Article 8. Compensation for Losses
1. Each Party shall accord to investors of the other Party, and to covered investments, non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife.
2. Notwithstanding paragraph 1, if an investor of a Party, in the situations referred to in paragraph 1, suffers a loss in the territory of the other Party resulting from:
(a) requisitioning of its covered investment or part thereof by the latter’s forces or authorities; or
(b) destruction of its covered investment or part thereof by the latter’s forces or authorities, which was not required by the necessity of the situation, the latter Party shall provide the investor restitution, compensation, or both, as appropriate, for such loss.
Article 9. Transfers
1. Each Party shall permit all transfers relating to a covered investment to be made freely and without delay into and out of its territory. (8)
Such transfers include:
(a) contributions to capital; (9)
(b) profits, dividends, capital gains, and proceeds from the sale of all or any part of the covered investment or from the partial or complete liquidation of the covered investment;
(c) interest, royalty payments, management fees, and technical assistance and other fees;
(d) payments made under a contract, including a loan agreement;
(e) payments made pursuant to Article 7 (Expropriation and Compensation) and Article 8 (Compensation for Losses);
(f) payments arising out of a dispute; and
(g) net earnings and remuneration of a natural person of the other Party who is employed and allowed to work in connection with a covered investment in its territory.
2. Each Party shall permit transfers relating to a covered investment to be made in a freely usable currency at the market rate of exchange prevailing at the time of transfer.
3. Each Party shall permit returns in kind relating to a covered investment to be made as authorised or specified in a written agreement between the Party and a covered investment or an investor of the other Party.
4. Notwithstanding paragraphs 1 through 3, a Party may prevent a transfer through the equitable, non-discriminatory, and good faith application of its laws and regulations relating to:
(a) bankruptcy, insolvency or the protection of the rights of creditors;
(b) issuing, trading or dealing in securities, futures, options or derivatives;
(c) criminal or administrative violations;
(d) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;
(e) ensuring compliance with orders or judgments in judicial or administrative proceedings; or
(f) social security, public retirement or compulsory savings schemes.
5. For greater certainty, the transfers referred to in this Article shall comply with relevant formalities stipulated by the laws and regulations, if any, of a Party relating to exchange administration, insofar as such laws and regulations are not to be used as a means of avoiding a Party’s obligations under this Chapter.
6. Nothing in this Chapter shall affect the rights and obligations of the members of the International Monetary Fund under the Articles of Agreement of the International Monetary Fund, including the use of exchange actions which are in conformity with the Articles of Agreement of the International Monetary Fund, provided that a Party shall not impose restrictions on any capital transactions inconsistently with its obligations under this Chapter regarding such transactions, except under Article 10 (Measures to Safeguard the Balance of Payments) or at the request of the International Monetary Fund.
Article 10. Measures to Safeguard the Balance of Payments
1. Nothing in this Chapter shall be construed to prevent a Party from adopting or maintaining restrictions on payments or transfers relating to capital movements:
(a) in the event of serious balance of payments or external financial difficulties or threats thereof; or
(b) where, in exceptional circumstances, payments or transfers relating to capital movements cause or threaten to cause serious difficulties for macroeconomic management, in particular, monetary and exchange rate policies.
2. The restrictions referred to in paragraph 1 shall:
(a) not exceed a period of eighteen (18) months; however, if extremely exceptional circumstances arise such that a Party seeks to extend such restrictions, the Party will coordinate in advance with the other Party concerning the implementation of any proposed extension;
(b) be consistent with the Articles of the Agreement of the International Monetary Fund;
(c) not exceed those necessary to deal with the circumstances described in paragraph 1;
(d) avoid unnecessary damage to the commercial, economic and financial interests of the Parties;
(e) be temporary and phased out progressively as the situation described in paragraph 1 improves;
(f) promptly be notified to the other Party; and
(g) be applied on a non-discriminatory basis such that the other Party is treated no less favourably than any non-Party.
Article 11. Subrogation
1. If a Party, or any agency, institution, statutory body or corporation designated by the Party (“designated agency”), makes a payment to an investor of the Party under a guarantee, a contract of insurance or other form of indemnity that it has entered into with respect to a covered investment, the other Party, in whose territory the covered investment was made, shall recognise the subrogation or transfer of any rights the investor would have possessed under this Chapter, including any rights under Section B (Investor-State Dispute Settlement), with respect to the covered investment but for the subrogation, and the investor shall be precluded from pursuing such rights to the extent of the subrogation. The subrogated or transferred right or claim shall not be greater than the original right or claim of the investor.
2. Where a Party or designated agency of a Party has made a payment to an investor of that Party and has taken over rights and claims of the investor, that investor shall not, unless authorised to act on behalf of the Party or the designated agency of the Party making the payment, pursue those rights and claims against the other Party.
