Existing Measures:
32.
Sector: All
Sub-Sector:
Industry Classification:
Obligations Concerned: Most-Favoured-Nation Treatment (Cross-Border Trade in Services and Investment)
Description: Investment and Cross-Border Trade in Services
Singapore reserves the right to adopt or maintain any measure that accords differential treatment to countries under any bilateral or multilateral international agreement in force or signed prior to the date of entry into force of this Agreement.
Singapore reserves the right to adopt or maintain any measure that accords differential treatment to ASEAN member states under any ASEAN agreement open to participation by any ASEAN member state, in force or signed after the date of entry into force of this Agreement.
Singapore reserves the right to adopt or maintain any measure that accords differential treatment to countries under any international agreement in force or signed after the date of entry into force of this Agreement involving:
(a) aviation matters;
(b) maritime matters and services auxiliary to maritime matters;
(c) port matters;
(d) land transport matters; and
(e) telecommunication matters.
Existing Measures:
Annex 7. Code of conduct for arbitrators appointed under chapter 8 (investment) and chapter 16 (dispute settlement)
Definitions
For the purposes of this Annex, unless otherwise specified:
"arbitrator" means a member of a tribunal appointed under Article 27 (Selection of Arbitrators) of Chapter 8 (Investment) or Article 5 (Composition of Arbitral Tribunals) of Chapter 16 (Dispute Settlement) .
"proceeding" means a tribunal proceeding under Chapter 8 (Investment) or Chapter 16 (Dispute Settlement).
Responsibilities to the Process
1. Every arbitrator shall avoid impropriety and the appearance of impropriety, shall be independent and impartial, shall avoid direct and indirect conflicts of interests and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement process are preserved. Former arbitrators shall comply with the obligations established in paragraphs 17, 18, 19 and 20.
Disclosure Obligations
2. Prior to confirmation of his or her selection as an arbitrator under this Agreement, a candidate shall disclose any interest, relationship or matter that is likely to affect his or her independence or impartiality or that might reasonably create an appearance of impropriety or bias in the proceeding. To this end, a candidate shall make all reasonable efforts to become aware of any such interests, relationships and matters.
3. Once selected, an arbitrator shall continue to make all reasonable efforts to become aware of any interests, relationships and matters referred to in paragraph 2 and shall disclose them by communicating them in writing to the Parties for their consideration. The obligation to disclose is a continuing duty, which requires an arbitrator to disclose any such interests, relationships and matters that may arise during any stage of the proceeding.
Performance of Duties by Arbitrators
4. An arbitrator shall comply with the provisions of Chapter 8 (Investment) and Chapter 16 (Dispute Settlement) and the applicable rules of procedure.
5. On selection, an arbitrator shall perform his or her duties thoroughly and expeditiously throughout the course of the proceeding with fairness and diligence.
6. An arbitrator shall not deny other arbitrators the opportunity to participate in all aspects of the proceeding.
7. An arbitrator shall consider only those issues raised in the proceeding and necessary to rendering a decision and shall not delegate the duty to decide to any other person.
8. An arbitrator shall take all appropriate steps to ensure that any staff he or she may appoint, with the approval of the Parties, are aware of, and comply with paragraphs 1, 2, 3, 18, 19 and 20.
9. An arbitrator shall not engage in ex parte contacts concerning the proceeding.
10. An arbitrator shall not communicate matters concerning actual or potential violations of this Annex unless the communication is to both Parties or is necessary to ascertain whether an arbitrator has violated or may violate this Annex.
Independence and Impartiality of Arbitrators
11. An arbitrator shall be independent and impartial. An arbitrator shall act in a fair manner and shall avoid creating an appearance of impropriety or bias.
12. An arbitrator shall not be influenced by self-interest, outside pressure, political considerations, public clamour, loyalty to a disputing party or non-disputing Party, or fear of criticism.
13. An arbitrator shall not, directly or indirectly, incur any obligation or accept any benefit that would in any way interfere, or appear to interfere, with the proper performance of the arbitrator's duties.
14. An arbitrator shall not use his or her position on the tribunal to advance any personal or private interests. An arbitrator shall avoid actions that may create the impression that others are in a special position to influence the arbitrator. An arbitrator shall make every effort to prevent or discourage others from representing themselves as being in such a position.
15. An arbitrator shall not allow past or existing financial, business, professional, family or social relationships or responsibilities to influence the arbitrator's conduct or judgment.
16. An arbitrator shall avoid entering into any relationship, or acquiring any financial interest, that is likely to affect the arbitrator's impartiality or that might reasonably create an appearance of impropriety or bias.
