2. If a Party claims that a dispute arises under this Chapter, Article 5 (Composition of Arbitral Tribunals) of Chapter 16 (Dispute Settlement) shall apply, except that:
(a) if the Parties agree, each arbitrator shall meet the qualifications in paragraph 3; and
(b) in any other case:
(i) each disputing Party shall select arbitrators that meet the qualifications set out in either paragraph 3 or Article 5.5 (Composition of Arbitral Tribunals) of Chapter 16 (Dispute Settlement); and
(ii) if the responding Party indicates an intention to invoke or invokes Article 11 (Exceptions) prior to a Party's request for the establishment of a Chapter 16 arbitral tribunal, the chair of the Chapter 16 arbitral tribunal shall meet the qualifications set out in paragraph 3, unless the disputing Parties otherwise agree.
3. In addition to the requirements set out in Article 5.5 (Composition of Arbitral Tribunals) of Chapter 16 (Dispute Settlement), arbitrators in disputes arising under this Chapter shall have expertise or experience in financial services law or practice, which may include the regulation of financial institutions.
4, Pursuant to Article 22.2(c) (Investment Disputes in Financial Services), a Party may request the establishment of a Chapter 16 arbitral tribunal to consider whether and to what extent Article 11 (Exceptions) is a valid defence to a claim without having to request consultations under Article 2 (Consultations) of Chapter 16 (Dispute Settlement).
5. Ifa Party seeks to suspend benefits in the financial services sector, a Chapter 16 arbitral tribunal that reconvenes to make a determination on the proposed suspension of benefits, in accordance with Article 10 (Compensation and Suspension of Benefits) of Chapter 16 (Dispute Settlement), shall seek the views of financial services experts, as necessary.
Article 22. Investinent Disputes In Financial Services
1. If an investor of a Party submits a claim to arbitration under Section B (Investor-State Dispute Settlement) of Chapter 8 (Investment) challenging a measure relating to regulation or supervision of financial institutions, markets or instruments, the expertise or experience of any particular candidate with respect to financial services law or practice shall be taken into account in the appointment of arbitrators to the Tribunal.
2. If an investor of a Party submits a claim to arbitration under Section B (Investor-State Dispute Settlement) of Chapter 8 (Investment), and the respondent invokes Article 11 (Exceptions) as a defence, the following provisions of this Article shall apply.
(a) The respondent shall, no later than the date the Tribunal fixes for the respondent to submit its counter-memorial, or in the case of an amendment to the notice of arbitration, the date the Tribunal fixes for the respondent to submit its response to the amendment, submit in writing to the authorities responsible for financial services of the Party of the claimant, as set out in Annex 9-C (Authorities Responsible for Financial Services), a request for a joint determination by the authorities of the respondent and the Party of the claimant on the issue of whether and to what extent Article 11 (Exceptions) is a valid defence to the claim. The respondent shall promptly provide the Tribunal, if constituted, a copy of the request. The arbitration may proceed with respect to the claim only as provided in paragraph 4.
(b) The authorities of the respondent and the Party of the claimant shall attempt in good faith to make a determination as described in subparagraph (a). Any such determination shall be transmitted promptly to the disputing parties, the Committee and, if constituted, to the Tribunal. The determination shall be binding on the Tribunal and any decision or award issued by the Tribunal must be consistent with that determination.
(c) If the authorities referred to in subparagraph (a) and subparagraph (b) have not made a determination within 120 days of the date of receipt of the respondent's written request for a determination under subparagraph (a), the respondent or the Party of the claimant may request the establishment of a Chapter 16 arbitral tribunal to consider whether and to what extent Article 11 (Exceptions) is a valid defence to the claim. A Chapter 16 arbitral tribunal established under Article 4 (Appointment of Arbitral Tribunals) of Chapter 16 (Dispute Settlement) shall be constituted in accordance with Article 21 (Dispute Settlement). The Chapter 16 arbitral tribunal shall transmit its final report to the disputing Parties and to the Tribunal.
