(b) necessary to protect human, animal or plant life or health;
(c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on a contract;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety;
(d) imposed for the protection of national treasures of artistic, historic or archaeological value; or
(e) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. (24)
Article 40. SECURITY EXCEPTIONS (25)
Nothing In this Agreement shall be construed to:
(a) require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
(b) preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.
Article 41. PRUDENTIAL MEASURES
1. Notwithstanding any other provisions in this Agreement, a Party shall not be prevented from taking measures in a non-discriminatory manner relating to financial services for prudential reasons, (26) including measures for the protection of investors, depositors, policy holders, or persons to whom a fiduciary duty is owed by a financial services supplier, or to ensure the integrity and stability of its financial system.
2. Where the measures taken by a Party pursuant to paragraph 1 do not conform with this Agreement, they shall not be used as a means of avoiding the commitments or obligations of the Party under this Agreement.
3. Nothing in this Agreement shall be construed to require a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
Article 42. PROMOTION AND FACILITATION OF INVESTMENT
1. Subject to its laws and regulations, each Party shall endeavour to cooperate in the facilitation of investments between the Parties including through:
(a) creating the necessary environment for all forms of investments;
(b) simplifying procedures for investment applications and approvals;
(c) promoting dissemination of investment information, including investment tules, regulations, policies and procedures; and
(d) establishing an appropriate mechanism, to the extent possible, to provide assistance and advisory services to investors including facilitation of operating licences and permits.
2. Subject to its laws and regulations, cooperation activities under subparagraph (1)(d) may be built on existing agreements or arrangements already in place for economic cooperation.
3. Nothing in this Article shall be construed to affect any obligation in the provisions of Chapter II (Protection), or be subject to or otherwise affect any dispute resolution proceedings under this Agreement.
Article 43. TAXATION
1. Article 6 (Expropriation) and Section One (Settlement of Disputes between a Party and an Investor of the Other Party) of Chapter II (Dispute Settlement) shall apply to taxation measures to the extent that such taxation measures constitute expropriation as provided for in Article 6 (Expropriation). (27) An investor that seeks to invoke Article 6 (Expropriation) with respect to a taxation measure must first refer to the competent taxation authorities of both Parties as described in paragraph 2, at the time that it gives notice under Section One (Settlement of Disputes between a Party and an Investor of the other Party) of Chapter III (Dispute Settlement), the issue of whether that taxation measure involves an expropriation as provided for under Article 6 (Expropriation). If the competent taxation authorities of both Parties do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation as provided for under Article 6 (Expropriation) within a period of six (6) months of the receipt of such referral, the investor may submit its claim to arbitration under Section One (Settlement of Disputes between a Party and an Investor of the Other Party) of Chapter IM (Dispute Settlement).
2. For the purposes of this Article, "competent taxation authorities" means:
(a) in the case of the Republic of Indonesia, Minister of Finance or his or her authorised representative;
(b) in the case of the Republic of Singapore, the Chief Tax Policy Officer, Ministry of Finance, or his successor or such other public officer as may be designated by Singapore;
or their successors.
Article 44. ENTRY INTO FORCE, DURATION AND TERMINATION
1. This Agreement shall enter into force on the date of exchange of Instruments of Ratification by the Parties.
2. This Agreement may be amended by mutual consent of the Parties in writing. The amendments shall enter into force in accordance with the same legal procedure prescribed under paragraph 1.
3. This Agreement shall remain in force for a period of 10 years and shall continue in force thereafter, unless, at any time after the expiry of the initial period of 10 years, either Party notifies in writing the other Party of its intention to terminate this Agreement. The notice of termination shall become effective one year after it has been received by the other Party.
4. In respect of investments made prior to the date when the notice of termination of this Agreement becomes effective, the provisions of this Agreement shall remain in force for a further period of 10 years from that date.
Conclusion
IN WITNESS WHEREOF, the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at on in the Indonesian and English languages, both texts being equally authentic. In the event of any divergence concerning interpretation, the English text shall prevail.
