4. With regards to selection of arbitrators in paragraph 1, 2 and 3 of this Article, both Parties and, where relevant, the arbitrators appointed by them, shall not select arbitrators that are nationals or permanent residents of either Parties.
5. If within the time limits set forth in paragraphs 2 and 3 above, the required appointments have not been made, either Party may invite the President of the International Court of Justice to appoint the arbitrator or arbitrators not yet appointed. If the President is a national or a permanent resident of the State of either Party, or he or she is otherwise unable to act, the Vice-President shall be invited to make the said appointments. If the Vice- President is a national or a permanent resident of the State of either Party, or he or she is otherwise unable to act, the Member of the International Court of Justice next in seniority who is not a national nor a permanent resident of the State of either Party shall be invited to make the necessary appointments.
6. In case an arbitrator appointed under this Article resigns or becomes unable to act, a successor shall be appointed in the same manner as prescribed for the appointment of the original arbitrator, and he or she shall have the same powers and duties that the original arbitrator had.
Article 16. PROCEEDINGS
1. Unless the Parties agree otherwise, the place of arbitration shall be determined by the tribunal. The arbitral tribunal shall decide all questions relating to its competence and, subject to any agreement between the Parties, determine its own procedure. At any stage of the proceedings, the arbitral tribunal may propose to the Parties that the dispute be settled amicably. At all times, the arbitral tribunal shall afford a fair hearing to the Parties.
2. The arbitral tribunal shall reach its decision by majority vote. The award shall be issued in writing and shall contain the applicable factual and legal findings. A signed award shall be delivered to each Party. The award shall be final and binding on the Parties.
3. A tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and the applicable rules and principles of international law.
4. ach Party shall bear the costs of its appointed arbitrator and of any legal representation in the proceedings. The costs of the chairman of the arbitral tribunal and of other expenses associated with the conduct of the arbitration shall be borne equally by the Parties, unless the arbitral tribunal decides that a higher proportion of costs be borne by one of the Parties.
Chapter IV. FINAL PROVISIONS
Article 17. OTHER OBLIGATIONS
If the national legislation of the State 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 investments by investors of the State of the other Party to treatment more favorable than is provided for by this Agreement, such position shall not be affected by this Agreement.
Article 18. DENIAL OF BENEFITS
Subject to prior notification and consultation, a Party may deny the benefits of this Agreement to an investor of the State of the other Party that is a Legal Person of the State of the other Party and to investments of such an investor, where the denying Party establishes that the Legal Person is owned or controlled by persons of a third State, or of the State of the denying Party, and has no substantive business operations in the territory of the other Party.
Article 19. 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 investors of the State of the other Party where like conditions prevail, or a disguised restriction on investments of investors of the State 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;
(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.
2. The public order exception in paragraph 1(a) of this Article may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.
Article 20. SECURITY EXCEPTIONS
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 21. TAXATION
1. Article 6 (Expropriation) and Section One (Settlement of Disputes between a Party and an Investor of the State of the Other Party) of Chapter III (Dispute Settlement) shall apply to taxation measures to the extent that such taxation measures constitute expropriation as provided for in Article 6 (Expropriation). 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 of this Article, at the time that it gives notice under Section One (Settlement of Disputes between a Party and an Investor of the State 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 months 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 State of the Other Party) of Chapter II (Dispute Settlement).
2. For the purposes of this Article, "competent taxation authorities" means:
(a) in the case of the Republic of the Kazakhstan, the Ministry of Finance;
(b) in the case of the Republic of Singapore, the Ministry of Finance;
or their successors.
3. With reference to Article 6 (Expropriation), in assessing whether a taxation measure constitutes expropriation, the following considerations are relevant:
(a) the imposition of taxes does not generally constitute expropriation. The mere introduction of new taxation measures or the imposition of taxes in more than one jurisdiction in respect of an investment, does not in and of itself constitute expropriation;
(b) taxation measures which are consistent with internationally recognised tax policies, principles and practices do not constitute expropriation. In particular, taxation measures aimed at preventing the avoidance or evasion of taxes should not, generally, be considered to be expropriatory; and
(c) taxation measures which are applied on a non-discriminatory basis, as opposed to being targeted at investors of a particular nationality or specific individual taxpayers, are less likely to constitute expropriation. A taxation measure should not constitute expropriation if, when the investment is made, it was already in force, and information about the measure was made public or otherwise made publicly available.
Article 22. AMENDMENTS
This Agreement may be amended and supplemented by the written consent of the Parties, in the form of separate protocols constituting its integral parts which shall enter into force in the manner described in Article 23 (Entry into Force, Duration and Termination) of this Agreement.
Article 23. ENTRY INTO FORCE, DURATION AND TERMINATION
1. Each Party shall notify the other Party through diplomatic channels of the fulfillment of its internal legal procedures required for the bringing into force of this Agreement. This Agreement shall enter into force on the thirtieth day from the date of receipt of the latter of such notifications.
2. This Agreement shall remain in force for a period of 10 years and shall continue in force thereafter unless, after the expiry of the initial period of 10 years, either Party notifies in writing through diplomatic channels the other Party of its intention to terminate this Agreement. This Agreement shall terminate 12 months after the date of receipt of such notice.
3. 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 the date of termination of this Agreement.
Conclusion
DONE at ___________, on November 21st, 2018 in duplicate in the Kazakh, Russian and English languages, all texts being equally authentic. In case of any divergence, the English text shall prevail.
FOR THE GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN
FOR THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE