Foreign Investment Act & Foreign Investment Regulations

Foreign Investment Act
The Foreign Investment Act (FIA) 1999 and Foreign Investment (Amendment) Act 2004 sets out the guidelines by which a foreign investor can invest in Fiji.

What the Act says?
There are 20 Articles in the Foreign Investment Act 1999 and Foreign Investment (Amendment) Act 2004. This page serves to highlight relevant aspects of the FIA.

What are the main aspects highlighted in the Act?
Foreign investors are required to study:

• the list of Reserved and Restricted Activities which are also highlighted in the Foreign Investment Regulations (FIR)
• documentary requirements for issue and cancellation of a Foreign Investment Registration Certificate
• Investment Guarantees

FOREIGN INVESTMENT ACT 1999
(No. 1 of 1999) & FOREIGN INVESTMENT (AMENDMENT) ACT 2004 (No. 8 of 2004)
Citation and Commencement

DISCLAIMER
This is not an authoritative text of the legislation, which is published by the Government Printer. While every effort is being made for accuracy, it should not be relied on and independent advice should be taken before acting on any information contained in this document.

Interpretation (Section 3) 1

• Business includes a business not carried out for profit but does not include a business carried out by a charitable trust;
• Certificate means a Foreign Investment Registration Certificate (FIRC);
• Chief Executive means the Chief Executive of the Fiji Trade and Investment Bureau;
• Foreign investor means an enterprise, other than a national enterprise, engaged or intending to be engaged in carrying out business in a relevant activity in the Fiji

Interpretation (Section 3) 2
A person is taken to be associated with a foreign investor if:

• is one of those persons or a partner or, in the case of a private company, a member; or
• is a director, secretary or trustee of the corporation, company, trust, partnership or association or body of persons.

Certificate (Section 4)

1. A foreign investor must not carry out business in a relevant activity in the Fiji unless the Chief Executive has granted the foreign investor a Foreign Investment Registration Certificate.
2. A certificate granted to a foreign investor does not relieve the foreign investor, or any person associated with the foreign investor, from compliance with the laws of the State.
3. The granting of a certificate to a foreign investor does not entitle the foreign investor rights to any license or assistance for which the investor may be qualified.
4. The granting of a certificate to a foreign investor does not relieve the foreign investor of the duty to secure any approval from any other relevant authority that may be necessary for the activity proposed.

Application for Foreign Investment Certificate (Section 7)

1. A foreign investor may apply to the Chief Executive for a certificate.
2. If there is a change in the address or in any other information after submitting an application, the foreign investor must notify the Chief Executive in writing of the change within 20 working days of the date of the change.
3. Written notice of the grant or refusal of an application under this section will be given to the foreign investor within 5 working days of the making of the application.

Certificate (Section 8)

1. If a foreign investor has been granted a certificate permitting the foreign investor to carry out business in an activity; and the activity subsequently becomes a reserved activity, the foreign investor may continue to carry out business in the activity as if it were not a reserved activity.
2. If a foreign investor has been granted a certificate permitting the foreign investor to carry out business in an activity; and the activity subsequently becomes a restricted activity, the foreign investor may continue to carry out business in that activity as if it were not a restricted activity.
3. If a foreign investor has been granted a certificate permitting the foreign investor to carry out business in a restricted activity; and a condition specified in relation to that activity is subsequently altered, the foreign investor may continue to carry out business in that activity in accordance with the condition or conditions specified in the certificate.
4. If a foreign investor has been granted a certificate to carry out business in an activity; and the activity subsequently becomes a prohibited activity, the foreign investor must stop carrying out business in that activity by the date on which the prohibition is effective, and the certificate of the foreign investor in regard to the prohibited activity ceases to be in force on that date except if the certificate were issued for more than one activity, the certificate remains effective for any activity that is not declared a prohibited activity.

Register of Certificate (Section 9)

1. All certificates granted or cancelled are registered with the Investment Fiji.
2. If a certificate has been granted in respect of a restricted activity, particulars will be entered in the Register of the condition specified in the certificate relating to the carrying out of business in that activity.
3. The Register or an extract from the Register is prima facie evidence of the matters contained in it.
4. Any person may, on payment of the prescribed fee, obtain a copy of a Foreign Investment Registration Certificate; or an extract from the Register.

