(d) government enterprises organized and operating solely for the purpose of:
(i) investing the reserves of the Government of Singapore in foreign markets; or
(ii) holding investments referred to in clause (i); and
(e) Temasek Holdings (Pte) Ltd.
The revenue and total asset thresholds above shall be adjusted for inflation (or deflation) every five years. The Parties may otherwise revise the thresholds by mutual agreement;
2. covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party. Covered investments shall include those existing at the date of entry into force of this Agreement as well as those established, acquired, or expanded thereafter;
3. a delegation includes a legislative grant, and a government order, directive, or other act, transferring to the monopoly or government enterprise, or authorizing the exercise by the monopoly or government enterprise of, government authority;
4. designate means to establish, designate, or authorize a monopoly, or to expand the scope of a monopoly, to cover an additional good or service, whether formally or in effect;
5. effective influence exists where the government and its government enterprises, alone or in combination:
(a) own more that 50 percent of the voting rights of an entity; or
(b) have the ability to exercise substantial influence over the composition of the board of directors or any other managing body of an entity, to determine the outcome of decisions on the strategic, financial, or operating policies or plans of an entity, or otherwise to exercise substantial influence over the management or operation of an entity. Where the government and its government enterprises, alone or in combination, own 50 percent or less, but more than 20 percent, of the voting securities of the entity and own the largest block of voting rights of such entity, there is a rebuttable presumption that effective influence exists. Annex 12A provides an illustration of how the analysis of effective influence should proceed;
6. government enterprise means:
(a) for the United States, an enterprise owned, or controlled through ownership interests, by that Party; and
(b) for Singapore, an enterprise in which that Party has effective influence;
7. government monopoly means a monopoly that is owned, or controlled through ownership interests, by the national government of a Party or by another such monopoly;
8. in accordance with commercial considerations means consistent with normal business ptactices of privately-held enterprises in the relevant business or industry;
9. market means the geographical and commercial market for a good or service;
10. monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant; and
11. non-discriminatory treatment means the better of national treatment and most-favored- nation treatment, as set out in the relevant provisions of this Agreement and subject to the terms and conditions set out in the relevant Annexes thereto.
Chapter 13. GOVERNMENT PROCUREMENT
Article 13.1. GENERAL
1. The Parties reaffirm their rights and obligations under the GPA and their interest in further expanding bilateral trading opportunities in each Party's government procurement market.
2. The Parties recognize their shared interest in promoting international liberalization of government procurement markets in the context of the rules-based international trading system. The Parties shall continue to cooperate in the review under Article XXIV:7 of the GPA and on procurement matters in APEC and other appropriate international fora. The Parties shall also actively cooperate to implement the WTO Doha Ministerial mandate related to the negotiation of a multilateral agreement on transparency in government procurement.
3. Nothing in this Chapter shall be construed to derogate from either Party's rights or obligations under the GPA.
4. The Parties confirm their desire and determination to apply the APEC Non-Binding Principles on Government Procurement, as appropriate, to all their government procurement that is outside the scope of the GPA and this Chapter.
Article 13.2. SCOPE AND COVERAGE
1. This Chapter applies to measures adopted or maintained by a Party regarding government procurement. 2. For purposes of this Chapter, government procurement means a procurement:
(a) by an entity specified in a Party's Schedule 1 to Annex 13A;
(b) of any combination of goods and services specified in a Party's Schedule 2 to Annex 13A;
(c) by any contractual means, including those listed in Article I:2 of the GPA and any build-operate-transfer contract; and
(d) in which the contract has a value not less than the relevant threshold set out in Schedule 1 to Annex 13A.
3. Except as otherwise specified in Annexes 13A and 13B, this Chapter does not cover non- contractual agreements or any form of governmental assistance, including:
(a) cooperative agreements;
(b) grants;
(c) loans;
(d) equity infusions;
(e) guarantees;
(f) fiscal incentives; and
(g) governmental provision of goods and services to persons or governmental authorities not specifically covered under the Schedules to Annexes 13A and 13B of this Chapter.
4. Singapore shall not exercise any control or influence, including through any shares that it owns or controls or its personnel selections to corporate boards or positions, in procurement conducted by government enterprises, as defined in Article 12.8 (Definitions).
5. In accordance with Article III:3 of the GPA, the provisions of this Chapter do not affect the rights and obligations provided for in Chapters 2 (National Treatment and Market Access for Goods), 8 (Cross-Border Trade in Services), 10 (Financial Services), and 15 (Investment).
6. (a) To ensure comprehensive coverage, this Chapter covers government procurement of digital products, as defined in Article 14.4 (Definitions), that are transmitted electronically and are created, produced, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party.
(b) For greater certainty, digital products do not include digitized representations of financial instruments. In addition, the obligations on digital products under this Chapter shall not apply to the procurement of broadcasting services.
(c) For greater certainty, a Party's obligations relating to the government procurement of digital products are addressed only in this Chapter.
