2. If the Parties cannot agree on the mediator within the established time frame, either Party may request the chair of the Committee, or the chair's delegate, to draw the mediator by lot from the list established under paragraph 2 of Article 3.44 (Lists of Arbitrators). Representatives of both Parties are entitled to be present when the lots are drawn.
3. The chair of the Committee, or the chair's delegate, shall select the mediator within five working days of the request referred to in paragraph 2.
4. A mediator shall not be a national of either Party, unless the Parties agree otherwise.
5. The mediator shall assist, in an impartial and transparent manner, the Parties in bringing clarity to the measure and its possible adverse effects on trade and investment, and in reaching a mutually agreed solution. Annex 11 shall apply to mediators, mutatis mutandis. Rules 4 to 9 and Rules 46 to 49 of Annex 9 shall also apply, mutatis mutandis.
5. Rules of the Mediation Procedure
1. Within ten days after the appointment of the mediator, the Party having invoked the mediation procedure shall present, in writing, a detailed description of the problem to the mediator and to the other Party, in particular of the operation of the measure at issue and its adverse effects on investment. Within twenty days after the date of delivery of this submission, the other Party may provide, in writing, its comments to the description of the problem. Either Party may include in its description or comments any information that it deems relevant.
2. The mediator may decide on the most appropriate way of bringing clarity to the measure concerned and its possible adverse effects on investment. In particular, the mediator may organise meetings between the Parties, consult the Parties jointly or individually, seek the assistance of or consult with relevant experts and stakeholders and provide any additional support requested by the Parties. However, before seeking the assistance of or consulting with relevant experts and stakeholders, the mediator shall consult with the Parties.
3. The mediator may offer advice and propose a solution for consideration of the Parties who may accept or reject the proposed solution or may agree on a different solution. However, the mediator shall not advise or give comments on the consistency of the measure at issue with this Agreement.
4. The procedure shall take place in the territory of the Party to which the request was addressed or, by mutual agreement, in any other location or by any other means.
5. The Parties shall endeavour to reach a mutually agreed solution within sixty days from the appointment of the mediator. Pending a final agreement, the Parties may consider possible interim solutions.
6. The solution may be adopted by means of a decision of the Committee. Either Party may make such solution subject to the completion of any necessary internal procedures. Mutually agreed solutions shall be made publicly available. However, the version disclosed to the public may not contain any information that a Party has designated as confidential.
7. The procedure shall be terminated:
(a) by the adoption of a mutually agreed solution by the Parties, on the date of adoption;
(b) by a mutual agreement of the Parties at any stage of the procedure, on the date of that agreement;
(c) by a written declaration of the mediator, after consultation with the Parties, that further efforts at mediation would be to no avail, on the date of that declaration; or
(d) by a written declaration of a Party after exploring mutually agreed solutions under the mediation procedure and after having considered any advice and proposed solutions by the mediator, on the date of that declaration.
6. Implementation of a Mutually Agreed Solution
1. Where the Parties have agreed to a solution, each Party shall take the measures necessary to implement the mutually agreed solution within the agreed timeframe.
2. The implementing Party shall inform the other Party in writing of any steps or measures taken to implement the mutually agreed solution.
3. On request of the Parties, the mediator shall issue to the Parties, in writing, a draft factual report, providing a brief summary of (i) the measure at issue in these procedures; (ii) the procedures followed; and (iii) any mutually agreed solution reached as the final outcome of these procedures, including possible interim solutions. The mediator shall provide the Parties fifteen days to comment on the draft report. After considering the comments of the Parties submitted within the period, the mediator shall submit, in writing, a final factual report to the Parties within fifteen days. The factual report shall not include any interpretation of this Agreement.
7. Relationship to Dispute Settlement
1. The mediation procedure is without prejudice to the Parties' rights and obligations under Chapter Three (Dispute Settlement) Section B (Resolution of Disputes between Parties).
2. The mediation procedure is not intended to serve as a basis for dispute settlement procedures under this Agreement or any other agreement. A Party shall not rely on or introduce as evidence in such dispute settlement procedures, nor shall a panel take into consideration:
(a) positions taken by the other Party in the course of the mediation procedure;
(b) the fact that the other Party has indicated its willingness to accept a solution to the measure subject to mediation; or
(c) advice given or proposals made by the mediator.
3. Without prejudice to paragraph 6 of Article 5 (Rules of the Mediation Procedure) of this Annex and unless the Parties agree otherwise, all steps of the procedure, including any advice or proposed solution, are confidential. However, either Party may disclose to the public that mediation is taking place.
8. Time Limits
Any time limit referred to in this Annex may be modified by mutual agreement between the Parties.
9. Costs
1. Each Party shall bear its own expenses derived from the participation in the mediation procedure.
2. The Parties shall share equally the expenses derived from organisational matters, including the remuneration and expenses of the mediator. Remuneration of the mediator shall be in accordance with that foreseen in Rule 10(b) of Annex 9.
10. Review
Five years after the date of entry into force of this Agreement, the Parties shall consult each other on the need to modify the mediation procedure in light of the experience gained and the development of a corresponding mechanism in the WTO.
