(b) give favourable consideration to any written request for consultation.
3. The Parties should endeavour to develop a work programme and mechanisms for co-operation activities in the areas of technical issues of mutual interest.
Article 5.10. CONFIDENTIALITY
1. A Party shall not be required to disclose confidential proprietary information to the other Party except where such disclosure would be necessary for the other Party to demonstrate the technical competence of its designated conformity assessment body and conformity with the relevant stipulated requirements.
2. A Party shall, in accordance with its applicable laws, protect the confidentiality of any proprietary information disclosed to it in connection with conformity assessment activities and/or designation activities.
3. Nothing in this Chapter shall be construed to require either Party to furnish or allow access to information the disclosure of which it considers would:
(a) be contrary to its essential security interests;
(b) be contrary to the public interest as determined by its domestic laws, regulations and administrative provisions;
(c) be contrary to any of its domestic laws, regulations and administrative provisions including but not limited to those protecting personal privacy or the financial affairs and accounts of individual customers of financial institutions;
(d) impede law enforcement; or
(e) prejudice legitimate commercial interests of particular public or private enterprises.
Article 5. PRESERVATION OF REGULATORY AUTHORITY
1. Each Party retains all authority under its laws to interpret and implement its mandatory requirements.
2. This Chapter shall not:
(a) prevent a Party from adopting or maintaining, in accordance with its international rights and obligations, mandatory requirements, as appropriate to its particular national circumstances;
(b) prevent a Party from adopting mandatory requirements to determine the level of protection it considers necessary to ensure the quality of its imports, or for the protection of human, animal or plant life or health, or the environment, or for the prevention of deceptive practices or to fulfil other legitimate objectives, at the levels it considers appropriate.
(c) limit the authority of a Party to take all appropriate measures whenever it ascertains that products may not conform with its mandatory requirements. Such measures may include withdrawing the products from the market, prohibiting their placement on the market, restricting their free movement, initiating a product recall, initiating legal proceedings or otherwise preventing the recurrence of such problems including through a prohibition on imports. If a Party takes such measures, it shall notify the other Party within 15 days of taking the measures, giving its reasons;
(d) oblige a Party to accept the standards or technical regulations or mandatory requirements of the other Party;
(e) entail an obligation upon a Party to accept the results of the conformity assessment activities and/or assessment of manufacturers or manufacturing processes of products and their mandatory requirements of any third country save where there is an expressed agreement between the Parties to do so; or
(f) be construed so as to affect the rights and obligations of either Party as a member of the WTO Agreement on Technical Barriers to Trade or WTO Agreement on the Application of Sanitary and Phytosanitary Measures.
Article 5. FINAL PROVISIONS ON SECTORAL ANNEXES
1. Sectoral Annexes are attached to this Agreement as Annex 5A, Annex 5B and Annex SC which shall provide the detailed implementing arrangements in respect of the product sectors specified therein.
2. In addition, the Parties may subsequently conclude as appropriate, Sectoral Annexes on other product sectors which shall provide the implementing arrangements for such other sectors.
3. The Parties shall:
(a) specify and communicate to each other the applicable articles or annexes contained in the mandatory requirements set out in the Sectoral Annexes;
(b) exchange information concerning the implementation of the mandatory requirements specified in the Sectoral Annexes;
(c) notify each other of any scheduled changes in their respective mandatory requirements as and when they are made; and
(d) notify each other of any scheduled changes concerning their respective Designating Authorities as well as registered conformity assessment bodies.
4. Unless otherwise provided for, a Sectoral Annex concluded pursuant to paragraph 2 shall enter into force on the first day of the second month following the date on which the Parties have exchanged notes confirming the completion of their respective procedures for the entry into force of that Sectoral Annex.
5. A Party may terminate a Sectoral Annex in its entirety by giving the other Party six months advance notice in writing unless otherwise stated in the relevant Sectoral Annex. However, a Party shall continue to accept the results of conformity assessment or equivalence for the duration of the six-month notice period.
6. Where urgent problems of safety, health, consumer or environment protection or national security arise or threaten to arise for a Party, that Party may suspend the operation of any Sectoral Annex, in whole or in part, immediately. In such a case, the Party shall immediately advise the other Party of the nature of the urgent problem, the products covered and the objective and rationale of the suspension.
Chapter 6. Investment
Article 6.1. DEFINITIONS
For the purposes of this Chapter:
1. investment means every kind of asset and includes:
(a) movable and immovable property and other property rights such as mortgage, liens or pledges;
(b) shares, stocks, debentures and similar interests in companies;
(c) rights to money or to any performance under contract having a financial value;
(d) intellectual property rights
(e) goodwill, technical processes and know-how as conferred by law or under contract;
(f) business concessions conferred by law or under contract, including concessions to search for, extract or exploit oil and other minerals and other natural resources.
2. For the purposes of paragraph 1, returns that are invested shall be treated as investments and any alteration in the form in which assets are invested or reinvested shall not affect their character as investments.
3. returns means monetary returns yielded by or derived from an investment including any profits, interest, capital gains, dividends, royalties, fees, or payments in connection with intellectual property rights.
4, investor of a Party means:
(a) an enterprise of a Party; or
(b) a national of a Party that has made or is in the process of making or is seeking to make an investment;
5. national means any natural person possessing the citizenship of a Party in accordance with its laws.
6. enterprise means any entity that is incorporated, constituted, set up or otherwise duly organized under the law of a Party (6-1), whether or not for profit, whether privately or otherwise owned, with limited or unlimited liability, including any corporation, company, association, partnership, trust, joint venture, co- operatives or sole proprietorship. An enterprise shall not include any legal entity, which is established and located in the territory of a Party with negligible or nil business operations or with no real and continuous business activities carried out in the territory of that Party.
7. Measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action or any other form, 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;
Article 6.2. SCOPE OF APPLICATION
1. This Chapter shall apply to investors of a Party, and to their investments in the territory of the other Party whether made before or after the entry into force of this Agreement.
2. An enterprise duly organized under the law of a Party shall not be treated as an investor of the other Party, but any investments in that enterprise by investors of that other Party shall be covered under this Chapter.
3. The provisions of this Chapter as specified in Article 7.24 shall apply mutatis mutandis to the measures affecting the supply of services by a service provider of a Party through commercial presence in the territory of the other Party
4. In the event of any inconsistency between this Chapter and another Chapter, the other Chapter shall prevail to the extent of the inconsistency.
5. This Chapter shall not apply to subsidies or grants provided by a Party 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 domestic investors and investments.
Article 6.3. NATIONAL TREATMENT
1. Each Party shall accord to investors of the other Party, and investments of investors of the other Party, in relation to the establishment, acquisition or expansion of investments in the sectors listed at Annex 6A and Annex 6B, treatment no less than that it accords in like circumstances to its own investors and investments. Any subsequent establishment, acquisition or expansion of investments by an enterprise that is incorporated, constituted, set up or otherwise duly organized under the law of a Party, and which is owned by an investor of the other Party, shall be regarded as an investment of the other Party, for the purpose of determining the applicable treatment to be accorded under this paragraph (6-2).
2. Each Party shall accord to investors of the other Party, and investments of investors of the other Party, in relation to the management, conduct, operation, liquidation, sale and transfer (or other disposition) of investments, treatment no less favourable than it accords in like circumstances to its own investors and investments.
3. The treatment to be accorded by a Party under paragraphs 1 and 2 means, with respect to a regional or local level, treatment no less favourable than the most favourable treatment accorded by that regional and local level, in like circumstances, to investors and investments of the Party of which it forms a part.
4. The provisions of paragraphs 1, 2, 3 above shall not be construed so as to oblige one Party to extend to the investors of the other Party the benefit of any treatment, preference or privilege resulting from any arrangement or international agreement relating wholly or mainly to taxation or any domestic legislation relating wholly or mainly to taxation.
Article 6.4. COMPENSATION FOR LOSSES
Investors of one Party whose investments in the territory of the other Party suffer losses owing to war or other armed conflict, a state of emergency or civil disturbances in the territory of the latter Party, shall be accorded by that Party treatment, as regards restitution, indemnification, compensation or other settlement, if any, no less favourable than that which that Party accords to its own investors or to investors of any non-Party. Any payments under this Article shall be freely transferable.
Article 6.5. EXPROPRIATION
1. Neither Party shall take any measure of expropriation (6-3) against the investments of investors of the other Party unless the measures are taken on a non-discriminatory basis, for a purpose authorized by law, in accordance with due process of law and against payment of compensation in accordance with this Article.
2. The payment of compensation shall be prompt, adequate and effective. Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation or impending expropriation became public knowledge. Compensation shall carry an appropriate interest, taking into account the length of time from the time of expropriation until the time of payment. Such compensation shall be effectively realizable, freely transferable and made promptly.
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 expropriating Party on the date of entry into force of this Agreement, shall be for a purpose and upon payment of compensation in accordance with the aforesaid legislation and any subsequent amendments thereto relating to the amount of compensation where such amendments follow the general trends in the market value of the land.
4. The investor whose investment is expropriated shall have a right of access to the courts of justice or the administrative tribunals or agencies of the Party making the expropriation to seek review of the expropriation measure or valuation of the compensation that has been assessed in accordance with the principles and provisions set out in this Article.
5. When a Party expropriates the assets of an enterprise which is incorporated or constituted under the laws in force in any part of its own territory, and in which investors of the other Party own shares, it shall ensure that the provisions of paragraph 1 and 2 are applied to the extent necessary to guarantee compensation as specified therein to such investors of the other Party who are owners of those shares.
6 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 WTO Agreement on Trade Related Aspects of Intellectual Property Rights.
7. This Article is to be interpreted in accordance with the understanding of the Parties on expropriation as set out in their exchange of letters, which shall form an integral part of this Agreement.
Article 6.6. REPATRIATION
1. Each Party shall ensure to investors of the other Party the free transfer of their capital and the returns from any investments. The transfers shall be permitted in a freely useable currency at the market rate prevailing in the date of transfer, without undue delay. Such transfers shall include in particular, though not exclusively:
(a) profits, capital gains, dividends, royalties, licence fees, interest and other current income;
(b) the proceeds of the total or partial liquidation of an investment;
(c) repayments made pursuant to a loan agreement in connection with an investment;
(d) payments in respect of technical assistance, technical service and management fees;
(e) payments in connection with contracting projects;
(f) earnings of nationals of the other Party who work in connection with an investment in the territory of the former Party; and
(g) payments of compensation under Articles 6.4 and 6.5.
2. Notwithstanding paragraph 1, a Party may prevent 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) criminal or penal offences, and the recovery of proceeds of crime;
(d) ensuring the satisfaction of judgments, orders or awards in adjudicatory proceedings such as judicial and quasi-judicial proceedings; or
(e) social security, public retirement or statutory savings schemes, including provident funds, retirement gratuity programmes and employees insurance programmes.
Article 6.7. 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 recognized 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 International 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 1 improves; and
(e) be applied on a national treatment basis and such that the other Party is treated no less favourably than any non-Party.
3. Any restrictions adopted or maintained by a Party under paragraph 1 or any changes therein, shall be promptly notified to the other Party.
4. 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 6.8. 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 former Party (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 own investors shall not affect the rights of such investors to make their claims against the other Party in accordance with Article 6.21.
Article 6.9. DENIAL OF BENEFITS
1. A Party may deny the benefits of this Chapter to an investor that is an enterprise of the other Party where the denying Party establishes that:
(a) the enterprise has no substantial business operations in the territory of the other Party; or
(b) investors of the denying Party own or control the enterprise.