Article 13.3. INCORPORATION OF GPA PROVISIONS
1. The Parties shall apply the provisions of Articles II, I, I'V:1, VI-XV, XVI:1, XVI, XIX:1-4, XX, the Agreement Notes, and Appendices II-IV of the GPA to all government procurement. To that end, these GPA Articles and Appendices, the notes to the Appendices, Notes to Annexes 1 to 5 of Appendix I, (13-1) Singapore's General Note, and U.S. General Notes 1- 4 are incorporated into and made a part of this Chapter, mutatis mutandis. For greater certainty, Article VI is not intended to preclude a Party from preparing, adopting, or applying technical specifications to promote the conservation of natural resources.
2. For purposes of the incorporation of the GPA under paragraph 1, the term:
(a) “Agreement” in the GPA means “Chapter;” except that “countries not Parties to this Agreement” means “non-Parties” and “Party to the Agreement@ in GPA Article III:2(b) means “Party”;
(b) “Appendix I” in the GPA means “Annex 13A”;
(c) “Annex 1” in the GPA means “Schedule 1.A”;
(d) “Annex 2” in the GPA means “Schedule 1.B”;
(e) “Annex 3” in the GPA means “Schedule 1.C”;
(f) “Annex 4” in the GPA means “Schedule 2.B”;
(g) “Annex 5” in the GPA means “Schedule 2.C”;
(h) “from other Parties” in GPA Article IV:1 means “from the other Party”;
(i) “any other Party” in GPA Article III:1(b) means “a non-Party”; and
(j) “among suppliers of other Parties or” in GPA Article VIII shall not be incorporated.
3. If the GPA is amended or is superseded by another agreement, the Parties shall amend this Chapter, as appropriate, after consultations.
Article 13.4. EXCEPTIONS
1. Nothing in this Chapter shall be construed to prevent either Party from imposing or enforcing measures:
(a) necessary to protect public morals, order, or safety;
(b) necessary to protect human, animal, or plant life or health;
(c) necessary to protect intellectual property; or
(d) relating to products or services of handicapped persons, of philanthropic institutions, or of prison labor,
provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade.
2. The Parties understand that paragraph 1(b) includes environmental measures necessary to protect human, animal, or plant life or health.
Article 13.5. MODIFICATIONS AND RECTIFICATIONS TO COVERAGE
1. Where a Party proposes to modify or make minor amendments or technical rectifications of a purely formal nature to its Schedules to Annex 13A, it shall notify the other Party. If the other Party does not object to the proposed modification, minor amendment, or technical rectification within 30 days of the notification, the modification, minor amendment, or technical rectification shall enter into force immediately.
2. If a Party objects to the proposed removal of an entity from Annex 13A on the grounds that government control or influence over that entity has not been effectively eliminated, that Party may request further information or consultations with a view to clarifying the nature of such government control or influence, if any, and reaching agreement with the other Party on the entity's status under this Chapter. If the Party removing an entity from Annex 13A reaches agreement with the other Party that government control or influence over the entity has been effectively eliminated, the other Party shall not be entitled to compensatory adjustments.
3. A Party may modify its Schedules to Annex 13A for reasons other than the elimination of government control or influence only in exceptional circumstances. In such cases, it shall propose to the other Party appropriate compensatory adjustments in order to maintain a level of coverage comparable to that existing prior to the modification. In considering proposed modifications and any consequential compensatory adjustment, allowance shall be made for the market-opening effects of the removal of government control or influence. The modification shall take effect on agreement by the Parties that the proposed adjustments will maintain a comparable level of coverage.
Article 13.6. DEFINITIONS
For purposes of this Chapter:
1. APEC Means Asia Pacific Economic Cooperation;
2. broadcasting services means a series of text, video, images, sound recordings and other products scheduled by a content provider for audio and/or visual reception, and for which the content provider has no choice over the scheduling of the series;
3. build-operate-transfer contract means any contractual arrangement the primary purpose of which is to provide for the construction or rehabilitation of physical infrastructure, plant, buildings, facilities, or other government-owned works and under which, as consideration for a supplier-s execution of a contractual arrangement, an entity grants to the supplier, for a specified period of time, temporary ownership or a right to control and operate, and demand payment for, the use of such works for the duration of the contract; and
4. GPA means WTO Agreement on Government Procurement.
Chapter 14. ELECTRONIC COMMERCE
Article 14.1. GENERAL
The Parties recognize the economic growth and opportunity provided by electronic commerce and the importance of avoiding barriers to its use and development and the applicability of WTO rules to electronic commerce.
Article 14.2. ELECTRONIC SUPPLY OF SERVICES
For greater certainty, the Parties affirm that measures related to the supply of a service using electronic means falls within the scope of the obligations contained in the relevant provisions of Chapters 8 (Cross-Border Trade in Services), 10 (Financial Services), and 15 (Investment), subject to any exceptions applicable to such obligations and except where an obligation does not apply to any such measure pursuant to Articles 8.7 (Non-Conforming Measures), 10.9 (Non-Conforming Measures), or 15.12 (Non-Conforming Measures).
Article 14.3. DIGITAL PRODUCTS
1. A Party shall not apply customs duties or other duties, fees, or charges on or in connection with the importation or exportation of digital products by electronic transmission. (14-1)
2. Each Party shall determine the customs value of an imported carrier medium bearing a digital product according to the cost or value of the carrier medium alone, without regard to the cost or value of the digital product stored on the carrier medium.
