Article 38. Denial of Benefits
1. A Party may deny the benefits of this Agreement to an investor of the other Party that is a legal entity of such other Party and to investments of such investor if an investor of a non-Party or the denying Party owns or controls the legal entity and the legal entity has no substantive business operations in the territory of such other Party.
2. A Party may deny the benefits of this Agreement to an investor of the other Party that is a legal entity of such other Party and to investments of such investor if persons of a non-Party own or control the legal entity and the denying Party adopts or maintains measures with respect to the non-Party or a person of the non-Party that relate to the maintenance of international peace and security and prohibit transactions with the legal entity or that would be violated or circumvented if the benefits of this Agreement were accorded to the legal entity or to its investments.
Article 39. Transparency
1. Each Party shall without delay publish or otherwise make publicly available its laws, regulations and international agreements that may affect the investments of investor of the other Party.
2. Each Party shall, upon request by the other Party, respond within a reasonable period of time to specific questions from and provide information to the other Party with respect to matters referred to in Paragraph 1.
Article 40. Disclosure of Information
1. Notwithstanding Article 5 (National Treatment), a Party may require an investor of the other Party, or its investment, to provide information concerning that investment solely for informational or statistical purposes. The Party shall protect such business information that is confidential from any disclosure that would prejudice the competitive position of the investor or its investment. Nothing in this Paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its law.
2. Nothing in this Agreement shall require either Party to provide confidential information the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular legal entities, public or private.
Article 41. General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination against the other Party or its investors where like conditions prevail, or a disguised restriction on investments of investors of the other Party in the territory of a Party, nothing in this Agreement shall be construed to prevent the adoption or enforcement by a Party of measures:
(a) necessary to protect public morals or to maintain public order (13);
(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.
Article 42. Prudential Measures
1. Nothing in this Agreement shall prevent a Party from adopting or maintaining measures in a non-discriminatory manner relating to financial services for prudential reasons (14), including:
(a) the protection of investors, depositors, policy holders, policy claimants, as well as financial market participants, or persons to whom a fiduciary duty is owed by a financial institution;
(b) ensuring the integrity and stability of a Party's financial system.
2. The measures taken by a Party pursuant to Paragraph 1 shall not be used as a means of avoiding the commitments or obligations of the Party under this Agreement.
Article 43. Promotion and Facilitation of Investments
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 rules, 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 Paragraph 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 (Investment Protection), or be subject to or otherwise affect any dispute resolution proceedings under this Agreement.
Article 44. Entry Into Force, Duration and Termination
1. This Agreement shall enter into force on the day of receipt of the second notification through diplomatic channels confirming that both Parties have complied with the legal requirements for the entry into force of international agreements.
2. Notwithstanding Article 2 (Scope of Agreement), a claim may be submitted pursuant to the provisions of the Agreement of 6 February 1974 between the Government of the Swiss Confederation and the Government of the Republic of Indonesia on the promotion and reciprocal protection of investments, the termination of which became effective on 8 April 2016 (hereinafter referred to as "previous Agreement"), pursuant to the rules and procedures established in the previous Agreement, and provided that no more than one year have elapsed since the date of entry into force of this Agreement.
3. 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.
4. This Agreement shall remain in force for a period of 10 (ten) years and shall continue in force thereafter, unless, at any time after the expiry of the initial period of 10 (ten) 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.
5. 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 continue to be effective for a further period of 10 (ten) 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 Davos on........................ in the French, Indonesian, and English languages, all texts being equally authentic. If there is any divergence concerning interpretation, the English text shall prevail.
For the Swiss Federal Council
For the Government of the Republic of Indonesia
Attachments
ANNEX A. 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 in an investment.
2. Paragraph 1 of Article 7 (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 7 (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 duration of the action or series of actions by a Party;
(iii) the extent to which the government action interferes with distinct, reasonable investment-backed expectations (15); and
(iv) the character of the government action, notably its objective and whether the action is disproportionate to the public purpose.
(b) For greater certainty, except in rare circumstances when the impact of an action or series of actions is so severe in light of its purpose that it appears manifestly excessive, 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 B. CODE OF CONDUCT OF ARBITRATORS
Responsibilities in the Process
1. Every arbitrator shall avoid impropriety and the appearance of impropriety, be independent and impartial, avoid direct and indirect conflicts of interests and observe high standards of conduct so that the integrity and impartiality of the dispute settlement process is preserved. Former arbitrators shall comply with the obligations in Paragraphs 17, 18 and 20.
Disclosure Obligations
2. Prior to confirmation of his or her selection as an arbitrator under this Agreement, a candidate shall disclose any 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 proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships and matters.
3. Once selected, an arbitrator shall continue to make all reasonable efforts to become aware of any interests, relationships and matters referred to in Paragraph 2 and shall disclose them by communicating them in writing to the disputing parties. The obligation to disclose is a continuing duty, which requires an arbitrator to disclose any such interests, relationships and matters that may arise at any stage of the proceeding.
Performance of Duties by Arbitrators
4. An arbitrator shall comply with the provisions of Chapter II (Dispute Settlement) and the applicable rules of procedure.
5. Once selected, an arbitrator shall perform his or her duties thoroughly and expeditiously throughout the course of the proceeding with fairness and diligence.
6. An arbitrator shall not deny other arbitrators the opportunity to participate in all aspects of the proceeding.
7. An arbitrator shall not go beyond the request of the disputing parties and shall not delegate the duty to decide to any other person.
8. An arbitrator shall take all appropriate steps to ensure that his or her assistant and staff are aware of, and comply with, Paragraphs 1, 2,3, 18, 19 and 20.
9. After the arbitral tribunal has been constituted, an arbitrator shall not engage in ex parte contacts concerning the proceeding.
10. An arbitrator shall not communicate matters concerning actual or potential violations by another arbitrator unless the communication is to both disputing parties or is necessary to ascertain whether that arbitrator has violated or may violate this Annex.
Independence and Impartiality of Arbitrators
11. An arbitrator shall be independent and impartial. An arbitrator shall act in a fair manner and shall avoid creating an appearance of impropriety or bias.
12. An arbitrator shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a Party or a disputing party or fear of criticism.
13. An arbitrator shall not, directly or indirectly, assume 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.
14. An arbitrator shall not use his or her position on the arbitral tribunal to advance any personal or private interests. An arbitrator shall avoid actions that may create the impression that others are in a special position to influence the arbitrator. An arbitrator shall make every effort to prevent or discourage others from representing themselves as being in such a position.
15. An arbitrator shall not allow past or existing financial, business, professional, family or social relationships or responsibilities to influence the arbitrator's conduct or judgment.
16. 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.
Duties in Certain Situations
17. An arbitrator or former arbitrator shall avoid actions that may create the appearance that the arbitrator was biased in carrying out his or her duties or would benefit from the decision or award of the arbitral tribunal.
Maintenance of Confidentiality
18. An arbitrator or former arbitrator shall not at any time disclose or use any non-public information concerning the proceeding or acquired during the proceeding except for the purposes of the proceeding and to the extent that disclosure may be required by legal or constitutional requirements, and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to affect adversely the interest of others.
19. An arbitrator shall not disclose an arbitral tribunal award or parts thereof prior to its publication.
20. An arbitrator or former arbitrator shall not at any time disclose the deliberations of an arbitral tribunal, or any arbitrator's view, except as required by legal or constitutional requirements.