(c) under the UNCITRAL Arbitration Rules; (16)
(d) if the claimant and respondent agree, to any other arbitration institution or under any other arbitration rules.
4. A claim shall be deemed submitted to arbitration under this Section when the claimant’s notice of or request for arbitration (“notice of arbitration”):
(a) referred to in paragraph 1 of Article 36 of the ICSID Convention is received by the Secretary-General;
(b) referred to in Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretary-General;
(c) referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in Article 20 of the UNCITRAL Arbitration Rules, are received by the respondent; or
(d) referred to under any arbitral institution or arbitral rules selected under paragraph 3(d) is received by the respondent.
A claim asserted by the claimant for the first time after such notice of arbitration is submitted shall be deemed submitted to arbitration under this Section on the date of its receipt under the applicable arbitration rules.
5. The arbitration rules applicable under paragraph 3 that are in effect on the date the claim or claims were submitted to arbitration under this Section shall govern the arbitration except to the extent modified by this Chapter.
6. A notice of arbitration 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 measure or event 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 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.
7. The claimant shall provide with the notice of arbitration:
(a) the name of the arbitrator that the claimant appoints; or
(b) the claimant’s written consent for the Secretary-General to appoint that arbitrator.
Article 27. Consent of Each Party to Arbitration
1. Each Party consents to the submission of a claim to arbitration under this Section, provided that the claim is submitted in accordance with the provisions of this Chapter. Failure to meet any of the conditions and limitations provided for in Article 28 (Conditions and Limitations on Consent of Each Party) shall nullify that consent.
2. The consent under paragraph 1 and the submission of a claim to arbitration under this Section shall be deemed to satisfy the requirements of:
(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the parties to the dispute; and
(b) Article II of the New York Convention for an “agreement in writing”.
Article 28. Conditions and Limitations on Consent of Each Party
1. No claim may be submitted to arbitration under this Section if more than three (3) years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged under paragraph 1 of Article 26 (Submission of a Claim to Arbitration) and knowledge that the claimant (for claims brought under paragraph 1(a) of Article 26 (Submission of a Claim to Arbitration) or the enterprise (for claims brought under paragraph 1(b) of Article 26 (Submission of a Claim to Arbitration)) has incurred loss or damage.
2. No claim may be submitted to arbitration under this Section unless:
(a) the claimant has complied with the rules and procedures set forth in Article 25 (Consultations) and 26 (Submission of a Claim to Arbitration);
(b) the claim has been included in the request for consultations submitted by the claimant in accordance with Article 25 (Consultations);
(c) the claimant consents in writing to arbitration in accordance with the procedures set out in this Chapter, and,
(d) the notice of arbitration is accompanied,
(i) for claims submitted to arbitration under paragraph 1(a) of Article 26 (Submission of a Claim to Arbitration), by the claimant’s written waiver, and
(ii) for claims submitted to arbitration under paragraph 1(b) of Article 26 (Submission of a Claim to Arbitration), by the claimant’s and the enterprise’s written waivers, of any right to initiate or continue before any administrative tribunal or court under the law of either Party, or other dispute settlement procedures, any proceeding with respect to any measure or event alleged to constitute a breach referred to in Article 26 (Submission of a Claim to Arbitration).
3. Notwithstanding paragraph 2(d), the claimant (for claims brought under paragraph 1(a) of Article 26 (Submission of a Claim to Arbitration), and the claimant or the enterprise (for claims brought under paragraph 1(b) of Article 26 (Submission of a Claim to Arbitration)) may initiate or continue an action before a judicial or administrative tribunal of the respondent, which seeks interim injunctive relief and does not involve the payment of monetary damages, provided that the action is brought for the sole purpose of preserving the claimant’s or the enterprise’s rights and interests during the pendency of the arbitration.
Article 29. Constitution of the Tribunal
1. Unless the disputing parties agree otherwise, the tribunal shall comprise three (3) arbitrators, one (1) arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties.
2. The Secretary-General shall serve as appointing authority for an arbitration under this Section.
3. If a tribunal has not been constituted within ninety (90) days after the date on which a claim is submitted to arbitration under this Section, the appointing authority, on the request of a disputing party, shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed.