3. A Party shall not accord less favorable treatment to some digital products than it accords to other like digital products:
(a) on the basis that
(i) the digital products receiving less favorable treatment are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, outside its territory; or
(ii) the author, performer, producer, developer, or distributor of such digital products is a person of the other Party or a non-Party,
or
(b) so as otherwise to afford protection to the other like digital products that are created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in its territory.
4. (a) A Party shall not accord less favorable treatment to digital products created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms in the territory of the other Party than it accords to like digital products created, produced, published, stored, transmitted, contracted for, commissioned, or first made available on commercial terms, in the territory of a non-Party.
(b) A Party shall not accord less favorable treatment to digital products whose author, performer, producer, developer, or distributor is a person of the other Party than it accords to like digital products whose author, performer, producer, developer, or distributor is a person of a non-Party.
5. Paragraphs 3 and 4 do not apply to any non-conforming measure described in Article 8.7 (Non-Conforming Measures), 10.9 (Non-Conforming Measures), or 15.12 (Non-Conforming Measures).
6. This Article does not apply to measures affecting the electronic transmission of a series of text, video, images, sound recordings, and other products scheduled by a content provider for aural and/or visual reception, and for which the content consumer has no choice over the scheduling of the series.
Article 14.4. DEFINITIONS
For purposes of this Chapter:
1. carrier medium means any physical object capable of storing a digital product by any method now known or later developed, and from which a digital product can be perceived, reproduced, or communicated, directly or indirectly, and includes, but is not limited to, an optical medium, a floppy disk, or a magnetic tape;
2. digital products means computer programs, text, video, images, sound recordings and other products that are digitally encoded, regardless of whether they are fixed on a carrier medium or transmitted electronically; (14-3)
3. electronic transmission or transmitted electronically means the transfer of digital products using any electromagnetic or photonic means; and
4. using electronic means means employing computer processing.
Chapter 15. INVESTMENT
Section A. DEFINITIONS
For purposes of this Chapter, it is understood that:
1. central level of government means:
(a) for the United States, the federal level of government; and
(b) for Singapore, the national level of government;
2. Centre means the International Centre for Settlement of Investment Disputes ("ICSID") established by the ICSID Convention;
3. claimant means an investor of a Party that is a party to an investment dispute with the other Party;
4. covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party in existence as of the date of entry into force of this Agreement or established, acquired, or expanded thereafter;
5. disputing parties means the claimant and the respondent;
6. disputing party means either the claimant or the respondent;
7. enterprise means any entity constituted or organized under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organization; and a branch of an enterprise;
8. enterprise of a Party means an enterprise constituted or organized under the law of a Party, and a branch located in the territory of a Party and carrying out business activities there;
9. freely usable currency means "freely usable currency" as determined by the International Monetary Fund under its Articles of Agreement;
10. government enterprise means "government enterprise" as defined in Chapter 12 (Anticompetitive Business Conduct, Designated Monopolies, and Government Enterprises);
11. 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;
12. ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, March 18, 1965;
13. investment means every asset owned or controlled, directly or indirectly, by an investor, that has the characteristics of an investment. (15-1) Forms that an investment may take include:
(a) an enterprise;
(b) shares, stock, and other forms of equity participation in an enterprise;
(c) bonds, debentures, other debt instruments, and loans; (15-2)
(d) futures, options, and other derivatives;
(e) turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts;
(f) intellectual property rights;
(g) licenses, authorizations, Ream and similar rights conferred pursuant to applicable domestic law; (15-3) (15-4)
(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges.
14. investment agreement (15-5) means a written agreement that takes effect on or after the date of entry into force of this Agreement between a national authority (15-6) of a Party and a covered investment or an investor of the other Party (i) that grants rights with respect to natural resources or other assets that a national authority controls, and (ii) that the covered investment or the investor relies on in establishing or acquiring the covered investment;
15. investment authorization (15-7) means an authorization that the foreign investment authority of a Party grants to a covered investment or an investor of the other Party;
16. investor of a non-Party means, with respect to a Party, an investor that is seeking to make, is making, or has made an investment in the territory of that Party, that is not an investor of either Party;
17. investor of a Party means a Party or a national or an enterprise of a Party that is seeking to make, is making, or has made an investment in the territory of the other Party; provided, however, that a natural person who is a dual national shall be deemed to be exclusively a national of the State of his/her dominant and effective nationality;
18. monopoly means "monopoly" as defined in Chapter 12 (Anticompetitive Business Conduct, Designated Monopolies, and Government Enterprises);
19. New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958;
20. non-disputing Party means the Party that is not a party to an investment dispute;
21. protected information means confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law;
22. regional level of government means, for the United States, a state of the United States, the District of Columbia, or Puerto Rico. For Singapore, "regional level of government" is not applicable, as Singapore has no government at the regional level;
23. respondent means the Party that is a party to an investment dispute;
24. Secretary-General means the Secretary-General of ICSID;
25. tribunal means an arbitration tribunal established under Article 15.18 or 15.24; and
26. UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law.