Title

AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE AND THE GOVERNMENT OF THE REPUBLIC OF THE UNION OF MYANMAR ON THE PROMOTION AND PROTECTION OF INVESTMENTS

Preamble

The Government of the Republic of Singapore and the Government of the Republic of the Union of Myanmar (hereinafter referred to individually as a "Party", and collectively as the "Parties'"'),

DESIRING to create favourable conditions for greater economic co-operation between them and in particular for investments by investors of one Party in the territory of the other Party based on the principles of equality and mutual benefit;

RECOGNISING the important contribution investments can make to sustainable economic growth and development, and seeking to promote, protect, and facilitate such investments within the territories of the Parties;

RECOGNISING that the encouragement and reciprocal protection of such investments will be conducive to stimulating business initiative and increasing prosperity in both Parties; and

REAFFIRMING the Parties' right to regulate and to introduce new measures, such as health, safety, and environmental measures relating to investments in their territories in order to meet legitimate public policy objectives;

HAVE AGREED AS FOLLOWS:

Body

Chapter I. General Provisions

Article 1. Definitions

For the purposes of this Agreement:

enterprise means any legal entity constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, and engaged in substantive business operations in the territory of that Party, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organisation; and a branch of an enterprise;

freely usable currency means "freely usable currency" as determined by the International Monetary Fund under the Articles of Agreement of the International Monetary Fund and any amendments thereto;

ICSID means the International Centre for Settlement of Investment Disputes;

ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes, as amended and in effect on April 10, 2006;

ICSID Arbitration Rules means the Rules of Procedure for Arbitration Proceedings (Arbitration Rules), as amended and in effect on April 10, 2006;

ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of other States, done at Washington on March 18, 1965;

investment means every kind of asset in the territory of a Party, owned or controlled, directly or indirectly, by an investor of the other Party, that has the characteristics of an investment (1) and has been made in accordance with the applicable laws and regulations of the former Party. Forms that an investment may take include but are not limited to: (2)

(a) an enterprise;

(b) shares, stocks, and other forms of equity participation in an enterprise, including rights derived there from;

(c) bonds, debentures, and loans and other debt instruments (3), including rights derived therefrom;

(d) futures, options, and other derivatives;

(e) turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts;

(f) claims to money or to any contractual performance related to a business and having an economic value;

(g) intellectual property rights which are recognised pursuant to the laws and regulations of each Party and international agreements to which the host Party is a party, and goodwill;

(h) licences, authorisations, permits, and similar rights conferred pursuant to applicable domestic law;

(i) business concessions required to conduct economic activities and having financial value conferred by law or under a contract, including any concessions to search for, cultivate, extract or exploit natural resources; and

(j) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges;

investor means:

(a) an enterprise of a Party; or

(b) a natural person of a Party;

that has made an investment;

measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, or administrative action, and includes measures taken by:

(a) central, regional or local governments and authorities; and

(b) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;

natural person means any natural person who under the laws, regulations and national policies of a Party:

(a) is a national or citizen of that Party; or

(b) has the right of permanent residence in that Party, where both that Party and the other Party recognise permanent residents and accord substantially the same treatment to their respective permanent residents as they accord to their respective nationals in respect of measures affecting investment;

New York Convention means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted at the United Nations in New York on June 10, 1958;

return means an amount yielded by or derived from an investment, including profits, dividends, interest, capital gains, royalty payments, payments in connection with intellectual property rights, and all other lawful income. For the purposes of the definition of "investment", returns that are invested shall be treated as investments and any alteration of the form in which assets are invested or reinvested shall not affect their character as investments;

territory means:

(a) in respect of the Republic of Singapore: its land territory, internal waters and territorial sea, as well as any maritime area situated beyond the territorial sea which has been or might in the future be designated under its national law, in accordance with international law, as an area within which Singapore may exercise sovereign rights or jurisdiction with regards to the sea, the sea-bed, the subsoil, and the natural resources;

(b) in respect of the Republic of the Union of Myanmar: its land territory, internal waters, the territorial sea, the continental shelf and the exclusive economic zone, including the seabed and subsoil, and the airspace above them, over which the Republic of the Union of Myanmar exercises sovereign rights or jurisdiction under its national laws, in accordance with international law;

UNCITRAL Arbitration Rules means the Arbitration Rules of the United Nations Commission on International Trade Law, adopted at the United Nations in New York on December 15, 1976, as revised in 2010; (4) and

WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on April 15, 1994.