4. Unless both disputing parties agree, the appointing authority shall not appoint a presiding arbitrator who is a national of either Party.
5. All arbitrators appointed pursuant to this Section shall have expertise or experience in public international law, international trade law or international investment rules. They shall be independent of, and not be affiliated with or take instructions from any organisation or the government of either Party.
6. For the purposes of Article 39 of the ICSID Convention and Article 7 of Schedule C to the ICSID Additional Facility Rules, and without prejudice to an objection to an arbitrator on a ground other than nationality:
(a) the respondent agrees to the appointment of each individual member of a tribunal established under the ICSID Convention or the ICSID Additional Facility Rules;
(b) a claimant referred to in paragraph 1(a) of Article 26 (Submission of a Claim to Arbitration) may submit a claim to arbitration under this Section, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the claimant agrees in writing to the appointment of each individual member of the tribunal; and
(c) a claimant referred to in paragraph 1(b) of Article 26 (Submission of a Claim to Arbitration) may submit a claim to arbitration under this Section, or continue a claim, under the ICSID Convention or the ICSID Additional Facility Rules, only on condition that the claimant and the enterprise agree in writing to the appointment of each individual member of the tribunal.
Article 30. Conduct of the Arbitration
1. The disputing parties may agree on the legal place of any arbitration under the arbitral rules applicable under paragraph 3 of Article 26 (Submission of a Claim to Arbitration). If the disputing parties fail to reach agreement, the tribunal shall determine the place in accordance with the applicable arbitral rules, provided that the place shall be in the territory of a State that is a party to the New York Convention.
2. The non-disputing Party may make oral and written submissions to the tribunal regarding the interpretation of this Agreement.
3. Notwithstanding paragraph 2, without written consent of the disputing parties, the tribunal shall have no authority to accept and consider amicus curiae submissions from a person or entity that is not a disputing party.
4. Without prejudice to a tribunal’s authority to address other objections as a preliminary question, such as an objection that a dispute is not within the competence of the tribunal, including an objection to the tribunal’s jurisdiction, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favour of the claimant may be made under Article 35 (Awards).
(a) Such objection shall be submitted to the tribunal as soon as possible after the tribunal is constituted, and in no event 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.
(b) On receipt of an objection under this paragraph, the tribunal shall suspend any proceedings on the merits, establish a schedule for considering the objection consistent with any schedule it has established for considering any other preliminary question, and issue a decision or award on the objection, stating the grounds therefor.
(c) In deciding an objection under this paragraph, the tribunal shall assume to be true, the claimant’s factual allegations in support of any claim in the notice of arbitration and, in disputes brought under the UNCITRAL Arbitration Rules, the statement of claim referred to in Article 20 of the UNCITRAL Arbitration Rules. The tribunal may also consider any relevant facts not in dispute.
(d) The respondent does not waive any objection as to competence, including any objection to jurisdiction, or any argument on the merits merely because the respondent did or did not raise an objection under this paragraph or make use of the expedited procedure set out in paragraph 5.
5. In the event that the respondent so requests within forty-five (45) days after the tribunal is constituted, the tribunal shall decide on an expedited basis an objection under paragraph 4 or any objection that the dispute is not within the tribunal’s competence, including an objection that the dispute is not within the tribunal’s jurisdiction. The tribunal shall suspend any proceedings on the merits and issue a decision or award on the objection(s), stating the grounds therefor, no later than one hundred and fifty (150) days after the date of the request. However, if a disputing party requests a hearing, the tribunal may take an additional thirty (30) days to issue the decision or award. Regardless of whether a hearing is requested, a tribunal may, on a showing of extraordinary cause, delay issuing its decision or award by an additional brief period, which may not exceed thirty (30) days.
6. When the tribunal decides a respondent’s objection under paragraphs 4 or 5, the tribunal may, if warranted, award to the prevailing disputing party reasonable costs and attorney’s fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claimant’s claim or the respondent’s objection was frivolous, and shall provide the disputing parties a reasonable opportunity to comment.