3. The final report of a Chapter 16 arbitral tribunal referred to in paragraph 2(c) shall be binding on the Tribunal, and any decision or award issued by the Tribunal must be consistent with the final report.
4. If no request for the appointment of a Chapter 16 arbitral tribunal pursuant to paragraph 2(c) has been made within 10 days of the expiration of the 120 day period referred to in paragraph 2(c), the Tribunal may proceed with respect to the claim.
(a) The Tribunal shall draw no inference regarding the application of Article 11 (Exceptions) from the fact that the authorities have not made a determination as described in paragraph 2(a), paragraph 2(b) and paragraph 2(c).
(b) The Party of the claimant may make oral and written submissions to the Tribunal regarding the issue of whether and to what extent Article 11 (Exceptions) is a valid defence to the claim. Unless it makes such a submission, the Party of the claimant shall be presumed, for the purposes of the arbitration, to take a position on Article 11 (Exceptions) that is not inconsistent with that of the respondent.
5. For the purposes of this Article, the definitions of the following terms set out in Article 1 (Definitions) of Chapter 8 (Investment) are incorporated, mutatis mutandis: "claimant", "disputing parties", "disputing party" and "respondent".
ANNEX 9-A. Cross-border trade
Australia
Insurance and insurance-related services
1. Article 6.1 (Cross-Border Trade) shall apply to the cross-border supply of or trade in financial services, as defined in subparagraph (c)(i) of the definition of "cross- border supply of financial services" in Article 1 (Definitions), with respect to:
(a) insurance of risks relating to:
(i) maritime shipping and commercial aviation and space launching and freight (including satellites), with such insurance to cover any or all of the following: the goods being transported, the vehicle transporting the goods, and any liability arising therefrom; and
(ii) goods in international transit; teinsurance and retrocession;
(b) services auxiliary to insurance, such as consultancy, risk assessment, actuarial and claim settlement services; and
(c) insurance intermediation, such as brokerage and agency, as referred to in subparagraph (g)(iii) of the definition of "financial service" in Article 1 (efinitions), of insurance of risks related to services listed in subparagraph (a) and subparagraph (b).
Banking and other financial services (excluding insurance)
2. Article 6.1 (Cross-Border Trade) shall apply to the cross-border supply of or trade in financial services, as defined in subparagraph (c)(i) of the definition of "cross- border supply of financial services" in Article 1 (Definitions), with respect to:
(a) provision and transfer of financial information, and financial data processing and related software relating to banking and other financial services, as referred to in subparagraph (g)(xv) of the definition of "financial service" in Article 1 (Definitions); and
(b) advisory and other auxiliary services, excluding intermediation, relating to banking and other financial services, as referred to in subparagraph (g)(xvi) of the definition of "financial service" in Article 1 (Definitions).
Singapore
Insurance and insurance-related services
1. Article 6.1 (Cross-Border Trade) shall apply to the cross-border supply of or trade in financial services, as defined in subparagraph (c)(i) of the definition of "cross-border supply of financial services" in Article 1 (Definitions), with respect to:
(a) insurance of "MAT" risks relating to:
(i) maritime shipping and commercial aviation and space launching and freight (including satellites), with such insurance to cover any or all of the following: the goods being transported, the vehicle transporting the goods, and any liability arising there from; and
(i) goods in international transit;
(b) reinsurance and retrocession;
(c) services auxiliary to insurance comprising actuarial, loss adjustors, average adjustors and consultancy services;
(d) reinsurance intermediation by brokerages; and (e) MAT intermediation by brokerages. Banking and other financial services (excluding insurance)
2. Article 6.1 (Cross-Border Trade) shall apply to the cross-border supply of or trade in financial services, as defined in subparagraph (c)(i) of the definition of "cross-border supply of financial services (2) in Article 1 (Definitions), with respect to:
(a) provision and transfer of financial information, as described in subparagraph (g)(xv) of the definition of "financial service" in Article 1 (Definitions); and
(b) financial data processing and related software, as described in subparagraph (g)(xv) of the definition of "financial service" in Article 1 (Definitions), subject to prior authorisation from the relevant regulator, as required. (12)
ANNEX 9-B. Specific commitments
Section A. Portfolio Management
1. A Party shall allow a financial institution organised in the territory of the other Party to provide the following services to a collective investment scheme located in its territory (13):
(a) investment advice; and
(B) portfolio management services, excluding:
(i) trustee services; and
(ii) custodial services and execution services that are not related to managing a collective investment scheme.