Article 6.10. MEASURES IN THE PUBLIC INTEREST
Nothing in this Chapter shall be construed to prevent:
(a) a Party or its regulatory bodies from adopting, maintaining or enforcing any measure, on a non- discriminatory basis; or
(b) the judicial bodies of a Party from taking any measures; consistent with this Chapter that is in the public interest, including measures to meet health, safety or environmental concerns.
Article 6.11. GENERAL EXCEPTIONS
1. 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 a Party in the territory of the other Party, nothing in this Chapter 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;
(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 Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices 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;
(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 6.12. SECURITY EXCEPTIONS
1. Nothing in this Chapter shall be construed:
(a) to require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent a Party from taking any action which it considers necessary for the protection of its essential security interests
(i) relating to fissionable and fusionable materials or the materials from which they are derived;
(ii) in time of war or other emergency in international relations;
(iii) relating to the production or supply of arms and ammunition; or
(iv) to protect critical public infrastructures, including communication, power and water infrastructures, from deliberate attempts intended to disable or degrade such infrastructures; or
(c) to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
2. Nothing in this Chapter shall be construed to require a Party to accord the benefits of this Chapter to an investor that is an enterprise of the other Party where a Party adopts or maintains measures in any legislation or regulations which it considers necessary for the protection of its essential security interests with respect to a non-Party or an investor of a non-Party that would be violated or circumvented if the benefits of this Chapter were accorded to such an enterprise or to its investments.
3. Paragraph 2 shall be interpreted in accordance with the understanding of the Parties on security exceptions as set out in their exchange of letters, which shall form an integral part of this Agreement.
4. This Article shall be interpreted in accordance with the understanding of the Parties on non- justiciability of security exceptions as set out in their exchange of letters, which shall form an integral part of this Agreement.
Article 6.13. DISCLOSURE OF INFORMATION
Nothing in this Chapter shall require any 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 legitimate commercial interests of public or private enterprises.
Article 6.14. SPECIAL FORMALITIES AND INFORMATION REQUIREMENTS
1. Nothing in Article 6.3 shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with the establishment of investments by investors of another Party, such as a requirement that investors be residents of the Party or that investments be legally constituted under the laws and regulations of the Party, provided that such formalities do not impair the substance of the benefits of any of the provisions in this Chapter.
2. Notwithstanding Article 6.3, a Party may require, from an investor of another Party or its investment, routine business information, to be used solely for informational or statistical purposes, concerning that investment in its territory. The Party shall protect such business information as is confidential from disclosure that would prejudice the investor's or the investment's competitive position. Nothing in this paragraph shall preclude a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its laws.
Article 6.15. TRANSPARENCY
1. Each Party shall ensure that its laws, regulations and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons or Parties to become acquainted with them.
2. Each Party shall, upon request by the other Party, promptly respond to specific questions from and provide information to the other Party with respect to matters referred to in paragraph 1.
Article 6.16. SPECIFIC COMMITMENTS AND EXCEPTIONS
1. With respect to paragraph 1 Article 6.3:
(a) In the case of India - The Schedule of Specific Commitments that India undertakes under paragraph 1 of Article 3 are set out in Annex 6A, which specifies the terms, limitations, conditions and qualifications on national treatment in relation to paragraph 1 of Article 6.3.
(b) In the case of Singapore - paragraph 1 of Article 6.3 shall not apply to any exception that is specified by Singapore or any measure that Singapore maintains with respect to sectors, sub-sectors or activities as set out in its Schedule of Reservations at Annex 6B.
2. Article 6.19 and Article 6.23 shall not apply to:
(a) any exception that is specified by the Parties; or
(b) any measure that the Parties maintain with respect to sectors, sub-sectors or activities as set out in their respective Schedules at Annexes 6A and 6B.
Article 6. REVIEW OF COMMITMENTS AND EXCEPTIONS
1. If, after this Agreement enters into force, a Party enters into any agreement on investment with a non- Party, it shall give consideration to a request by the other Party for the incorporation herein of treatment no less favourable than that provided under the aforesaid agreement. Any such incorporation should maintain the overall balance of commitments undertaken by each Party under this Agreement.