claimant means an investor of a Party that makes a claim under Article 13.25 (Submission of a Claim to Arbitration);
confidential information means confidential business information or information that is privileged or otherwise protected from disclosure under the law of a Party;
disputing parties means the claimant and the respondent Party;
disputing party means either the claimant or the respondent Party;
enterprise means an enterprise as defined in Article 1.5 (Initial Provisions and General Definitions - General Definitions) and a branch (1) of an enterprise;
existing means in effect on the date of entry into force of this Agreement;
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 in their most recent form;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of other States done at Washington, D.C. on 18 March 1965;
intellectual property rights means copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders’ rights;
investment means:
(a) any of the following:
(i) an enterprise;
(ii) a share, stock, or other form of equity participation in an enterprise, or any other kind of interest in an enterprise recognized under the domestic law of the Party;
(iii) a bond, debenture,or other debt instrument of an enterprise; (2)
(iv) a loan to an enterprise;
(v) an interest arising from the commitment of capital or other resources in the territory of a Party to economic activity in that territory, such as under a contract involving the presence of an investor’s property in the territory of the Party, including a turnkey or construction contract, a concession, or other similar contract;
(vi) intellectual property rights; and
(vii) any other tangible or intangible, moveable or immovable, property and related property rights;
(b) in each case shall involve the commitment of capital or other resources, the expectation of gain or profit, certain duration, or the assumption of risk; and
(c) for the purposesof this definition, “investment” does not mean:
(i) a claim to money that arises solely from:
(A) a commercial contract for the sale of a good or service by a national or enterprise in the territory of a Party to an enterprise in the territory of the other Party, or
(B) the extension of credit in connection with a commercial transaction, such as trade financing;
(ii) an order or judgment in a judicial or administrative action; or
(iii) any other claim to money, that does not involve the kinds of interests set out in sub-subparagraphs (a)(i) to (vii);
investor of a Party means a Party, or a national (3) or an enterprise of a Party, other than a branch, that seeks to make (4), is making, or has made an investment in the territory of the other Party. For the purposes of this definition, enterprise of a Party means:
(a) an enterprise that is constituted or organized under the law of that Party and that has substantial business activities in the territory of that Party. A determination of whether an enterprise has substantial business activities in the territory of a Party requires a case-by-case, fact-based inquiry; or
(b) an enterprise that is constituted or organised under the law of that Party, and is directly or indirectly owned or controlled by a national of that Party or by an enterprise mentioned under subparagraph (a);
New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958;
non-disputing Party means a Party that is not a disputing party to an investment dispute;
respondent Party means a Party against which a claim is made under Article 13.25 (Submission of a Claim to Arbitration);
third party funding means any funding or other equivalent support provided by a person who is not a disputing party in order to finance part or all of the cost of the proceedings including through a donation or grant, or in return for remuneration dependent on the outcome of the dispute;
Tribunal means an arbitration tribunal established under Section D (Investor-State Dispute Settlement); and
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law, adopted by the United Nations General Assembly on 15 December 1976, as revised in 2010.
Section B. Investment Protections
Article 13.2. Scope
1. This Chapter applies to a measure adopted or maintained by a Party relating to:
(a) an investor of the other Party;
(b) a covered investment; and
(c) with respect to Article 13.5 (Regulatory Objectives) and Article 13.12 (Performance Requirements), an investment in the territory of that Party.
2. A Party’s obligations under this Chapter apply to a measure adopted or maintained by: (a) the central, regional, or other governments or authorities of that Party; and
(b) any person, including a state enterprise or any other body, when it exercises any governmental authority delegated to it by central, regional, or other governments or authorities of that Party.
3. This Chapter does not apply to:
(a) procurement by a Party;
(b) a subsidy or grant provided by a Party, including a government supported loan, guarantee, or insurance.
4. This Chapter does not bind a Party in relation to an act or fact that took place or a situation that ceased to exist before the date of entry into force of this Agreement.
Article 13.3. Relation to other Chapters
1. This Chapter does not apply to a measure adopted or maintained by a Party to the extent that it is covered by Chapter 8 (Trade in Services) or Chapter 10 (Financial Services).
2. Notwithstanding paragraph 1, this Chapter applies to a measure adopted or maintained by a Party relating to the supply of a service in its territory through commercial presence as defined in Article 8.1 (Trade in Services – Definitions) by a service supplier, to the extent that such a measure is covered by Article 13.2.1 (Scope).
3. A requirement of a Party that a service supplier of the other Party post a bond or other form of financial security as a condition for the cross-border supply of a service does not of itself make this Chapter applicable to a measure adopted or maintained by the Party relating to the cross-border supply of the service. This Chapter applies to a measure adopted or maintained by the Party relating to the posted bond or financial security, to the extent that the bond or financial security is a covered investment
4. In the event of any inconsistency between this Chapter and any other Chapter of this Agreement, the other Chapter shall prevail to the extent of the inconsistency, except that, where paragraph 2 applies, this Chapter prevails over Chapter 8 (Trade in Services).
Article 13.4. Right to Regulate
1. The Parties reaffirm theright of each Party to regulate within its territory to achieve legitimate policy objectives.
2. For greater certainty, the mere fact that a Party regulates, including through a modification to its laws, in a manner that negatively affects an investment or interferes with an investor’s expectations, including its expectation of profits, does not amount to a breach of an obligation under this Chapter.
Article 13.5. Regulatory Objectives
The Parties recognize the importance of encouraging investments that respect health, safety, the environment, and other regulatory objectives or the rights of Indigenous Peoples. (5) Accordingly, a Party shall not relax, waive, or otherwise derogate from, or offer to relax, waive,or otherwise derogate from, these measures in order to encourage the establishment, acquisition, expansion,or management of the investment of an investor in its territory.
Article 13.6. National Treatment
1. Each Party shall accord to an investor of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of an investment in its territory.
2. Each Party shall accord to a covered investment treatment no less favourable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of an investment in its territory.
3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a government other than at the central level, treatment accorded, in like circumstances, by that government to investors, and to investments of investors, of the Party of which it forms a part.
4. Whether treatment is accorded in like circumstances depends on the totality of the circumstances. Such circumstances include whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public policy objectives, and, if relevant, competition in the economic or business sector concerned and the applicable legal and regulatory framework.
5. Paragraphs 1 and 2 prohibit discrimination based on nationality. A difference in treatment accorded to an investor or covered investment and a Party’s own investors or investments of its own investors does not, in and of itself, establish discrimination based on nationality.
Article 13.7. Most-Favoured-Nation Treatment
1. Each Party shall accord to an investor of the other Party treatment no less favourable than that it accords, in like circumstances, to investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of an investment in its territory.
2. Each Party shall accord to a covered investment treatment no less favourable than that it accords, in like circumstances, to investments of investors of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of an investment in its territory.
3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a government other than at the central level, treatment accorded, in like circumstances, by that government to investors, and to investments of investors, of the Party of which it forms a part.
4. Whether treatment is accorded in like circumstances depends on the totality of the circumstances. Such circumstances include whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public policy objectives, and, if relevant, competition in the economic or business sector concerned and the applicable legal and regulatory framework.
5. Paragraphs 1 and 2 prohibit discrimination based on nationality. A difference in treatment accorded to an investor or covered investment and a non-Party’s investors or investments of a non-Party’s investors does not, in and of itself, establish discrimination based on nationality.
6. The treatment referred to in paragraphs 1 and 2 does not include procedures or mechanisms for the resolution of investment disputes between investors and States provided for in other international investment treaties and other trade agreements
7. Substantive obligations in other international investment treaties and other trade agreements do not in themselves constitute treatment, and thus cannot give rise to a breach of this Article, in the absence of measures adopted or maintained by a Party pursuant to those obligations.
Article 13.8. Treatment In Case of Armed Conflict or Civil Strife
1. Each Party shall accord to an investor of the other Party and to a covered investment, with respect to measures it adopts or maintains relating to restitution, indemnification, compensation, or other settlement for losses incurred by investments in its territory as a result of armed conflict or civil strife, treatment no less favourable than it accords, in like circumstances, to:
(a) its own investors and their investments; or
(b) investors of a non-Party and their investments.
2. Notwithstanding paragraph 1, if an investor of a Party, in a situation referred to in paragraph 1, suffers a loss in the territory of the other Party resulting from:
(a) requisitioning of its covered investment or part thereof by the latter’s forces or authorities; or
(b) destruction of its covered investment or part thereof by the latter’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 that loss. (6)
Article 13.9. Minimum Standard of Treatment
1. Each Party shall accord in its territory to a covered investment of the other Party and to an investor with respect to their covered investment treatment in accordance with the customary international law minimum standard of treatment of aliens. A Party breaches this obligation only if a measure constitutes:
(a) denial of justice in criminal, civil, or administrative proceedings;
(b) fundamental breach of due process in judicial and administrative proceedings;
(c) manifest arbitrariness; (7)
(d) targeted discrimination on manifestly wrongful grounds such as gender, race, or religious beliefs;
(e) abusive treatment of investors, such as physical coercion, duress, and harassment; or
(f) a failure to provide full protection and security. (8)
2. 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.
3. The fact that a measure breaches domestic law does not establish a breach of this Article.
Article 13.10: Expropriation
1. A Party shall not expropriate a covered investment either directly or indirectly, except:
(a) for a public purpose; (9) (10)
(b) in accordance with due process of law;
(c) in a non-discriminatory manner; and
(d) on payment of compensation in accordance with paragraph 5.
2. A direct expropriation occurs only when a covered investment is nationalised or taken by a Party through formal transfer of title or outright seizure.
3. An indirect expropriation may occur when a measure or a series of measures of a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure. A non-discriminatory measure of a Party that is adopted and maintained in good faith to protect legitimate public welfare objectives, such as health, safety, and the environment, does not constitute an expropriation. The determination of whether a measure or a series of measures of a Party has an effect equivalent to direct expropriation requires a case-by-case, fact-based inquiry that shall consider:
(a) the economic impact of the measure or the series of measures, although the sole fact that a measure or a series of measures of a Party has an adverse effect on the economic value of a covered investment does not establish that an indirect expropriation has occurred;
(b) the duration of the measure or series of measures of a Party;
(c) the extent to which the measure or the series of measures interferes with distinct, reasonable investment-backed expectations; and
(d) the character of the measure or the series of measures.
4. A measure of a Party cannot violate this Article unless it expropriates a covered investment that is a tangible or intangible property right under the domestic law of the Party in which the investment was made. This determination requires the consideration of relevant factors, such as the nature and scope of the tangible or intangible property right under the applicable domestic law of the Party in which the investment was made.
5. The compensation referred to in paragraph 1 shall:
(a) be paid without delay (11) in a freely convertible currency of the expropriating Party’s choice;
(b) be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (“date of expropriation”). Appropriate valuation criteria include going concern value, asset value including the declared tax value of tangible property, and other criteria, which may be appropriate or relevant under the circumstances, to determine fair market value;
(c) not reflect any change in value occurring because the intended expropriation had become known earlier; (d) include interest at a commercially reasonable rate for that currency accrued from the date of expropriation until the date of payment; and (e) be freely transferable.
6. With respect to direct expropriation relating to land, in the case of Indonesia, the concepts of “public purpose” under paragraph 1 and compensation “equivalent to the fair market value” under paragraph 5 are implemented in domestic laws and regulations.
7. A measure of a Party that would otherwise constitute an expropriation of an intellectual property right does not constitute a breach of this Article if it is consistent with Chapter 14 (Intellectual Property) and the TRIPS Agreement and any waiver or amendment of the TRIPS Agreement accepted by that Party.
Article 13.11. Transfer of Funds
1. Each Party shall permit all transfers of funds relating to a covered investment to be made freely, and without delay, into and out of its territory. Those transfers include:
(a) contributions to capital;
(b) profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance fees, and other fees;
(c) proceeds from the sale or liquidation of the whole or part of the covered investment;
(d) payments made under a contract entered into by the investor or the covered investment, including payments made pursuant to a loan agreement;
(e) payments made under Article 13.8 (Treatment in Case of Armed Conflict or Civil Strife) and Article 13.10 (Expropriation);
(f) earnings and other remuneration of foreign personnel working in connection with an investment; and
(g) payments arising out of a dispute.
2. Each Party shall permit transfers of funds relating to a covered investment to be made in a freely convertible currency at the market rate of exchange in effect at the time of transfer.
3. A Party shall not require its investors to transfer, or penalize one of its investors for failing to transfer, the income, earnings, profits, or other amounts derived from, or attributable to, an investment in the territory of the other Party.
4. Notwithstanding paragraphs 1, 2, and 3, a Party may prevent or limit a transfer through the equitable, non-discriminatory, and good faith application of its domestic law relating to:
(a) bankruptcy, insolvency,or the protection of the rights of a creditor;
(b) issuing, trading, or dealing in securities;
(c) criminal or penal offences;
(d) financial reporting or record keeping of transfers if necessary to assist law enforcement or financial regulatory authorities;
(e) ensuring compliance with an order or judgment in judicial or administrative proceedings;
(f) taxation; or
(g) social security, public retirement, or compulsory savings programmes.
Article 13.12. Performance Requirements
1. A Party shall not, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory, impose or enforce a requirement, or enforce a commitment or undertaking:
(a) to export a given level or percentage of a good or service;
(b) to achieve a given level or percentage of domestic content;
(c) to purchase, use, or accord a preference to a good produced or service provided in its territory, or to purchase a good or service from a person in its territory;
(d) to relate the volume or value of imports to the volume or value ofexports or to the amount of foreign exchange inflows associated with that investment;
(e) to restrict sales of a good or service in its territory that the investment produces or provides by relating those sales to the volume or value of its exports or foreign exchange earnings
(f) to transfer technology, a production process, source code of software, or other proprietary knowledge to a person in its territory; or
(g) to supply exclusively from the territory of the Party a good that the investment produces or a service it provides to a specific regional market or to the world market.
2. A Party shall notcondition the receipt or continued receipt of an advantage, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory, on compliance with a requirement:
(a) to achieve a given level or percentage of domestic content;
(b) to purchase, use, or accord a preference to a good produced in its territory, or to purchase a good from a producer in its territory;