2. Paragraph 1 is subject to Article 6.3 (Cross-Border Trade).
3. For the purposes of paragraph 1, "collective investment scheme" means:
(a) For Australia, a "managed investment scheme" as defined under section 9 of the Corporations Act 2001 (Cth), other than a managed investment scheme operated in contravention of subsection 601ED (5) of the Corporations Act 2001] (Cth), or an entity that:
(I) carries on a business of investment in securities, interests in land, or other investments; and
(i) in the course of carrying on that business, invests funds subscribed, whether directly or indirectly, after an offer or invitation to the public (within the meaning of section 82 of the Corporations Act 2001 (Cth)) made on terms that the funds subscribed would be invested.
(b) For Singapore, a "collective investment scheme" as defined under the Securities and Futures Act (Cap. 289), and includes the manager of the scheme, provided that the financial institution in paragraph 1 is authorised or regulated as a fund manager in the territory of the Party it is organised in and is not a trust company.
Section B. Transfer of Information
Each Party shall allow a financial institution of the other Party to transfer information in electronic or other form, into and out of its territory, for data processing if such processing is required in the institution's ordinary course of business. Nothing in this Section restricts the right of a Party to adopt or maintain measures to:
(a) protect personal data, personal privacy and the confidentiality of individual records and accounts; or
(b) require a financial institution to obtain prior authorisation from the relevant regulator to designate a particular enterprise as a recipient of such information, based on prudential considerations, (14)
provided that this right is not used as a means of avoiding the Party's commitments or obligations under this Section.
Section C. Supply of Insurance by Postal Insurance Entities
1. This Section sets out additional disciplines that apply if a Party allows its postal insurance entity to underwrite and supply direct insurance services to the general public. The services covered by this paragraph do not include the supply of insurance related to the collection, transport and delivery of letters or packages by a Party's postal insurance entity.
2. Neither Party shall adopt or maintain a measure that creates conditions of competition that are more favourable to a postal insurance entity with respect to the supply of insurance services described in paragraph 1 as compared to a private supplier of like insurance services in its market, including by:
(a) imposing more onerous conditions on a private supplier's licence to supply insurance services than the conditions the Party imposes on a postal insurance entity to supply like services; or
(b) making a distribution channel for the sale of insurance services available to a postal insurance entity under terms and conditions more favourable than those it applies to private suppliers of like services.
3. With respect to the supply of insurance services described in paragraph 1 by a postal insurance entity, a Party shall apply the same regulations and enforcement activities that it applies to the supply of like insurance services by private suppliers.
4. In implementing its obligations under paragraph 3, a Party shall require a postal insurance entity that supplies insurance services described in paragraph 1 to publish an annual financial statement with respect to the supply of those services. The statement shall provide the level of detail and meet the auditing standards required under the generally accepted accounting and auditing principles, or equivalent rules, applied in the Party's territory with respect to publicly traded private enterprises that supply like services.
5. If a Chapter 16 arbitral tribunal finds that a Party is maintaining a measure that is inconsistent with any of the commitments in paragraph 2, paragraph 3 and paragraph 4, the Party shall notify the complaining Party and provide an opportunity for consultations prior to allowing the postal insurance entity to:
(a) issue a new insurance product, or modify an existing product in a manner equivalent to the creation of a new product, in competition with like insurance products supplied by a private supplier in the Party's market; or
(b) increase any limitation on the value of insurance, either in total or with regard to any type of insurance product, that the entity may sell to a single policyholder.