Register Open for Inspection (Section 10)
The register will be open for inspection during normal business hours.

Change of ownership of foreign investor (Section 11)

1. If a change occurs in the ownership or shareholding of a foreign investor that has been granted a certificate (other than a foreign investor that is a public company and is listed on a stock exchange), or of any person associated with the foreign investor, the investor must, within 15 working days of the date of the change, notify the Chief Executive of the change. Penalty: $5,000
2. If, as a result of a change in the shareholding or beneficial ownership of a national enterprise that carries on business in a relevant activity in the Fiji, the national enterprise becomes a foreign investor, it must apply for a Foreign Investment Registration Certificate within 25 working days.
3. A certificate granted to a foreign investor is not transferable to any other person or body.

Variation (Section 12)
A foreign investor granted a certificate may apply to the Chief Executive, in the prescribed form, for a   variation of the business carried out by it; or any other term or condition of the certificate.

Certificate (Section 13) 1

1. A certificate may be cancelled if the Chief Executive is satisfied that a foreign investor:
   1. has obtained a certificate by fraud or misrepresentation, misstatement or omission of a material particular;
   2. is in serious or persistent breach of the terms or conditions of a certificate or of this Act;
   3. has ceased to carry on business in the activity or all of the activities in respect of which a certificate was granted; or
   4. has not started to carry on business in any activity in respect of which a certificate was granted within 12 months after the grant of the certificate, without genuine reason; or
2. Circumstances arise which would require the Chief Executive not to grant a certificate.

Investment Guarantee (Section 14)
A foreign investor has the same protection under Section 40 of the Constitution against compulsory acquisition of property as any other person. The revocation of the 1997 Constitution has made this section not enforceable, however, the requirement for which acquisition of property is made compulsory is governed under the State Compulsory Acquisition of Lands Act. A foreign investor has the same right as a national enterprise to recourse to the jurisdictions of courts or other tribunals of the Fiji in respect of settlement of disputes.

Appeal to Minister (Section 15) 2
A foreign investor may appeal to the Minister within 25 working days of the making of a reviewable decision.

Prohibition on Foreign Investors (Section 16)

1. A foreign investor must not:
   1. carry on business without a Foreign Investment Registration Certificate;
   2. directly or indirectly carry on business in a prohibited activity;
   3. directly or indirectly carry on business in a reserved activity;
   4. directly or indirectly carry on business in a restricted activity unless the investor meets all conditions; or
   5. fail to comply with the conditions of a Foreign Investment Registration Certificate. Penalty: $50,000
2. A person must not hold out that an enterprise is a foreign investor unless that enterprise holds a current valid certificate under this Act. Penalty: $20,000

Monitoring of Foreign Investors (Section 17)

1. The penalty for not allowing the Chief Executive to monitor business activities to ascertain compliance with the Act; or for making any false statements is $20,000.
2. The penalty for providing false or misleading information is $20,000.
3. The penalty for not providing information concerning business activities, as may be requested by the Chief Executive is $5,000.

Delegations (Section 18)

1. The Permanent Secretary for Industry and Trade may, in writing, delegate to the Deputy Permanent Secretary all or any of the Chief Executive’s powers under this Act.
2. The Chief Executive may, in writing, delegate to the General Manager of the Fiji Trade and Investment Bureau all or any of the Chief Executive’s powers under this Act or the regulations.

Foreign Investment Regulations

FOREIGN INVESTMENT REGULATIONS 2009
Citation and Commencement

1. These Regulations may be cited as the Foreign Investment Regulations 2009.
2. The Regulations were effective from 16th January, 2009.

• A foreign investor engaging in the above real estate management activities needs to be certified under the Real Estate Agents Act.
• A foreign investor engaging in real estate activity in renting out of homes/villas/apartment/bures to tourists only must have at least $250,000 in owner’s contribution or paid up capital for companies in the form of cash from the operational date, to be fully brought into Fiji within the implementation period.