7. For greater certainty, if a claimant submits a claim to arbitration under this Section, the claimant has the burden of proving all elements of its claim, consistent with general principles of law applicable to international arbitration.
8. Without prejudice to Article 11 (Subrogation), a respondent may not assert as a defence, counterclaim, right of set-off, or for any other reason that the claimant or the enterprise referred to in paragraph 1(b) of Article 26 (Submission of a Claim to Arbitration) has received or will receive indemnification or other compensation for all or part of the alleged damages pursuant to an indemnity, guarantee or insurance contract.
Article 31. Transparency of Arbitral Proceedings
1. Subject to paragraphs 2 and 4, the respondent shall, after receiving the following documents, promptly transmit them to the non-disputing Party:
(a) the request for consultations;
(b) the notice of arbitration;
(c) pleadings, memorials, and briefs submitted to the tribunal by a disputing party and any written submissions submitted pursuant to Article 34 (Consolidation);
(d) minutes or transcripts of hearings of the tribunal, where available; and
(e) orders, awards, and decisions of the tribunal.
2. Subject to agreement by the disputing parties, the tribunal may conduct hearings open to the public and, in such case, shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party that intends to use information designated as protected information or otherwise subject to paragraph 3 in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
3. Nothing in this Section requires a respondent to disclose protected information or to furnish or allow access to information that it may withhold in accordance with Article 15 (Security Exceptions) or Article 17 (Protection of Confidential Information).
4. Any protected information that is submitted to the tribunal shall be protected from disclosure in accordance with the following procedures:
(a) neither the disputing parties nor the tribunal shall disclose to any nondisputing Party or to the public any protected information where the disputing party that provided the information clearly designates it in accordance with sub-paragraph (b);
(b) any disputing party claiming that certain information constitutes protected information shall clearly designate the information at the time it is submitted to the tribunal; and
(c) a disputing party shall, within seven (7) days after it submits a document containing information claimed to be protected information, submit a redacted version of the document that does not contain the information. Only the redacted version shall be disclosed in accordance with paragraph 1.
Article 32. Governing Law
1. When a claim is submitted under Article 26 (Submission of a Claim to Arbitration), the tribunal shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law. (17)
2. A joint decision of the Parties, declaring their interpretation of a provision of this Chapter shall be binding on a tribunal of any ongoing or subsequent dispute, and any decision or award issued by such a tribunal must be consistent with that joint decision.
Article 33. Expert Reports
Without prejudice to the appointment of other kinds of experts where authorised by the applicable arbitration rules, a tribunal, at the request of a disputing party or, unless the disputing parties disapprove, on its own initiative, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety or other scientific matters raised by a disputing party in a proceeding, subject to such terms and conditions as the disputing parties may agree.
Article 34. Consolidation
Where two or more claims have been submitted separately to arbitration under this Section and the claims have a question of law or fact in common and arise out of the same events or circumstances, all concerned disputing parties may agree to consolidate those claims in any manner they deem appropriate.
Article 35. Awards
1. Where a tribunal makes a final award against a respondent, the tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the respondent may pay monetary damages and any applicable interest in lieu of restitution.
2. A tribunal may also award costs and attorney’s fees in accordance with this Section and the applicable arbitration rules.
3. For greater certainty, if an investor of a Party submits a claim to arbitration under paragraph 1(a) of Article 26 (Submission of a Claim to Arbitration), it may only recover for loss or damage that it has incurred in its capacity as an investor of a Party.
4. Subject to paragraph 1, where a claim is submitted to arbitration under paragraph 1(b) of Article 26 (Submission of a Claim to Arbitration):
(a) any award of restitution of property shall provide that restitution be made to the enterprise;
(b) any award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise; and
(c) the award shall provide that it is made without prejudice to any right that any person may have under applicable domestic law in relation to the relief.
5. A tribunal shall not award punitive damages.
6. A disputing party shall not seek enforcement of a final award until:
(a) in the case of a final award made under the ICSID Convention:
(i) one hundred and twenty (120) days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed; and
(b) in the case of a final award made under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules or the rules selected pursuant to paragraph 3(d) of Article 26 (Submission of a Claim to Arbitration):
(i) ninety (90) days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award; or
(ii) a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal.