Article 2. Applicability of Agreement (5)

1. Each Party shall admit the entry of investments made by investors of the other Party pursuant to its applicable laws and regulations.

2. The provisions in this Agreement shall apply to existing investments made by investors of one Party in the territory of the other Party, as at the date of entry into force of this Agreement as well as to investment made after the entry of force, but shall not apply to claims arising out of events which occurred, or claims which had been raised, prior to the entry into force of this Agreement.

3. This Agreement shall not apply to:

(a) subsidies or grants provided by a Party, including government-supported loans, guarantees and insurance, or to any conditions attached to the receipt or continued receipt of such subsidies or grants, whether or not such subsidies or grants are offered exclusively to investors of the Party or investments of investors of the Party; and

(b) matters of taxation in the territory of either Party, which shall, except as set out in Article 8 (Transfers) and Article 31 (Taxation), be governed by any tax treaty between the Parties and the domestic laws of each Party.

Chapter II. Protection

Article 3. Minimum Standard of Treatment

1. Each Party shall accord to investments of investors of the other Party treatment in accordance with the customary international law minimum standard of treatment of aliens,(6) including fair and equitable treatment and full protection and security.

2 For greater certainty, paragraph 1 prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to investments of investors of the other Party. The obligation to provide "fair and equitable treatment" and "full protection and security" as described below does not require treatment in addition to or beyond that which is required by this standard, and does not create additional substantive rights.

(a) The obligation to provide "fair and equitable treatment" includes the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world.

(b) The obligation to provide "full protection and security" requires each Party to provide the level of police protection required under customary international law.

3. A determination that there has been a breach of another provision of this Agreement, or of a separate international agreement, does not establish that there has been a breach of this Article.

Article 4. National Treatment (7)

Each Party shall accord to investments of investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the management, conduct, operation, and sale or other disposition of investments.

Article 5. Most-favoured-nation Treatment

1. Each Party shall accord to investments of investors of the other Party treatment no less favourable than that it accords, in like circumstances, to investments in its territory of investors of any non-Party with respect to the management, conduct, operation, and sale or other disposition of investments.

2 The provisions of this Article shall not be construed so as to oblige one Party to extend to the investors of the other Party and investments of investors of the other Party the benefit of any treatment, preference or privilege resulting from:

(a) any existing or future customs union, free trade area, free trade arrangement, common market, monetary union or similar international agreement or other forms of regional cooperation to which either of the Parties is or may become a party; or the adoption of an agreement designed to lead to the formation or extension of such a union, area or arrangement;

(b) any bilateral investment agreements (also commonly referred to as "investment guarantee agreement', "investment promotion and protection agreements" or "international investment agreements") initialled, signed or in force prior to the entry in force of this Agreement; (8)

(c) any existing or future international investment agreements between or among Member States of a regional economic community, including investment agreements between or among Member States of a regional economic community and any one or more third States; or

(d) any arrangement with a non-Party or parties in the same geographical region designed to promote regional cooperation in the economic, social, labour, industrial or monetary fields within the framework of specific projects.

3. For greater certainty, this Article shall not apply to investor-State dispute settlement procedures that are available in other agreements to which either Party is a party.

Article 6. Expropriation (9)

1. Neither Party shall nationalise, expropriate, or subject to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as "expropriation"), the investments of investors of the other Party unless such a measure is taken on a non- discriminatory basis, for a public purpose, in accordance with due process of law, and upon payment of compensation in accordance with this Article.

2. The expropriation shall be accompanied by the payment of prompt, adequate and effective compensation. Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation or before the impending expropriation became public knowledge, whichever is earlier. Such compensation shall be effectively realisable, freely usable, and freely transferable in accordance with Article 8 (Transfers), and made without undue delay. The compensation shall include interest at a commercially reasonable rate for that currency, accrued from the date of expropriation until the date of payment.

3. Notwithstanding paragraphs 1 and 2, any measure of expropriation relating to land, which shall be as defined in the existing domestic legislation of the Party taking the measure, shall be for a purpose and upon payment of compensation in accordance with the aforesaid legislation.