Article 12. Denial of Benefits (10)
1. A Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of that other Party and to investments of that investor, if a nonParty or persons of a non-Party own or control the enterprise and the denying Party:
(a) does not maintain diplomatic relations with the non-Party; or
(b) adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise or to its investments.
2. A Party may deny the benefits of this Chapter to an investor of the other Party that is an enterprise of the other Party and to investments of that investor, if the enterprise has no substantial business activities in the territory of the other Party and a non-Party, or persons of a non-Party or the denying Party, own or control the enterprise.
Article 13. Transparency
1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application with respect to any matter covered by this Chapter are promptly published or otherwise made publicly available in such a manner as to enable interested persons or the other Party to become acquainted with them. Each Party shall endeavour to publish international investment treaties in force, pertaining to or affecting investors or investment activities.
2. For purposes of this Article, “administrative ruling of general application” means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:
(a) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular covered investment or investor of the other Party in a specific case; or
(b) a ruling that adjudicates with respect to a particular act or practice.
3. To the extent possible, each Party should:
(a) publish in advance any measure referred to in paragraph 1 that it proposes to adopt; and
(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
Article 14. General Exceptions
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 its investors where like conditions prevail, or a disguised restriction on investments of investors of the other Party in the territory of a Party, nothing in this Chapter 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 (11);
(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 Chapter 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;
(d) imposed for the protection of national treasures of artistic, historic or archaeological value; or
(e) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.
Article 15. Security Exceptions
Nothing in this Chapter shall be construed:
(a) to require a Party to furnish or allow access to any information, the disclosure of which it determines to be contrary to its essential security interests; or
(b) to preclude a Party from applying measures that it considers necessary for the fulfillment 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 16. Special Formalities and Information Requirements
1. Nothing in Article 3 (National Treatment) shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with covered investments, provided that such formalities do not materially impair the protections afforded by a Party to investors of the other Party and covered investments pursuant to this Chapter.
2. Notwithstanding Articles 3 (National Treatment) and 4 (Most-Favoured-Nation Treatment), a Party may require an investor of the other Party or its covered investment to provide information concerning that investment solely for informational or statistical purposes. The Party shall protect such confidential information from any disclosure that would prejudice the competitive position of the investor or the covered investment. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in connection with the equitable and good faith application of its law.
Article 17. Protection of Confidential Information
Nothing in this Chapter shall be construed to require a Party to furnish or allow access to confidential information, the disclosure of which it considers would be contrary to its law, or which would impede law enforcement or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 18. Prudential Measures
1. Notwithstanding any other provision of this Chapter, a Party shall not be prevented from adopting or maintaining measures for prudential reasons, including for the protection of investors, depositors, policy holders, or persons to whom a fiduciary duty is owed by a financial services supplier, or to ensure the integrity and stability of the financial system.12 If these measures do not conform with the provisions of this Chapter to which this exception applies, they shall not be used as a means of avoiding the Party’s commitments or obligations under those provisions.
2. Nothing in this Chapter applies to non-discriminatory measures of general application taken by any public entity, as defined in sub-paragraph 5(c) of the Annex on Financial Services of the GATS, in pursuit of monetary and related credit policies or exchange rate policies. This paragraph shall not affect a Party’s obligations under Article 9 (Transfers).
3. Where a claimant submits a claim to arbitration under Section B (Investor-State Dispute Settlement) and the respondent invokes paragraphs 1 or 2 as a defence, the following provisions shall apply:
(a) The respondent shall, either within one hundred and twenty (120) days of the date the claim is submitted to arbitration under Section B (Investor-State Dispute Settlement) or no later than a date the tribunal constituted under Section B (Investor-State Dispute Settlement) fixes, submit in writing to the competent financial authorities of the non-disputing Party a request for a joint determination by the competent financial authorities of both Parties on the issue of whether and to what extent paragraphs 1 or 2 is a valid defence to the claim. The respondent shall promptly provide the tribunal, if constituted, a copy of the request.
(b) The competent financial authorities of both Parties shall attempt in good faith to make a joint determination as described in sub-paragraph (a). Any such determination shall be transmitted promptly to the disputing parties and, if constituted, the tribunal under Section B (Investor-State Dispute Settlement). The determination shall be binding on the tribunal constituted under Section B (Investor-State Dispute Settlement).