7. An award made by a tribunal shall have no binding force except between the disputing parties and in respect of the particular case.
8. In the event that an appellate mechanism for reviewing awards rendered by investor-State dispute settlement tribunals is developed in the future under other institutional arrangements, the Parties shall consider whether awards rendered under this Article should be subject to that appellate mechanism.
Article 36. Service of Documents
Delivery of notice and other documents to a Party shall be made to the place named for that Party listed in Annex 10-C (Service of Documents on a Party).
Section C. Definitions
For the purposes of this Chapter:
“Centre” means the International Centre for Settlement of Investment Disputes established by the ICSID Convention.
“claimant” means an investor of a Party that is a party to an investment dispute with the other Party. If that investor is a natural person, who is a permanent resident of a Party and a national of the other Party, that natural person may not submit a claim to arbitration against that latter Party.
“covered investment” means, with respect to a Party, an investment in its territory of an investor of the other Party, in existence as of the date of entry into force of this Chapter or established, acquired, or expanded thereafter and which, where applicable, has been admitted in accordance with relevant laws and regulations of the former Party.
“disputing parties” means the claimant and the respondent.
“disputing party” means either the claimant or the respondent.
“enterprise” means any entity constituted or organised under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organization; and a branch of an enterprise.
“enterprise of a Party” means an enterprise constituted or organised under the law of a Party and a branch located in the territory of a Party and carrying out business activities there.
"existing” means in effect on the date of entry into force of the 2023 Protocol
“freely usable currency” means “freely usable currency” as determined by the International Monetary Fund under its Articles of Agreement.
“government procurement” means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale, or use in the production or supply of goods or services for commercial sale or resale.
“ICSID Additional Facility Rules” means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes.
“ICSID Convention” means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, 18 March 1965. “investment” means every asset that an investor owns or controls, directly or indirectly, that has the following characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include: (18)
(a) an enterprise;
(b) shares, stock, and other forms of equity participation in an enterprise;
(c) bonds, debentures, other debt instruments, and loans (including loans to, or debt securities issued by a Party);(19)
(d) futures, options and other derivatives;
(e) turnkey, construction, management, production, concession, revenuesharing, and other similar contracts;
(f) intellectual property rights;
(g) licences, authorisations, permits, and similar rights conferred pursuant to domestic law; (20) and
(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges.
“investor of a non-Party” means, with respect to a Party, an investor that attempts to make, is making, or has made an investment in the territory of that Party, that is not an investor of a Party.
“investor of a Party” means a Party, a national or an enterprise of a Party, that attempts to make, is making, or has made an investment in the territory of the other Party.
“measure” means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, or any other form.
“national” means:
(a) for the People's Republic of China, a natural person who is a national of the People's Republic of China as defined in the Nationality Law of the People's Republic of China; and
(b) for the Republic of Singapore, a citizen of Singapore within the meaning of its Constitution and its domestic laws.
“non-disputing Party” means the Party that is not a party to an investment dispute.
“person” means a natural person or an enterprise.
“person of a Party” means a national or an enterprise of a Party.
“protected information” means confidential information or information that is privileged or otherwise protected from disclosure under a Party’s law.
“respondent” means the Party that is a party to an investment dispute.
“Secretary-General” means the Secretary-General of ICSID.
Annex 10-A. Customary International Law
The Parties confirm their shared understanding that “customary international law” generally and as specifically referenced in Article 5 (Minimum Standard of Treatment) and Annex 10-B (Expropriation) results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article 5 (Minimum Standard of Treatment), the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.
Annex 10-B. Expropriation
The Parties confirm their shared understanding that:
1. Article 7 (Expropriation and Compensation) is intended to reflect customary international law concerning the obligation of States with respect to expropriation.
2. An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment.
3. Article 7 (Expropriation and Compensation) addresses two scenarios. The first is direct expropriation, where an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure.
4. The second situation addressed by Article 7 (Expropriation and Compensation) is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a caseby-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish
that an indirect expropriation has occurred;
(ii) the extent to which the government action interferes with distinct, reasonable, investment-backed expectations; and