Duties in Certain Situations
17. An arbitrator or former arbitrator shall avoid actions that may create the appearance that the arbitrator was biased in carrying out the arbitrator's duties or would benefit from the decision or ruling of the tribunal.
Maintenance of Confidentiality
18. An arbitrator or former arbitrator shall not at any time disclose or use any non- public information concerning the proceeding or acquired during the proceeding except for the purposes of the proceeding and shall not, in any case, disclose or use any such information to gain personal advantage or advantage for others or to affect adversely the interest of others.
19. An arbitrator shall not disclose a tribunal ruling or parts thereof prior to its publication except in accordance with Chapter 8 (Investment) and Chapter 16 (Dispute Settlement).
20. An arbitrator or former arbitrator shall not at any time disclose the deliberations of a tribunal, or any arbitrator's view except as required by law.
Additional procedures relating to disputes under Chapter 16 (Dispute Settlement):
For the purposes of paragraphs 21, 22, 23 and 24;
"arbitrator" means a member of a tribunal appointed under Article 5 (Composition of Arbitral Tribunals) of Chapter 16 (Dispute Settlement); and
"proceeding" means a tribunal proceeding under Chapter 16 (Dispute Settlement).
21. If a Party considers that an arbitrator has violated the Code of Conduct, it shall notify the other Party and seek to reach agreement as to whether or not there has been a violation no later than 10 days after the notification.
22. If the Parties agree that an arbitrator has violated this Code of Conduct, they may remove the arbitrator, waive the violation, or request the arbitrator to take steps within a specified time period to cease or ameliorate the violation. If the Parties agree to waive the violation or determine that, after taking steps, the violation has ceased, the arbitrator may continue to serve on the tribunal.
23. If a selected arbitrator is removed pursuant to paragraph 22, the Parties shall select a replacement as expeditiously as possible in accordance with the selection procedure that was followed to select that arbitrator pursuant to Article 5 (Composition of Arbitral Tribunals) of Chapter 16 (Dispute Settlement).
24. Any time period applicable to a proceeding shall be suspended for a period beginning on the date an arbitrator dies, withdraws, is removed, is authorised to take steps to seek to cease or ameliorate a violation, or otherwise becomes unavailable, and ending on the date specified for taking steps to cease or ameliorate the violation, a replacement is selected, or the violation has ceased.
Singapore's note
MFA/TPN NO. /2003
The Ministry of Foreign Affairs of the Republic of Singapore presents its compliments to the Australian High Commission in Singapore and has the honour to refer to the Singapore-Australia Free Trade Agreement ("the Agreement") done at ____on _____2003.
The Ministry notes that in the course of negotiations of the Agreement, both Parties to the Agreement reached the following understandings with respect to the various parts of the Agreement:
I. UNDERSTANDING
1. The Parties understand that nothing in the Agreement shall prevent a Party from taking any action it considers necessary to protect critical communications infrastructure from deliberate attempts intended to disable or degrade such infrastructure.
2. Taking note of Article 13 (Security Exceptions) of Chapter 2 (Trade in Goods), Article 14 (Exceptions) of Chapter 6 (Government Procurement), Article 19 (Security Exceptions) of Chapter 7 (Trade in Services) and Article 20 (Security Exceptions) of Chapter 8 (Investment), the Parties understand that nothing in each of these Chapters shall prevent a Party from taking any action it considers necessary to protect its essential security interests in a domestic emergency declared by a Party in accordance with its domestic laws.
3. In relation to Article 4 (National Treatment) of Chapter 7 (Trade and Services) and Article 3 (National Treatment) of Chapter 8 (Investment), the Parties understand that the application of these provisions to central and regional levels of governments shall be consistent with the approach they have adopted in scheduling their commitments pursuant to Article XVII of the WTO General Agreement on Trade in Services.
4. Notwithstanding Section (V) (Note to Singapore's Commitments for Financial Services) of Annex 4-III (Additional Commitments to Chapter 7 (Trade in Services) and Chapter 8 (Investment)), Singapore shall, at such time it lifts its numerical quota on Wholesale Bank licences under its Free Trade Agreement with the United States of America, do the same with respect to Australia, provided that the grant of Wholesale Bank licences would be subject to the relevant admission criteria.