FOR THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE
CHAN CHUN SING
Minister for Trade and Industry
FOR THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
RETNO L. P. MARSUDI
Minister for Foreign Affairs
Attachments
ANNEX I. NATIONAL TREATMENT
Article 4 (National Treatment) shall not apply to any measure relating to:
(a) the collection, purification, treatment, disposal and distribution of water, including waste water;
(b) real estate, including but not limited to the ownership, purchase, development, management, maintenance, use, enjoyment, sale or other disposal of real estate; or
(c) a national public health service scheme.
ANNEX II. EXPROPRIATION
The Parties confirm their shared understanding that:
1. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest (28) in an investment.
2. Paragraph 1 of Article 6 (Expropriation) addresses two situations. The first is direct expropriation, where an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure.
3. The second situation addressed by paragraph 1 of Article 6 (Expropriation) is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by- case, fact-based inquiry that considers, among other factors:
(I) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(ii) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; (29) and
(ii) the character of the government action, including its objective and whether the action is disproportionate to the public purpose.
(b) Non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations.
ANNEX III. PUBLIC DEBT
1. The Parties recognise that the purchase of debt issued by a Party entails commercial risk. For greater certainty, no award shall be made in favour of a disputing investor for a claim under Article 17 (Submission of a Claim) with respect to default or non-payment of debt issued by a Party unless the disputing investor meets its burden of proving that such default or non-payment constitutes a breach of an obligation under Chapter II (Protection), including an uncompensated expropriation pursuant to Article 6 (Expropriation).
2. No claim that a restructuring of debt issued by a Party breaches an obligation under Chapter II (Protection) shall be submitted to, or if already submitted continued in, arbitration under Section One (Settlement of Disputes between a Party and an Investor of the Other Party) of Chapter II (Dispute Settlement) if the restructuring is a negotiated restructuring at the time of submission, or becomes a negotiated restructuring after that submission, except for a claim that the restructuring violates Article 4 (National Treatment) or Article 5 (Most- Favoured-Nation Treatment). (30)
3. Notwithstanding Article 17 (Submission of a Claim), and subject to paragraph 2, an investor of the other Party shall not submit a claim under Section One (Settlement of Disputes between a Party and an Investor of the Other Party) of Chapter IM (Dispute Settlement) that a restructuring of debt issued by a Party breaches an obligation under Chapter If (Protection), other than Article 4 (National Treatment) or Article 5 (Most- Favoured-Nation Treatment), unless 450 days have elapsed from the date of receipt by the disputing Party of the written request for consultations pursuant to Article 15 (Consultations).
4. For the purposes of this Annex, "negotiated restructuring" means the restructuring or rescheduling of a debt instrument that has been effected through (a) a modification or amendment of that debt instrument, as provided for under its terms, or (b) a comprehensive debt exchange or other similar process in which the holders of no less than 75 per cent of the aggregate principal amount of the outstanding debt under that debt instrument have consented to the debt exchange or other process.
ANNEX IV. CODE OF CONDUCT FOR ARBITRATORS AND MEDIATORS
Definitions
1. In this Code of Conduct:
arbitrator means a member of an arbitral tribunal established pursuant to Article 19 (Constitution of the Arbitral Tribunal);
mediator means a person who conducts mediation in accordance with Article 16 (Mediation);
candidate means an individual who is under consideration for selection as an arbitrator;
assistant means a person who, under the terms of appointment of an arbitrator, conducts research or provides assistance to the arbitrator;
staff, in respect of an arbitrator, means any person under the direction and control of the arbitrator, other than an assistant; and
proceedings, unless otherwise specified, means arbitral proceedings under Section One (Settlement of Disputes between a Party and an Investor of the Other Party) of Chapter III (Dispute Settlement).
Responsibilities to the Process
2. Throughout the proceedings, every candidate and arbitrator shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflicts of interests and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement mechanism is preserved.
3. Arbitrators shall not take instructions from any organisation or government with regard to matters before the arbitral tribunal.
Disclosure Obligations
4. Prior to his or her appointment as an arbitrator, a candidate shall disclose to the disputing parties any past or present interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceedings. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships and matters.
5. Once appointed, an arbitrator shall at all times continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in paragraph 4 and shall disclose them. The disclosure obligation is a continuing duty, which requires an arbitrator to disclose any such interests, relationships or matters that may arise during any stage of the proceedings at the earliest time the arbitrator becomes aware of it. The arbitrator shall disclose such interests, relationships or matters by informing the disputing parties, in writing, for their consideration.
6. Disclosure of an interest, relationship or matter is without prejudice as to whether that interest, relationship or matter is indeed covered by paragraphs 4 or 5, or whether it warrants recusal or disqualification. In the event of uncertainty regarding whether an interest, relationship or matter must be disclosed, a candidate or arbitrator should err in favour of disclosure.
7. An arbitrator shall communicate matters concerning actual or potential violations of this Code of Conduct to the disputing parties.
Duties of Arbitrators
8. An arbitrator shall comply with the provisions of Section One (Settlement of Disputes between a Party and an Investor of the Other Party) of Chapter III (Dispute Settlement) and the applicable rules of procedure.
9. An arbitrator shall perform his or her duties thoroughly and expeditiously throughout the course of the proceedings, and with fairness and diligence.
10. An arbitrator shall not deny other arbitrators the opportunity to participate in all aspects of the proceedings.
11. An arbitrator shall consider only those issues raised in the proceedings and necessary for a decision or award and shall not delegate this duty to any other person.
12. An arbitrator shall take all appropriate steps to ensure that his or her assistants and staff are aware of, and comply with, paragraphs 2 to 6 and 21 to 24 of this Code of Conduct.
13. An arbitrator shall not engage in any ex parte contacts concerning the proceedings.
Independence and Impartiality of Arbitrators
14, An arbitrator shall be independent and impartial and avoid creating an appearance of bias or impropriety and shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a disputing party or a non-disputing Party, or fear of criticism.
15. An arbitrator shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of his or her duties.
16. An arbitrator shall not use his or her position on the arbitral tribunal to advance any personal or private interests and shall avoid actions that may create the impression that others are in a special position to influence him or her.
17. An arbitrator shall not allow past or existing financial, business, professional, family or social relationships or responsibilities to influence his or her conduct or judgement.
18. An arbitrator shall avoid entering into any relationship or acquiring any financial interest that is likely to affect his or her impartiality or that might reasonably create an appearance of impropriety or bias.
Obligations of Former Arbitrators
19. A former arbitrator shall avoid actions that may create the appearance that he or she was biased in carrying out his or her duties or derived any advantage from the decisions or awards of the arbitral tribunal.
Confidentiality
20. An arbitrator or former arbitrator shall not at any time disclose or use any non-public information concerning a proceeding or acquired during a proceeding, except for the purposes of that proceedings, and shall not, in particular, disclose or use any such information to gain a personal advantage or an advantage for others or to adversely affect the interests of others.
21. An arbitrator shall not make any public statement regarding the merits of a pending proceedings.
22. An arbitrator shall not disclose a decision or award or parts thereof prior to its publication.
23. An arbitrator or former arbitrator shall not at any time disclose the deliberations of the arbitral tribunal, or any arbitrator's view regarding the deliberations, except as required by law. Expenses
24. Each arbitrator shall keep a record and render a final account of the time devoted to the procedure and of his or her expenses, as well as the time and expenses of his or her assistants.
Responsibilities of Assistants and Staff
25. Paragraphs 2 to 6, 8, 13, and 19 to 23 of this Code of Conduct shall also apply to assistants and staff.
Mediators
26. The rules set out in this Code of Conduct as applying to arbitrators or former arbitrators shall apply, mutatis mutandis, to mediators.