6. This Section shall not apply to a postal insurance entity in the territory of a Party:
(a) that the Party neither owns nor controls, directly or indirectly, as long as the Party does not maintain any advantages that modify the conditions of competition in favour of the postal insurance entity in the supply of insurance services as compared to a private supplier of like insurance services in its market; or
(b) if sales of direct life and non-life insurance underwritten by the postal insurance entity each account for no more than 10 per cent, respectively, of total annual premium income from direct life and non-life insurance in the Party's market as of January 1, 2013.
7. If a postal insurance entity in the territory of a Party exceeds the percentage threshold referred to in paragraph 6(b) after the date of signature of this Agreement by the Party, the Party shall ensure that the postal insurance entity is:
(a) regulated and subject to enforcement by the same authorities that regulate and conduct enforcement activities with respect to the supply of insurance services by private suppliers; and
(b) subject to the financial reporting requirements that apply to financial institutions supplying insurance services.
8. For the purposes of this Section, "postal insurance entity" means an entity that underwrites and sells insurance to the general public and that is owned or controlled, directly or indirectly, by a postal entity of the Party.
Section D. Electronic Payment Card Services
1. A Party shall allow the supply of electronic payment services for payment card transactions (15) into its territory from the territory of the other Party by a person of that other Party. A Party may condition the cross-border supply of such electronic payment services on one or more of these requirements that a services supplier of the other Party:
(a) register with or be authorised (16) by relevant authorities;
(b) be a supplier who supplies such services in the territory of the other Party; or
(c) designate an agent office or maintain a representative or sales office in the Party's territory,
provided that such requirements are not used as a means to avoid a Party's obligation under this Section.
2. For the purposes of this Section, electronic payment services for payment card transactions does not include the transfer of funds to and from transactors' accounts. Furthermore, electronic payment services for payment card transactions include only those payment network services that use proprietary networks to process payment transactions. These services are provided on a business to business basis.
3. Nothing in this Section shall be construed to prevent a Party from adopting or maintaining measures for public policy purposes, provided that these measures are not used as a means to avoid the Party's obligation under this Section. For greater certainty, such measures may include:
(a) measures to protect personal data, personal privacy and the confidentiality of individual records, transactions and accounts, such as restricting the collection by, or transfer to, the cross-border services supplier of the other Party, of information concerning cardholder names;
(b) the regulation of fees, such as interchange or switching fees; and
(c) the imposition of fees as may be determined by a Party's authority, such as those to cover the costs associated with supervision or regulation or to facilitate the development of the Party's payment system infrastructure.
4. For the purposes of this Section, "payment card" means:
(a) For Australia, a credit card, charge card, debit card, cheque card, automated teller machine (ATM) card, prepaid card, and other physical or electronic products or services for performing a similar function as such cards, and any unique account number associated with that card, product or service.
(b) For Singapore:
(i) a credit card as defined in the Banking Act (Cap. 19), a charge card as defined in the Banking Act and a stored value facility as defined in the Payment Systems (Oversight) Act (Cap. 222A); and
(ii) a debit card and an automated teller machine (ATM) card. For greater certainty, both the physical and electronic forms of the cards or facility as listed in subparagraph (b)(i) and subparagraph (b)(ii) would be included as a payment card.
Section E. Transparency Considerations
In developing a new regulation of general application to which this Chapter applies, a Party may consider, in a manner consistent with its laws and regulations, comments regarding how the proposed regulation may affect the operations of financial institutions, including financial institutions of the Party or the other Party. These comments may include:
(a) submissions to a Party by the other Party regarding its regulatory measures that are related to the objectives of the proposed regulation; or
(b) submissions to a Party by interested persons, including the other Party or financial institutions of the other Party, with regard to the potential effects of the proposed regulation.
ANNEX 9-C. Authorities responsible for financial services
The authorities for each Party responsible for financial services are:
(a) for Australia, the Treasury and the Department of Foreign Affairs and Trade; and
(b) for Singapore, the Monetary Authority of Singapore.