4, Any measure of expropriation or valuation may, at the request of the investors affected, be reviewed by a judicial or other independent authority of the Party taking the measure in the manner prescribed by its laws.

3. This Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights, or to the revocation, limitation or creation of intellectual property rights, to the extent that such issuance, revocation, limitation or creation is consistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to the WTO Agreement.(10)

Article 7. Compensation for Losses

1. Investors of one Party whose investments in the territory of the other Party suffer losses owing to war or other armed conflict, civil disturbances, a state of national emergency, revolt, insurrection, riot or other similar situations in the territory of the latter Party, shall be accorded by the latter Party treatment, as regards restitution, indemnification, compensation or other settlement, if any, no less favourable than that which the latter Party accords to investors of any non-Party or to its own investors, whichever is more favourable. Any resulting compensation shall be made in freely usable currency and be freely transferable in accordance with Article 8(Transfers).

2. Notwithstanding paragraph 1, if an investor of a Party, in the situations referred to in paragraph 1, suffers a loss in the territory of the other Party resulting from:

(a) requisitioning of the investment or part thereof of the investor by the latter Party's forces or authorities; or

(b) destruction of the investment or part thereof of the investor by the latter Party's forces or authorities, which was not required by the necessity of the situation,

the latter Party shall provide the investor restitution, compensation, or both, as appropriate, for such loss.

Article 8. Transfers

1. Each Party shall allow all transfers relating to investments of an investor of the other Party in its territory to be made freely and without delay into and out of its territory. Such transfers include:

(a) contributions to capital, including the initial contribution;

(b) profits, dividends, capital gains and proceeds from the sale of all or any part of the investment or from the partial or complete liquidation of the investment;

(c) interest, royalty payments, management fees, and technical assistance and other fees;

(d) payments made under a contract entered into by the investor, or its investment, including payments made pursuant to a loan agreement;

(e) payments made pursuant to Article 6(Expropriation) and Article 7 (Compensation for Losses); and

(f) payments arising under Chapter III (Dispute Settlement).

2. Each Party shall permit such transfers to be made in a freely usable currency at the market rate of exchange prevailing at the time of transfer.

3. Notwithstanding paragraphs | and 2, a Party may prevent or delay a transfer through the equitable, non-discriminatory, and good faith application of its laws relating to:

(a) bankruptcy, insolvency, or the protection of the rights of creditors;

(b) issuing, trading, or dealing in securities, futures, options, or derivatives;

(c) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;

(d) criminal or penal offences and the recovery of proceeds of crimes;

(e) ensuring compliance with orders or judgments in judicial or administrative proceedings;

(f) social security, public retirement or compulsory savings schemes;

(g) the requirement to register and satisfy the formalities imposed by the Central Bank of a Party which, in the case of Myanmar, includes formalities imposed by the Ministry of Planning and Finance, Myanmar Financial Intelligence Unit, Securities and Exchange Commission, and Myanmar Investment Commission; or

(h) taxation.

4. The Parties understand that paragraph 3(d) of this Article can apply to measures taken in accordance with the international standards of the Financial Action Task Force to prevent money laundering, terrorism, and proliferation financing.

5. Nothing in this Agreement shall affect the rights and obligations of the members of the International Monetary Fund under the Articles of Agreement of the International Monetary Fund, including the use of exchange actions which are in conformity with the Articles af Agreement of the International Monetary Fund, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its obligations under this Agreement regarding such transactions, except under Article9(Restrictions to Safeguard the Balance of Payments) or at the request of the International Monetary Fund.

Article 9. Restrictions to Safeguard the Balance of Payments

1. In the event of serious balance of payments and external financial difficulties or threat thereof, a Party may adopt or maintain restrictions on payments or transfers related to investments. It is recognised that particular pressures on the balance of payments of a Party in the process of economic development may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development.

2. The restrictions referred to in paragraph 1 shall:

(a) be consistent with the Articles of Agreement of the Iniernational Monetary Fund;

(b) avoid unnecessary damage to the commercial, economic and financial interests of the other Party;

(c) not exceed those necessary to deal with the circumstances described in paragraph 1;

(d) be temporary and be phased out progressively as the situation specified in paragraph | improves; and

(e) be applied on a non-discriminatory basis such that the other Party is treated no less favourably than any non-Party.