ANNEX 11. CODE OF CONDUCT FOR ARBITRATORS AND MEDIATORS
Definitions
In this Code of Conduct:
"arbitrator" means a member of an arbitration panel established under Article 3.29 (Establishment of the Arbitration Panel);
"candidate" means an individual whose name is on the list of arbitrators referred to in Article 3.44 (Lists of Arbitrators) and who is under consideration for selection as an arbitrator under Article 3.29 (Establishment of the Arbitration Panel);
"assistant" means a person who, under the terms of appointment of an arbitrator, conducts research or provides assistance to the arbitrator;
"proceeding", unless otherwise specified, means an arbitration panel proceeding under Chapter Three (Dispute Settlement) Section B (Resolution of Disputes between Parties;
"staff", in respect of an arbitrator, means persons under the direction and control of the arbitrator, other than assistants.
Responsibilities to the process
2. Throughout the proceedings, every candidate and 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 mechanism is preserved. Arbitrators shall not take instructions from any organisation or government with regard to matters before a Panel. Former arbitrators must comply with the obligations established in paragraphs 15, 16, 17 and 18 of this Code of Conduct.
Disclosure obligations
3. Prior to confirmation of his or her selection as an arbitrator under Chapter Three (Dispute Settlement) Section B (Resolution of Disputes between Parties), 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.
4. A candidate or arbitrator shall only communicate matters concerning actual or potential violations of this Code of Conduct to the Committee for consideration by the Parties.
5. Once selected, an arbitrator shall continue to make all reasonable efforts to become aware of any interests, relationships or matters referred to in paragraph 3 of this Code of Conduct and shall disclose them. The disclosure obligation is a continuing duty which requires an arbitrator to disclose any such interests, relationships or matters that may arise during any stage of the proceeding at the earliest time the arbitrator becomes aware of it. The arbitrator shall disclose such interests, relationships or matters by informing the Committee, in writing, for consideration by the Parties.
Duties of arbitrators
6. Upon selection, an arbitrator shall perform his or her duties thoroughly and expeditiously throughout the course of the proceeding, and with fairness and diligence.
7. An arbitrator shall consider only those issues raised in the proceeding and necessary for a ruling and shall not delegate this duty to any other person.
8. An arbitrator shall take all appropriate steps to ensure that his or her assistants and staff are aware of, and comply with, paragraphs 2, 3, 4, 5, 16, 17 and 18 of this Code of Conduct.
9. An arbitrator shall not engage in ex parte contacts concerning the proceeding.
Independence and impartiality of arbitrators
10. An arbitrator must be independent and impartial and avoid creating an appearance of impropriety or bias and shall not be influenced by self-interest, outside pressure, political considerations, public clamour, and loyalty to a Party or fear of criticism.
11. 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 her or his duties.
12. An arbitrator may not use her or his position on the arbitration panel to advance any personal or private interests and shall avoid actions that may create the impression that others are in a special position to influence her or him.
13. An arbitrator may not allow financial, business, professional, family or social relationships or responsibilities to influence her or his conduct or judgement.
14. An arbitrator shall avoid entering into any relationship or acquiring any financial interest that is likely to affect her or his impartiality or that might reasonably create an appearance of impropriety or bias.
Obligations of former arbitrators
15. All former arbitrators must avoid actions that may create the appearance that they were biased in carrying out their duties or derived any advantage from the decision or ruling of the arbitration panel.
Confidentiality
16. No arbitrator or former arbitrator shall at any time disclose or use any non-public information concerning a proceeding or acquired during a proceeding except for the purposes of that proceeding and shall not, in particular, disclose or use any such information to gain a personal advantage or an advantage for others or to affect the interest of others.
17. An arbitrator shall not disclose an arbitration panel ruling or parts thereof prior to its publication in accordance with Chapter Three (Dispute Settlement) Section B (Resolution of Disputes between Parties).
18. An arbitrator or former arbitrator shall not at any time disclose the deliberations of an arbitration panel, or any arbitrator's view regarding the deliberations.
Expenses
19. Each arbitrator shall keep a record and render a final account of the time devoted to the procedure and of his or her expenses, as well as the time and expenses of his or her assistants.
Mediators
20. The disciplines described in this Code of Conduct applying to arbitrators or former arbitrators shall apply, mutatis mutandis, to mediators.
UNDERSTANDING 1. IN RELATION TO SINGAPORE'S SPECIFIC CONSTRAINTS OF SPACE OR ACCESS TO NATURAL RESOURCES
1. Article 2.3 (National Treatment) shall not apply to any measure relating to:
(a) the supply of potable water in Singapore;
(b) the ownership, purchase, development, management, maintenance, use, enjoyment, sale or other disposal of residential property (1)or to any public housing scheme in Singapore.
2. Three years after the entry into force of this agreement and every two years thereafter, should the Additional Buyer's Stamp Duty (ABSD) still be in force, the Committee will review to see if the maintenance of the ABSD is necessary for addressing the stability of the residential property market. In these consultations, Singapore will provide statistics and information relevant to the state of the residential property market.
UNDERSTANDING 2. IN RELATION TO THE REMUNERATION OF ARBITRATORS
With respect to Rule 10 of Annex 9 both Parties confirm their following understanding:
1. The remuneration and expenses to be paid to the arbitrators shall be based on standards of comparable international dispute resolution mechanisms in bilateral or multilateral agreements.
2. The exact amount of the remuneration and expenses shall be agreed by the Parties in advance of the meeting of the Parties with the arbitration panel under Rule 10 of Annex 9.
3. Both Parties shall apply this understanding in good faith with a view to facilitating the operation of the arbitration panel.