Chapter 10. Telecommunications Services
Article 1. Definitions
For the purposes of this Chapter:
(a) "commercial mobile services" means public telecommunications services supplied through mobile wireless means;
(b) "cost-oriented" means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;
(c) "cross-connect links" means the links in a submarine cable landing station used to connect submarine cable capacity to the transmission, switching, or routing equipment of any supplier of public telecommunications services co-located in that submarine cable landing station;
(d) "end-user" means a person (including a service consumer and a service supplier) to whom a public telecommunications network or service is supplied, other than for use in the further supply of a public telecommunications network or service;
(e) "enterprise" means:
(i) any entity constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including any corporation, trust, partnership, sole proprietorship, joint venture, association or similar organisation; and
(ii) a branch of an enterprise;
(f) "essential facilities' means facilities of a public telecommunications network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(g) "facilities-based suppliers" means suppliers of public telecommunications networks or services that are:
(i) licensed carriers in Australia; or
(ii) facilities-based operators in Singapore;
(h) "interconnection" means linking with suppliers providing public telecommunications networks or services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
(i) "international mobile roaming service" means a commercial mobile service provided pursuant to a commercial agreement between suppliers of public telecommunications services that enables end-users to use their home mobile handset or other device for voice, data or messaging services while outside the territory in which the end-user's home public telecommunications network is located;
(j) "leased circuit" means a telecommunications facility between two or more designated points which is set aside for the dedicated use of, or availability to, a particular user;
(k) "licence" means any authorisation that a Party may require of a person, in accordance with its laws and regulations, in order for that person to offer a telecommunications network or service, including concessions, permits or registrations;
(l) "major supplier' means a supplier of public telecommunications networks or services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market (1) for public telecommunications networks or services as a result of:
(i) control over essential facilities; or
(ii) use of its position in the market;
(m) "measure" includes any law, regulation, procedure, requirement or practice;
(n) "network element" means facilities or equipment used in the provision of a public telecommunications service, including features, functions, and capabilities that are provided by means of such facilities or equipment, which may include local loops, sub-loops and line sharing;
(o) "non-discriminatory" means treatment no less favourable than that accorded to any other user of like public telecommunications networks or services in like circumstances, including with respect to timeliness;
(p) "number portability' means the ability of end-users of public telecommunications services to retain, at the same location, the same telephone numbers when switching between the same category of suppliers of public telecommunications services;
(q) "person" means a natural person or an enterprise;
(r) "physical co-location" means physical access to and control over space in order to install, maintain or repair equipment, at premises owned or controlled and used by a major supplier to provide public telecommunications services;
(s) "public telecommunications network" means the telecommunications infrastructure authorised by a Party to be used to provide public telecommunications services between defined network termination points;
(t) "public telecommunications service" means any telecommunications service required, explicitly or in effect, by a Party to be offered to the public generally; (2)
(u) "reference interconnection offer' means an interconnection offer extended by a major supplier and filed with, approved by or determined by, a telecommunications regulatory body that sufficiently details the terms, rates and conditions for interconnection so that a supplier of public telecommunications networks or services that is willing to accept it may obtain interconnection with the major supplier on that basis, without having to engage in negotiations with the major supplier concerned;
(v) "regulatory decisions" means decisions by a telecommunications regulatory body made pursuant to authority conferred under domestic law in relation to:
(i) the making of rules for the telecommunications industry excluding legislation and statutory rules;
(ii) ‘the approval of terms and conditions, standards and codes to apply in the telecommunications industry;
(iii) ‘the adjudication or other resolution of disputes between suppliers of public telecommunications networks or services; and
(iv) licensing;
(w) "submarine cable landing station" means the premises where interconnection takes place with the submarine cable system, as determined by the telecommunications regulatory body, if required;
(x) "supplier of public telecommunications networks or services" means a supplier of public telecommunications networks and/or public telecommunications services to users;
(y) "telecommunications" means the transmission and reception of signals by any electromagnetic means, including by photonic means;
(z) "telecommunications regulatory body" means a body or bodies responsible for the regulation of telecommunications;
(aa) "user" means an end-user or a supplier of public telecommunications network or services; and