(c) If the competent financial authorities of both Parties referred to in subparagraphs (a) and (b) have not made a joint determination within one hundred and twenty (120) days of the date of receipt of the respondent’s written request for a joint determination under sub-paragraph (a), the respondent or the nondisputing Party may submit its claim to arbitration in accordance with Chapter 12 (Dispute Settlement) for a tribunal constituted under Chapter 12 (Dispute Settlement) to consider whether and to what extent paragraphs 1 or 2 is a valid defence to the claim. The final report of a tribunal constituted under Chapter 12 (Dispute Settlement) shall be binding on the tribunal constituted under Section B (Investor-State Dispute Settlement), and any decision or award issued by the tribunal constituted under Section B (Investor-State Dispute Settlement) must be consistent with the final report. The tribunal constituted under Chapter 12 (Dispute Settlement) shall transmit its final report to both Parties and to the tribunal constituted under Section B (Investor-State Dispute Settlement). 12 It is understood that the term “prudential reasons” also includes the maintenance of the safety, soundness, integrity, or financial responsibility of individual financial institutions, as well as the maintenance of the safety and financial and operational integrity of payment and clearing systems.
(d) If the respondent or the non-disputing Party has not submitted its claim to arbitration in accordance with Chapter 12 (Dispute Settlement) within thirty (30) days after the expiration of the one hundred and twenty (120) days period referred to in sub-paragraph (c), the tribunal constituted under Section B (Investor-State Dispute Settlement) may proceed with respect to the claim.
(i) The tribunal constituted under Section B (Investor-State Dispute Settlement) shall draw no inference regarding the application of paragraphs 1 and 2 from the fact that the competent financial authorities have not made a determination as described in paragraphs 3(a), (b) and (c).
(ii) The non-disputing Party may make oral and written submissions to the tribunal constituted under Section B (Investor-State Dispute Settlement) regarding the issue of whether and to what extent paragraphs 1 or 2 is a valid defence to the claim. Unless it makes such a submission, the non-disputing Party shall be presumed, for the purposes of the arbitration, to take a position on paragraphs 1 and 2 that it is not inconsistent with that of the respondent.
4. The expertise or experience of any candidate with respect to financial services law or practice shall be taken into account in the appointment of arbitrators to the tribunals as referred to in paragraph 3.
Article 19. Taxation
1. Article 7 (Expropriation and Compensation) shall apply to taxation measures. An investor seeking to invoke Article 7 (Expropriation and Compensation) with respect to a taxation measure, may only submit its claim to arbitration under Section B (Investor-State Dispute Settlement) if:
(a) the claimant has first referred in writing to the competent taxation authorities of both Parties, at the time that it delivers its request of consultation under Article 25 (Consultations), the issue of whether that taxation measure involves an expropriation; and
(b) within one hundred and eighty (180) days after the date of such referral, 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 taxation measure is not an expropriation.
2. For the purposes of this Article, “competent taxation authorities” means:
(a) in the case of the People’s Republic of China, the Ministry of Finance and State Administration of Taxation or an authorised representative of the Ministry of Finance and State Administration of Taxation; and
(b) in the case of the Republic of Singapore, the Ministry of Finance;
or their successors.
3. Nothing in this Chapter shall affect the rights and obligations of a Party under any tax convention. In the event of any inconsistency between this Chapter and any such convention, that convention shall prevail to the extent of the inconsistency. In the case of a tax convention between the Parties, the competent authorities under that convention shall have sole responsibility for determining whether any inconsistency exists between this Chapter and that convention.
Article 20. Promotion of Investment
The Parties shall cooperate in promoting and increasing awareness through, amongst others:
(a) increasing investments between the Parties;
(b) organising investment promotion activities;
(c) promoting business matching events;
(d) organising and supporting the organisation of various briefings and seminars on investment opportunities and on investment laws, regulations and policies; and
(e) conducting information exchanges on other issues of mutual concern relating to investment promotion and facilitation.
Article 21. Facilitation of Investment
1. Subject to their laws and regulations, the Parties shall cooperate to facilitate investment between the Parties through, amongst others:
(a) creating the necessary environment for all forms of investment;
(b) simplifying procedures for investment applications and approvals;
(c) promoting business matching events;
(d) promoting dissemination of investment information, including investment laws, regulations, policies and procedures; and
(e) establishing or maintaining either contact points, one-stop investment centres or similar mechanisms in the respective host Parties to provide assistance and advisory services to the business sectors including facilitation of operating licences and permits.
2. Subject to its laws and regulations, a Party’s activities under Paragraph 1(e) may include, to the extent possible, assisting investors of the other Party and covered investments to amicably resolve complaints or grievances with government bodies which have arisen during their investment activities by, among other things:
(a) receiving and, where appropriate, considering referring or giving due consideration to complaints raised by investors of the other Party relating to government activities impacting their covered investments; and
(b) providing assistance, to the extent possible, in resolving difficulties experienced by the investors of the other Party in relation to their covered investments.