5. With respect to Articles 19 (General Exceptions) and 20 (Security Exceptions) of Chapter 8 (Investment), Singapore agrees to offer immediately to Australia unilaterally and unconditionally any differences in the General Exceptions or Security Exceptions provisions agreed in its Free Trade Agreement with the United States of America,
6. With respect to Article 16 (Industry Development) of Chapter 6 (Government Procurement), it is understood that:
(a) measures taken by a Party to assist its small and medium enterprises (SMEs) may include measures such as those listed in the Australian Commonwealth Procurement Guidelines in force as on the date of entry into force of the Agreement. To the extent possible, the Parties shall endeavour to ensure that such measutes are not applied for trade protectionist purposes; and
(b) a Party shall, wherever practicable, give reasonable notice to the other Party prior to adopting any new measure relating to SME participation in government procurement.
7. With respect to Singapore's reservation on Air Transport Services (ground handling services) in Annex 4-I(B) of the Chapter on Trade in Services, the Parties,
upon the conclusion of the on-going negotiations on a new Air Services Agreement between them, will discuss this reservation with a view to reducing the scope of the reservation, and to align the reservation with the outcome of the aforesaid negotiations. In this regard, any necessary amendment to the reservation will be made pursuant to Article 7 (Amendments) of Chapter 17 (Final Provisions).
8. With respect to section (III) (Waiver and Modifications of Statutory Conditions governing Joint Law Ventures and Formal Law Alliances in Singapore) of Annex 4-III (Additional Commitments to Chapter 7 (Trade in Services) and Chapter 8 (Investment)), Singapore agrees to extend to Australia treatment no less favourable than that granted to the United States under the US-Singapore Free Trade Agreement.
Il. REVIEW OF AGREEMENT
9. At the first review of the Agreement provided under Article 3 (Review) of Chapter 17 (Final Provisions), the Parties shall:
(a) in the context of Chapter 8 (Investment), consider the inclusion of a provision relating to performance requirements using as a guide the illustrative list in the WTO Agreement on Trade-Related Investment Measures or similar provisions in other international investment agreements;
(b) in the context of the Chapter 8 (Investment), consider the incorporation of a provision relating to "taxation measures as expropriation" using the proposed clause set out in Appendix I and the footnote therein as the basis for future discussion;
(c) consider Singapore's request to incorporate in the Agreement commitments on non-discriminatory treatment of digital products, which Singapore understands to include software, and to consider Singapore's request for the application of such non-discriminatory treatment to the procurement practices of Australian entities covered by Chapter 6 (Government Procurement) for software created, produced or distributed by Singapore's suppliers;
(d) with respect to Chapter 10 (Telecommunications Services), either Party may initiate consultations in order to review the scope and operation of Article 9.8 within six months of the passage of any laws relating to the interconnection dispute resolution process in Australia with a view to negotiating appropriate amendments to this paragraph;
(e) with respect to paragraphs 2(a) and 2(b) in Part I (Singapore's Commitments) of Section (II) (Recognition of Law Degrees for Admission as Qualified Lawyers) of Annex 4-III (Additional Commitments to Chapter 7 (Trade in Services) and Chapter 8 (Investment)) relating to the Recognition of Law Degrees for Admission as qualified lawyers, consider Australia's request to include up to 2 additional Australian Universities into the First Schedule to the Legal Profession (Qualified Persons) Rules (S357/2001) and review the 30% criterion; and
(f) with respect to Article 16 (Industry Development) of Chapter 6 (Government Procurement), review the use of measures covered by this Article, in the light of the objectives of the Chapter, and consult on ways of addressing any concems raised by either Party.
10. In respect of Chapter 3 (Rules of Origin), Australia expects that a large proportion of Singapore's exports to Australia, that were dutiable prior to the date the Agreement enters into force, will become duty free over time. Where Singapore considers that this expectation has not been met, the Parties shall enter into consultations with a view to reviewing the provisions of Chapter 3 (Rules of Origin).
The Ministry has the honour to propose to the High Commission that this Note together with the High Commission's Note in reply shall constitute an understanding between Singapore and Australia as from the date the Agreement enters into force.
The Ministry of Foreign Affairs of the Republic of Singapore avails itself of this opportunity to renew to the Australian High Commission in Singapore the assurances of its highest consideration.
APPENDIX I. Article xx* taxation measures as expropriation
1. Article 9 (Expropriation and Nationalisation) shall apply to taxation measures, to the extent that such taxation measures constitute expropriation as provided for in paragraph 1 of Article 9 (Expropriation and Nationalisation).
2. Where paragraph 1 above applies, Article 14 (Settlement of Disputes between a Party and an Investor of the other Party) shall also apply in respect of taxation measures.
Footnote :
* With reference to Articles 9 (Expropriation and Nationalisation) and XX (Taxation Measures as Expropriation), in assessing whether a taxation measure constitutes expropriation, the following considerations are relevant:
(i) 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;
(ii) 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
(iii) 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.