOCIATIONS IN VANUATU

1A. (1) This section establishes and confirms the right of citizens of Vanuatu, and companies incorporated in Vanuatu, to enter into joint ventures, partnerships and other associations with foreign investors.

(2) Such joint ventures, partnerships and other associations may obtain the necessary business licences in accordance with the Business Licence Act No. 19 of 1998 to carry on their businesses in non-reserved and reserved areas of investment.

(3) In the case of any joint ventures, partnerships or other associations with foreign investors in reserved investments, citizens of Vanuatu or companies incorporated in Vanuatu must have at least a simple majority in such joint ventures, partnerships or other associations.”.

AMENDMENT OF SECTION 2

2. Section 2 of the Principal Act is amended:

(a) by inserting before “but” in the definition of invest and investment “in conjunction with a business licence,”;

(b) by inserting after paragraph (a) of the definition of invest and investment the following paragraph:

“(ab) acquiring land or any other interest in real property (if not in conjunction with an activity for which a business licence is required);”;

(c) by inserting after “Vanuatu” in the definition of investment proposal “, and includes a proposal by a foreign investor investing through a joint venture, partnership or other association with citizens of Vanuatu or companies incorporated in Vanuatu”;

(d) by inserting the following definition:

““business licence” means a licence issued under section 5 of the Business Licence Act No. 19 of 1998;”;

(e) by adding at the end of that section the following subsections:

“(2) For the purposes of this or any other Act, the list of reserved investments in Part 2 of Schedule 1 and the list of reserved occupations in Schedule 2 must be interpreted strictly by the Board. For example, if a proposed investment does not fall strictly within a reserved investment category, then the investment can still be authorized, even if personnel will need to be recruited from reserved occupations.

(3) For the avoidance of doubt, a reference in this Act to a company incorporated in Vanuatu includes a reference to a company so incorporated even if:

(a) the company is wholly controlled by persons who are not citizens of Vanuatu; or

(b) all of its shares (voting or otherwise) are beneficially owned or controlled by persons who are not citizens of Vanuatu.”.

AMENDMENT OF SECTION 3

3. Section 3 of the Principal Act is amended by:

(a) deleting paragraph (1)(b) and substituting the following paragraph:

“(b) Part 2 of the First Schedule are reserved investments for:

(i) citizens of Vanuatu; and

(ii) companies incorporated in Vanuatu;

unless otherwise specified in Part 2 of the First Schedule.

(b) deleting from subsection (3) “may be added to or removed by the Minister as the Minister may prescribe” and substituting “must not be added to or removed except by the express provisions of this or any other Act”;

(c) deleting subsections (4), (5) and (6).

AMENDMENT OF SECTION 6

4. Section 6 of the Principal Act is amended by:

(a) deleting “prescribed” from paragraph (2)(l) and substituting “requested by the Board”;

(b) inserting after subsection (2) the following subsection:

“(2A) Without limiting paragraph (2)(l) information relating to all or any of the following may be requested:

(a)	land;

(b)	the environment and hazardous waste;

(c)	agriculture, fisheries and forests;

(d)	tax concessions and the financial viability of a project.”.

AMENDMENT OF SECTION 7

5. Section 7 of the Principal Act is amended by:

(a) inserting before paragraph (2)(a) the following paragraph:

“(aa) be accompanied by the prescribed fee; and";

(b) deleting from paragraph (2)(b) "paragraph (a)" and substituting "paragraphs (a) and (aa)".

AMENDMENT OF SECTION 8

6. Section 8 of the Principal Act is amended by:

(a) inserting after “(2)”in subsection (1) “, (2A)”;

(b) inserting after subsection (2), the following subsection:

“(2A) In determining an application, the Board may require the foreign investor to submit:

(a) an environmental impact assessment report if, having regard to all the circumstances, it is apparent that the investment proposal could impact on the environment; and

(b) details of the corrective environmental measures that the foreign investor will carry out within a period specified by the Board.”;

(c) deleting from paragraph (3)(a) “or reserved”;

(d) deleting paragraph (3)(c);

(e) by inserting after subsection (6) the following subsections:

“(6A) Without limiting subsection (6), the Board may approve an application subject to the condition that all relevant pollution and waste management issues, including management of hazardous substances, are addressed to the Board’s satisfaction.

(6B) Despite subsection (7), a certificate of approval must not be issued in respect of an application for which a conditional approval under subsection (6A) has been given unless the Board is satisfied that:

(a) all outstanding issues have been addressed to the Board’s satisfaction; and

(b) the approved project will not damage the environment in Vanuatu.”

(f) by deleting “6” from subsection (7) and substituting “12”;

(g) by inserting after “investor” (second occurring) in subsection (8) “while the approved project is still being implemented”;

(h) by inserting after “valid” in subsection (9) “, subject to section 8B, for a period of 5 years”. 

INSERTION OF NEW SECTIONS

7. After section 8 of the Principal Act the following sections are inserted:

“AUTOMATIC RENEWAL SUBJECT TO FEES BEING FULLY PAID

8A. A certificate of approval is by force of this section renewed for a further period of 5 years on the expiry of the previous 5 year period for which the certificate of approval was valid if:

(a) all annual or other fees required to be paid by this Act or any other Act or law are paid; or

(b) the Board is satisfied that there is a reasonable explanation for any such fee being unpaid.

REVOCATION OF CERTIFICATES OF APPROVAL

8B. (1) If a foreign investor, after being requested in writing by the Board, has not provided, within 28 days after receiving the Board’s request, a satisfactory written explanation to the Board why an investment is not consistent with its original purpose, the Board may by notice in writing revoke:

(a) the investor’s certificate of approval; and

(b) all relevant residence and work permits.

(2) A revocation takes effect:

(a) on the date specified by the Board in the notice mentioned in subsection (1); or

(b) if the Board does not specify a date – on the date of receipt of that notice by the investor.

(3) A foreign investor whose certificate of approval is revoked must cease to carry on the business concerned on and from the date on which the revocation takes effect.”.

AMENDMENT OF SECTION 10

8. Section 10 of the Principal Act is amended by:

(a) omitting in the heading the words "AND BUSINESS LICENCE" and substituting the words ", BUSINESS LICENCE AND LAND LEASE";

(b) adding after paragraph (1)(c) the following word and paragraph:

"; and

(d) to be granted a lease of land.";

(c) inserting after paragraph (2)(c) the following paragraph:

"(ca) the Land Leases Act [CAP 163] and the Land Reform Act [CAP 123]; and".

(d) omitting from paragraph (5)(c) “or more than 5 years” and substituting “or more than the period referred to in paragraph (6)(a), (b) or (c), whichever applies”.

AMENDMENT OF SECTION 12

9. Section 12 of the Principal Act is amended by inserting “, and provide access to the files of the Board relating to the application and the granting of the approval certificate,” after “thereof”.

AMENDMENT OF SECTION 15

10. Section 15 of the Principal Act is amended by:

(a) omitting paragraph (2)(e) and substituting the following paragraphs:

"(e) the Director responsible for Economic and Social Development;

(ea) the Director responsible for the Lands Department;”;

(b) inserting after subsection (2) the following subsection:

“(2A) The Board may seek on an as needed basis the assistance of:

(c) a representative of any department to assist with technical matters; and

(d) qualified financial specialists in Vanuatu to review the financial viability of projects.”.

AMENDMENT OF SECTION 19

11. Section 19 of the Principal Act is amended by deleting subsection (1) and substituting the following subsection:

“(1) The Board must meet at least once per month on or before the 15th day of the month to undertake the business of the Board. However, the Board may meet more often if it considers it is necessary to do so to undertake its business.”

AMENDMENT OF SECTION 20

12. Section 20 of the Principal Act is amended by:

(a) deleting subsection (1) and substituting the following subsection:

“(1) Subject to this section, the Board must consider and determine an application within 30 days of receiving it.”;

(b) inserting after subsection (2) the following subsections:

“(2A) The Board:

(a) may forward an application to the relevant department for advice on any technical issue, including issues relating to the environment, hazardous waste, fisheries, forestry, lands or tax concessions; and 

(b) must give the department 14 days in which to provide its advice.

(2B) If, within that time, the department has provided no advice or advice that the Board considers is not adequate, the Board must:

(a) approve or reject the application; or

(b) defer the application by seeking assistance on the outstanding issues, including assistance outside Vanuatu. 

(2C) If the Board defers the application under paragraph (2B)(b) by seeking assistance, the Board’s decision to defer is deemed not to be a decision for the purposes of section 13.

(c) inserting “(other than a deferral under paragraph (2B)(b))”, after “application” in subsection (3);

(d) adding at the end of the section the following subsection:

“(4) If the Board seeks assistance under subsection (2B) in relation to environment, hazardous waste, fisheries or forestry issues, the Board must approve or reject the application in question within 6 months after the receipt of the application.”.

AMENDMENT OF SECTION 21

13. Section 21 of the Principal Act is amended by:

(a) deleting from subsection (1) “chosen by the Selection Committee under subsection (11)” and substituting “chosen by the members of the Board through an open and competitive selection process based on merit”; 

(b) deleting “; and” from paragraph (2)(c); 

(c) deleting paragraph (2)(d); 

(d) deleting “Selection Committee” from subsections (3) and (4) and substituting “members of the Board”;

(e) deleting subsections (11), (12), (13) and (14).

INSERTION OF NEW SECTION

14. After section 27 of the Principal Act the following section is inserted:

“SALE OF CERTAIN RESERVED INVESTMENTS AS IF THEY WERE NOT RESERVED INVESTMENTS

27A. (1) This section applies to a foreign investor who immediately before the commencement of this Act was engaged in an investment of a kind that was included in Part 2 of Schedule 1 as a reserved investment when this Act commenced.

(2) A foreign investor to whom this section applies may sell or otherwise dispose of the investment as if the investment had never been become a reserved investment.

(3) For the avoidance of doubt, this section does not apply to an investment that was sold or otherwise disposed of by a foreign investor before the commencement of this section.”.

AMENDMENT OF SCHEDULE 1

15. Part 2 of Schedule 1 to the Principal Act is amended by:

(a) deleting “ Home manufactures and purveyors of pies, meat balls, nems, sweet meats and similar prepared foods.”;

(b) deleting “Bricklayers, electricians, painters and decorators, jobbing plumbers, masons, plumbers, welders, fitters, turners or other artisans where the number of full time employees per year is less than 7.”

(c) deleting “Carpenters, joiners and mechanics where the number of full time employees per year is less than 10.”;

(d) deleting “the number of rooms to let is less than 10 rooms” and substituting “the amount invested is:

(a) in Port Vila and Luganville – less than 10 million vatu;

(b) in any other place – less than 5 million vatu.”;

(e) deleting “Restaurants where the number of seats is less than 20.”;

(f) deleting “Takeaway food outlets.”;

(g) deleting “General retail and wholesale merchandising – less than 20 million vatu turnover per year.” and substituting “General retail and merchandising – if the investment is less than 10 million vatu.”;

(h) deleting “Exporters of controlled products.”;

(i) deleting “Ship and boat owners and operators transporting goods and passengers.”;

(j) deleting “Local tour operators.”;

(k) deleting “Cinema & theatre – less than 30 seats.”;

(l) deleting “Riding and Diving Schools – less VT 4 million per year.”;

(m) deleting “Hire of Video Cassettes.”;

(n) deleting the second sentence of the Note;

(o) inserting after “Export of kava in root form.” the following:

“However, a foreign investor can export kava in root form if the foreign investor has invested, or intends to invest, at least 5 million vatu in any of the following:

(a)	the transport of kava;

(b)	the transformation of kava; 

(c)	the international marketing of kava.”;

(p) deleting “Wokabaot sawmills.”;

(q) inserting “ other than sports, recreational and game fishing ”after “Coastal fishing”.

AMENDMENT OF SCHEDULE 2

16. Schedule 2 to the Principal Act is amended by:

(a) deleting “Boatswain”;

(b) deleting “Carpenter/joiner” and substituting “Joiner”;

(c) inserting in the correct alphabetical order:

“Bricklayer
Mason
Painter
Portable sawmillers”.

APPLICATION

17. (1) The amendments made by this Act apply in relation to an application made under section 6 of the Principal Act for an approval certificate if that application:

(a) was made before the commencement of this Act, but was not finally determined before that commencement; or

(b) is made on or after the commencement of this Act.

(2) The amendments made by this Act apply in relation to an approval certificate issued by the Board before, on or after the date on which this Act commences.

COMMENCEMENT

18. This Act commences on the date of its publication in the Gazette.

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