3. Nothing in this Article shall be subject to, or otherwise affect, any dispute resolution proceedings under this Chapter.
Article 23. Transition Arrangement
1. Upon entry into force of this Chapter, the Agreement Between the Government of the People’s Republic of China and the Government of the Republic of Singapore on the Promotion and Protection of Investments, signed on 21 November 1985, shall terminate. (13)
2. Notwithstanding paragraph 1, a claim may be submitted pursuant to relevant provisions of the Agreement Between the Government of the People’s Republic of China and the Government of the Republic of Singapore on the Promotion and Protection of Investments, regarding any act or fact that took place or any situation that existed while the said Agreement was in force, and provided that no more than three (3) years have elapsed since the date of the entry into force of this Chapter.
Section B. Investor-State Dispute Settlement
Article 24. Scope
1. This Section 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 Article 3 (National Treatment), Article 4 (Most-Favoured-Nation Treatment), Article 5 (Minimum Standard of Treatment), Article 7 (Expropriation and Compensation), Article 8 (Compensation for Losses), and Article 9 (Transfers), which causes loss or damage to the investor or its investment with respect to the management, conduct, operation or sale or other disposition of such investment.
2. This Section shall not apply to any dispute concerning any measure adopted or maintained or any treatment accorded to investors or investments by a Party in respect of tobacco or tobacco-related products14.
Article 25. Consultations
1. In the event of an investment dispute, if the claimant intends to submit the dispute to arbitration, the claimant shall first deliver to the respondent a written request for consultation. (15) The request shall:
(a) specify the name and address of the claimant and, where a claim is submitted on behalf of an enterprise of the respondent that is a juridical person which the claimant owns or controls directly or indirectly, specify the name, address, and place of incorporation of the enterprise;
(b) for each claim, identify the provision of this Chapter alleged to have been breached and any other relevant provisions;
(c) for each claim, identify the measures or events giving rise to the claim;
(d) for each claim, indicate whether the claim is made by the claimant on its own behalf or on behalf of the enterprise;
(e) for each claim, provide a brief summary of the legal and factual basis sufficient to present the problem clearly; and
(f) specify the relief sought, the approximate amount of damages claimed and its standard or basis for calculation.
2. After a request for consultations is made pursuant to this Section, the claimant and the respondent shall initially seek to resolve the dispute through consultations.
3. If the disputing parties reach a mutually agreed solution to a dispute or certain claims thereof formally raised under this Section, they shall abide by and comply with the mutually agreed solution reached under this Article without delay.
Article 26. Submission of a Claim to Arbitration
1. In the event that an investment dispute cannot be settled by consultations under Article 25 (Consultations) within one hundred and eighty (180) days after the date of receipt of the request for consultations,
(a) the claimant, on its own behalf, may submit to arbitration under this Section a claim:
(i) that the respondent has breached an obligation under Article 3 (National Treatment), Article 4 (Most-Favoured-Nation Treatment), Article 5 (Minimum Standard of Treatment), Article 7 (Expropriation and Compensation), Article 8 (Compensation for Losses) and Article 9 (Transfers); and
(ii) that the claimant has incurred loss or damage by reason of, or arising out of, that breach; or
(b) the claimant, on behalf of an enterprise of the respondent that is a juridical person which the claimant owns or controls directly or indirectly, may submit to arbitration under this Section a claim:
(i) that the respondent has breached an obligation under Article 3 (National Treatment), Article 4 (Most-Favoured-Nation Treatment), Article 5 (Minimum Standard of Treatment), Article 7 (Expropriation and Compensation), Article 8 (Compensation for Losses) and Article 9 (Transfers); and
(ii) that the enterprise has incurred loss or damage by reason of, or arising out of, that breach.
2. (a) A claimant may not initiate or continue a claim under this Section, if another claim involving the same measure or measures alleged to constitute a breach under Article 24 (Scope) and arising from the same events or circumstances is initiated or continued pursuant to an agreement between the respondent and a non-Party by:
(i) a person of a non-Party that owns or controls, directly or indirectly, the claimant; or
(ii) a person of a non-Party that is owned or controlled, directly or indirectly, by the claimant.
(b) Notwithstanding paragraph 2(a), the claim may proceed if the respondent agrees that the claim may proceed, or if the claimant and the person of a non-Party agree to consolidate the claims under the respective agreements before a tribunal constituted under this Section.
3. A claimant may submit a claim referred to in paragraph 1:
(a) under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, provided that both the respondent and the nondisputing Party are parties to the ICSID Convention;
(b) under the ICSID Additional Facility Rules, provided that either the respondent or the non-disputing Party is a party to the ICSID Convention;