2. As part of the reviews of this Agreement pursuant to Article 16.3:
(a) India undertakes to review its Schedule of Specific Commitment as set out in Annex 6A with a view to increasing its list of committed sectors and reducing the terms, limitations, conditions and qualifications on national treatment with regard to the establishment, acquisition or expansion of investments; and
(b) Singapore undertakes to review the status of the exceptions set out in its Schedule in Annex 6B with a view to reducing the exceptions or removing them.
3. In any other case, a Party may, upon reasonable notice, request the other Party for a review of its commitments/exceptions:
(a) In the case of India as set out in Annex 6A - its list of committed sectors and reducing the terms, limitations, conditions and qualifications on national treatment with regard to the establishment, acquisition or expansion of investments; or
(b) In the case of Singapore as set out in Annex 6B - its exceptions with a view to reducing or removing them.
Any review pursuant to such a request should maintain the overall balance of commitments undertaken by each Party under this Agreement.
Article 6.18. ACCESS TO COURTS OF JUSTICE
Each Party shall within its territory accord to investors of the other Party treatment no less favourable than the treatment, which it accords in like circumstances to its own investors, with respect to access to its courts of justice and administrative tribunals and agencies in all degrees of jurisdiction both in pursuit and in defence of such investors' rights.
Article 6.19. SENIOR MANAGEMENT AND BOARD OF DIRECTORS
1. Neither Party may require that an investor of the other Party appoint to senior management positions individuals of any particular nationality.
2. A Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of the Party that is an investment of an investor of the other Party, be of a particular nationality, or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment.
Article 6.20. REQUEST FOR EXEMPTION ON IMPORT DUTIES
1. India shall consider on a case-by-case basis requests from Singapore investors for exemptions from custom duties for import of capital goods, excluding consumables, for the purposes of infrastructure projects in India.
2. For the purpose of paragraph 1 above, infrastructure projects include but are not limited to the following:
(a) roads and highways;
(b) ports and other seaport related infrastructure, such as logistics;
(c) airports and other aviation related infrastructure;
(d) power (generation, transmission, distribution);
(e) water resource management;
(f) waste management;
(g) other urban infrastructure, such as pollution control and management;
(h) housing, including townships; and
(i) telecommunications.
3. Such requests shall be made in such form and include such details as may be prescribed. These forms and details would be notified to the contact point provided under Article 16.2.
4. Decision on such requests shall not be subject to the provisions of Article 6.18, Article 6.21, or Chapter 15.
Article 6.21. INVESTMENT DISPUTES
1. This Article shall apply to disputes between a Party and an investor of the other Party concerning an alleged breach of an obligation of the former under this Chapter which causes loss or damage to the investor or its investment, except any dispute arising under Article 6.3.1 (6-4).
2. The parties to the dispute shall, as far as possible, resolve the dispute through consultations and negotiations.
3. Where the dispute cannot be resolved as provided for under paragraph 2 within 6 months from the date of a request for consultations and negotiations, then unless the disputing investor and the disputing Party agree otherwise or the investor concerned has already submitted the dispute to the courts or administrative tribunals of the disputing Party (excluding proceedings for interim measures of protection referred to in paragraph 5), the investor may submit the dispute to:
(a) the courts or administrative tribunals of the disputing Party;
(b) the International Centre for Settlement of Investment Disputes (ICSID) for conciliation or arbitration pursuant to Articles 28 or 36 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington on 18 March 1965 ("ICSID Convention") if the ICSID Convention is in force between the Parties; or if the ICSID Convention is not in force between the Parties, to the ICSID for conciliation or arbitration pursuant to the Additional Facility Rules of ICSID; or
(c) arbitration under the rules of the United Nations Commission on International Trade Law (UNCITRAL).
4. Each Party hereby consents to the submission of a dispute to conciliation or arbitration under paragraph 3(b) and paragraph 3(c) above in accordance with the provisions of this Article, conditional upon:
(a) the submission of the dispute to such conciliation or arbitration taking place within three years of the time at which the disputing investor became aware, or should reasonably have become aware, of a breach of an obligation under this Chapter causing loss or damage to the investor or its investment; and
(b) the disputing investor providing written notice, which shall be submitted at least 30 days before the claim is submitted, to the disputing Party of his or her intent to submit the dispute to such conciliation or arbitration and which:
(i) nominates either paragraph 3(b) or paragraph 3(c) as the forum for dispute settlement (and, in the case of paragraph 3(b), nominates whether conciliation or arbitration is being sought);
(ii) waives its right to initiate or continue any proceedings (excluding proceedings for interim measures of protection referred to in paragraph 5) before any of the other dispute settlement fora referred to in paragraph3 in relation to the matter under dispute; and
(iii) briefly summarises the alleged breach of the disputing Party under this Chapter (including the articles alleged to have been breached) and the loss or damage allegedly caused to the investor or its investment.
5. Neither Party shall prevent the disputing investor from seeking interim measures of protection, not involving the payment of damages or resolution of the substance of the matter in dispute before the courts or administrative tribunals of the disputing Party, prior to the institution of proceedings before any of the dispute settlement fora referred to in paragraph 3, for the preservation of its rights and interests.
6. Neither Party shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its investors and the other Party shall have consented to submit or have submitted to conciliation or arbitration under this Article, unless such other Party has failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
Article 6.22. OTHER OBLIGATIONS
If the legislation of either Party or international obligations existing at present or established hereafter between the Parties in addition to this Agreement, result in a position entitling investors of the other Party and investments by investors of the other Party to treatment more favourable than is provided for by this Agreement, such position shall not be affected by this Agreement.
Article 6.23. PROHIBITION OF PERFORMANCE REQUIREMENT
The Parties reaffirm their commitments to WTO Agreement on Trade-Related Investment Measures ("TRIMs") and hereby incorporate the provisions of TRIMs, as may be amended from time to time, as part of this Agreement.
Article 6.24. ENTRY INTO FORCE, DURATION AND TERMINATION
In the event that this Agreement is terminated, the provisions of this Chapter, the provisions in Chapter 15, and other provisions in the Agreement necessary for or consequential to the application of this Chapter, except paragraph 1 of Article 6.3 and Article 6.16, shall continue in effect with respect to investments made or acquired before the date of termination of this Agreement for a further period of fifteen years after the date of termination and without prejudice to the application thereafter of the rules of general international law.
Chapter 7. TRADE IN SERVICES
Article 7.1. DEFINITIONS
For the purposes of this Chapter:
(a) a service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;
(b) commercial presence means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person, or
(ii) the creation or maintenance of a branch or a representative office,
within the territory of a Party for the purpose of supplying a service;
(c) direct taxes comprise all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on _ estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation;
(d) juridical person means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association; cooperative or society;
(e) juridical person of the other Party means a juridical person which is either:
(i) constituted or otherwise organised under the law of the other Party or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(1) natural persons of the other Party; or
(2) juridical persons of the other Party identified under paragraph (e)(i);
Provided, however, that for the purposes of supply of audio-visual, education, financial and telecommunications services through commercial presence, except as otherwise agreed by the Parties, a "juridical person of the other Party" means a juridical person that is owned or controlled by:
(i) the other Party; or
(ii) natural persons of the other Party; or
(iii) juridical persons constituted or organized under the laws of the other Party that are owned by natural persons of the other Party or the other Party, whether directly or indirectly, or controlled by natural persons of the other Party or the other Party;
Provided, further, that for the purposes of supply of financial services through commercial presence in India, except as otherwise agreed by the Parties, a "juridical person of the other Party" includes DBS Group Holdings Limited, United Overseas Bank Limited and Oversea-Chinese Banking Corporation Limited (hereinafter collectively referred to as "Singapore Banks"), each of which may, respectively, nominate not more than one legal entity from among its holding companies, successors in title that it may designate, or entities which it owns or controls, or itself, to enter into the financial services sector in India, provided that any such entry by each of the Singapore Banks will be by means of incorporation of a separate legal entity in India, and will be restricted respectively to one legal entity each in respect of banking, asset management and insurances services; except that in respect of the remaining financial services, the restriction to one entity will not apply and in respect of bank branches, incorporation in India will not be required.
(f) measure means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(g) measures by Parties means measures taken by:
(i) central, regional, or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(h) measures by Parties affecting trade in services include measures in respect of:
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the supply of a service, services which are required by the Parties to be offered to the public generally;
(iii) the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;
(i) monopoly supplier of a service means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;
(j) natural person of a Party means a natural person who resides in the territory of the Party or elsewhere and who under the law of that Party:
(i) is a national of that Party; or
(ii) has the right of permanent residence in that Party;
(k) a juridical person is:
(i) owned by persons of a Party if more than 50 per cent of the equity interest in it is beneficially owned by persons of that Party;
(ii) controlled by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;
(iii) affiliated with another person when it controls, or is controlled by, that other person, or when it and the other person are both controlled by the same person;
(l) person means either a natural person or a juridical person;
(m) services means all services except services supplied in the exercise of governmental authority;
(n) service consumer means any person that receives or uses a service;
(o) service of the other Party means a service which is supplied:
(i) from or in the territory of the other Party, or in the case of maritime transport, by a vessel registered under the laws of the other Party, or by a person of the other Party which supplies the service through the operation of a vessel and/or its use in whole or in part; or
(ii) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of the other Party;
(p) service supplier means any person that supplies a service; (7-1)
(q) supply of a service includes the production, distribution, marketing, sale and delivery of a service; and
(r) trade in services is defined as the supply of a service:
(i) from the territory of a Party into the territory of the other Party (cross-border);
(ii) in the territory of a Party to the service consumer of the other Party (consumption abroad);
(iii) by a service supplier of a Party, through commercial presence in the territory of the other Party (commercial presence);
(iv) by a service supplier of a Party, through presence of natural persons of a Party in the territory of the other Party (presence of natural persons).