3. Any restrictions adopted or maintained under paragraph 1, or any changes therein, shall be promptly notified to the other Party.

4. To the extent that it does not duplicate the process under the World Trade Organization, the International Monetary Fund, or any other similar processes, the Party adopting any restrictions under paragraph 1 shall commence consultations with the other Party in order to review the restrictions adopted by it.

Article 10. Subrogation

1. In the event that either Party (or any agency, institution, statutory body or corporation designated by it), as a result of an indemnity it has given in respect of an investment or any part thereof, makes payment to its own investors in respect of any of their claims under this Agreement, the other Party acknowledges that the Party making payment to its own investors(or any agency, institution, statutory body or corporation designated by it) is entitled by virtue of subrogation to exercise the rights and assert the claims of its own investors. The subrogated rights or claims shall not be greater than the original rights or claims of the said investor.

2. Any payment made by one Party (or any agency, institution, statutory body or corporation designated by it) to its investors shall not affect the right of such investors to make their claims against the other Party in accordance with Section One (Settlement of Disputes between a Party and an Investor of the Other Party) of Chapter III (Dispute Settlement).

Chapter III. Dispute Settlement

Section ONE. Settlement of Disputes between a Party and an Investor of the other Party

Article 11. Scope

1. This Section shall apply to disputes between a Party and an investor of the other Party concerning an alleged breach of an obligation of the former under this Agreement which causes loss or damage to the investor or its investment.

2. This Section shall not apply to any dispute concerning any measure adopted or maintained or any treatment accorded to investors or investments by a Party in respect of tobacco or tobacco-related products. (11)

Article 12. Institution of Arbitral Proceedings

1. The disputing parties shall initially seek to resolve the dispute by consultations and negotiations.

2. Where the dispute cannot be resolved as provided for under paragraph 1 within 6 months from the date of a written request for consultations and negotiations, then, unless the disputing parties agree otherwise, the disputing investor may submit the dispute to arbitration:

(a) under the ICSID Convention and the ICSID Arbitration Rules, provided that both the respondent Party and the Party of the disputing investor are parties to the ICSID Convention;

(b) under the ICSID Additional Facility Rules, provided that either the respondent Party or the Party of the disputing investor is a party to the ICSID Convention;

(c) under the UNCITRAL Arbitration Rules; or

(d) to any other arbitral institutions or under any other arbitration rules, if the disputing parties so agree.

For the avoidance of doubt, the disputing investor may submit a claim on its own behalf in respect of loss or damage that has been incurred by the disputing investor, or on behalf of an enterprise of the respondent Party that the disputing investor owns or controls, either directly or indirectly, in respect of loss or damage that has been incurred by the enterprise.

3. Each Party hereby consents to the submission of a dispute to arbitration under paragraph 2 in accordance with the provisions of this Section, conditional upon:

(a) the submission of the dispute to such arbitration taking place within 3 years of the time at which the disputing investor became aware, or should reasonably have become aware, of a breach of an obligation under this Agreement causing loss or damage to the disputing investor or its investment;

(b) the disputing investor not being an enterprise of the respondent Party until the disputing investor refers the dispute for arbitration pursuant to paragraph 2;

(c) the disputing investor providing written consent to arbitration in accordance with the provisions set out in this Section; and

(d) the disputing investor providing written notice, which shall be submitted at least 90 days before the claim is submitted, to the respondent Party of its intent to submit the dispute to such arbitration and which:

(i) states the name and address of the disputing investor and, where a dispute is submitted on behalf of an enterprise, the name, address, and place of constitution of the enterprise;

(ii) nominates one of the fora referred to in paragraph 2 as the forum for dispute settlement;

(iii) waives the disputing investor's right to initiate or continue any proceedings (excluding proceedings for interim measures of protection referred to in Article 16 (Interim Measures of Protection) before any of the other dispute settlement fora referred to in paragraph 2 in relation to the matter under dispute; and

(iv) briefly summarises the alleged breach of the respondent Party under this Agreement (including the provisions alleged to have been breached), the legal and factual basis for the dispute, and the loss or damage allegedly caused to the disputing investor or its investment by reason of that breach.

4. The consent under paragraph 3 and the submission of a claim to arbitration under this Section shall satisfy the requirements of:

(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the parties to the dispute; and