Article 7.2. SCOPE AND COVERAGE
1. This Chapter applies to measures by a Party affecting trade in services.
2. In accordance with the provisions of Article 7.15, 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 are offered exclusively to domestic services, service consumers or service suppliers.
3. This Chapter shall not apply to:
(a) a service supplied in the exercise of governmental authority; and
(b) a shell company, which is any legal entity falling within the definition of "juridical person" in this Chapter which is established and located in the territory of the either Party with negligible or nil business operations or with no real and continuous business activities carried out in the territory of either Party.
4. New services, including new financial services, shall be considered for possible incorporation into this Chapter at future reviews held in accordance with Article 16.3, or at the request of either Party immediately. The supply of services which are not technically or technologically feasible when this Agreement comes into force shall, when they become feasible, also be considered for possible incorporation at future reviews or at the request of either Party immediately.
5. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
6. Nothing in this Chapter shall prevent a Party from applying measures to regulate the entry of natural persons of the other Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under the terms of this Chapter as well as the terms of specific commitments undertaken.
Article 7.3. MARKET ACCESS
1. With respect to market access through the modes of supply defined in paragraph (r) of Article 7.1, each Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule of specific commitments. (7-2)
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule of specific commitments, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test (7-3);
(d) _ limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
ff) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 7.4. NATIONAL TREATMENT
1. In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers (7-4).
2. Any subsequent establishment, acquisition and expansion of investments by a service supplier that is incorporated, constituted, set up or otherwise duly organized under the law of a Party, and which is owned by a service supplier 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 (7-5).
3. The treatment to be accorded by a Party under paragraph 1 means, with respect to a regional or local level, treatment no less favourable than the most favourable treatment accorded by that regional or local level to like service suppliers of the Party of which it forms a part.
4. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of the other Party, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
5. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of a Party compared to like services or service suppliers of the other Party.
Article 7.5. ADDITIONAL COMMITMENTS
The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles 7.3 or 7.4, including those regarding qualifications, standards or licensing matters. Such commitments shall be inscribed in a Party's Schedule of specific commitments.
Article 7.6. REVIEW OF MOST FAVOURED NATION COMMITMENTS
If, after this Agreement enters into force, a Party enters into any agreement on trade in services 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.
Article 7.7. SCHEDULE OF SPECIFIC COMMITMENTS
1. Each Party shall set out in a schedule the specific commitments it undertakes under Articles 7.3, 7.4 and 7.5. With respect to sectors where such commitments are undertaken, each Schedule of specific commitments shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments;
(d) where appropriate the time frame for implementation of such commitments; and
(e) the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 7.3 and 7.4 shall be inscribed in both the columns relating to Article 7.3 and Article 7.4.
3. Schedules of specific commitments shall be annexed to this Chapter as Annex 7A and Annex 7B and shall form an integral part of this Agreement.
Article 7.8. MODIFICATION OF SCHEDULES
1. A Party may modify or withdraw any commitment in its Schedule, at any time after three years have elapsed from the date on which that commitment entered into force, in accordance with the provisions of this Article. It shall notify the other Party of its intent to so modify or withdraw a commitment no later than three months before the intended date of implementation of the modification or withdrawal.
2. At the request of the other Party, the modifying Party shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment. In such negotiations and agreement, the Party shall endeavour to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in Schedules of specific commitments prior to such negotiations. The Parties shall endeavour to conclude negotiations on such compensatory adjustment to mutual satisfaction within six months, failing which recourse may be had to the provisions of Chapter 15 of this Agreement.
Article 7.9. PROGRESSIVE LIBERALISATION
The Parties shall endeavour to review their schedules of specific commitments at least once every three years, or earlier, at the request of either Party, with a view to facilitating the elimination of substantially all remaining discrimination between the Parties with regard to trade in Services covered in this Chapter over a period of time. In this process, there shall be due respect for the national policy objectives and the level of development of the Parties, both overall and in individual sectors.
Article 7.10. DOMESTIC REGULATION
1. In sectors where specific commitments are undertaken, each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of the other Party, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
3. The provisions of paragraph 2 shall not be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
4. Where authorisation is required for the supply of a service on which a specific commitment has been made, the competent authorities of a Party shall, within a reasonable period of time after the submission of an application considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Party shall provide, without undue delay, information concerning the status of the application.
5. With the objective of ensuring that domestic regulation, including measures relating to qualification requirements and procedures, technical standards and licensing requirements, do not constitute unnecessary barriers to trade in services, the Parties shall jointly review the results of the negotiations on disciplines on these measures, pursuant to Article VI.4 of the WTO General Agreement on Trade in Services (GATS), with a view to their incorporation into this Chapter. The Parties note that such disciplines aim to ensure that such requirements are inter alia: