The Government of the United States and the Government of the Republic of Singapore (“the Parties”),

Recognizing their longstanding friendship and important trade and investment relationship;

Recognizing that open and competitive markets are the key drivers of economic efficiency, innovation and wealth creation;

Recognizing the importance of ongoing liberalization of trade in goods and services at the multilateral level;

Aware of the growing importance of trade and investment for the economies of the Asia-Pacific region;

Reaffirming their rights, obligations and undertakings under the Marrakesh Agreement Establishing the World Trade Organization, and other multilateral, regional, and bilateral agreements and arrangements to which they are both Parties;

Recognizing that economic development, social development, and environmental protection are interdependent and mutually reinforcing components of sustainable development, and that an open and non-discriminatory multilateral trading system can play a major role in achieving sustainable development;

Reaffirming their commitment to achieving the Asia-Pacific Economic Co-operation goals of  free and open trade and investment;

Reaffirming their commitment to securing trade liberalization and an outward-looking approach to trade and investment;

Reaffirming their shared commitment to facilitating bilateral trade through removing or reducing  technical, sanitary and phytosanitary barriers to the movement of goods between the Parties;

Desiring to promote competition;

Desiring to promote transparency and to eliminate bribery and corruption in business transactions;

Recognizing that liberalized trade in goods and services will assist the expansion of trade and investment flows, raise the standard of living, and create new employment opportunities in their respective territories;

Desiring to expand trade in services on a mutually advantageous basis, under conditions of  transparency and progressive liberalization, with the aim of securing an overall balance of rights and obligations, while recognizing the rights of each Party to regulate, and to introduce new regulations, giving due respect to national policy objectives;

Reaffirming the importance of pursuing the above in a manner consistent with the protection and enhancement of the environment, including through regional environmental cooperative activities and implementation of multilateral environmental agreements to which they are both parties; and

Affirming their commitment to encourage the accession to this Agreement by other States in order to further the liberalization of trade in goods and services between States;

Have agreed as follows:

CHAPTER 1 : ESTABLISHMENT OF A FREE TRADE AREA AND DEFINITIONS

ARTICLE 1.1 : GENERAL

1. The Parties to this Agreement, consistent with Article XXIV of GATT 1994 and Article V of GATS, hereby establish a free trade area in accordance with the provisions of this Agreement.

2. The Parties reaffirm their existing rights and obligations with respect to each other under existing bilateral and multilateral agreements to which both Parties are party, including the WTO Agreement.

3. This Agreement shall not be construed to derogate from any international legal obligation between the Parties that entitles goods or services, or suppliers of goods or services, to treatment more favorable than that accorded by this Agreement.

ARTICLE 1.2 : GENERAL DEFINITIONS

For purposes of this Agreement, unless otherwise specified:

1. Customs Valuation Agreement means the WTO Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994;

2. days means calendar days;

3. enterprise means any entity constituted or organized under applicable law, whether or not for profit, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, sole proprietorship, joint venture or other association;

4. enterprise of a Party means an enterprise constituted or organized under the law of a Party;

5. GATS means the General Agreement on Trade in Services;

6. GATT 1994 means the General Agreement on Tariffs and Trade 1994;

7. goods of a Party means domestic products as these are understood in GATT 1994 or such goods as the Parties may agree, and includes originating goods of that Party;

8. 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;

9. measure includes any law, regulation, procedure, requirement or practice;

10. national means a natural person referred to in Annex 1A;

11. originating good has the meaning established in Chapter 3 (Rules of Origin);

12. person means a natural person or enterprise;

13. person of a Party means a national or an enterprise of a Party;

14. territory means for a Party the territory of that Party as set out in Annex 1A;

15. TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights;

16. WTO means the World Trade Organization; and

17. WTO Agreement means the Marrakesh Agreement Establishing the World Trade Organization.

ANNEX 1A

CERTAIN DEFINITIONS

For purposes of this Agreement:

1. national means:

(a) with respect to Singapore, any person who is a citizen within the meaning of its Constitution and domestic laws; and

(b) with respect to the United States, national of the United States as defined in Title III of the Immigration and Nationality Act.

2. territory means:

(a) with respect to Singapore, its land territory, internal waters and territorial sea as well as the maritime zones beyond the territorial sea, including the seabed and subsoil, over which the Republic of Singapore exercises sovereign rights or  jurisdiction under its national laws and international law for the purpose of exploration and exploitation of the natural resources of such areas; and

(b) with respect to the United States,

(i) the customs territory of the United States which includes the 50 states, the  District of Columbia and Puerto Rico;

(ii) the foreign trade zones located in the United States and Puerto Rico; and

(iii) any areas beyond the territorial seas of the United States within which, in accordance with international law and its domestic law, the United States may exercise rights with respect to the seabed and subsoil and their natural resources.

CHAPTER 2 : NATIONAL TREATMENT AND MARKET ACCESS FOR GOODS

ARTICLE 2.1 : NATIONAL TREATMENT

Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of GATT 1994, including its interpretative notes. To this end, Article III of GATT 1994 and its interpretative notes are incorporated into and made a part of this Agreement, subject  to Annex 2A.

ARTICLE 2.2 : ELIMINATION OF DUTIES

1. Except as otherwise provided in this Agreement, each Party shall progressively eliminate  its customs duties on originating goods of the other Party in accordance with Annexes 2B (U.S. Schedule) and 2C (Singapore Schedule).

2. A Party shall not increase an existing customs duty or introduce a new customs duty on imports of an originating good, other than as permitted by this Agreement, subject to Annex 2A.

3. Upon request by any Party, the Parties shall consult to consider accelerating the elimination of customs duties as set out in their respective schedules. An agreement by the Parties to accelerate the elimination of customs duties on an originating good shall be treated as an amendment to Annexes 2B and 2C, and shall enter into force after the Parties have exchanged written notification certifying that they have completed necessary internal legal procedures and on such date or dates as may be agreed between them.

ARTICLE 2.3 : CUSTOMS VALUE

Each Party shall apply the provisions of the Customs Valuation Agreement for the purposes of determining the customs value of goods traded between the Parties.

ARTICLE 2.4 : EXPORT TAX

A Party shall not adopt or maintain any duty, tax or other charge on the export of any good to the territory of the other Party.

ARTICLE 2.5 : TEMPORARY ADMISSION

1. Each Party shall grant duty-free temporary admission for the following goods, imported by or for the use of a resident of the other Party:

(a) professional equipment, including software and broadcasting and cinematographic equipment, necessary for carrying out the business activity, trade, or profession of a business person who qualifies for temporary entry pursuant to the laws of the importing country; and

(b) goods intended for display or demonstration at exhibitions, fairs, or similar events, including commercial samples for the solicitation of orders, and advertising films.

2. A Party shall not condition the duty-free temporary admission of a good referred to in paragraph 1, other than to require that such good:

(a) be used solely by or under the personal supervision of a resident of the other Party in the exercise of the business activity, trade, or profession of that person;

(b) not be sold or leased or consumed while in its territory;

(c) be accompanied by a security in an amount no greater than the charges that would otherwise be owed on entry or final importation, releasable on exportation of the good;

(d) be capable of identification when exported;

(e) be exported on the departure of that person or within such other period of time as is reasonably related to the purpose of the temporary admission, to a maximum period of three years from the date of importation;

(f) be imported in no greater quantity than is reasonable for its intended use; and

(g) be otherwise admissible into the Party’s territory under its laws.

3. If any condition that a Party imposes under paragraph 2 has not been fulfilled, the Party may apply the customs duty and any other charge that would normally be owed on entry or final importation of the good.

4. Each Party, through its Customs authorities, shall adopt procedures providing for the expeditious release of the goods described in paragraph 1. To the extent possible, when such goods accompany a resident of the other Party seeking temporary entry, and are imported by that person for use in the exercise of a business activity, trade, or profession of that person, the procedures shall allow for the goods to be released simultaneously with the entry of that person subject to the necessary documentation required by the Customs authorities of the importing Party.

5. Each Party shall, at the request of the person concerned and for reasons deemed valid by its Customs authorities, extend the time limit for temporary admission beyond the period initially fixed.

6. Each Party shall permit temporarily admitted goods to be exported through a customs port other than that through which they were imported.

7. Each Party shall relieve the importer of liability for failure to export a temporarily admitted good upon presentation of satisfactory proof to the Party’s Customs authorities that the good has been destroyed within the original time limit for temporary admission or any lawful extension. Prior approval will have to be sought from the Customs authorities of the importing  Party before the good can be so destroyed.

ARTICLE 2.6 : GOODS RE-ENTERED AFTER REPAIR OR ALTERATION

1. A Party shall not apply a customs duty to a good, regardless of its origin, that re-enters its territory after that good has been exported temporarily from its territory to the territory of the other Party for repair or alteration, regardless of whether such repair or alteration could be performed in its territory.

2. A Party shall not apply a customs duty to a good, regardless of its origin, imported  temporarily from the territory of the other Party for repair or alteration. 

3. For purposes of this Article:

(a) the repairs or alterations shall not destroy the essential characteristics of the good, or change it into a different commercial item;

(b) operations carried out to transform unfinished goods into finished goods shall not be considered repairs or alterations; and

(c) parts or pieces of the goods may be subject to repairs or alterations.

ARTICLE 2.7 : IMPORT AND EXPORT RESTRICTIONS

1. Except as otherwise provided in this Agreement, a Party shall not adopt or maintain any prohibition or restriction on the importation of any good of the other Party or on the exportation or sale for export of any good destined for the territory of the other Party, except in accordance with Article XI of GATT 1994, including its interpretative notes, and to this end Article XI of  GATT 1994, including its interpretative notes, is incorporated into and made a part of this Agreement.

2. The Parties understand that the GATT 1994 rights and obligations incorporated by paragraph 1 prohibit, in any circumstances in which any other form of restriction is prohibited, export price requirements and, except as permitted in enforcement of countervailing and antidumping orders and undertakings, import price requirements.

3. In the event that a Party adopts or maintains a prohibition or restriction on the importation from or exportation to a non-Party of a good, nothing in this Agreement shall be construed to prevent the Party from:

(a) limiting or prohibiting the importation from the territory of the other Party of such good of that non-Party; or

(b) requiring as a condition of export of such good of the Party to the territory of the other Party, that the good not be re-exported to the non-Party, directly or indirectly, without being consumed in the territory of the other Party.

4. Paragraphs 1 through 3 shall not apply to the measures set out in Annex 2A.

5. Nothing in this Article shall be construed to affect a Party’s rights and obligations under the WTO Agreement on Textiles and Clothing.

ARTICLE 2.8 : MERCHANDISE PROCESSING FEE

A Party shall not adopt or maintain a merchandise processing fee for originating goods.

ARTICLE 2.9 : DISTILLED SPIRITS

Singapore shall harmonize its excise taxes on imported and domestic distilled spirits. Such harmonization of the aforesaid excise duties shall be carried out in stages and shall be completed by 2005.

ARTICLE 2.10 : BROADCASTING APPARATUS

A Party shall not maintain any import ban on broadcasting apparatus, including satellite dishes.

ARTICLE 2.11 : CHEWING GUM

Singapore shall allow the importation of chewing gum with therapeutic value for sale and supply, and may subject such products to laws and regulations relating to health products.

ARTICLE 2.12 : TARIFF TREATMENT OF NON-ORIGINATING COTTON AND MAN-MADE FIBER APPAREL GOODS (TARIFF PREFERENCE LEVELS)

1. Subject to paragraphs 3 and 4, the United States shall apply the applicable rate of duty under paragraph 2 to imports of cotton or man-made fiber apparel goods provided for in Chapters 61 and 62 of the Harmonized System and covered by the U.S. categories listed in  Annex 2B that are both cut (or knit to shape) and sewn or otherwise assembled in Singapore from fabric or yarn produced or obtained outside the territory of a Party, and that meet the applicable conditions for preferential tariff treatment under this Agreement, other than the  condition that they be originating goods.

2. The rate of duty applicable to goods described in paragraph 1 is the United States most-favored- nation rate of duty reduced in five equal annual increments, beginning on the date this Article enters into force, such that the rate of duty shall be zero beginning on the first day of the fifth year after that date .

3. Paragraph 1 shall not apply to imports of goods described in that paragraph in quantities greater than:

(a) 25,000,000 square meter equivalents ("SME") in the first year following entry into force of this Article;

(b) 21,875,000 SME in the second year following entry into force of this Article;

(c) 18,750,000 SME in the third year following entry into force of this Article;

(d) 15,625,000 SME in the fourth year following entry into force of this Article;

(e) 12,500,000 SME in the fifth year following entry into force of this Article;

(f) 9,375,000 SME in the sixth year following entry into force of this Article;

(g) 6,250,000 SME in the seventh year following entry into force of this Article; and

(h) 3,125,000 SME in the eighth year following entry into force of this Article.

For purposes of this paragraph, quantities of textile and apparel goods shall be converted into SME according to the conversion factors set forth in Annex 2D.

4. This Article shall cease to apply beginning on the date that is nine years after entry into force of this Article.

ARTICLE 2.13 : DEFINITIONS

For purposes of this Chapter, customs duty includes any customs or import duty and a charge of  any kind imposed in connection with the importation of a good, including any form of surtax or surcharge in connection with such importation, but does not include any:

(a) charge equivalent to an internal tax imposed consistently with Article III:2 of GATT 1994 in respect of the like domestic good or in respect of goods from which the imported good has been manufactured or produced in whole or in part;

(b) antidumping or countervailing duty that is applied pursuant to a Party’s domestic law;

(c) fee or other charge in connection with importation commensurate with the cost of services rendered; or

(d) duty imposed pursuant to Article 5 of the WTO Agreement on Agriculture.

APPLICATION OF CHAPTER 2 : NATIONAL TREATMENT AND MARKET ACCESS FOR GOODS

Articles 2.1, 2.2, and 2.7 shall not apply to:

(a) controls by the United States on the export of logs of all species;

(b) (i) measures under existing provisions of the Merchant Marine Act of 1920, 46 App. U.S.C. § 883; the Passenger Vessel Act, 46 App. U.S.C. §§ 289, 292 and 316; and 46 U.S.C. § 12108, to the extent that such measures  were mandatory legislation at the time of the United States’ accession to the General Agreement on Tariffs and Trade 1947 and have not been  amended so as to decrease their conformity with Part II of GATT 1947;

(ii) the continuation or prompt renewal of a non-conforming provision of any statute referred to in clause (i); and

(iii) the amendment to a non-conforming provision of any statute referred to in subparagraph (b)(i) to the extent that the amendment does not decrease the conformity of the provision with Articles 2.1 and 2.7;

(c) actions authorized by the Dispute Settlement Body of the WTO.

ANNEX 2B

The U.S. Schedule to Annex 2B attached as a separate volume.

ANNEX 2C

The Singapore Schedule to Annex 2C attached as a separate volume.

ANNEX 2D

CONVERSION FACTORS

The following conversion factors shall be used to calculate quantities in SME for purposes of  Article 2.12.

CHAPTER 3 : RULES OF ORIGIN

SECTION A : ORIGIN DETERMINATION

ARTICLE 3.1 : ORIGINATING GOODS

For purposes of this Agreement, an originating good means a good:

(a) wholly obtained or produced entirely in the territory of one or both of the Parties;

or

(b) that has satisfied the requirements specified in Annex 3A; or

(c) otherwise provided as an originating good under this Chapter.

ARTICLE 3.2 : TREATMENT OF CERTAIN PRODUCTS

1. Each Party shall provide that a good listed in Annex 3B is an originating good when imported into its territory from the territory of the other Party.

2. Within six months after entry into force of this Agreement, the Parties shall meet to explore the expansion of the product coverage of Annex 3B. The Parties shall consult regularly to review the operation of this Article and consider the addition of goods to Annex 3B.

ARTICLE 3.3 : DE MINIMIS

1. Each Party shall provide that a good that does not undergo a change in tariff classification pursuant to Annex 3A is nonetheless an originating good if:

(a) the value of all non-originating materials used in the production of the good that do not undergo the required change in tariff classification does not exceed 10 percent of the adjusted value of the good; and

(b) the good meets all other applicable criteria set forth in this Chapter for qualifying as an originating good.

The value of such non-originating materials shall, however, be included in the value of non-originating materials for any applicable regional value content requirement for the good.

2. Paragraph 1 does not apply to:

(a) a non-originating material provided for in chapter 4 of the Harmonized System or in subheading 1901.90 that is used in the production of a good provided for in chapter 4 of the Harmonized System;

(b) a non-originating material provided for in chapter 4 of the Harmonized System or in subheading 1901.90 that is used in the production of a good provided for in the following provisions: subheadings 1901.10, 1901.20 or 1901.90; heading 2105; or subheadings 2106.90, 2202.90, or 2309.90;

(c) a non-originating material provided for in heading 0805 or subheadings 2009.11 through 2009.30 that is used in the production of a good provided for in subheadings 2009.11 through 2009.30, or subheadings 2106.90 or 2202.90;

(d) a non-originating material provided for in chapter 15 of the Harmonized System that is used in the production of a good provided for in headings 1501 through 1508, 1512, 1514 or 1515;

(e) a non-originating material provided for in heading 1701 that is used in the production of a good provided for in headings 1701 through 1703; 

(f) a non-originating material provided for in chapter 17 of the Harmonized System or heading 1805 that is used in the production of a good provided for in subheading 1806.10;

(g) a non-originating material provided for in headings 2203 through 2208 that is used in the production of a good provided for in headings 2207 or 2208; and

(h) a non-originating material used in the production of a good provided for in Chapters 1 through 21 of the Harmonized System unless the non-originating material is provided for in a different subheading than the good for which origin is being determined under this Article.

For purposes of this paragraph, heading and subheading mean, respectively, a heading and subheading of the Harmonized System.

3. A textile or apparel good provided for in Chapters 50 through 63 of the Harmonized System that is not an originating good, because certain fibers or yarns used in the production of the component of the good that determines the tariff classification of the good do not undergo an applicable change in tariff classification set out in Annex 3A, shall nonetheless be considered to be an originating good if the total weight of all such fibers or yarns in that component is not more than seven percent of the total weight of that component. Notwithstanding the preceding sentence, a textile or apparel good containing elastomeric yarns in the component of the good that determines the tariff classification of the good shall be an originating good only if such yarns are wholly formed in the territory of a Party.

ARTICLE 3.4 : ACCUMULATION

1. Originating materials from the territory of a Party, used in the production of a good in the territory of the other Party, shall be considered to originate in the territory of the other Party.

2. A good is an originating good when it is produced in the territory of one or both Parties by one or more producers, provided that the good satisfies the requirements in Article 3.1 and all other applicable requirements of this Chapter.

ARTICLE 3.5 : REGIONAL VALUE CONTENT

Where Annex 3A refers to a regional value content, each Party shall provide that the regional value content of a good shall be calculated on the basis of one of the following methods:

(a)	Build-down Method RVC = AV - VNM x 100                 AV where RVC is the regional value content, expressed as a percentage; AV is the adjusted value, and VNM is the value of non-originating materials that are acquired and used by the producer in the production of the good.
(b)	Build-up Method RVC = VOM x 100             AV where RVC is the regional value content, expressed as a percentage; AV is the adjusted value; and VOM is the value of originating materials that are acquired or self-produced, and used by the producer in the production of the good.

ARTICLE 3.6 : VALUE OF MATERIALS

1. Each Party shall provide that for purposes of calculating the regional value content of a good and for purposes of applying the de minimis rule, the value of a material is:

(a) for a material imported by the producer of the good, the adjusted value of the material;

(b) for a material acquired in the territory where the good is produced, except for materials within the meaning of subparagraph (c), the adjusted value of the material; or

(c) for a material that is self-produced, or where the relationship between the producer of the good and the seller of the material influenced the price actually paid or payable for the material, including a material obtained without charge, the sum of:

(i) all expenses incurred in the production of the material, including general expenses; and

(ii) an amount for profit.

2. Each Party shall provide that the value of materials may be adjusted as follows:

(a) for originating materials, the following expenses may be added to the value of the material if not included under paragraph 1:

(i) the costs of freight, insurance, packing, and all other costs incurred in transporting the material to the location of the producer;

(ii) duties, taxes and customs brokerage fees on the material paid in the territory of one or more of the Parties, other than duties and taxes that are waived, refunded, refundable or otherwise recoverable, including credit against duty or tax paid or payable; and

(iii) the cost of waste and spoilage resulting from the use of the material in the production of the good, less the value of renewable scrap or by-product; and

(b) for non-originating materials, where included under paragraph 1, the following expenses may be deducted from the value of the material:

(i) the costs of freight, insurance, packing, and all other costs incurred in transporting the material to the location of the producer;

ii) duties, taxes, and customs brokerage fees on the material paid in the territory of one or more of the Parties, other than duties and taxes that are waived, refunded, refundable, or otherwise recoverable, including credit against duty or tax paid or payable;

(iii) the cost of waste and spoilage resulting from the use of the material in the production of the good, less the value of renewable scrap or by-products;

(iv) the cost of processing incurred in the territory of a Party in the production of the non-originating material; and

(v) the cost of originating materials used in the production of the non-originating material in the territory of a Party.

ARTICLE 3.7 : ACCESSORIES, SPARE PARTS, AND TOOLS

Each Party shall provide that accessories, spare parts, or tools delivered with a good that form part of the good's standard accessories, spare parts, or tools, shall be treated as originating goods if the good is an originating good, and shall be disregarded in determining whether all the non-originating materials used in the production of the good undergo the applicable change in tariff classification, provided that:

(a) the accessories, spare parts, or tools are not invoiced separately from the good;

(b) the quantities and value of the accessories, spare parts, or tools are customary for the good; and

(c) if the good is subject to a regional value content requirement, the value of the accessories, spare parts, or tools shall be taken into account as originating or non-originating materials, as the case may be, in calculating the regional value content of the good.

ARTICLE 3.8 : FUNGIBLE GOODS AND MATERIALS

1. Each Party shall provide that the determination of whether fungible goods or materials are originating goods shall be made either by physical segregation of each good or material or through the use of any inventory management method, such as averaging, last-in, first-out, or first-in, first out, recognized in the generally accepted accounting principles of the Party in which the production is performed or otherwise accepted by the Party in which the production is performed.

2. Each Party shall provide that that an inventory management method selected under paragraph 1 for particular fungible goods or materials shall continue to be used for those fungible goods or materials throughout the fiscal year of the person that selected the inventory management method.

ARTICLE 3.9 : PACKAGING MATERIALS AND CONTAINERS FOR RETAIL SALE

Each Party shall provide that packaging materials and containers in which a good is packaged for retail sale, if classified with the good, shall be disregarded in determining whether all the non-originating materials used in the production of the good undergo the applicable change in tariff classification set out in Annex 3A and, if the good is subject to a regional value-content requirement, the value of such packaging materials and containers shall be taken into account as originating or non-originating materials, as the case may be, in calculating the regional value content of the good.

ARTICLE 3.10 : PACKING MATERIALS AND CONTAINERS FOR SHIPMENT

Each Party shall provide that packing materials and containers in which a good is packed for shipment shall be disregarded in determining whether:

(a) the non-originating materials used in the production of the good undergo an applicable change in tariff classification set out in Annex 3A; and

(b) the good satisfies a regional value content requirement.

ARTICLE 3.11 : INDIRECT MATERIALS

Each Party shall provide that an indirect material shall be treated as an originating material without regard to where it is produced and its value shall be the cost registered in the accounting records of the producer of the good.

ARTICLE 3.12 : THIRD COUNTRY TRANSPORTATION

A good shall not be considered to be an originating good if the good undergoes subsequent production or any other operation outside the territories of the Parties, other than unloading, reloading, or any other operation necessary to preserve it in good condition or to transport the good to the territory of a Party.

SECTION B : SUPPORTING INFORMATION AND VERIFICATION

ARTICLE 3.13 : CLAIMS FOR PREFERENTIAL TREATMENT

1. Each Party shall provide that an importer may make a claim for preferential treatment under this Agreement based on the importer’s knowledge or on information in the importer’s possession that the good qualifies as an originating good.

2. Each Party may require that an importer be prepared to submit, upon request, a statement setting forth the reasons that the good qualifies as an originating good, including pertinent cost and manufacturing information. The statement need not be in a prescribed format, and may be submitted electronically, where feasible.

ARTICLE 3.14 : OBLIGATIONS RELATING TO IMPORTATIONS

1. Each Party shall grant any claim for preferential treatment under this Agreement made in accordance with this Section, unless the Party possesses information that the claim is invalid.

2. A Party may deny preferential treatment under this Agreement to an imported good if the importer fails to comply with any requirement of this Chapter.

3. If a Party denies a claim for preferential treatment under this Agreement, it shall issue a written determination containing findings of fact and the legal basis for the determination.

4. The importing Party shall not subject an importer to any penalty for making an invalid claim for preferential treatment if the importer:

(a) upon becoming aware that such claim is not valid, promptly and voluntarily corrects the claim and pays any duty owing; and

(b) in any event, corrects the claim and pays any duty owing within a period determined by the Party, which shall be at least one year from submission of the invalid claim.

ARTICLE 3.15 : RECORD KEEPING REQUIREMENT

Each Party may require that importers maintain for up to five years after the date of importation records relating to the importation of the good, and may require that an importer provide, upon request, records which are necessary to demonstrate that a good qualifies as an originating good, as stipulated in Article 3.13.2, including records concerning:

(a) the purchase of, cost of, value of, and payment for, the good;

(b) the purchase of, cost of, value of, and payment for, all materials, including indirect materials, used in the production of the good; and

(c) the production of the good in the form in which the good is exported.

ARTICLE 3.16 : VERIFICATION

For purposes of determining whether a good imported into its territory from the territory of the other Party qualifies as an originating good, a Party may conduct a verification by means of:

(a) requests for information from the importer;

(b) written requests for information to an exporter or a producer in the territory of the other Party;

(c) requests for the importer to arrange for the producer or exporter to provide information directly to the Party conducting the verification;

(d) information received directly by the importing Party from an exporter or a producer as a result of a process described in Article 3.13.2;

(e) visits to the premises of an exporter or a producer in the territory of the other Party, in accordance with any procedures that the Parties jointly adopt pertaining to the verification; or

(f) such other procedures as the Parties may agree.

ARTICLE 3.17: CERTAIN APPAREL GOODS

Notwithstanding any other provision of this Agreement, the United States shall consider an apparel good listed in Chapter 61 or 62 of Annex 3A to be an originating good if it is both cut (or knit to shape) and sewn or otherwise assembled in one or both Parties from fabric or yarn, regardless of origin, designated by the appropriate U.S. government authority as fabric or yarn not available in commercial quantities in a timely manner in the United States. Such designation must have been made in a notice published in the Federal Register of the United States identifying apparel goods made from such fabric or yarn as eligible for entry into the United States under subheading 9819.11.24 or 9820.11.27 of the Harmonized Tariff Schedule of the United States as of November 15, 2002. For purposes of this Article, reference in such a notice to yarn or fabric formed in the United States shall be deemed to include yarn or fabric formed in either Party.

SECTION C : CONSULTATION AND MODIFICATIONS

ARTICLE 3.18 : CONSULTATION AND MODIFICATIONS

1. The Parties shall consult and cooperate to ensure that this Chapter is applied in an effective and uniform manner.

2. The Parties shall consult regularly to discuss necessary amendments to this Chapter and its Annexes, taking into account developments in technology, production processes, and other related matters, pursuant to Article 20.3 (Consultations).

3. Within six months after entry into force of this Agreement, the Parties shall meet:

(a) to consider possible modifications to Annex 3A, including an assessment of the operation and use of the RVC;

(b) the addition of products to Annex 3B; and

(c) to review and consider possible modifications to Annex 3C.

4.

(a) On the request of either Party, the Parties shall consult:

(i) to consider whether the rules of origin applicable to particular textile or apparel goods under this Chapter should be revised to address availability of supply of fibers, yarns or fabrics in the territories of the Parties; or

(ii) to review the rules of origin applicable to particular textile or apparel goods in light of

(A) the effects of increasing global competition,

(B) the termination of the WTO Agreement on Textiles and Clothing and the full integration of the textile and apparel sector into GATT 1994, and

(C) eventual harmonization of rules of origin pursuant to Part IV of the WTO Agreement on Rules of Origin.

(b) In the consultations referred to in subparagraph (a)(i), each Party shall consider all data presented by the other Party showing substantial production in its territory of a particular fiber, yarn or fabric. The Parties shall consider that substantial production has been shown if a Party demonstrates that its domestic producers are capable of supplying commercial quantities of the fiber, yarn or fabric in a timely manner.

(c) The Parties shall endeavor to conclude consultations under subparagraph (a)(i) within 60 days of receipt of a request by one Party from the other Party. An amended rule of origin agreed to by the Parties shall supersede any prior rule of origin under this Agreement for the textile or apparel goods at issue, on approval by the Parties in accordance with Article 21.8 (Amendments).

(d) In consultations under subparagraph (a)(ii), the Parties shall give particular consideration to operative rules in other economic association or integration agreements and developments relating to textile and apparel production and trade.

SECTION D : DEFINITIONS

ARTICLE 3.19 : DEFINITIONS

For purposes of this Chapter:

1. adjusted value means the value determined under Articles 1 through 8, Article 15, and the corresponding interpretative notes of the Customs Valuation Agreement, as adjusted to exclude any costs, charges, or expenses incurred for transportation, insurance, and related services incident to the international shipment of the merchandise from the country of exportation to the place of importation;

2. fungible goods or materials means goods or materials that are interchangeable for commercial purposes and whose properties are essentially identical;

3. generally accepted accounting principles means the recognized consensus or substantial authoritative support in the territory of a Party, with respect to the recording of revenues, expenses, costs, assets, and liabilities, the disclosure of information and the preparation of financial statements. These standards may encompass broad guidelines of general application as well as detailed standards, practices, and procedures;

4. goods wholly obtained or produced entirely in the territory of one or both of the Parties means goods that are:

(a) mineral goods extracted there;

(b) vegetable goods, as such goods are defined in the Harmonized System, harvested there;

(c) live animals born and raised there;

(d) goods obtained from hunting, trapping, fishing, or aquaculture conducted there;

(e) goods (fish, shellfish, and other marine life) take n from the sea by vessels registered or recorded with a Party and flying its flag;

(f) goods produced exclusively from products referred to in paragraph (e) on board factory ships registered or recorded with a Party and flying its flag;

(g) goods taken by a Party, or a person of a Party, from the seabed or beneath the seabed outside territorial waters, provided that the Party has rights to exploit such seabed;

(h) goods taken from outer space, provided they are obtained by a Party or a person of a Party and not processed in the territory of a non-Party;

(i) waste and scrap derived from

(i) production there; or

(ii) used goods collected there, provided such goods are fit only for the recovery of raw materials;

(j) recovered goods derived there from used goods; or

(k) goods produced there exclusively from goods referred to in (a) through (i) above, or from their derivatives, at any stage of production.

5. Harmonized System means the Harmonized Commodity Description and Coding System;

6. indirect material means a good used in the production, testing or inspection of a good but not physically incorporated into the good, or a good used in the maintenance of buildings or the operation of equipment associated with the production of a good, including:

(a) fuel and energy;

(b) tools, dies, and molds;

(c) spare parts and materials used in the maintenance of equipment and buildings;

(d) lubricants, greases, compounding materials, and other materials used in production or used to operate equipment and buildings;

(e) gloves, glasses, footwear, clothing, safety equipment, and supplies;

(f) equipment, devices, and supplies used for testing or inspecting the goods;

(g) catalysts and solvents; and

(h) any other goods that are not incorporated into the good but whose use in the production of the good can reasonably be demonstrated to be a part of that production;

7. material means a good that is used in the production of another good;

8. material that is self-produced means a good, such as a part or ingredient, produced by the producer and used by the producer in the production of another good

9. non-originating material means a material that has not satisfied the requirements of this Chapter;

10. preferential treatment means the customs duty rate and treatment under Article 2.8 (Merchandise Processing Fee) that is applicable to an originating good pursuant to this Agreement;

11. producer means a person who grows, raises, mines, harvests, fishes, traps, hunts, manufactures, processes, assembles or disassembles a good;

12. production means growing, raising, mining, harvesting, fishing, trapping, hunting, manufacturing, processing, assembling or disassembling a good;

13. recovered goods means materials in the form of individual parts that result from:

(a) the complete disassembly of used goods into individual parts; and

(b) the cleaning, inspecting, or testing, and as necessary for improvement to sound working condition one or more of the following processes: welding, flame spraying, surface machining, knurling, plating, sleeving, and rewinding in order for such parts to be assembled with other parts, including other recovered parts in the production of a remanufactured good of Annex 3C;

14. remanufactured good means an industrial good assembled in the territory of a Party, designated under Annex 3C, that:

(a) is entirely or partially comprised of recovered goods;

(b) has the same life expectancy and meets the same performance standards as a new good; and

(c) enjoys the same factory warranty as such a new good; and

15. used means used or consumed in the production of goods.

SECTION E : APPLICATION AND INTERPRETATION

ARTICLE 3.19 : APPLICATION AND INTERPRETATION

For purposes of this Chapter:

(a) the basis for tariff classification is the Harmonized System;

(b) any cost and value referred to in this Chapter shall be recorded and maintained in accordance with the generally accepted accounting principles applicable in the territory of the Party in which the good is produced.

PRODUCT- SPECIFIC RULES

Annex 3A is attached as a separate volume.

ANNEX 3B

INTEGRATED SOURCING INITIATIVE

Annex 3B is attached as a separate volume.

ANNEX 3C

REMANUFACTURED PRODUCTS

Annex 3C is attached as a separate volume.

CHAPTER 4 : CUSTOMS ADMINISTRATION

ARTICLE 4.1 : PUBLICATION AND NOTIFICATION

1. Each Party shall ensure that its laws, regulations, guidelines, procedures, and administrative rulings governing customs matters are promptly published, either on the Internet or in print form.

2. Each Party shall designate, establish, and maintain one or more inquiry points to address inquiries from interested persons pertaining to customs matters, and shall make available on the Internet information concerning procedures for making such inquiries.

3. To the extent possible, each Party shall:

(a) publish in advance any regulation governing customs matters that it proposes to adopt; and

(b) provide interested persons and the other Party a reasonable opportunity to  comment on such proposed regulations.

4. Nothing in this Article shall require a Party to publish law enforcement procedures and internal operational guidelines including those related to conducting risk analysis and targeting technologies, if the Party considers that publication would impede law enforcement.

ARTICLE 4.2 : ADMINISTRATION

1. Each Party shall administer in a uniform, impartial, and reasonable manner all its laws, regulations, decisions, and rulings governing customs matters.

2. Each Party shall ensure that its laws and regulations governing customs matters are not prepared, adopted, or applied with a view to or with the effect of creating arbitrary or unwarranted procedural obstacles to international trade.

ARTICLE 4.3 : ADVANCE RULINGS

1. Each Party shall provide for the issuance of written advance rulings to a person described  in subparagraph 2(a) concerning tariff classification, questions arising from the application of the Customs Valuation Agreement, country of origin, and the qualification of a good as an originating good under this Agreement.

2. Each Party shall adopt or maintain procedures for the issuance of advance rulings that:

(a) provide that an importer in its territory or an exporter or producer in the territory of the other Party may request such a ruling prior to the importation in question;

(b) include a detailed description of the information required to process a request for an advance ruling; and

(c) provide that the advance ruling be based on the facts and circumstances presented by the person requesting the ruling.

3. Each Party shall provide that its customs authorities:

(a) may request, at any time during the course of evaluating a request for an advance ruling, additional information necessary to evaluate the request;

(b) shall issue the advance ruling expeditiously, and within 120 days after obtaining all necessary information; and

(c) shall provide, upon request of the person who requested the advance ruling, a full explanation of the reasons for the ruling.

4. Subject to paragraph 5, each Party shall apply an advance ruling to importations into its territory beginning on the date of issuance of the ruling or such date as may be specified in the ruling. The treatment provided by the advance ruling shall be applied to importations without regard to the identity of the importer, exporter, or producer, provided that the facts and circumstances are identical in all material respects.

5. A Party may modify or revoke an advance ruling upon a determination that the ruling was based on an error of fact or law, or if there is a change in law consistent with this Agreement, a material fact, or circumstances on which the ruling is based. The issuing Party shall postpone the effective date of such modification or revocation for a period of not less than 60 days where the person to whom the ruling was issued has relied in good faith on that ruling.

ARTICLE 4.4 : REVIEW AND APPEAL

1. With respect to determinations relating to customs matters, each Party shall provide that importers in its territory have access to:

(a) at least one level of administrative review of determinations by its customs authorities independent of the official or office responsible for the decision under review;^4-1 and

(b) judicial review of decisions taken at the final level of administrative review.

ARTICLE 4.5 : COOPERATION

1. Each Party shall endeavor to provide the other Party with advance notice of any significant modification of administrative policy or other similar development related to its laws or regulations governing importations that is likely to substantially affect the operation of this Agreement.

2. The Parties shall through their competent authorities and in accordance with this Chapter, cooperate in achieving compliance with their respective laws or regulations governing importations pertaining to:

(a) implementation and operation of this Agreement;

(b) restrictions and prohibitions on imports or exports;

(c) other issues that the Parties may agree.

3. Where a Party has a reasonable suspicion of unlawful activity related to its laws or regulations governing importations, it may request the other Party to provide the following types of information pertaining to trade transactions relevant to that activity that took place no more than five years before the date of the request, or from the date of discovery of the apparent offense in cases of fraud and in other cases on which the Parties may agree:

(a) the name and address of the importer, exporter, manufacturer, buyer, vendor, broker, or transporter;

(b) shipping information relating to container number, size, port of loading before arrival, destination port after departure, name of vessel and carrier, the country of origin, place of export, mode of transportation, port of entry of the goods, and cargo description; and

(c) classification number, quantity, unit of measure, declared value, and tariff treatment.

The requesting Party shall make its request in writing; shall specify the grounds for reasonable suspicion and the purposes for which the information is sought; and shall identify the requested information with sufficient specificity for the other party to locate and provide the information. For example, the requesting Party may identify the importer, exporter, country of origin, the time period, port or ports of entry, cargo description, or Harmonized System number applicable to the importation or exportation in question.

4. For purposes of paragraph 3, a reasonable suspicion of unlawful activity means a suspicion based on one or more of the following types of relevant factual information obtained from public or private sources:

(a) historical evidence that a specific importer, exporter, manufacturer, producer, or other company involved in the movement of goods from the territory of one Party to the territory of the other Party has not complied with a Party’s laws or regulations governing importations;

(b) historical evidence that some or all of the enterprises involved in the movement  from the territory of one Party to the territory of the other Party of goods within a specific product sector where goods are moving from the territory of one Party to the territory of the other Party has not complied with a Party’s laws or regulations governing importations; or

(c) other information that the Parties agree is sufficient in the context of a particular request.

5. The other Party shall respond by providing available information that is material to the request.

6. Each Party shall also endeavor to provide the other Party with any other information that would assist in determining whether imports from or exports to the other Party are in compliance with applicable domestic laws or regulations governing importations, including those related to the prevention or investigation of unlawful shipments.

7. The Parties shall endeavor to provide each other technical advice and assistance for the purpose of improving risk assessment techniques, simplifying and expediting customs procedures, advancing the technical skill of personnel, and enhancing the use of technologies that can lead to improved compliance with laws or regulations governing importations. 

8. The Parties shall use their best efforts to explore additional avenues of cooperation for the purpose of enhancing each Party’s ability to enforce its laws or regulations governing importations, including by examining the establishment and maintenance of other channels of communication to facilitate the secure and rapid exchange of information, and considering efforts to improve effective coordination on importation issues, building upon the mechanisms established in this Article and the cooperation established under any other relevant agreements.

ARTICLE 4.6 : CONFIDENTIALITY

1. Where a Party providing information to the other Party in accordance with this Chapter designates the information as confidential, the other Party shall maintain the confidentiality of the information. The Party providing the information may require written assurances from the other Party prior to forwarding information that such information will be held in confidence, used only for the purposes requested, and not disclosed without specific permission of the Party providing the information, in accordance with its laws and regulations, except where the Parties agree that the information may be used or disclosed for law enforcement purposes or in the context of judicial proceedings.

2. A Party may decline to provide information requested by the other Party where the other Party has failed to act in conformity with the assurances referred to in paragraph 1.

3. Each Party shall maintain procedures to ensure that confidential information, including information the disclosure of which could prejudice the competitive position of the person providing the information, submitted in connection with the Party’s administration of its import and export laws is entitled to treatment as confidential information and protected from unauthorized disclosure.

ARTICLE 4.7 : PENALTIES

Each Party shall adopt or maintain measures that provide for the imposition of civil or
administrative penalties and, where appropriate, criminal penalties, for violations of its customs
laws and regulations governing classification, valuation, country of origin, and eligibility for
preferential treatment under this Agreement.

ARTICLE 4.8 : RELEASE AND SECURITY

1. Each Party shall adopt or maintain procedures:

(a) providing for the release of goods within a period of time no greater than that
required to ensure compliance with its customs laws;

(b) allowing, to the extent possible, goods to be released within 48 hours of arrival;

(c) allowing, to the extent possible, goods to be released at the point of arrival, without interim transfer to customs warehouses or other locations; and

(d) allowing importers who have complied with the procedures that the Party may have relating to the determination of value and payment of duty to withdraw goods from customs, but may require importers to provide security as a condition to the release of goods, when such security is required to ensure that obligations arising from the entry of the goods will be fulfilled.

2. Each Party shall:

(a) ensure that the amount of any security is no greater than that required to ensure that obligations arising from the importation of the goods will be fulfilled, and, where applicable, not in excess of the amount chargeable, based on tariff rates under domestic and international law, including this Agreement, and on valuation in accordance with the Customs Valuation Agreement;

(b) ensure that any security shall be discharged as soon as possible after its customs authorities are satisfied that the obligations arising from the importation of the goods have been fulfilled; and

(c) shall adopt procedures allowing:

(i) importers to provide security such as bank guarantees, bonds, or other non-cash financial instruments;

(ii) importers that regularly enter goods to provide security such as standing bank guarantees, continuous bonds or other non-cash financial instruments covering multiple entries; and

(iii) importers to provide security in any other forms specified by its customs authorities.

ARTICLE 4.9 : RISK ASSESSMENT

Each Party shall employ risk management systems that enable its customs authorities to concentrate inspection activities on high-risk goods and that facilitate the movement of low-risk goods, including systems which allow for the processing of information regarding an importation prior to the arrival of the imported goods.

ARTICLE 4.10 : EXPRESS SHIPMENTS

Each Party shall ensure efficient clearance of all shipments, while maintaining appropriate control and customs selection. In the event that a Party’s existing system does not ensure efficient clearance, it should adopt procedures to expedite express shipments. Such procedures shall:

(a) provide for pre-arrival processing of information related to express shipments;

(b) permit, as a condition for release, the submission of a single document in the form that the Party considers appropriate, such as a single manifest or a single declaration, covering all of the goods in the shipment by an express service company, through, if possible, electronic means;

(c) provide, where possible, for deferred payment of duties, taxes, and fees with appropriate guarantees;

(d) minimize, to the extent possible, the documentation required for the release of express shipments; and

(e) allow, in normal circumstances, for an express shipment to be released within six hours of the submission of necessary customs documentation.

ARTICLE 4.11 : DEFINITIONS

For purposes of this Chapter, customs matters means matters pertaining to the classification and valuation of goods for customs duty purposes, rates of duty, country of origin, and eligibility for preferential treatment under this Agreement, and all other procedural and substantive requirements, restrictions, and prohibitions on imports or exports, including such matters pertaining to goods imported or exported by or on behalf of travelers. Customs matters do not include matters pertaining to antidumping or countervailing duties.

CHAPTER 5 : TEXTILES AND APPAREL

ARTICLE 5.1 : SCOPE

1. This Chapter applies to measures adopted or maintained by a Party, including administrative, judicial, and enforcement actions by a Part y, and to cooperation between the Parties, relating to trade in textile and apparel goods.

2. Singapore’s obligations under this Chapter with respect to enterprises cover:

(a) conduct of enterprises in Singapore, including:

(i) production, processing, or manipulation of textile or apparel goods in its territory, including in a free trade zone,

(ii) importation of such goods into its territory, including into a free trade zone or

(iii) exportation of such goods from its territory, including from a free trade zone; and

(b) conduct of enterprises operating under the Outward Processing Arrangement, as well as maintenance of records and documents by such enterprises in Singapore that may be relevant to determining the existence or extent of circumvention.

3. In the event of any inconsistency between this Chapter and another Chapter of this Agreement, this Chapter shall prevail to the extent of the inconsistency.

ARTICLE 5.2 : ANTI-CIRCUMVENTION

1. The details of cooperation on matters relating to textile and apparel goods are as stated in this Chapter. Each Party shall take necessary and appropriate measures, including administrative, judicial and enforcement action:

(a) to aggressively enforce its laws relating to circumvention;

(b) to actively cooperate with the other Party in the enforcement of the other Party’s laws relating to circumvention; and

(c) to prevent circumvention.

2. In furtherance of paragraph 1, each Party shall maintain or adopt laws that:

(a) authorize its officials to take action to deter circumvention and to carry out obligations under this Chapter relating to information sharing; and

(b) establish criminal penalties, and civil or administrative penalties, that effectively deter circumvention.

ARTICLE 5.3 : MONITORING

1. Singapore shall establish and maintain programs to monitor the importation, production, exportation, and processing or manipulation in a free trade zone of textile and apparel goods, as specified in this Article. These programs shall provide the information necessary for each Party to ascertain whether a violation of its laws relating to trade in textile and apparel goods or an act of circumvention is occurring or has occurred.

2. Singapore shall institute a registration system covering all enterprises operating in its territory or operating under the Outward Processing Arrangement and that are engaged in the production of textile or apparel goods or the export to the United States of such goods that a person claims as originating goods or marks as products of Singapore.

3. Singapore shall register enterprises under the system described in paragraph 2 for terms of up to two years, subject to renewals of up to two years at a time. Singapore shall not authorize a textile or apparel good that a person claims as an originating good or marks as a product of Singapore to be exported to the United States unless the good is produced by a registered enterprise and exported by a registered enterprise.

4. Singapore shall establish and maintain a program to verify that textile and apparel goods that a person claims as originating goods or marks as products of Singapore and that are exported to the United States are produced by registered enterprises. This program shall include on-site government inspections of such enterprises at least twice a year and without prior notice to verify that they comply with laws of Singapore relating to trade in textile and apparel goods and that their production of and capability to produce such goods are consistent with claims regarding the origin of such goods. Under this program, Singapore shall provide to the United States:

(a) within 14 days of the completion of each such inspection, a written report regarding the results of that inspection, including any conduct discovered as a result of the inspection that Singapore believes to be a violation of either Party’s laws relating to circumvention, and

(b) each year, a written report summarizing the results of all such inspections on an enterprise-by-enterprise basis.

The first report under subparagraph (b) shall be submitted no later than 12 months after this Chapter takes effect. Singapore shall designate any information in reports under subparagraph (a) or (b) that it considers to be confidential.

5. For each shipment of textile or apparel goods that a registered enterprise produces for exportation to the United States or exports to the United States, Singapore shall require the enterprise to maintain in Singapore records relating to such production or exportation for a period of five years from the date on which such records are created. Singapore also shall require each registered enterprise that produces textile or apparel goods to maintain in Singapore records relating to its production capabilities in general, the number of persons it employs, and any other records and information sufficient to allow officials of each Party to verify the enterprise’s production and exportation of textile or apparel goods, including:

(a) records demonstrating that the materials used to produce or assemble textile and apparel goods were obtained or produced by the enterprise and were available for production, such as:

(i) bills of lading from the persons that supplied the materials;

(ii) customs clearance records or equivalent records if the materials were imported into Singapore; and

(iii) transaction records, including:

(A) commercial invoices, if the materials were purchased,

(B) transfer records,

(C) mill certificates if the materials were spun, extruded (for yarns) or woven, knitted or formed by any other fabric forming process (for example, tufting) by an enterprise of Singapore,

(D) production records if the registered enterprise produced the materials, and

(E) purchase orders if the materials were imported from a foreign producer, broker, trader, or other intermediary;

(b) with respect to textile and apparel goods the enterprise has produced that are claimed as originating goods or marked as products of Singapore, production records that substantiate the claim or marking, such as:

(i) cutting records for products assembled from cut components;

(ii) assembly or production records that the production manager maintains on the factory floor that document daily production, including workers’ daily production records, wage records, production steps, and sewing tickets; and

(iii) employee time cards, payment records, or other documentation showing which employees were working, how long they worked, and what work they performed during the period the goods were produced;

(c) with respect to textile and apparel goods that a subcontractor has produced in whole or in part for the enterprise and that are claimed as originating goods or marked as products of Singapore, records that substantiate the claim, such as:

(i) cutting records for products assembled from cut components;

(ii) if partially assembled by the subcontractor, production records documenting the partial assembly;

(iii) bills of lading; and

(iv) transfer documents to the shipper or primary contractor and proof of payment by the shipper or primary contractor for the work done; and

(d) records establishing which production processes took place outside the territory of Singapore, if a portion of the processing or operations was conducted there under the Outward Processing Arrangement, such as:

(i) records demonstrating export from Singapore of materials, components, subassemblies or finished goods for processing; and

(ii) customs records or records containing equivalent information, such as cargo manifests, showing re-importation into Singapore of the goods after processing.

6. Singapore shall establish and maintain a program to ensure that textile and apparel goods that are imported into or exported from Singapore or that are processed or manipulated in a free trade zone in Singapore en route to the United States are marked with the correct country of origin and that the documents accompanying the goods accurately describe the goods. This program shall provide for:

(a) immediate referral by Singapore officials of suspected violations of either Party’s laws relating to intentional circumvention to the appropriate enforcement authorities; and

(b) not later than 14 days after the resolution of the matter,^5-1 issuance by Singapore to the United States of a written report of

(i) each violation of a law of Singapore relating to circumvention, including a failure to maintain or produce records, and

(ii) any other act of circumvention;

involving textile or apparel goods destined for the United States, occurring in the territory of Singapore, and resulting in enforcement action by Singapore. In each case, the report shall state the enforcement action taken and the ultimate resolution of the matter. Singapore shall designate in the report any information it considers to be confidential, except that, at a minimum, Singapore may not designate the name of any enterprise that its enforcement authorities have determined to have engaged in circumvention.

ARTICLE 5.4 : COOPERATION

General

1. In furtherance of Article 5.2.1(b), on request, a Party shall, in a manner consistent with its laws and procedures,

(a) promptly obtain from an enterprise and provide to the other Party, to the extent available, all correspondence, reports, bills of lading, invoices, order confirmations, and other documents or information, relevant to circumvention, that the requesting Party considers may have taken place; and

(b) facilitate the gathering by the other Party’s enforcement authorities of information relevant to circumvention, including, as appropriate, by conducting site visits or establishing contacts with persons in the Party’s territory.

Any request for cooperation under this Article shall be made in writing and shall include a brief statement of the matter at issue and the cooperation requested.

Site Visits

2. A Party seeking to conduct site visits in the territory of the other Party shall provide a written request to the host Party’s competent authority not less than14 days before the proposed dates of the visits. The request shall identify the number of enterprises to be visited, the proposed dates of the visits, and the reason for the visits, but need not specify the identities of the enterprises to be visited.

3. The competent authority shall be prohibited from informing any person, other than officials of the host Party directly responsible for organizing the site visits, of the request and its contents. The host Party shall prohibit those officials and any other person in its territory from notifying an enterprise in advance of a visit. The responsible officials of the host Party shall seek permission to conduct a site visit from a responsible person at the enterprise at the time of the visit.

4. Responsible officials of the Party seeking to conduct site visits in the territory of the other Party shall conduct such visits together with responsible officials of the host Party and in accordance with the laws of the host Party. On completion of a site visit, the requesting Party shall brief the responsible officials of the host Party and shall subsequently provide to that Party a written report of the results of the visit. The written report shall include:

(a) the name of the enterprise visited;

(b) for each shipment checked, information discovered relating to circumvention;

(c) observations made at the enterprise relating to circumvention; and

(d) as relevant, an assessment of whether the enterprise is maintaining records of the type described in Article 5.3.5 and can demonstrate that its production of and capability to produce textile or apparel goods is consistent with claims that the textile or apparel goods it produces or has produced are originating goods or products of the host Party.

5. If the responsible person at an enterprise proposed to be visited denies permission for the site visit to occur:

(a) the visit shall not occur;

(b) the host Party shall not issue any visas or export licenses that may be required to accompany textile or apparel goods that the enterprise produces or exports when such goods are exported to the requesting Party, until the host Party determines that the enterprise’s production of and capability to produce such goods is consistent with claims that textile or apparel goods it produces or has produced are originating goods or products of the host Party; and

(c) the requesting Party may deny entry of textile or apparel goods produced or exported by the enterprise until that Party determines that the enterprise’s production of and capability to produce such goods is consistent with claims that textile or apparel goods it produces or has produced are originating goods or products of the host Party.

6. Permission for a site visit shall be deemed to have been denied if the enterprise does not allow the responsible officials of the requesting Party access to:

(a) the enterprise’s premises, including its production and storage areas and any other facilities;

(b) any production records relating to:

(i) textile or apparel goods that have been exported to the territory of the requesting Party;

(ii) the enterprise’s production capabilities in general; and

(iii) number of persons the enterprise employs; and

(c) any other records or information, including records and information of the type described in Article 5.3, relevant to a determination of whether the enterprise’s production of and capability to produce textile or apparel goods are consistent with claims that the textile and apparel goods it produces or has produced are originating goods or products of the host Party.

Establishing Facts

7. If a Party suspects that circumvention has occurred, on its request the other Party shall facilitate the gathering of the facts necessary for the requesting Party to determine whether circumvention has occurred. If a Party determines that circumvention has occurred, on its request the other Party shall facilitate the requesting Party’s establishment of any additional facts necessary to take enforcement action and to prevent circumvention. This paragraph applies to circumvention or suspected circumvention with regard to importation, exportation, processing or manipulation in a free trade zone, or transshipment.^5-2

8. If a Party requests the other Party to examine transshipped textile or apparel goods, its officials shall endeavor to examine such goods.^5-3

9. When a Party makes a request under paragraph 7 with respect to a particular shipment, it shall, to the extent possible, notify the other Party of: the importer, the exporter, the country of origin, the dates on which the shipment was entered, the port or ports of entry, and the cargo description or Harmonized System subheading of the goods.

ARTICLE 5.5 : ENFORCEMENT

1. In furtherance of Article 5.2.1, each Party shall vigorously investigate claims of violations of laws relating to circumvention and, where appropriate, bring enforcement action to address any such violations.

2. If Singapore discovers conduct by an enterprise that it suspects is a violation of either Party’s laws relating to circumvention, and the conduct has not been noted in a report under Article 5.3.4, Singapore shall note the conduct in a report provided to the United States not later than 14 days after the discovery. If Singapore suspects that the conduct noted in a report under either the first sentence of this paragraph or Article 5.3.4 involves intentional circumvention, it shall immediately investigate and report the results of the investigation to the United States within 14 days of the conclusion of the investigation. In that case, Singapore shall also immediately initiate a detailed review of all textile and apparel goods that the enterprise has produced for exportation to the United States or exported to the United States during the six months preceding the date that Singapore discovered the conduct. Singapore shall prepare a report describing the results of that review and shall transmit that report to the United States no later than 60 days after it provides the report called for under the first sentence of this paragraph or under Article 5.3.4. The Parties may agree, in light of the facts of a particular review, to extend this 60-day period.

3. A report describing the results of a review of textile and apparel goods conducted pursuant to paragraph 2 shall include the following:

(a) the name and address of the enterprise investigated;

(b) the nature of the suspected violation (for example, failure to maintain adequate production records, or making false statements relating to country of origin or production);

(c) a brief description of the evidence of a violation;

(d) any penalty imposed or other action taken;

(e) the identification numbers of the visas or export licenses corresponding to the goods and of all visas or export licenses that Singapore has issued to the enterprise during the 12 months before the date on which the conduct was discovered. If no visa or export license numbers are available, the report shall include the invoice number and date of export for each exportation of goods to the United States;

(f) the product category, description, and quantity of the goods included in the exportations to the United States; and

(g) purchase orders, bills of lading, contracts, payment records, invoices, and other records indicating the origin of the goods included in the exportations to the United States, and information identifying the importer of those goods in the United States, if Singapore possesses such information.

4. If Singapore finds that an enterprise has engaged in intentional circumvention, it shall take effective enforcement action, which shall include denying permission for an appropriate period for textile or apparel goods that the enterprise produces or exports to be exported to the United States.

5.

(a) If a Party finds that an enterprise in its territory or operating under the Outward Processing Arrangement:

(i) has failed to maintain or produce records in accordance with the Party’s laws adopted or maintained in accordance with this Chapter,^5-4  or

(ii) has engaged in conduct inconsistent with the Party’s law that was intended to or did in fact result in circumvention,

and if the Party requires a visa or export license to accompany exportations of textile or apparel goods to the territory of the other Party, then beginning on the date of the finding, the Party shall not issue, for a period at least as long as the applicable period described in paragraph 6, such a visa or export license to the enterprise.

(b) If the United States finds that an enterprise of Singapore has engaged in intentional circumvention, then beginning on the date of the finding it may deny entry into the United States, during a period no longer than the applicable period described in paragraph 6, of textile or apparel goods that the enterprise has produced or exported.

6.

(a) With respect to a first finding under paragraph 5(a) or a first finding under paragraph 5(b), the applicable period is six months.

(b) With respect to a second finding under paragraph 5(a) or a second finding under paragraph 5(b), the applicable period is two years.

(c) With respect to any further finding under paragraph 5(a) or 5(b), the applicable period shall be two years, except that where measures a Party imposed with respect to the enterprise as a result of an earlier finding under paragraph 5(a) or 5(b) are still in effect, the applicable period shall be extended by the period remaining before those measures expire.

ARTICLE 5.6 : INFORMATION SHARING

1. Within three months after the date this Chapter takes effect, Singapore shall notify the United States in writing of the names of all registered enterprises. Thereafter, Singapore shall provide the names of any newly registered, de-registered, or re-registered enterprises in written, quarterly updates to the United States.

2. At the time Singapore notifies the United States of a registered enterprise, it shall supply  profile information to the United States regarding the enterprise, and shall update the information annually. This information shall include:

(a) name of the enterprise;

(b) address of the enterprise and locations of its facilities in Singapore, and, for an enterprise operating under the Outward Processing Arrangement, location of its facilities, whether in Singapore or outside of Singapore, involved in the production of textile or apparel goods claimed to be originating goods or marked  as products of Singapore or export of such goods to the United States;

(c) telephone number, fax number, and e-mail address;

(d) statement of whether the enterprise is owned by Singapore persons, non-Singapore persons, or both;

(e) names of:

(i) the directors and their respective positions within the enterprise, and

(ii) the owners, in the case of an enterprise that is not incorporated;

(f) number of workers, skill sets (occupations), wages, hours of work, and minimum age for employment;

(g) number and type of machines the enterprise uses to produce textile or apparel goods;

(h) production capacity of the enterprise and identification of textile or apparel goods the enterprise produces; and

(i) names of customers in the United States.

ARTICLE 5.7 : CONFIDENTIALITY

1. Except as otherwise provided in this Chapter, each Party shall maintain the confidentiality of non-publicly available information, including business confidential information, that the other Party provides to it in accordance with this Chapter and has designated as confidential, unless the Party that provided the information gives permission for the information to be publicly disclosed.

2. A Party shall not disclose to a non-Party for law enforcement purposes or in connection with judicial proceedings information relating to intentional circumvention that the other Party has provided to the Party pursuant to Article 5.3, 5.4, 5.5 or 5.6, unless the other Party consents to the disclosure.

3.

(a) Subject to subparagraph (b), nothing in this Chapter shall prevent a Party from making public the name of an enterprise that the Party has found to have engaged in intentional circumvention or that has failed to demonstrate its production of or capability to produce textile or apparel goods as provided under this Chapter.

(b) If a Party makes public the name of an enterprise as described in sub-paragraph (a) and the finding underlying the disclosure is based on information provided by the other Party pursuant to Article 5.3, 5.4, 5.5 or 5.6, the Party making the disclosure shall not disclose the information provided by the other Party or the fact that it based its finding on information provided by the other Party, unless the other Party consents to the disclosure of such information or such fact.

4. If a Party considers that the other Party has not maintained the confidentiality of  information as required under this Article, it may make a written request to the other Party for consultations. The Parties shall consult within 30 days after the request is delivered with a view to agreeing on appropriate steps to ensure compliance with this Article.

ARTICLE 5.8 : CONSULTATIONS AND RELATED MATTERS

1. A Party may request consultations with the other Party under this Article, with a view to seeking a mutually satisfactory solution, if it believes that:

(a) the other Party is not complying with the terms of this Agreement relating to textile and apparel goods;

(b) circumvention relating to trade between the Parties is occurring; or

(c) the other Party is failing to effectively enforce its laws regarding circumvention.

Unless the Parties agree otherwise, they shall commence consultations within 30 days of a Party’s receipt of a written request by the other Party and conclude consultations within 90 days  of the Party’s receipt of the written request.

2. If the Parties are unable to reach a mutually satisfactory solution under paragraph 1 and  the United States has presented to Singapore clear evidence that circumvention has occurred, the United States may reduce the quantity of textile and apparel goods that may be imported into its territory from Singapore by an amount not to exceed three times the quantity of goods involved in the circumvention. In addition, the United States may revoke any preferential tariff treatment provided pursuant to this Agreement to the goods involved in the circumvention, and deny such treatment, for a period not to exceed four years, to any textile or apparel goods produced by an enterprise found to have engaged in such circumvention, including any successor of the enterprise and any other entity owned or operated by a principal of the enterprise, if such entity, of which that person is a principal, produces textile or apparel goods.^5-5

ARTICLE 5.9 : BILATERAL TEXTILE AND APPAREL SAFEGUARD ACTIONS

1. Subject to paragraphs 2 through 7 and during the transition period only, if, as a result of the reduction or elimination of a customs duty provided for in this Agreement, a textile or apparel good benefiting from preferential tariff treatment under this Agreement is being imported into the territory of a Party in such increased quantities, in absolute terms or relative to the domestic market for that good, and under such conditions that imports of such good from the other Party constitute a substantial cause of serious damage or actual threat thereof, to a domestic industry producing a like or directly competitive good, the importing Party may, to the extent and for such time as may be necessary to prevent or remedy the serious damage and to facilitate adjustment by the domestic industry:

(a) suspend the further reduction of any rate of duty provided for under this  Agreement on the good; or

(b) increase the rate of duty on the good to a level not to exceed the lesser of:

(i) the most-favored-nation (“MFN”) applied rate of duty in effect at the time the action is taken, and

(ii) the MFN applied rate of duty in effect on the date of entry into force of this Agreement.

2. In determining serious damage, or actual threat thereof, the Party:

(a) shall examine the effect of increased imports on the particular industry, as reflected in changes in such relevant economic variables as output, productivity, utilization of capacity, inventories, market share, exports, wages, employment, domestic prices, profits, and investment, none of which is necessarily decisive; and

(b) shall not consider changes in technology or consumer preference as factors supporting a determination of serious damage or actual threat thereof.

3. A Party shall deliver without delay written notice of its intent to take action under this Article to the other Party, and shall enter into consultations with that Party.

4. The following conditions and limitations apply to any action taken under paragraph 1:

(a) no action may be maintained for a period exceeding two years, except that the  period may be extended by up to two years if the competent authorities of the Party applying the action determine, in conformity with the procedures set out in this Article, that the action continues to be necessary to prevent or remedy serious damage and to facilitate adjustment by the domestic industry, and that there is evidence that the industry is adjusting;

(b) no action may be taken by a Party against any particular good of the other Party more than once during the transition period; and

(c) on termination of the action, the rate of duty shall be the rate that would have been in effect but for the action.

5. The Party taking an action under paragraph 1 shall provide to the Party against whose good the action is taken mutually agreed trade liberalizing compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the emergency action. Such concessions shall be limited to textile and apparel goods, unless the Parties otherwise agree. If the Parties concerned are unable to agree on compensation within 30 days in the consultations under paragraph 3, the exporting Party may take action with respect to textile and apparel goods of the other Party that has trade effects substantially equivalent to the action taken under paragraph 1. The Party taking such action shall apply the action only for the minimum period necessary to achieve the substantially equivalent effects. However, the right to take such action shall not be exercised for the first 24 months that the action pursuant to paragraph 1 is in effect, provided that the action pursuant to paragraph 1 has been applied as a result of an absolute increase in imports and that such emergency action conforms to the provisions of this Article.

6. Nothing in this Article shall be construed to affect a Party’s rights and obligations under Chapter 7, except that an action under this Article shall be considered a “safeguard measure” for purposes of Article 7.2.7 (Conditions and Limitations). Nothing in Chapter 7 shall be construed to affect a Party's rights and obligations under this Article.

7. Nothing in this Article shall be construed to limit the ability of a Party to restrain imports  of textile and apparel goods in a manner consistent with the WTO Agreement on Textiles and Clothing or the WTO Agreement on Safeguards.

8. For purposes of this Article:

(a) substantial cause means a cause that is important and not less than any other cause;

(b) transition period means the 10-year period following entry into force of the terms of this Agreement relating to textile and apparel goods under Article 5.10.

ARTICLE 5.10 : EFFECTIVE DATE

The terms of this Agreement regarding textile and apparel goods shall take effect on the date on which:

(a) the Parties have consulted with regard to their adoption or maintenance of laws necessary to implement this Chapter and have agreed that such laws are in place, and

(b) the Parties have exchanged written notifications that their respective internal  requirements for this Chapter to take effect have been fulfilled, or on such other date as the Parties may agree.

ARTICLE 5.11 : DEFINITIONS

For purposes of this Chapter:

1. circumvention means providing a false declaration or false information for the purpose of, or with the effect of, violating or evading existing customs, country of origin labeling, or trade laws of the respective Party relating to imports of textile and apparel goods, if such action results in the avoidance of tariffs, quotas, embargoes, prohibitions, restrictions, trade remedies, including antidumping or countervailing duties, or safeguard measures, or in obtaining preferential tariff treatment. Examples of circumvention include illegal transshipment; rerouting; fraud; false declarations concerning country of origin, fiber content, quantities, description, or classification; falsification of documents; and smuggling;

2. free trade zone means any area, designated under Singapore’s Free Trade Zone Act or any successor act, used to store, assemble, mix, or otherwise manipulate any goods or to carry out such manufacture, in accordance with such act;

3. host Party means the Party in whose territory a site visit requested under Article 5.4.2 is  conducted;

4. Outward Processing Arrangement means the arrangement whereby a registered Singapore textile or apparel goods producer is permitted to process outside Singapore subsidiary or minor processes of its textile or apparel goods without affecting the Singapore country of origin status of the textile or apparel goods;

5. preferential tariff treatment means the customs duty rate that is applicable to an  originating good pursuant to Chapter 2;

6. registered enterprise means an enterprise that is a producer or exporter of textile or apparel goods and that is registered by Singapore under the system described in Article 5.3.2;

7. requesting Party means the Party seeking to conduct a site visit under Article 5.4.2;

8. textile or apparel good means a product listed in the Annex to the WTO Agreement on Textiles and Clothing; and

9. transshipment or transshipped means the removal of a good from the conveyance on which it was brought into the territory of a Party and the placement of such good on the same or another conveyance for the purpose of taking it out of the territory of the Party, including when such good undergoes processing or manipulation in a free trade zone.

CHAPTER 6 : TECHNICAL BARRIERS TO TRADE

ARTICLE 6.1 : SCOPE

This Chapter applies to technical regulations, standards, and conformity assessment procedures as defined in the WTO TBT Agreement.

ARTICLE 6.2 : ENHANCED COOPERATION AND CHAPTER 6 COORDINATOR

1. With a view to facilitating trade in goods between them, the Parties should to the maximum extent possible seek to enhance their cooperation with each other in the area of technical regulations, standards, and conformity assessment procedures and to deepen the mutual understanding and awareness of each others’ systems, including through:

(a) exchanging information on technical regulations, standards and conformity  assessment procedures;

(b) holding consultations to address and resolve any matters that may arise from the application of specific technical regulations, standards and conformity assessment procedures;

(c) promoting the use of international standards by each Party in its technical  regulations, standards and conformity assessment procedures; and 

(d) facilitating and promoting mechanisms relating to technical regulations, standards  and conformity assessment procedures that would enhance and promote trade between the Parties, including mechanisms established at APEC and other plurilateral fora.

2. In order to facilitate the cooperation described in paragraph 1, each Party shall designate a Chapter 6 Coordinator, which shall:

(a) be responsible for coordinating with interested parties in the Party’s territory in all matters pertaining to enhanced cooperation under this Chapter, including with respect to proposals for enhanced cooperation and responses to such proposals; and

(b) normally carry out its functions through agreed communication channels and meet with the other Party’s Chapter 6 Coordinator as and when they agree is necessary for the efficient and effective discharge of their functions.

ARTICLE 6.3 : CONFORMITY ASSESSMENT AND OTHER AREAS OF MUTUAL INTEREST

1. Each Party shall take steps to implement Phase I and Phase II of the APEC Mutual Recognition Arrangement for Conformity Assessment of Telecommunications Equipment with respect to the other Party.

2. The Parties should to the maximum extent possible also work towards enhancing the momentum of cooperation in line with their respective bilateral, regional and plurilateral agreements, including the APEC work program on Standards and Conformance. To achieve this objective the Parties should to the maximum extent possible examine the feasibility of cooperating with each other on conformity assessment procedures and other areas of mutual interest, including agreements where the relevant authorities from both Parties are willing to do so.

3. Each Party should to the maximum extent possible consider progress made on achieving the objectives of this Chapter during meetings of the Joint Committee established under Article 20.1 (Joint Committee).

4. The Parties establish the Medical Products Working Group referred to in Article 20.1.2(b) (Joint Committee), as set out in Annex 6A to this Chapter.

ARTICLE 6.4 : DEFINITIONS

For purposes of this Chapter:

1. WTO TBT Agreement means the WTO Agreement on Technical Barriers to Trade; and

2. APEC means the Asia Pacific Economic Cooperation Forum.

ANNEX 6A

WORKING GROUP ON MEDICAL PRODUCTS

1. The Parties establish a Medical Products Working Group to promote the protection of  public health through expeditious, science-based regulatory procedures for new medical products. The purpose of the Working Group is to provide a forum for cooperation on product regulation issues of mutual interest, to the extent permitted by resources, through means other than mutual recognition agreements or other binding commitments.

2. The Working Group shall:

(a) seek to ensure that regulatory procedures for the review of applications for  marketing authorization with respect to new medical products are

(i) expeditious, transparent, without conflict of interest, and non-discriminatory,

(ii) based on generally-accepted international scientific standards, such as the International Conference on Harmonization, and

(iii) based only on the assessment of product quality, safety, and efficacy;

(b) seek to ensure that the measures of each Party that promote and protect public health through regulatory procedures for medical products are transparent and are developed through a process that

(i) provides for effective notice to and comment by interested persons, and

(ii) provides a meaningful opportunity for interested persons of the other Party to consult with FDA or HSA, as appropriate; and

(c) provide a forum for consultation between the health authorities of each Party regarding matters of interest, including general scientific and regulatory policy and specific measures pertaining to the promotion and protection of public health through expeditious, science-based regulatory procedures.

3. FDA and HSA shall chair the Working Group. The chairs shall be responsible for  establishing the time and place for meetings of the Working Group and for developing the procedures for such meetings and other activities of the Working Group. Such procedures shall include that:

(a) FDA shall report on the activities of the Working Group to the U.S. Secretary of Health and Human Services;

(b) HSA shall report on the activities of the Working Group to the Singapore Minister for Health; and

(c) the Working Group shall issue periodic reports to the Joint Committee established under Article 20.1 (Joint Committee).

4. The Parties shall ensure that the activities of the Working Group do not preclude or interfere with other opportunities for meetings and cooperation between FDA and HSA.

5. For purposes of this Annex:

(a) FDA means the United States Food and Drug Administration;

(b) HSA means the Health Sciences Authority of Singapore; and

(c) Working Group means the Medical Products Working Group comprising representatives of FDA and HSA.

CHAPTER 7 : SAFEGUARDS

ARTICLE 7.1 : APPLICATION OF A BILATERAL SAFEGUARD MEASURE

Subject to Articles 7.2 through 7.5, if as a result of the reduction or elimination of a customs duty under this Agreement, an originating good of the other Party is being imported into the territory of a Party in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that the imports of such originating good from the other Party constitute a substantial cause of serious injury or threat thereof, to a domestic industry producing a like or directly competitive good, such Party may:

(a) suspend the further reduction of any rate of customs duty provided for under this Agreement for the good;

(b) increase the rate of customs duty on the good to a level not to exceed the lesser of

(i) the most-favored-nation (MFN) applied rate of duty on the good in effect at the time the action is taken, and

(ii) the MFN applied rate of duty on the good in effect on the day immediately preceding the date of entry into force of this Agreement; or

(c) in the case of a customs duty applied to a good on a seasonal basis, increase the  rate of duty to a level not to exceed the lesser of the MFN applied rate of duty that was in effect on the good for the immediately preceding corresponding season or the date of entry into force of this Agreement.

ARTICLE 7.2 : CONDITIONS AND LIMITATIONS

The following conditions and limitations shall apply with regard to a measure described in Article 7.1:

1. A Party shall notify the other Party in writing upon initiation of an investigation described in paragraph 2 and shall consult with the other Party as far in advance of taking any such measure as practicable, with a view to reviewing the information arising from the investigation, exchanging views on the measure and reaching an agreement on compensation as set out in Article 7.4. If a Party takes a provisional measure pursuant to Article 7.3, the Party shall also notify the other Party prior to taking such measure, and shall initiate consultations with the other Party immediately after such measure is taken.

2. A Party shall take a measure only following an investigation by that Party’s competent authorities in accordance with Articles 3 and 4.2(c) of the WTO Agreement on Safeguards; and to this end, Articles 3 and 4.2(c) of the WTO Agreement on Safeguards are incorporated into and made a part of this Agreement, mutatis mutandis.

3. In the investigation described in paragraph 2, a Party shall comply with the requirements of Article 4.2(a) and (b) of the WTO Agreement on Safeguards; and to this end, Article 4.2(a) and (b) are incorporated into and made a part of this Agreement, mutatis mutandis. 

4. Negative injury determinations shall not be subject to modification, except pursuant to reviews by judicial or administrative tribunals, to the extent provided under domestic legislation.

5. The investigation shall in all cases be completed within one year following its date of institution.

6. No measure may be maintained:

(a) except to the extent and for such time as may be necessary to prevent or remedy serious injury and to facilitate adjustment;

(b) for a period exceeding two years; except that the period may be extended by up to two years if the competent authorities determine, in conformity with the procedures set out in paragraphs 1 through 5, that the measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment and that there is evidence that the industry is adjusting; or

(c) beyond the expiration of the transition period, except with the consent of the Party against whose originating good the measure is taken.

7. No measure may be applied against the same originating good on which a measure has been taken or that has been subject to any other safeguard measure^7-1 since the date of entry into force of the Agreement.

8. Where the expected duration of the measure is over one year, the importing Party shall progressively liberalize it at regular intervals during the period of application.

9. Upon the termination of the measure, the rate of customs duty shall be the rate which would have been in effect but for the measure.

ARTICLE 7.3 : PROVISIONAL MEASURES

In critical circumstances where delay would cause damage which it would be difficult to repair, a Party may take a measure described in Article 7.1(a), (b) or (c) on a provisional basis pursuant to a preliminary determination that there is clear evidence that imports from the other Party have increased as the result of the reduction or elimination of a customs duty under this Agreement, and such imports constitute a substantial cause of serious injury, or threat thereof, to the domestic industry. The duration of such provisional measure shall not exceed 200 days, during which time the requirements of Articles 7.2.2 and 7.2.3 shall be met. Any tariff increases shall be promptly refunded if the investigation described in Article 7.2.2 does not result in a finding that the requirements of Article 7.1 are met. The duration of any provisional measure shall be counted as part of the period described in Article 7.2.6(b).

ARTICLE 7.4 : COMPENSATION

The Party applying a measure described in Article 7.1 shall provide to the other Party mutually agreed trade liberalizing compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the measure. If the Parties are unable to agree on compensation within 30 days in the consultations under Article 7.2, the Party against whose originating good the measure is applied may take action with respect to originating goods of the other Party that has trade effects substantially equivalent to the measure described in Article 7.1. The Party taking such action  shall apply the action only for the minimum period necessary to achieve the substantially equivalent effects, and in any event, only while the measure under Article 7.1 is being applied.

ARTICLE 7.5 : GLOBAL SAFEGUARD MEASURES

Each Party retains its rights and obligations under Article XIX of GATT 1994 and the WTO Agreement on Safeguards. This Agreement does not confer any additional rights or obligations on the Parties with regard to global safeguard measures, except that a Party taking a global safeguard measure may exclude imports of an originating good from the other Party if such imports are not a substantial cause of serious injury or threat thereof.

ARTICLE 7.6 : DEFINITIONS

For purposes of this Chapter:

1. domestic industry means the producers as a whole of the like or directly competitive product operating in the territory of a Party, or those whose collective output of the like or directly competitive products constitutes a major proportion of the total domestic production of those products;

2. global safeguard measure means a measure applied under Article XIX of GATT 1994 and the WTO Agreement on Safeguards;

3. serious injury means a significant overall impairment in the position of a domestic industry;

4. substantial cause means a cause which is important and not less than any other cause;

5. threat of serious injury means serious injury that, on the basis of facts and not merely on allegation, conjecture or remote possibility, is clearly imminent; and

6. transition period means the ten-year period following entry into force of this Agreement.

CHAPTER 8 : CROSS-BORDER TRADE IN SERVICES

ARTICLE 8.1 : DEFINITIONS

For purposes of this Chapter:

1. central level of government means

(a) for the United States, the federal level of government; and

(b) for Singapore, the national level of government;

2. cross-border trade in services or cross-border supply of services means the supply of a service

(a) from the territory of one Party into the territory of the other Party;

(b) in the territory of one Party by a person of that Party to a person of the other Party; or

(c) by a national of a Party in the territory of the other Party;  but does not include the supply of a service in the territory of a Party by an investor of the other Party or a covered investment as defined in Article 15.1 (Definitions);

3. enterprise means an entity constituted or organized 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;

4. enterprise of a Party means an enterprise organized or constituted under the laws of a Party and a branch located in the territory of a Party and carrying out business activities there;

5. local level of government means, for Singapore, entities with sub-national legislative or executive powers under domestic law, including Town Councils and Community Development Councils;

6. professional services means services, the provision of which requires specialized post-secondary education, or equivalent training or experience, and for which the right to practice is granted or restricted by a Party, but does not include services provided by trades-persons or vessel and aircraft crew members;

7. regional level of government means, for the United States, a state of the United States, the District of Columbia, or Puerto Rico; for Singapore, "regional level of government" is not applicable, as Singapore has no government at the regional level;

8. service supplier means a person of a Party that seeks to supply or supplies a service;^8-1 and

9. specialty air services means any non-transportation air services, such as aerial fire-fighting, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing and helicopter-lift for logging and construction, and other airborne agricultural, industrial, and inspection services.

ARTICLE 8.2 : SCOPE AND COVERAGE

1. (a) This Chapter applies to measures by a Party affecting cross-border trade in services by service suppliers of the other Party.

(b) Measures covered by subparagraph (a) include measures affecting:

(i) the production, distribution, marketing, sale and delivery of a service;

(ii) the purchase or use of, or payment for, a service;

(iii) the access to and use of distribution, transport, or telecommunications networks and services in connection with the supply of a service; and

(iv) the provision of a bond or other form of financial security as a condition for the supply of a service.

(c) For purposes of this Chapter, measures by a Party means measures taken by:

(i) central, regional or local governments and authorities; and

(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities.

2. Articles 8.5, 8.8 and 8.12 also apply to measures by a Party affecting the supply of a service in its territory by an investor of the other Party or a covered investment as defined in Article 15.1 (Definitions).^8-2 

3. This Chapter does not apply to:

(a) financial services as defined in Article 10.20 (Definitions), except that paragraph  2 shall apply where the service is supplied by an investor or investment of the other Party that is not an investor or an investment in a financial institution (as defined in Article 10.20.4) in the Party’s territory;

(b) government procurement;

(c) air services, including domestic and international air transportation services, whether scheduled or non-scheduled, and related services in support of air services, other than:

(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service; and

(ii) specialty air services; or

(d) subsidies or grants provided by a Party, including government-supported loans, guarantees and insurance.

4. This Chapter does not impose any obligation on a Party with respect to a national of the other Party seeking access to its employment market, or employed on a permanent basis in its territory, and does not confer any right on that national with respect to that access or employment.

5. (a) This Chapter does not apply to services supplied in the exercise of governmental authority within the territory of each respective Party.

(b) For purposes of this Chapter, a service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.

ARTICLE 8.3 : NATIONAL TREATMENT

1. Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to its own service suppliers.

2. The treatment to be accorded by a Party under paragraph 1 means, with respect to a regional level of government, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that regional level of government to service suppliers of the Party of which it forms a part.

ARTICLE 8.4 : MOST-FAVORED-NATION TREATMENT

Each Party shall accord to service suppliers of the other Party treatment no less favorable than that it accords, in like circumstances, to service suppliers of a non-Party.

ARTICLE 8.5 : MARKET ACCESS

A Party shall not adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, measures that:

(a) limit

(i) the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;

(ii) the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;

(iii) the total number of service operations or the total quantity of services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;^8-3

(iv) the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test; and

(b) restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service.

ARTICLE 8.6 : LOCAL PRESENCE

A Party shall not require a service supplier of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service.

ARTICLE 8.7 : NON-CONFORMING MEASURES

1. Articles 8.3, 8.4, 8.5, and 8.6 do not apply to:

(a) any existing non-conforming measure that is maintained by a Party at

(i) the central level of government, as set out by that Party in its Schedule to Annex 8A;

(ii) a regional level of government, as set out by that Party in its Schedule to Annex 8A; and

(iii) a local government level of government;

(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or

(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 8.3, 8.4, 8.5, and 8.6.

2. Articles 8.3, 8.4, 8.5, and 8.6 do not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors or activities as set out in its Schedule to Annex 8B.

ARTICLE 8.8 : DOMESTIC REGULATION

1. Where a Party requires authorization for the supply of a service, the Party’s competent authorities shall, within a reasonable period of time after the submission of an application considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the party shall provide, without undue delay, information concerning the status of the application. This obligation shall not apply to authorization requirements that are within the scope of Article 8.7.2.

2. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, each Party shall endeavor to ensure, as appropriate for individual sectors, that such measures are:

(a) based on objective and transparent criteria, such as competence and the ability to supply the service;

(b) not more burdensome than necessary to ensure the quality of the service; and

(c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.

3. If the results of the negotiations related to Article VI:4 of GATS (or the results of any similar negotiations undertaken in other multilateral fora in which both Parties participate) enter into effect, this Article shall be amended, as appropriate, after consultations between the Parties, to bring those results into effect under this Agreement. The Parties agree to coordinate on such negotiations, as appropriate.

ARTICLE 8.9 : RECOGNITION

1. For the purposes of the fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of services suppliers, and subject to the requirements of paragraph 4, a Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in a particular country, including the other Party and non-Parties. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.

2. Where a Party recognizes, autonomously or by agreement or arrangement, the education or experience obtained, requirements met or licenses or certifications granted in the territory of a non-Party, nothing in Article 8.4 shall be construed to require the Party to accord such recognition to the education or experience obtained, requirements met or licenses or certifications granted in the territory of the other Party.

3. A Party that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for the other Party, if the other Party is interested, to negotiate its accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that education, experience, licenses, or certifications obtained or requirements met in that other Party’s territory should be recognized.

4. A Party shall not accord recognition in a manner which would constitute a means of discrimination between countries in the application of its standards or criteria for the authorization, licensing or certification of services suppliers, or a disguised restriction on trade in services.

5. Annex 8C applies to measures by a Party relating to the licensing or certification of  professional service suppliers as set out in the provisions of that Annex.

ARTICLE 8.10 : TRANSFERS AND PAYMENTS

1. Each Party shall permit all transfers and payments relating to the cross-border supply of services to be made freely and without delay into and out of its territory.^8-4 Such transfers and payments include:

(a) payments for services;

(b) funds taken abroad to consume a service;

(c) interest, royalty payments, management fees, licensing fees, and technical assistance and other fees;

(d) payments made under a contract; and

(e) inflows of funds necessary to perform a service.

2. Each Party shall permit such transfers and payments relating to the cross-border supply of services to be made in a freely usable currency at the market rate of exchange prevailing on the date of transfer.

3. Notwithstanding paragraphs 1 and 2, a Party may prevent a transfer or payment through the equitable, non-discriminatory and good faith application of its laws 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) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities;

(d) criminal or penal offenses; or

(e) ensuring compliance with orders or judgments in judicial or administrative proceedings.

ARTICLE 8.11 : DENIAL OF BENEFITS

A Party may deny the benefits of this Chapter to a service supplier of the other Party if:

(a) the service is being supplied by an enterprise owned or controlled by nationals of a non-Party and the denying Party:

(i) does not maintain diplomatic relations with the non-Party; or

(ii) adopts or maintains measures with respect to 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

(b) the service is being supplied by an enterprise that has no substantial business activities in the territory of the other Party and it is owned or controlled by persons of a non-Party or the denying Party.

ARTICLE 8.12 : TRANSPARENCY IN DEVELOPMENT AND APPLICATION OF REGULATIONS

In addition to the obligations in Chapter 19 (Transparency):

(a) Each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons regarding regulations^8-5 relating to the subject matter of this Chapter and their requirements.

(b) If a Party does not provide advance notice and comment pursuant to Article 19.3 , it shall, to the extent possible, provide by publicly available means the reasons therefor.

(c) At the time it adopts final regulations relating to the subject matter of this Chapter, each Party shall, to the extent possible, including upon request, address by publicly available means substantive comments received from interested persons with respect to the proposed regulations.

(d) To the extent possible, each Party shall allow reasonable time between publication of final regulations and their effective date.

ARTICLE 8.13 : IMPLEMENTATION

The Parties will meet annually, or as otherwise agreed, on issues related to implementation of  this Chapter and any issues of mutual interest.

ANNEX 8A

1. A Party’s Schedule to this Annex sets out, pursuant to Articles 8.7.1 and 15.12.1 (Non-Conforming Measures), a Party’s existing measures that are not subject to some or all of the obligations imposed by:

(a) Article 8.3 (National Treatment) or 15.4.1 (National Treatment and Most-Favored-Nation Treatment);

(b) Article 8.4 (Most-Favored-Nation Treatment) or 15.4.3 (National Treatment and Most-Favored-Nation Treatment);

(c) Article 8.5 (Market Access);

(d) Article 8.6 (Local Presence);

(e) Article 15.8 (Performance Requirements); or

(f) Article 15.9 (Senior Management and Boards of Directors).

2. Each Schedule entry sets out the following elements:

(a) sector refers to the sector for which the entry is made;

(b) sub-sector, for Singapore, refers to the subsector for which the entry is made;

(c) industry classification refers, for Singapore, where applicable, to the activity covered by the non-conforming measure, according to the provisional CPC codes as used in the Provisional Central Product Classification (Statistical Papers Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991);

(d) obligations concerned specifies the obligation(s) referred to in paragraph 1 that, pursuant to Article 8.7.1(a) (Non-Conforming Measures) or 15.12.1(a) (Non-Conforming Measures), as the case may be, do not apply to the listed measure(s);

(e) level of government indicates the level of government maintaining the listed measure(s);

(f) measures identifies the laws, regulations or other measures for which the entry is made. A measure cited in the measures element:

(i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, and

(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure;

(g) description, for Singapore, sets out the non-conforming aspects of the measure for which the entry is made; and description, for the United States, provides a general, non-binding, description of the measures; and

(h) phase-out sets out commitments, if any, for liberalization after the date of entry into force of this Agreement.

3. In accordance with Article 8.7.1(a) (Non-Conforming Measures) and 15.12.1(a) (Non-Conforming Measures), the articles of this Agreement specified in the "obligations concerned" element of an entry do not apply to the law, regulation or other measure identified in the "measures" or "description" element of that entry.

4. Where a Party maintains a measure that requires that a service provider be a citizen, permanent resident, or resident of its territory as a condition to the provision of a service in its territory, a Schedule entry for that measure taken in the Schedule to Annex 8A or 8B with respect to Articles 8.3, 8.4 or 8.6 shall operate as a Schedule entry with respect to Articles 15.4 (National Treatment and Most-Favored-Nation Treatment) or15.8 (Performance Requirements) to the extent of that measure.

ANNEX 8B

1. A Party’s Schedule to this Annex sets out, pursuant to Articles 8.7.2 (Non-Conforming Measures) and 15.12.2 (Non-Conforming Measures), the specific sectors, sub-sectors or activities for which that Party may maintain existing, or adopt new or more restrictive, measures that do not conform with obligations imposed by:

(a) Article 8.3 (National Treatment) or 15.4.1 (National Treatment and Most-Favored- Nation Treatment);

(b) Article 8.4 (Most-Favored-Nation Treatment) or 15.4.3 (National Treatment and Most-Favored-Nation Treatment);

(c) Article 8.5 (Market Access);

(d) Article 8.6 (Local Presence);

(e) Article 15.8 (Performance Requirements); or

(f) Article 15.9 (Senior Management and Boards of Directors).

2. Each Schedule entry sets out the following elements:

(a) sector refers to the sector for which the entry is made;

(b) sub-sector, for Singapore, refers to the subsector for which the entry is made;

(c) industry classification refers, for Singapore, where applicable, to the activity covered by the non-conforming measure, according to the provisional CPC codes as used in the Provisional Central Product Classification (Statistical Papers Series M No. 77, Department of International Economic and Social Affairs, Statistical Office of the United Nations, New York, 1991);

(d) obligations concerned specifies the obligation(s) referred to in paragraph 1 that, pursuant to Articles 8.7.2 (Non-Conforming Measures) and Article 15.12.2 (Non-Conforming Measures), do not apply to the sectors, sub-sectors or activities listed in the entry;

(e) description sets out the scope of the sector, sub-sector or activities covered by the entry; and

(f) existing measures identifies, for transparency purposes, existing measures that apply to the sector, sub-sector or activities covered by the entry.

3. In accordance with Articles 8.7.2 (Non-Conforming Measures) and 15.12.2 (Non-Conforming Measures), the articles of this Agreement specified in the "obligations concerned" element of an entry do not apply to the sectors, sub-sectors and activities identified in the description element of that entry.

ANNEX 8C

PROFESSIONAL SERVICES

DEVELOPMENT OF PROFESSIONAL STANDARDS

1. The Parties shall encourage the relevant bodies in their respective territories to develop mutually acceptable standards and criteria for licensing and certification of professional service providers and to provide recommendations on mutual recognition to the Joint Committee.

2. The standards and criteria referred to in paragraph 1 may be developed with regard to the following matters:

(a) education - accreditation of schools or academic programs;

(b) examinations - qualifying examinations for licensing, including alternative methods of assessment such as oral examinations and interviews;

(c) experience - length and nature of experience required for licensing;

(d) conduct and ethics - standards of professional conduct and the nature of disciplinary action for non-conformity with those standards;

(e) professional development and re-certification - continuing education and ongoing requirements to maintain professional certification;

(f) scope of practice - extent of, or limitations on, permissible activities;

(g) local knowledge - requirements for knowledge of such matters as local laws, regulations, language, geography or climate; and

(h) consumer protection - alternatives to residency requirements, including bonding, professional liability insurance and client restitution funds, to provide for the protection of consumers.

3. On receipt of a recommendation referred to in paragraph 1, the Joint Committee shall review the recommendation within a reasonable time to determine whether it is consistent with this Agreement. Based on the Joint Committee’s review, each Party shall encourage its respective competent authorities, where appropriate, to implement the recommendation within a mutually agreed time.

TEMPORARY LICENSING

4. Where the Parties agree, each Party shall encourage the relevant bodies in its territory to develop procedures for the temporary licensing of professional service providers of another Party.

REVIEW

5. The Joint Committee shall, at least once every three years, review the implementation of this Section.

CHAPTER 9 : TELECOMMUNICATIONS

ARTICLE 9.1 : SCOPE AND COVERAGE

1. This Chapter applies to measures affecting trade in telecommunications services.

2. This Chapter does not apply to any measure adopted or maintained by a Party relating to cable or broadcast distribution of radio or television programming.^9-1 

3. Nothing in this Chapter shall be construed to:

(a) require a Party (or require a Party to compel any enterprise) to establish, construct, acquire, lease, operate, or provide telecommunications transport networks or telecommunications services where such networks or services are not offered to the public generally; or

(b) require a Party to compel any enterprise engaged in the cable or broadcast distribution of radio or television programming to make available its cable or broadcast facilities as a public telecommunications transport network, unless a Party specifically designates such facilities as such.

ARTICLE 9.2 : ACCESS TO AND USE OF PUBLIC TELECOMMUNICATIONS TRANSPORT NETWORKS AND SERVICES ^9-2

1. Each Party shall ensure that enterprises of the other Party have access to and use of any public telecommunications transport network and service, including leased circuits, offered in its territory or across its borders on reasonable, non-discriminatory (including with respect to timeliness), and transparent terms and conditions, including as set out in paragraphs 2 through 4.

2. Each Party shall ensure that such enterprises are permitted to:

(a) purchase or lease, and attach terminal or other equipment that interfaces with the public telecommunications network;

(b) provide services to individual or multiple end-users over any leased or owned circuit(s);

(c) connect leased or owned circuits with public telecommunications transport networks and services in the territory, or across the borders, of that Party, or with circuits leased or owned by another enterprise;

(d) perform switching, signaling, processing, and conversion functions; and

(e) use operating protocols of their choice.

3. Each Party shall ensure that enterprises of the other Party may use public telecommunications transport networks and services for the movement of information in its territory or across its borders and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of either Party.

4. Notwithstanding paragraph 3, a Party may take such measures as are necessary to

(a) ensure the security and confidentiality of messages; or

(b) protect the privacy of customer proprietary network information; subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.

ARTICLE 9.3 : INTERCONNECTION WITH SUPPLIERS OF PUBLIC TELECOMMUNICATIONS SERVICES

1. Each Party shall ensure that suppliers of public telecommunications services in its territory provide, directly or indirectly, interconnection with the facilities and equipment of suppliers of public telecommunications services of the other Party.

2. In carrying out paragraph 1, each Party shall ensure that suppliers of public telecommunications services in its territory take reasonable steps to protect the confidentiality of proprietary information of, or relating to, suppliers and end-users of public telecommunications services and only use such information for the purpose of providing public telecommunications services.

ARTICLE 9.4 : CONDUCT OF MAJOR SUPPLIERS^{9-3 9-4} 

Treatment by Major Suppliers

1. Each Party shall ensure that any major supplier in its territory accords suppliers of public telecommunications services of the other Party treatment no less favorable than such major supplier accords to itself, its subsidiaries, its affiliates, or any non-affiliated service supplier regarding:

(a) the availability, provisioning, rates, or quality of like public telecommunications services; and

(b) the availability of technical interfaces necessary for interconnection. A Party shall assess such treatment on the basis of whether such suppliers of public telecommunications services, subsidiaries, affiliates, and non-affiliated service suppliers are in like circumstances.

Competitive Safeguards

2.

(a) Each Party shall maintain appropriate measures for the purpose of preventing suppliers of public telecommunications services who, alone or together, are a major supplier in its territory from engaging in or continuing anti-competitive practices.

(b) For purposes of subparagraph (a), anti-competitive practices include:

(i) engaging in anti-competitive cross-subsidization;

(ii) using information obtained from competitors with anti-competitive results; and

(iii) not making available, on a timely basis, to suppliers of public telecommunications services, technical information about essential facilities and commercially relevant information that is necessary for them to provide public telecommunications services.

Unbundling of Network Elements

3.

(a) Recognizing that both Parties currently provide for access to unbundled network elements, each Party shall provide its telecommunications regulatory body the authority to require that major suppliers in its territory provide suppliers of public telecommunications services of the other Party access to network elements on an unbundled basis at terms, conditions, and cost-oriented rates, that are reasonable, non-discriminatory (including with respect to timeliness), and transparent for the supply of public telecommunications services.

(b) Which network elements will be required to be made available in the territory of a Party, and which suppliers may obtain such elements, shall be determined in accordance with national law and regulation.

(c) In determining the network elements to be made available, a Party’s telecommunications regulatory body shall consider, at a minimum, in accordance with national law and regulation:

(i) whether access to such network elements as are proprietary in nature are necessary; and whether the failure to provide access to such network elements would impair the ability of suppliers of public telecommunications services of the other Party to provide the services it seeks to offer; or

(ii) whether the network elements can be replicated or obtained from other sources at reasonable rates, such that the unavailability of these network elements from the major supplier will not impair the ability of other suppliers of public telecommunications services to provide a competing service; or

(iii) whether the network elements are technically or operationally required for the provision of a competing service; or

(iv) other factors as established in national law;

as that body construes these factors.

Co-Location

4.

(a) Each Party shall ensure that major suppliers in its territory provide to suppliers of public telecommunications services of the other Party physical co-location, at premises owned or controlled by the major supplier, of equipment necessary for interconnection or access to unbundled network elements on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory  (including with respect to timeliness), and transparent.

(b) Where physical co-location is not practical for technical reasons or because of space limitations, each Party shall ensure that major suppliers in its territory provide or facilitate virtual co-location on terms and conditions, and at cost-oriented rates, that are reasonable, non-discriminatory (including with respect to  timeliness), and transparent.

(c) Each Party may determine, in accordance with national law and regulation, which premises in its territory shall be subject to subparagraphs (a) and (b)

Resale

5. Each Party shall ensure that major suppliers in its territory:

(a) offer for resale, at reasonable^9-5 rates, to suppliers of public telecommunications services of the other Party, public telecommunications services that such major supplier provides at retail to end-users; and

(b) do not impose unreasonable or discriminatory conditions or limitations on the resale of such public telecommunications services.^9-6 

Poles, Ducts, and Conduits

6.

(a) Each Party shall ensure that major suppliers in its territory provide access to poles, ducts, and conduits, owned or controlled by such major suppliers to suppliers of public telecommunications services of the other Party, under terms, conditions, and cost-oriented^9-7 rates, that are reasonable, non-discriminatory (including with respect to timeliness), and transparent.

(b) Nothing shall prevent a Party from determining, under its domestic law and regulation, which particular structures owned or controlled by the major suppliers in its territory, are required to be made available in accordance with paragraph (a) provided that this is based on a determination that such structures cannot feasibly be economically or technically substituted in order to provide a competing service.

Number Portability

7. Each Party shall ensure that major suppliers in its territory provide number portability to the extent technically feasible, on a timely basis and on reasonable terms and conditions.

Interconnection

8.

(a) General Terms and Conditions Each Party shall ensure that any major supplier in its territory provides interconnection for the facilities and equipment of suppliers of public telecommunications services of the other Party:

(i) at any technically feasible point in the major supplier’s network;

(ii) under non-discriminatory terms, conditions (including technical standards and specifications), and rates;

(iii) of a quality no less favorable than that provided by such major supplier for its own like services or for like services of non-affiliated suppliers of public telecommunications services or for its subsidiaries or other affiliates;

(iv) in a timely fashion, on terms, conditions, (including technical standards and specifications), and cost-oriented rates, that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the service to be provided; and

(v) upon request, at points in addition to the network termination points offered to the majority of suppliers of public telecommunications services, subject to charges that reflect the cost of construction of necessary additional facilities.^9-8 

(b) Options for Interconnecting with Major Suppliers Each Party shall ensure that suppliers of public telecommunications services of the other Party may interconnect their facilities and equipment with those of major suppliers in its territory pursuant to at least one of the following options:

(i) a reference interconnection offer or another standard interconnection offer containing the rates, terms, and conditions that the major supplier offers generally to suppliers of public telecommunications services; or

(ii) the terms and conditions of an existing interconnection agreement or through negotiation of a new interconnection agreement.

(c) Public Availability of Interconnection Offers Each Party shall require each major supplier in its territory to make publicly available either a reference interconnection offer or another standard interconnection offer containing the rates, terms, and conditions that the major supplier offers generally to suppliers of public telecommunications services.

(d) Public Availability of the Procedures for Interconnection Negotiations Each Party shall make publicly available the applicable procedures for interconnection negotiations with major suppliers in its territory.

(e) Public Availability of Interconnection Agreements Concluded with Major Suppliers

(i) Each Party shall require major suppliers in its territory to file all interconnection agreements to which they are party with its telecommunications regulatory body.

(ii) Each Party shall make available for inspection to suppliers of public telecommunications services which are seeking interconnection, interconnection agreements in force between a major supplier in its territory and any other supplier of public telecommunications services in such territory, including interconnection agreements concluded between a major supplier and its affiliates and subsidiaries.

(f) Resolution of Interconnection Disputes Each Party shall ensure that suppliers of public telecommunications services of the other Party, that have requested interconnection with a major supplier in the Party’s territory have recourse to a telecommunications regulatory body to resolve disputes regarding the terms, conditions, and rates for interconnection within a reasonable and publicly available period of time.

Provisioning and Pricing of Leased Circuits Services^9-9

9.

(a) Each Party shall ensure that major suppliers of leased circuits services in its territory provide enterprises of the other Party leased circuits services that are public telecommunications services, on terms and conditions under pricing structures, and at rates that are reasonable, non-discriminatory (including with respect to timeliness), and transparent.

(b) Each Party may determine whether rates for leased circuits services in its territory are reasonable by taking into account the rates of like leased circuits services in comparable markets in other countries.

ARTICLE 9.5 : SUBMARINE CABLE LANDING STATIONS

1. Where under national law and regulation, a Party has authorized a supplier of public telecommunications services in its territory to operate a submarine cable system (including the landing facilities and services) as a public telecommunications service, that Party shall ensure that such supplier provides that public telecommunications service^9-10 to suppliers of public telecommunications services of the other Party on reasonable terms, conditions, and rates that are no less favorable than such supplier offers to any other supplier of public telecommunications services in like circumstances.

2. Where submarine cable landing facilities and services cannot be economically or technically substituted, and a major supplier of public international telecommunication services that controls such cable landing facilities and services has the ability to materially affect the price and supply for those facilities and services for the provision of public telecommunications services in a Party’s territory, the Party shall ensure that such major supplier:

(a) permits suppliers of public telecommunications services of the other Party to:

(i) use the major supplier’s cross-connect links in the submarine cable landing station to connect their equipment to backhaul links and submarine cable capacity of any supplier of telecommunications; and

(ii) co-locate their transmission and routing equipment used for accessing submarine cable capacity and backhaul links at the submarine cable landing station at terms, conditions, and cost-oriented rates, that are reasonable and non-discriminatory; and

(b) provides suppliers of telecommunications of the other Party submarine cable capacity, backhaul links, and cross-connect links in the submarine cable landing station at terms, conditions, and rates that are reasonable and non-discriminatory.

ARTICLE 9.6 : INDEPENDENT REGULATION AND PRIVATIZATION

1. Each Party shall ensure that its telecommunications regulatory body is separate from, and not accountable to, any supplier of public telecommunications services. To this end, each Party shall ensure that its telecommunications regulatory body does not hold any financial interest or maintain an operating role in such a supplier.

2. Each Party shall ensure that the decisions of, and procedures used by its telecommunications regulatory body are impartial with respect to all interested persons. To this end, each Party shall ensure that any financial interest that it holds in a supplier of public telecommunications services does not influence the decisions of and procedures of its telecommunications regulatory body.

3. Where a Party has an ownership interest in a supplier of public telecommunications services, it shall notify the other Party of any intention to eliminate such interest as soon as feasible.

ARTICLE 9.7 : UNIVERSAL SERVICE

Each Party shall administer any universal service obligation that it maintains in a transparent, non-discriminatory, and competitively neutral manner and shall ensure that its universal service obligation is not more burdensome than necessary for the kind of universal service that it has defined.

ARTICLE 9.8 : LICENSING PROCESS

1. When a Party requires a supplier of public telecommunications services to have a license, the Party shall make publicly available:

(a) all the licensing criteria and procedures it applies;

(b) the period of time normally required to reach a decision concerning an application for a license; and

(c) the terms and conditions of all licenses it has issued.

2. Each Party shall ensure that an applicant receives, upon request, the reasons for the denial of a license.

ARTICLE 9.9 : ALLOCATION AND USE OF SCARCE RESOURCES^9-11 

1. Each Party shall administer its procedures for the allocation and use of scarce resources, including frequencies, numbers, and rights of way, in an objective, timely, transparent, and non-discriminatory fashion.

2. Each Party shall make publicly available the current state of allocated frequency bands but shall not be required to provide detailed identification of frequencies assigned or allocated by each government for specific government uses.

ARTICLE 9.10 : ENFORCEMENT

Each Party shall ensure that its telecommunications regulatory body maintains appropriate procedures and authority to enforce domestic measures relating to the obligations under Articles 9.2 through 9.5. Such procedures and authority shall include the ability to impose effective sanctions, which may include financial penalties, injunctive relief (on an interim or final basis), or modification, suspension, and revocation of licenses.

ARTICLE 9.11 : RESOLUTION OF DOMESTIC TELECOMMUNICATIONS DISPUTES

Further to Articles 19.5 (Administrative Proceedings) and 19.6 (Review and Appeal), each Party shall ensure the following:

Recourse to Telecommunications Regulatory Bodies

1. Each Party shall ensure that enterprises of the other Party have recourse (within a reasonable period of time) to a telecommunications regulatory body or other relevant body to  resolve disputes arising under domestic measures addressing a matter set out in Articles 9.2 through 9.5.

Reconsideration

2. Each Party shall ensure that any enterprise aggrieved or whose interests are adversely affected by a determination or decision of the telecommunications regulatory body may petition that body for reconsideration of that determination or decision. Neither Party may permit such a petition to constitute grounds for non-compliance with such determination or decision of the telecommunications regulatory body unless an appropriate authority stays such determination or decision.

Judicial Review

3. Each Party shall ensure that any enterprise aggrieved by a determination or decision of the telecommunications regulatory body may obtain judicial review of such determination or decision by an impartial and independent judicial authority.

ARTICLE 9.12 : TRANSPARENCY

Further to Chapter 19 (Transparency), each Party shall ensure that:

1. rulemakings, including the basis for such rulemakings, of its telecommunications regulatory body and end-user tariffs filed with its telecommunications regulatory body are promptly published or otherwise made available to all interested persons;

2. interested persons are provided with adequate advance public notice of and the opportunity to comment on any rulemaking proposed by the telecommunications regulatory body;

3. its measures relating to public telecommunications services are made publicly available, including:

(a) tariffs and other terms and conditions of service;

(b) specifications of technical interfaces;

(c) conditions applying to attachment of terminal or other equipment to the public telecommunications transport network; and

(d) notification, permit, registration, or licensing requirements, if any; and

4. information on bodies responsible for preparing, amending, and adopting standards-related measures is made publicly available.

ARTICLE 9.13 : FLEXIBILITY IN THE CHOICE OF TECHNOLOGIES

A Party shall endeavor not to prevent suppliers of public telecommunications services from having the flexibility to choose the technologies that they use to supply their services, including commercial mobile services, subject to the ability of each Party to take measures to ensure that end-users of different networks are able to communicate with each other.

ARTICLE 9.14 : FORBEARANCE AND MINIMAL REGULATORY ENVIRONMENT

The Parties recognize the importance of relying on market forces to achieve wide choice and efficient supply of telecommunications services. To this end, each Party may forbear from applying regulation to a telecommunications service that such Party classifies, under its laws and regulations, as a public telecommunications service upon a determination by its telecommunications regulatory body that:

(a) enforcement of such regulation is not necessary to prevent unreasonable or discriminatory practices;

(b) enforcement of such regulation is not necessary for the protection of consumers; and

(c) forbearance is consistent with the public interest, including promoting and enhancing competition among suppliers of public telecommunications services.

ARTICLE 9.15 : RELATIONSHIP TO OTHER CHAPTERS

In the event of any inconsistency between this Chapter and another Chapter, this Chapter shall prevail to the extent of such inconsistency.

ARTICLE 9.16 : DEFINITIONS

For purposes of this Chapter:

1. backhaul links means end-to-end transmission links from a submarine cable landing station to another primary point of access to the Party’s public telecommunications transport network;

2. physical co-location means physical access to and control over space in order to install, maintain, or repair equipment used to provide public telecommunications services;

3. cost-oriented means based on cost, and may include a reasonable profit, and may involve different cost methodologies for different facilities or services;

4. commercial mobile services means public telecommunications services supplied through mobile wireless means;

5. cross-connect links means the links in a submarine cable landing station used to connect submarine cable capacity to the transmission, switching and routing equipment of different suppliers of public telecommunications services co-located in that submarine cable landing station;

6. customer proprietary network information means information made available to the supplier of public telecommunications services by the end-user solely by virtue of the end-user-telecommunications service supplier relationship. This includes information regarding the end-user’s calling patterns (including the quantity, technical configuration, type, destination, location, and amount of use of the service) and other information that appears on or may pertain to an end-user’s telephone bill;

7. end-user means a final consumer of or subscriber to a public telecommunications service, including a service supplier but excluding a supplier of public telecommunications services;

8. enterprise means an entity constituted or organized under applicable law, whether or not for profit, and whether privately or government owned or controlled. Forms that an enterprise may take include a corporation, trust, partnership, sole proprietorship, branch, joint venture, association, or similar organization;

9. essential facilities means facilities of a public telecommunications transport network or service that:

(a) are exclusively or predominantly provided by a single or limited number of  suppliers; and

(b) cannot feasibly be economically or technically substituted in order to provide a service;

10. interconnection means linking with suppliers providing public telecommunications transport 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;

11. leased circuits means telecommunications facilities between two or more designated points which are set aside for the dedicated use of or availability to a particular customer or other users of the customer’s choosing;

12. major supplier means a supplier of public telecommunications services that has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for public telecommunications services as a result of:

(a) control over essential facilities; or

(b) use of its position in the market;

13. network element means a facility or equipment used in the provision of a public telecommunications service, including features, functions, and capabilities that are provided by means of such facility or equipment;

14. non-discriminatory means treatment no less favorable than that accorded to any other user of like public telecommunications transport networks or services in like circumstances;

15. number portability means the ability of end-users of public telecommunications services to retain, at the same location, existing telephone numbers without impairment of quality, reliability, or convenience when switching between like suppliers of public telecommunications services;

16. person means either a natural person or an enterprise;

17. public telecommunications transport network means telecommunications infrastructure which a Party requires to provide public telecommunications services between defined network termination points;

18. public telecommunications service means any telecommunications service (which a Party may define to include certain facilities used to deliver these telecommunications services) that a Party requires, explicitly or in effect, to be offered to the public generally. Such services may include inter alia, telephone and data transmission typically involving customer-supplied information between two or more points without any end-to-end change in the form or content of the customer’s information;^9-12 

19. reference interconnection offer means an interconnection offer extended by a major supplier and filed with or approved by a telecommunications regulatory body that is sufficiently detailed to enable a supplier of public telecommunications services that is willing to accept its rates, terms, and conditions to obtain interconnection without having to engage in negotiations with the major supplier concerned;

20. service supplier means any person that supplies a service;

21. submarine cable landing station means the premises and buildings where international submarine cables arrive and terminate and are connected to backhaul links;

22. supplier of public telecommunications services means any provider of public telecommunications services, including those who provide such services to other suppliers of public telecommunications services;^9-13

23. telecommunications means the transmission and reception of signals by any electromagnetic means;^9-14 

24. telecommunications regulatory body means a national body responsible for the regulation of telecommunications; and

25. user means an end-user or a supplier of public telecommunications services.

CHAPTER 10 : FINANCIAL SERVICES

ARTICLE 10.1 : SCOPE AND COVERAGE

1. This Chapter applies to measures adopted or maintained by a Party relating to:

(a) financial institutions of the other Party;

(b) investors of the other Party, and investments of such investors, in financial institutions in the Party’s territory; and

(c) cross-border trade in financial services.

2. Chapters 8 (Cross-Border Trade in Services) and 15 (Investment) apply to measures described in paragraph 1 only to the extent that such Chapters or Articles of such Chapters are incorporated into this Chapter.

(a) Articles 8.11 (Denial of Benefits), 15.6 (Expropriation),^10-1 15.7 (Transfers), 15.10 (Investment and Environment), 15.11 (Denial of Benefits), and 15.13 (Special Formalities and Information Requirements) are hereby incorporated into and made a part of this Chapter.

(b) Section C of Chapter 15 (Investor-State Dispute Settlement) is hereby incorporated into and made a part of this Chapter solely for claims that a Party has breached Articles 15.6 (Expropriation), 15.7 (Transfers), 15.11 (Denial of Benefits), and 15.13 (Special Formalities and Information Requirements), as incorporated into this Chapter.

(c) Article 8.10 (Transfers and Payments), is incorporated into and made a part of this Chapter to the extent that cross-border trade in financial services is subject to obligations pursuant to Article 10.5.

3. This Chapter does not apply to measures adopted or maintained by a Party relating to:

(a) activities or services forming part of a public retirement plan or statutory system of social security; or

(b) activities or services conducted for the account or with the guarantee or using the financial resources of the Party, including its public entities, except that this Chapter shall apply if a Party allows any of the activities or services referred to in subparagraphs (a) or (b) to be conducted by its financial institutions in competition with a public entity or a financial institution.

4. This Chapter does not apply to laws, regulations or requirements governing the procurement by government agencies of financial services purchased for governmental purposes and not with a view to commercial resale or use in the supply of services for commercial sale.

ARTICLE 10.2 : NATIONAL TREATMENT

1. Each Party shall accord to investors of the other Party treatment no less favorable than that it accords to its own investors, in like circumstances, with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of financial institutions and investments in financial institutions in its territory.

2. Each Party shall accord to financial institutions of the other Party and to investments of investors of the other Party in financial institutions treatment no less favorable than that it  accords to its own financial institutions, and to investments of its own investors in financial institutions, in like circumstances, with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of financial institutions and investments.

3. For purposes of the national treatment obligations in Article 10.5.1, a Party shall accord to cross-border financial service suppliers of the other Party treatment no less favorable than that it accords to its own financial service suppliers, in like circumstances, with respect to the supply of the relevant service.

ARTICLE 10.3 : MOST-FAVORED-NATION TREATMENT

1. Each Party shall accord to investors of the other Party, financial institutions of the other Party, investments of investors in financial institutions, and cross-border financial service suppliers of the other Party treatment no less favorable than that it accords to the investors, financial institutions, investments of investors in financial institutions and cross-border financial service suppliers of a non-Party, in like circumstances.

2. A Party may recognize prudential measures of the other Party or of a non-Party in the application of measures covered by this Chapter. Such recognition may be:

(a) accorded unilaterally;

(b) achieved through harmonization or other means; or

(c) based upon an agreement or arrangement with the non-Party.

3. A Party according recognition of prudential measures under paragraph 2 shall provide adequate opportunity to the other Party to demonstrate that circumstances exist in which there are or would be equivalent regulation, oversight, implementation of regulation, and, if appropriate, procedures concerning the sharing of information between the Parties.

4. Where a Party accords recognition of prudential measures under paragraph 2(c) and the circumstances set out in paragraph 3 exist, the Party shall provide adequate opportunity to the other Party to negotiate accession to the agreement or arrangement, or to negotiate a comparable agreement or arrangement.

ARTICLE 10.4 : MARKET ACCESS FOR FINANCIAL INSTITUTIONS

A Party shall not adopt or maintain, with respect to financial institutions of the other Party,^10-2 either on the basis of a regional subdivision or on the basis of its entire territory, measures that:

(a) impose limitations on

(i) the number of financial institutions whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;

(ii) the total value of financial service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;

(iii) the total number of financial service operations or the total quantity of financial services output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; or

(iv) the total number of natural persons that may be employed in a particular financial service sector or that a financial institution may employ and who are necessary for, and directly related to, the supply of a specific financial service in the form of a numerical quota or the requirement of an economic needs test; or

(b) restrict or require specific types of legal entity or joint venture through which a financial institution may supply a service.

ARTICLE 10.5 : CROSS-BORDER TRADE IN FINANCIAL SERVICES

1. Each Party shall permit, under terms and conditions that accord national treatment, cross-border financial service suppliers of the other Party to supply the services it has specified in Annex 10A.

2. Each Party shall permit persons located in its territory, and its nationals wherever located, to purchase financial services from cross-border financial service suppliers of the other Party located in the territory of the other Party. This obligation does not require a Party to permit such suppliers to do business or solicit in its territory. Each Party may define "doing business" and "solicitation" for purposes of this obligation, as long as such definitions are not inconsistent with paragraph 1.

ARTICLE 10.6 : NEW FINANCIAL SERVICES

Each Party shall permit a financial institution of the other Party to supply any new financial service that the first Party would permit its own financial institutions, in like circumstances, to supply without additional legislative action by the first Party. Notwithstanding Article 10.4(b), a Party may determine the institutional and juridical form through which the new financial service may be supplied and may require authorization for the supply of the service. Where a Party requires such authorization of the new financial service, a decision shall be made within a reasonable time and the authorization may only be refused for prudential reasons.^10-3 

ARTICLE 10.7 : TREATMENT OF CERTAIN INFORMATION

Nothing in this Chapter requires a Party to furnish or allow access to:

(a) information related to the financial affairs and accounts of individual customers of financial institutions or cross-border financial service suppliers; or 

(b) any confidential information, the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or prejudice legitimate commercial interests of particular enterprises.

ARTICLE 10.8 : SENIOR MANAGEMENT AND BOARDS OF DIRECTORS

1. A Party may not require financial institutions of the other Party^10-4 to engage individuals of any particular nationality as senior managerial or other essential personnel.

2. A Party may not require that more than a simple majority of the board of directors of a financial institution of the other Party be composed of nationals of the Party, persons residing in the territory of the Party, or a combination thereof.

ARTICLE 10.9 : NON-CONFORMING MEASURES

1. Articles 10.2 through 10.5 and 10.8 do not apply to:

(a) any existing non-conforming measure that is maintained by a Party at

(i) the central level of government, and set out by that Party in its Schedule to Annex 10B,

(ii) a regional level of government, and set out by that Party in its Schedule to Annex 10B, or

(iii) a local level of government;

(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or

(c) an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 10.2 through 10.4 and 10.8.

2. Annex 10C sets out certain specific commitments by each Party.

3. A non-conforming measure set out in a Party’s Schedule to Annex 8A or 8B as a measure to which Article 8.3 (National Treatment), 8.4 (Most-Favored-Nation Treatment), 8.5 (Market Access), or 15.4 (National Treatment and Most-Favored-Nation Treatment) does not apply shall be treated as a non-conforming measure described in paragraph 1(a) to which Article 10.2, 10.3, or 10.4, as the case may be, does not apply, to the extent that the measure, sector, sub-sector or activity set out in the schedule of non-conforming measures is covered by this Chapter.

ARTICLE 10.10 : EXCEPTIONS

1. Notwithstanding any other provision of this Chapter or Chapters 9 (Telecommunications), 14 (Electronic Commerce), or 15 (Investment), including specifically Article 9.15 (Relationship to Other Chapters), and in addition Article 8.2.2 (Scope and Coverage) with respect to the supply of financial services in the territory of a Party by an investor of the other Party or a covered investment, a Party shall not be prevented from adopting or maintaining measures for prudential reasons,^10-5 including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial institution or cross-border financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement referred to in this paragraph, they shall not be used as a means of avoiding the Party’s commitments or obligations under such provisions.

2. Nothing in this Chapter or Chapters 9 (Telecommunications), 14 (Electronic Commerce), or 15 (Investment), including specifically Article 9.15 (Relationship to Other Chapters), and in addition Article 8.2.2 (Scope and Coverage) with respect to the supply of financial services in the territory of a Party by an investor of the other Party or a covered investment, applies to non-discriminatory  measures of general application taken by any public entity in pursuit of monetary and related credit policies or exchange rate policies. This paragraph shall not affect a Party’s obligations under Article 8.10 (Transfers and Payments), Article15.7 (Transfers), or Article 15.8 (Performance Requirements).

3. Notwithstanding Articles 8.10 (Transfers and Payments) and 15.7 (Transfers), as incorporated into this Chapter, a Party may prevent or limit transfers by a financial institution or cross-border financial service supplier to, or for the benefit of, an affiliate of or person related to such institution or supplier, through the equitable, non-discriminatory and good faith application of measures relating to maintenance of the safety, soundness, integrity or financial responsibility of financial institutions or cross-border financial service suppliers. This paragraph does not prejudice any other provision of this Agreement that permits a Party to restrict transfers.

4. For greater certainty, nothing in this Chapter shall be construed to prevent the adoption or enforcement by a Party of measures necessary to secure compliance with laws or regulations that are not inconsistent with this Chapter including those relating to the prevention of deceptive and fraudulent practices or to deal with the effects of a default on financial services contracts, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on investment in financial institutions or cross-border trade in  financial services.

ARTICLE 10.11: TRANSPARENCY

1. The Parties recognize that transparent regulations and policies governing the activities of  financial institutions and cross-border financial service suppliers are important in facilitating the ability of financial institutions located outside the territory of the Party, financial institutions of  the other Party, and cross-border financial service suppliers to gain access to and operate in each other’s markets. Each Party commits to promote regulatory transparency in financial services. Accordingly, the Financial Services Committee established under Article 10.16 shall consult with the goal of promoting objective and transparent regulatory processes in each Party, taking  into account (1) the work undertaken by the Parties in the General Agreement on Trade in Services and the Parties’ work in other fora relating to trade in financial services and (2) the.101 importance for regulatory transparency of identifiable policy objectives and clear and consistently applied regulatory processes that are communicated or otherwise made available to the public.

2. In lieu of Article 19.3.2 (Publication), each Party shall, to the extent practicable,

(a) publish in advance any regulations of general application relating to the subject matter of this Chapter that it proposes to adopt; and

(b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed regulations.

3. Each Party’s regulatory authorities shall make available to interested persons their requirements, including any documentation required, for completing applications relating to the supply of financial services.

4. On the request of an applicant, the regulatory authority shall inform the applicant of the status of its application. If such authority requires additional information from the applicant, it shall notify the applicant without undue delay.

5. A regulatory authority shall make an administrative decision on a completed application of an investor in a financial institution, a financial institution or a cross-border financial service supplier of the other Party relating to the supply of a financial service within 120 days, and shall promptly notify the applicant of the decision. An application shall not be considered complete until all relevant hearings are held and all necessary information is received. Where it is not practicable for a decision to be made within 120 days, the regulatory authority shall notify the applicant without undue delay and shall endeavor to make the decision within a reasonable time thereafter.

6. Each Party shall maintain or establish appropriate mechanisms that will respond to inquiries from interested persons regarding measures of general application covered by this Chapter.

7. Each Party shall ensure that the rules of general application adopted or maintained by self-regulatory organizations of the Party are promptly published or otherwise made available in such a manner as to enable interested persons to become acquainted with them.

8. To the extent practicable, each Party should allow reasonable time between publication of final regulations and their effective date.

9. At the time it adopts final regulations, a Party should, to the extent practicable, address in writing substantive comments received from interested persons with respect to the proposed regulations..102

ARTICLE 10.12: SELF-REGULATORY ORGANIZATIONS

Where a Party requires a financial institution or a cross-border financial service supplier of the other Party to be a member of, participate in, or have access to, a self-regulatory organization to provide a financial service in or into the territory of that Party, the Party shall ensure observance of the obligations of Articles 10.2 and 10.3 by such self-regulatory organization.

ARTICLE 10.13: PAYMENT AND CLEARING SYSTEMS

Under terms and conditions that accord national treatment, each Party shall grant to financial institutions of the other Party established in its territory access to payment and clearing systems operated by public entities, and to official funding and refinancing facilities available in the normal course of ordinary business. This paragraph is not intended to confer access to the Party’s lender of last resort facilities.

ARTICLE 10.14: DOMESTIC REGULATION

Except with respect to non-conforming measures listed in its schedule to Annex 10B, each Party shall ensure that all measures of general application to which this Chapter applies are administered in a reasonable, objective and impartial manner.

ARTICLE 10.15: EXPEDITED AVAILABILITY OF INSURANCE SERVICES

The Parties recognize the importance of maintaining and developing regulatory procedures to expedite the offering of insurance services by licensed suppliers. The Parties recognize the importance of consulting, as necessary, regarding any such initiatives.

ARTICLE 10.16: FINANCIAL SERVICES COMMITTEE

1. The Parties hereby establish a Financial Services Committee. The principal representative of each Party shall be an official of the Party’s authority responsible for financial services set out in Annex 10D.

2. The Committee shall:

(a) supervise the implementation of this Chapter and its further elaboration;

(b) consider issues regarding financial services that are referred to it by a Party; and

(c) participate in the dispute settlement procedures in accordance with Article 10.18.

3. The Committee shall meet annually, or as otherwise agreed, to assess the functioning of  this Agreement as it applies to financial services. The Committee shall inform the Joint  Committee established under Article 20.1 (Joint Committee) of the results of each meeting.

ARTICLE 10.17: CONSULTATIONS

1. A Party may request consultations with the other Party regarding any matter arising under this Agreement that affects financial services. The other Party shall give sympathetic consideration to the request. The Parties shall report the results of their consultations to the Financial Services Committee.

2. Consultations under this Article shall include officials of the authorities specified in Annex 10D.

ARTICLE 10.18: DISPUTE SETTLEMENT

1. Article 20.4 (Additional Dispute Settlement Procedures) applies as modified by this Article to the settlement of disputes arising under this Chapter.

2. When a Party claims that a dispute arises under this Chapter, Article 20.4.4(a)  (Additional Dispute Settlement Procedures) shall apply, except that: 

(a) where the Parties so agree, the panel shall be composed entirely of panelists meeting the qualifications in paragraph 3;

(b) in any other case,

(i) each Party may select panelists meeting the qualifications set out in paragraph 3 or Article 20.4.4(c) (Additional Dispute Settlement

Procedures), and

(ii) if the Party complained against invokes Article 10.10 (Exceptions), the chair of the panel shall meet the qualifications set out in paragraph 3, unless the Parties agree otherwise.

3. Financial services panelists shall:

(a) have expertise or experience in financial services law or practice, which may include the regulation of financial institutions;

(b) be chosen strictly on the basis of objectivity, reliability and sound judgment; and

(c) meet the qualifications set out in Article 20.4.4(b)(ii) and 20.4.4(b)(iii)

(Additional Dispute Settlement Procedures).

4. Notwithstanding Article 20.6 (Non-Implementation), where a Panel finds a measure to be inconsistent with this Agreement and the measure under dispute affects:

(a) only the financial services sector, the complaining Party may suspend benefits only in the financial services sector;.104

(b) the financial services sector and any other sector, the complaining Party may suspend benefits in the financial services sector that have an effect equivalent to the effect of the measure in the Party’s financial services sector; or (c) only a sector other than the financial services sector, the complaining Party may not suspend benefits in the financial services sector.

ARTICLE 10.19: INVESTMENT DISPUTES IN FINANCIAL SERVICES

1. Where an investor of a Party submits a claim under Section C of Chapter 15 (Investor-State Dispute Settlement) against the other Party and the respondent invokes Article 10.10, on request of the respondent, the tribunal shall refer the matter in writing to the Financial Services Committee for a decision. The tribunal may not proceed pending receipt of a decision or report under this Article.

2. In a referral pursuant to paragraph 1, the Financial Services Committee shall decide the issue of whether and to what extent Article 10.10 is a valid defense to the claim of the investor.  The Committee shall transmit a copy of its decision to the tribunal and to the Joint Committee. The decision shall be binding on the tribunal.

3. Where the Financial Services Committee has not decided the issue within 60 days of the receipt of the referral under paragraph 1, the respondent or the Party of the claimant may request the establishment of a panel under Article 20.4.4 (Additional Dispute Settlement Procedures).  The panel shall be constituted in accordance with Article 10.18. The panel shall transmit its final report to the Committee and to the tribunal. The report shall be binding on the tribunal.

4. Where no request for the establishment of a panel pursuant to paragraph 3 has been made within 10 days of the expiration of the 60-day period referred to in paragraph 3, a tribunal may proceed to decide the matter.

5. For purposes of this Article, tribunal means a tribunal established pursuant to Section C of Chapter 15 (Investor-State Dispute Settlement).

ARTICLE 10.20: DEFINITIONS

For purposes of this Chapter:

1. central level means

(a) for the United States, the federal level, and

(b) for Singapore, the national level;

2. cross-border financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of the Party and that seeks to supply or supplies financial services through the cross-border supply of such services;

3. cross-border supply of a financial service or cross-border trade in financial services

means the supply of a financial service:

(a) from the territory of one Party into the territory of the other Party,

(b) in the territory of one Party by a person of that Party to a person of the other Party, or

(c) by a national of one Party in the territory of the other Party, but does not include the supply of a financial service in the territory of one Party by an investor of the other Party, or investments of such investors, in financial institutions in the Party’s territory.

4. financial institution means any financial intermediary or other institution, that is authorized to do business and regulated or supervised as a financial institution under the law of the Party in whose territory it is located;

5. financial institution of the other Party means a financial institution, including a branch, located in the territory of a Party that is controlled by persons of the other Party; 

6. financial service means any service of a financial nature. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance), as well as services incidental or auxiliary to a service of a financial nature. Financial services include the following activities:

Insurance and insurance-related services

(a) Direct insurance (including co-insurance):

(i) life

(ii) non-life

(b) Reinsurance and retrocession;

(c) Insurance intermediation, such as brokerage and agency;

(d) Service auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services.

Banking and other financial services (excluding insurance)

(e) Acceptance of deposits and other repayable funds from the public;

(f) Lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transactions;

(g) Financial leasing;

(h) All payment and money transmission services, including credit, charge and debit cards, travelers checks and bankers drafts;

(i) Guarantees and commitments;

(j) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:

(i) money market instruments (including checks, bills, certificates of  deposits);

(ii) foreign exchange;

(iii) derivative products including, but not limited to, futures and options;

(iv) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;

(v) transferable securities;

(vi) other negotiable instruments and financial assets, including bullion;

(k) Participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and supply of services related to such issues;

(l) Money broking;

(m) Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;

(n) Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;

(o) Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;

(p) Advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (e) through (o), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.

7. financial service supplier of a Party means a person of a Party that is engaged in the business of supplying a financial service within the territory of that Party;

8. investment means “investment” as defined in Article 15.1.13 (Definitions), except that, with respect to “loans” and “debt instruments” referred to in that Article:

(a) a loan to or debt instrument issued by a financial institution is an investment only where it is treated as regulatory capital by the Party in whose territory the institution is located; and

(b) a loan granted by or debt instrument owned by a financial institution, other than a loan to or debt instrument of a financial institution referred to in subparagraph (a), is not an investment.

For greater certainty, a loan granted by or debt instrument owned by a cross-border financial service supplier, other than a loan to or debt instrument issued by a financial institution, is an investment if such loan or debt instrument meets the criteria for investments set out in Article 15.1.13 (Definitions).

9. investor of a Party means a Party or state enterprise thereof, or a person of that Party, that attempts to make, is making, or has made an investment in the territory of the other Party; provided, however, that a natural person who is a dual national shall be deemed to be exclusively a national of the State of his/her dominant and effective nationality;

10. new financial service means, for purposes of Article 10.6, a financial service not supplied in the territory of the first Party that is supplied within the territory of the other Party, and includes any new form of delivery of a financial service or the sale of a financial product that is not sold in the first Party’s territory.

11. person of a Party means “person of a Party” as defined in Article 1.2 (General Definitions) and, for greater certainty, does not include a branch of an institution of a non-party;

12. public entity means a central bank or monetary authority of a Party, or any financial institution owned or controlled by a Party that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; for greater certainty, a public entity^10-6 shall not be considered a designated monopoly or a government enterprise for purposes of Chapter 12 (Anticompetitive Business Conduct, Designated Monopolies and Government Enterprises);

13. regional level means

(a) for the United States, the 50 states, the District of Columbia and Puerto Rico, and (b) Singapore has no government at the regional level; for Singapore, “local government level” means entities with sub-national legislative or executive powers under domestic law, including Town Councils and Community Development Councils.

14. self-regulatory organization means any non-governmental body, including any securities or futures exchange or market, clearing agency, other organization or association, that exercises regulatory or supervisory authority over financial service suppliers or financial institutions, by statute or delegation from central, regional or local governments or authorities;  for greater certainty, a self-regulatory organization shall not be considered a designated monopoly for purposes of Chapter 12 (Anticompetitive Business Conduct, Designated Monopolies and Government Enterprises).

ANNEX 10A

APPLICATION OF ARTICLE 10.5

UNITED STATES

Insurance and insurance-related services

1. For the United States, Article 10.5 applies to the cross-border supply of or trade in financial services as defined in subparagraph (a) of the definition of cross-border supply of financial services in Article 10.20 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;

(b) reinsurance and retrocession, services auxiliary to insurance as referred to in subparagraph (d) of the definition of financial service, and insurance intermediation such as brokerage and agency as referred to in subparagraph (c) of the definition of financial service.

2. For the United States, Article 10.5 applies to the cross-border supply of or trade in financial services as defined in paragraph (c) of the definition of cross-border supply of financial services in Article 10.20 with respect to insurance services.

Banking and other financial services (excluding insurance)

3. For the United States, Article 10.5 applies with respect to the provision and transfer of financial information and financial data processing and related software as referred to in subparagraph (o) of the definition of financial service, and advisory and other auxiliary services, excluding intermediation, relating to banking and other financial services as referred to in subparagraph (p) of the definition of financial service.

SINGAPORE

Insurance and insurance-related services

1. For Singapore, Article 10.5 applies to the cross-border supply of or trade in financial  services as defined in sub paragraph (a) of the definition of cross-border supply of a financial service or cross-border trade in financial services in Article 10.20 with respect to:

(a) reinsurance and retrocession;

(b) services auxiliary to insurance comprising actuarial, loss adjustors, average adjustors and consultancy services;

(c) insurance of “MAT” risks comprising

(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;

(d) reinsurance intermediation by brokerages; and

(e) MAT intermediation by brokerages.

2. For Singapore, Article 10.5 applies to the cross-border supply of or trade in financial services as defined in subparagraph (c) of the definition of cross-border supply of a financial service or cross-border trade in financial services in Article 10.20 with respect to services auxiliary to insurance comprising actuarial, loss adjustors, average adjustors and consultancy services.

Banking and other financial services (excluding insurance)

3. For Singapore, Article 10.5 applies with respect to

(a) financial leasing, provided that access to customer information of banks in Singapore is limited to financial institutions licensed in Singapore;

(b) provision and transfer of financial information;

(c) provision of financial data processing and related software;

(d) trading in money market instruments, foreign exchange, exchange rate and interest rate instruments with financial institutions in Singapore;

(e) corporate finance advisory services, offered:

(i) to a related corporation or accredited investors only, provided that clients do not engage in public offerings of securities on the basis of such advice, and that such advice is not disclosed to clients' shareholders who are not accredited investors or to the public; or

(ii) through a related corporation that is holding (or exempted from holding) a capital markets services license to advise on corporate finance under the Securities and Futures Act (Cap. 289); and.111

(f) advisory and other auxiliary services, excluding intermediation and services described in subparagraph (e), relating to banking and other financial services referred to in subparagraph (p) in the definition of “financial service” in Article 10.20 to the extent that such services are permitted in the future by Singapore.

INTRODUCTORY NOTE FOR THE SCHEDULE OF SINGAPORE TO ANNEX 10B

1. The Schedule of Singapore to Annex 10B sets out:

(a) in Section A, the headnotes that limit or clarify the commitments of Singapore with respect to the obligations described in subparagraphs (i) – (v) of paragraph

(b), and

(b) in Section B, pursuant to Article 10.9 (Non-Conforming Measures), the existing measures of Singapore that are not subject to some or all of the obligations imposed by:

(i) Article 10.2 (National Treatment);

(ii) Article 10.3 (Most-Favored-Nation Treatment);

(iii) Article 10.4 (Market Access for Financial Institutions);

(iv) Article 10.5 (Cross-Border Trade);

(v) Article 10.8 (Senior Management and Boards of Directors).

2. Each entry in Section B as described in paragraph 1(b) sets out the following elements:

(a) Type of reservation sets out the obligations referred to in paragraph 1(b) with respect to which the entry is made;

(b) Level of government indicates the level of government maintaining the listed measure(s);

(c) Measure identifies the laws, regulations or other measures for which the entry is made. A measure cited in the measure element:

(i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement;

(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure;

(d) Description sets out the non-conforming aspects of the entry.

3. In accordance with Article 10.9.1(a), the articles of this Agreement referred to by their titles in the Type of reservation element of an entry do not apply to the law, regulation or other measures identified in the Measures element or described in the Description element of that entry.

4. Both Parties agree that references in the Schedule of a Party to the Annex to any enterprise or entity apply as well to any successor enterprise or entity, which shall be entitled to benefit from any listing of a non-conforming measure with respect to that enterprise or entity.

INTRODUCTORY NOTE FOR THE UNITED STATES SCHEDULE TO ANNEX 10B

Relating to Banking and Other Non-Insurance Financial Services

1. The Schedule of the United States to Annex 10B with respect to banking and other non-insurance financial services sets out:

(a) in Section A, the headnotes that limit or clarify the commitments of the United States with respect to the obligations described in subparagraphs (i)-(iv) of paragraph (b), and

(b) in Section B, pursuant to Article 10.9 (Non-Conforming Measures), the existing measures of the United States that are not subject to some or all of the obligations imposed by:

(i) Article 10.2 (National Treatment);

(ii) Article 10.3 (Most-Favored-Nation Treatment);

(iii) Article 10.4 (Market Access for Financial Institutions); or

(iv) Article 10.8 (Senior Management and Boards of Directors).

2. Each entry in Section B as described in paragraph 1(b) sets out the following elements:

(a) Description of Non-Conforming Measures sets out the non-conforming aspects of the entry and the subsector, financial institution, or activities covered by the entry;

(b) Measures identifies the laws, regulations or other measures for which the entry is made. A measure cited in the Measures element:

(i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, and

(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure;

(c) Obligations Concerned indicates the obligations referred to in paragraph 1(b) with respect to which the entry is made.

Relating to Insurance:

3. The Schedule of the United States to Annex 10B with respect to insurance sets out:

(a) headnotes that limit or clarify the commitments of the United States with respect to the obligations described in subparagraphs (i)-(v) of paragraph (b), and.115

(b) pursuant to Article 10.9 (Non-Conforming Measures), a schedule of existing measures of the United States that do not conform to some or all of the obligations imposed by:

(i) Article 10.2 (National Treatment);

(ii) Article 10.3 (Most-Favored-Nation Treatment);

(iii) Article 10.4 (Market Access for Financial Enterprises);

(iv) Article 10.5 (Cross-Border Trade); or

(v) Article 10.8 (Senior Management and Boards of Directors).

4. Each entry in the schedule of non-conforming measures described in paragraph 3(b) sets out the following elements:

(a) Obligations Concerned specified the obligations(s) referred to in paragraph 1(b) that, pursuant to Article 10.9, do not apply to the listed measure(s);

(b) Level of Government indicates the level of government maintaining the listed measures(s);

(c) Measures identifies the laws, regulations or other measures for which the entry is made. A measure cited in the Measures element:

(i) means the measure as amended, continued or renewed as of the date of entry into force of this Agreement, and

(ii) includes any subordinate measure adopted or maintained under the authority of and consistent with the measure;

(d) Description provides a general, nonbinding description of the Measures.

Common Provisions

5. In accordance with Article 10.9.1 (a), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the law, regulation or other measure identified in the Measures element or in the Description of Non-Conforming Measures element of that entry.

6. Where the United States maintains a measure that requires that a service supplier be a citizen, permanent resident or resident of its territory as a condition to the provision of a service in its territory, a listing for that measure taken in Annex 10B with respect to Articles 10.2, 10.3, 10.4, or 10.5 shall operate as a reservation with respect to Articles 15.4 (National Treatment and Most-Favored-Nation Treatment) and 15.8 (Performance Requirements), or to the extent of that measure.

7. Both Parties agree that references in the Schedule of a Party to Annex 10B to any enterprise or entity apply as well to any successor enterprise or entity, which shall be entitled to benefit from any listing of a non-conforming measure with respect to that enterprise or entity..117

ANNEX 10C

SPECIFIC COMMITMENTS

SINGAPORE

Related to Article 10.1 (Scope and Coverage)

1. This Chapter shall apply to the following services to the extent they are covered by the obligations of this Chapter through application of the exception in Article 10.1.3:

- Sale and distribution services for government debt.

Related to Article 10.4 (Market Access)

2. Notwithstanding item 1 of the non-conforming measures related to banking listed in Singapore’s Schedule to Annex 10B, Singapore shall approve, by the date of entry into force of this Agreement, one new full bank license and two additional customer service locations for a financial institution of the United States.

Related to Article 10.5 (Cross Border Trade)

3. No later than January 1, 2006, the Parties shall consult on further liberalization by Singapore of cross-border trade in the services described in paragraph 3(f) of Singapore’s Schedule to Annex 10A.

Related to Article 10.15 (Expedited Availability of Insurance Services)

4. Singapore shall not require product filing or approval for insurance products other than for life insurance products, Central Provident Fund-related products and investment-linked products. Where product filing or approval is required, Singapore shall allow the introduction of the product, which Singapore shall deem to be approved unless the product is disapproved within a reasonable time, endeavoring to do so within 30 days. Singapore shall not maintain limitations on the number or frequency of product introductions. This specific commitment does not apply where a financial institution of the United States seeks to supply a new financial service pursuant to Article 10.6 (New Financial Services).

Related to Article 10.17 (Consultations)

5. No later than January 1, 2007, and every three years thereafter, the Parties shall consult concerning any existing limitations on acquisitions of control by United States financial institutions of Singapore-incorporated banks that are controlled by persons of Singapore.

Related to Portfolio Management

6.

(a) Singapore shall allow, in a manner consistent with Article 10.1, a financial institution (other than a trust company or insurance company), organized outside its territory, to provide investment advice and portfolio management services, excluding (1) custodial services, (2) trustee services, and (3) execution services that are not related to managing a collective investment scheme, to the manager of a collective investment scheme, where the manager is

(i) located in the territory of Singapore, and

(ii) related to the financial institution.

(b) For purposes of this paragraph,

(i) collective investment scheme has the meaning given to it under Section 2 of the Securities and Futures Act (Cap. 289); and

(ii) related means a related corporation as defined under Section 6 of the Companies Act (Cap. 50).

7. Singapore shall accord most-favored-nation treatment to financial institutions of the United States in the award of asset management mandates by the Government of Singapore Investment Corporation.

Related to Credit and Charge Cards

8. Singapore shall consider applications for access to automated teller machine networks operated by local banks in the territory of Singapore for credit and charge cards of non-bank issuers that are controlled by persons of the United States.

UNITED STATES

Related to Article 10.1 (Scope and Coverage)

1. For the United States, this chapter shall apply to the following services to the extent they are covered by the obligations of this chapter through application of the exception in Article 10.1.3:

(a) fiscal agency or depository services,

(b) liquidation and management services for regulated financial institutions; and

(c) sale and distribution services for government debt.

Related to Article 10.15 (Expedited Availability of Insurance Services)

2. Recognizing the principles of federalism under the U.S. Constitution, the history of state regulation of insurance in the United States, and the McCarran-Ferguson Act, the United States welcomes the efforts of the National Association of Insurance Commissioners (“NAIC”) relating to the availability of insurance services as expressed in the NAIC’s “Statement of Intent: The Future of Insurance Regulation.”, including the initiatives on speed-to-market intentions and regulatory re-engineering (under Part II of the Statement of Intent). This specific commitment does not apply where a financial institution of Singapore seeks to supply a new financial service pursuant to Article 10.6.

Related to Portfolio Management

3.

(a) The United States shall allow, in a manner consistent with Article 10.1, a financial institution (other than a trust company or insurance company), organized outside its territory, to provide investment advice and portfolio management services, excluding (1) custodial services, (2) trustee services, and (3) execution services that are not related to managing a collective investment scheme, to a collective investment scheme located in the territory of the United States.

(b) For purposes of this paragraph, collective investment scheme means an investment company registered with the Securities and Exchange Commission under the Investment Company Act of 1940..120

THE FINANCIAL SERVICES COMMITTEE

1. On request by either Party, the Financial Services Committee shall consider any matter relating to:

(a) the transfer of information in electronic or other form, into and out of a Party's territory, by a financial institution for data processing where such processing is required in the ordinary course of business;

(b) 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.

Authorities Responsible for Financial Services

2. The authority of each Party responsible for financial services is:

(a) for Singapore, the Monetary Authority of Singapore;

(b) for the United States, the Department of the Treasury for banking and other financial services and the Office of the United States Trade Representative, in coordination with the Department of Commerce and other agencies, for insurance services.

ARTICLE 11.1 : DEFINITIONS

For purposes of this Chapter:

business person means a national of a Party who is engaged in trade in goods, the provision of services or the conduct of investment activities;

immigration measure means any law, regulation, or procedure affecting the entry and sojourn of aliens, including the issuance of immigration documents authorizing employment to an alien; and

temporary entry means entry into the territory of a Party by a business person of the other Party without the intent to establish permanent residence.

ARTICLE 11.2 : GENERAL PRINCIPLES

1. This Chapter reflects the preferential trading relationship between the Parties, the Parties’ mutual desire to facilitate temporary entry on a comparable basis and of establishing transparent criteria and procedures for temporary entry, and the need to ensure border security and to protect the domestic labor force and permanent employment in their respective territories. 

2. This Chapter shall not apply to measures regarding citizenship, permanent residence, or employment on a permanent basis.

ARTICLE 11.3 : GENERAL OBLIGATIONS

1. Each Party shall apply its measures relating to the provisions of this Chapter in accordance with Article 11.2 and, in particular, shall apply expeditiously those measures so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.

2. For greater certainty, nothing in this Chapter shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to unduly impair or delay trade in goods or services or conduct of investment activities under this Agreement. The sole fact of requiring a visa, or other document authorizing employment to a business person, for natural persons shall not be regarded as unduly impairing or delaying trade in goods or services or conduct of investment activities under this Agreement.

ARTICLE 11.4 : GRANT OF TEMPORARY ENTRY

1. Each Party shall grant temporary entry to business persons listed in Annex 11A who are otherwise qualified for entry under applicable measures relating to public health and safety and national security, in accordance with this Chapter.

2. A Party may refuse to issue an immigration document authorizing employment to a business person where the temporary entry of that person might affect adversely:

(a) the settlement of any labor dispute that is in progress at the place or intended place of employment; or

(b) the employment of any person who is involved in such dispute.

3. When a Party refuses pursuant to paragraph 2 to issue an immigration document authorizing employment, it shall:

(a) take measures to allow the business person to be informed in writing; and

(b) promptly notify the other Party in writing of the reasons for the refusal.

4. Each Party shall set any fees for processing applications for temporary entry of business persons in a manner consistent with Article 11.3.1.

ARTICLE 11.5 : REGULATORY TRANSPARENCY

1. Each Party shall maintain or establish contact points or other mechanisms to respond to inquiries from interested persons regarding regulations affecting the temporary entry of business persons.

2. If a Party receives comments regarding a proposed regulation from interested persons, it should publish a concise statement addressing those comments at the time that it adopts the final regulations.

3. To the extent possible, each Party shall allow reasonable time between publication of final regulations affecting the temporary entry of business persons and their effective date.

4. Each Party shall, within a reasonable period of time after an application requesting temporary entry is considered complete under its domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the Party shall provide, without undue delay, information concerning the status of the application.

5. Prior to the entry into force of this Agreement, the Parties shall exchange information on current procedures relating to the processing of applications for temporary entry, including processing goals that apply to business persons of the other Party. Each Party shall endeavor to achieve these goals and make available upon request to the other Party, in accordance with its domestic law, data respecting the attainment of these processing goals.

6. For purposes of this Article, regulation means a measure of general application other than a law, and includes a measure that establishes or applies to licensing authorization or criteria.

ARTICLE 11.6 : PROVISION OF INFORMATION

Further to Article 19.3 (Publication), each Party shall:

(a) provide to the other Party such materials as will enable it to become acquainted with its measures relating to this Chapter; and

(b) no later than six months after the date of entry into force of this Agreement, prepare, publish, and make available in its own territory, and in the territory of the other Party, explanatory material in a consolidated document regarding the requirements for temporary entry under this Chapter in such a manner as will enable business persons of the other Party to become acquainted with them.

ARTICLE 11.7 : TEMPORARY ENTRY COORDINATORS

1. Each Party shall establish a Temporary Entry Coordinator, which shall include officials responsible for immigration measures.

2. The Temporary Entry Coordinators of the Parties shall:

(a) establish their own schedule of meetings;

(b) exchange information on measures that affect the temporary entry of business persons under this Chapter;

(c) consider the development of measures to facilitate the temporary entry of business persons on a comparable basis;

(d) consider the implementation and administration of this Chapter; and

(e) make available, upon request, to the other Party in accordance with its domestic law, data respecting the granting of temporary entry under this Chapter to business persons of the other Party who have been issued immigration documents.

ARTICLE 11.8 : DISPUTE SETTLEMENT

1. A Party may not initiate proceedings under Article 20.4 (Additional Dispute Settlement Procedures) regarding a refusal to grant temporary entry under this Chapter or a particular case arising under Article 11.3.1 unless:

(a) the matter involves a pattern of practice; and

(b) the business person has exhausted the available administrative remedies regarding the particular matter.

2. The remedies referred to in paragraph (1)(b) shall be deemed to be exhausted if a final determination in the matter has not been issued by the competent authority within one year of the institution of an administrative proceeding, and the failure to issue a determination is not attributable to delay caused by the business person.

ARTICLE 11.9 : RELATION TO OTHER CHAPTERS

Except for this Chapter, Chapters 1 (Establishment of a Free Trade Area and Definitions), 20 (Administration and Dispute Settlement), and 21 (General Provisions), and Articles 19.2 (Contact Points), 19.3 (Publication), 19.4 (Notification and Provision of Information), and 19.5 (Administrative Proceedings) of Chapter 19 (Transparency), no provision of this Agreement shall impose any obligation on a Party regarding its immigration measures.

ANNEX 11A

SECTION I : BUSINESS VISITORS

1. Each Party shall grant temporary entry for up to 90 days to a business person seeking to engage in a business activity set out in Appendix 11A.1, without requiring that person to obtain an employment authorization, provided that the business person otherwise complies with immigration measures applicable to temporary entry, and on presentation of:

(a) proof of nationality of a Party;

(b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and

(c) evidence demonstrating that the proposed business activity is international in scope and that the business person is not seeking to enter the local labor market.

2. Each Party may provide that a business person satisfy the requirements of paragraph 1 by demonstrating that:

(a) the primary source of remuneration for the proposed business activity is outside the territory of the Party granting temporary entry; and

(b) the business person’s principal place of business and the actual place of accrual of profits, at least predominantly, remain outside such territory.

3. A Party shall normally accept an oral declaration as to the principal place of business and the actual place of accrual of profits. Where the Party requires further proof, it shall normally consider a letter from the employer attesting to these matters as sufficient proof.

4. Neither Party may:

(a) as a condition for temporary entry under paragraph 1, require prior approval procedures, petitions, labor certification tests, or other procedures of similar effect; or

(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.

SECTION II : TRADERS AND INVESTORS

1. Each Party shall grant temporary entry and provide confirming documentation to a business person seeking to:

(a) carry on substantial trade in goods or services principally between the territory of the Party of which the business person is a national and the territory of the other Party into which entry is sought, or

(b) establish, develop, administer, or provide advice or key technical services to the operation of an investment to which the business person or the business person’s enterprise has committed, or is in the process of committing, a substantial amount of capital, in a capacity that is supervisory, executive, or involves essential skills, provided that the business person otherwise complies with immigration measures applicable to temporary entry.

2. Neither Party may:

(a) as a condition for temporary entry under paragraph 1, require labor certification tests or other procedures of similar effect; or

(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.

SECTION III : INTRA-COMPANY TRANSFEREES

1. Each Party shall grant temporary entry and provide confirming documentation to a business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or affiliate thereof, in a capacity that is managerial, executive, or involves specialized knowledge, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry. A Party may require the business person to have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of the application for admission. The Parties understand that, as used in this paragraph, “a business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or affiliate thereof, in a capacity that is managerial, executive or involves special knowledge” has the same meaning as “managers, executives and specialists” as defined in relation to intra-corporate transferees in a Party’s Schedule of Specific Commitments to the GATS.

2. A Party shall not:

(a) as a condition for temporary entry under paragraph 1, require labor certification tests or other procedures of similar effect; or 

(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.

SECTION IV : PROFESSIONALS

1. Each Party shall grant temporary entry and provide confirming documentation to a business person seeking to engage in a business activity as a professional, or to perform training functions related to a particular profession, including conducting seminars, if the business person otherwise complies with immigration measures applicable to temporary entry, on presentation of:

(a) proof of nationality of a Party;

(b) documentation demonstrating that the business person will be so engaged and describing the purpose of entry; and

(c) documentation demonstrating the attainment of the relevant minimum educational requirements or alternative credentials.

2. For purposes of this Chapter, professional means a national of a Party who is engaged in a specialty occupation requiring:

(a) theoretical and practical application of a body of specialized knowledge; and

(b) attainment of a post-secondary degree in the specialty requiring four or more years of study (or the equivalent of such a degree) as a minimum for entry into the occupation. Such degrees include the Bachelor’s Degree, Master’s Degree, and the Doctoral Degree conferred by institutions in the United States and Singapore.

3. Notwithstanding paragraph 2, each Party shall grant temporary entry to business persons seeking to engage in a business activity as a professional in one of the professions listed in Appendix 11A.2, provided that the business person possesses the credentials specified and otherwise complies with the requirements in paragraph 1 of this Section.

4. To assist in the implementation of this Chapter, the Parties shall exchange illustrative lists of professions that meet the definition of professional by the date of entry into force of this Agreement. The Parties shall also exchange information on post-secondary education, in order to facilitate the evaluation of applications for temporary entry.

5. A Party shall not:

(a) as a condition for temporary entry under paragraph 1, require prior approval procedures, petitions, labor certification tests, or other procedures of similar effect; or

(b) impose or maintain any numerical restriction relating to temporary entry under paragraph 1.

6. Notwithstanding paragraph 5(a), a Party may require a business person seeking temporary entry under this Section to comply with procedures applicable to temporary entry of professionals, such as an attestation of compliance with the Party’s labor and immigration laws or a requirement that the business person meet certain salary criteria.

7. Notwithstanding paragraphs 1 and 5, a Party may establish an annual numerical limit, which shall be set out in Appendix 11A.3, regarding temporary entry of business persons of the other Party seeking to engage in business activities as a professional.

8. A Party establishing a numerical limit pursuant to paragraph 7, unless the Parties agree otherwise, may, in consultation with the other Party, grant temporary entry under paragraph 1 to a business person who practices in a profession where accreditation, licensing, and certification requirements are mutually recognized by the Parties.

9. Nothing in paragraph 7 or 8 shall be construed to limit the ability of a business person to seek temporary entry under a Party’s applicable immigration measures relating to the entry of professionals other than those adopted or maintained pursuant to paragraph 1.

APPENDIX 11A.1

BUSINESS VISITORS

Definitions

For purposes of this Appendix, territory of the other Party means the territory of the Party other than the territory of the Party into which temporary entry is sought.

The Parties agree that the business visitors referred to below are not seeking to establish a direct employer-employee relationship in the territory of the Party into which temporary entry is sought.

Research and Design

- Technical, scientific, and statistical researchers conducting independent research or research for an enterprise located in the territory of the other Party.

Growth, Manufacture, and Production

- Purchasing and production management personnel conducting commercial transactions for an enterprise located in the territory of the other Party.

Marketing

- Market researchers and analysts conducting independent research or analysis or research or analysis for an enterprise located in the territory of the other Party.

- Trade fair and promotional personnel attending a trade convention.

Sales

- Sales representatives and agents negotiating contracts for, but not delivering or providing, goods or services for an enterprise located in the territory of the other Party that do not involve direct transactions with the general public.

- Buyers purchasing for an enterprise located in the territory of the other Party.

Distribution

- With respect to temporary entry into the United States, Singaporean customs brokers performing brokerage duties relating to the export of goods from the territory of the United States to or through the territory of Singapore. With respect to temporary entry into the territory of Singapore, United States customs brokers performing brokerage duties relating to the export of goods from the territory of Singapore to or through the territory of the United States.

- Customs brokers providing consulting services regarding the facilitation of the import or export of goods.

After-sales Service

- Installers, repair and maintenance personnel, and supervisors, possessing highly specialized knowledge essential to a seller’s contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other directly-related service contract included as part of the sale of commercial or industrial equipment or machinery, including computer software, purchased from an enterprise located outside the territory of the Party into which temporary entry is sought, during the life of the warranty or directly-related service agreement.

General Service

- Managers, executives, and specialists¹ entering to negotiate specified or defined commercial transactions for an enterprise located in the territory of the other Party.

- Managers, executives, and specialists¹ in the financial services sector (insurers, bankers, or investment brokers) entering to negotiate specified or defined commercial transactions for an enterprise located in the territory of the other Party.

- Public relations and advertising managers, executives, and specialists ¹ attending or participating in conventions, or consulting with business associates regarding specified or defined commercial transactions for an enterprise located in the territory of the other Party. 

- Tourism personnel (tour and travel agents, tour guides, or tour operators) attending or participating in conventions or conducting a tour that has begun in the territory of the other Party.

- Translators or interpreters performing services as employees of an enterprise located in the territory of the other Party, and for a defined commercial transaction for that enterprise.

APPENDIX 11A.2

PROFESSION	MINIMUM EDUCATION REQUIREMENTS AND ALTERNATIVE CREDENTIALS
Disaster Relief Claims Adjuster	Baccalaureate Degree, and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims; or three years experience in claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims.
Management Consultant	Baccalaureate Degree. If the degree is in a discipline not related to the area of the consulting agreement, then equivalent professional experience as established by statement or professional credential attesting to three years experience in a field or specialty related to the consulting  agreement is required.

APPENDIX 11A.3

United States

1. Beginning on the date of entry into force of this Agreement, the United States shall annually approve as many as 5,400 initial applications of business persons of Singapore seeking temporary entry under Section IV of Annex 11A to engage in a business activity at a professional level.

2. For purposes of paragraph 1, the United States shall not take into account:

(a) the renewal of a period of temporary entry;

(b) the entry of a spouse or children accompanying or following to join the principal business person;

(c) an admission under section 101(a)(15)(H)(i)(b) of the Immigration and  Nationality Act, 1952, as it may be amended, including the worldwide numerical limit established by section 214(g)(1)(A) of that Act; or

(d) an admission under any other provision of section 101(a)(15) of that Act relating to the entry of professionals.

CHAPTER 12 : ANTICOMPETITIVE BUSINESS CONDUCT, DESIGNATED
 MONOPOLIES, AND GOVERNMENT ENTERPRISES

ARTICLE 12.1 : OBJECTIVES

Recognizing that the conduct subject to this Chapter has the potential to restrict bilateral trade and investment, the Parties believe proscribing such conduct, implementing economically sound competition policies, and engaging in cooperation will help secure the benefits of this Agreement.

ARTICLE 12.2 : ANTICOMPETITIVE BUSINESS CONDUCT

1. Each Party shall adopt or maintain measures to proscribe anticompetitive business  conduct^12-1 with the objective of promoting economic efficiency and consumer welfare, and shall take appropriate action with respect to such conduct.

2. Each Party shall establish or maintain an authority responsible for the enforcement of its measures to proscribe anticompetitive business conduct. The enforcement policy of the Parties’ national authorities responsible for the enforcement of such measures includes not discriminating on the basis of the nationality of the subjects of their proceedings. Each Party shall ensure that a person subject to the imposition of a sanction or remedy for violation of such measures is provided with the opportunity to be heard and to present evidence, and to seek review of such sanction or remedy in a domestic court or independent tribunal.

ARTICLE 12.3 : DESIGNATED MONOPOLIES AND GOVERNMENT ENTERPRISES

1. Designated Monopolies

(a) Nothing in this Chapter shall be construed to prevent a Party from designating a monopoly.

(b) Where a Party designates a monopoly and the designation may affect the interests of persons of the other Party, the Party shall:

(i) at the time of the designation endeavor to introduce such conditions on the operation of the monopoly as will minimize or eliminate any nullification or impairment of benefits in the sense of Article 20.4.1(c) (Additional Dispute Settlement Procedures); and 

(ii) provide written notification, in advance wherever possible, to the other Party of the designation and any such conditions.

(c) Each Party shall ensure that any privately-owned monopoly that it designates after the date of entry into force of this Agreement and any government monopoly that it designates or has designated:

(i) acts in a manner that is not inconsistent with the Party’s obligations under  this Agreement wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, such as the power to grant import or export licenses, approve commercial transactions, or impose quotas, fees or other charges;

(ii) acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, including with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, except to comply with any terms of its designation that are not inconsistent with subparagraph (iii) or (iv);

(iii) provides non-discriminatory treatment to covered investments, to goods of the other Party, and to service suppliers of the other Party in its purchase or sale of the monopoly good or service in the relevant market; and

(iv) does not use its monopoly position to engage, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership, in anticompetitive practices in a non-monopolized market in its territory that adversely affect covered investments.

2. Government Enterprises

(a) Nothing in this Agreement shall be construed to prevent a Party from establishing or maintaining a government enterprise.

(b) Each Party shall ensure that any government enterprise that it establishes or maintains acts in a manner that is not inconsistent with the Party’s obligations under this Agreement wherever such enterprise exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it, such as the power to expropriate, grant licenses, approve commercial transactions, or impose quotas, fees, or other charges.

(c) The United States shall ensure that any government enterprise that it establishes or maintains accords non-discriminatory treatment in the sale of its goods or services to covered investments.

(d) Singapore shall ensure that any government enterprise:

(i) acts solely in accordance with commercial considerations in its purchase or sale of goods or services, such as with regard to price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, and provides non-discriminatory treatment to covered investments, to goods of the United States, and to service suppliers of the United States, including with respect to its purchases or sales; ^12-2 and

(ii) does not, either directly or indirectly, including through its dealings with its parent, subsidiaries, or other enterprises with common ownership:

(A) enter into agreements among competitors that restrain competition on price or output or allocate customers for which there is no plausible efficiency justification, or

(B) engage in exclusionary practices that substantially lessen competition in a market in Singapore to the detriment of consumers.

(e) Singapore shall take no action or attempt in any way, directly or indirectly, to influence or direct decisions of its government enterprises, including through the exercise of any rights or interests conferring effective influence over such enterprises, except in a manner consistent with this Agreement. However, Singapore may exercise its voting rights in government enterprises in a manner that is not inconsistent with this Agreement.

(f) Singapore shall continue reducing, with a goal of substantially eliminating, its aggregate ownership and other interests that confer effective influence in entities organized under the laws of Singapore, taking into account, in the timing of individual divestments, the state of relevant capital markets.

(g) Singapore shall:

(i) at least annually, make public a consolidated report that details for each  covered entity:

(A) the percentage of shares and the percentage of voting rights that Singapore and its government enterprises cumulatively own;

(B) a description of any special shares or special voting or other rights that Singapore or its government enterprises hold, to the extent different from the rights attached to the general common shares of  such entity;

(C) the name and government title(s) of any government official serving as an officer or member of the board of directors; and

(D) its annual revenue or total assets, or both, depending on the basis on which the enterprise qualifies as a covered entity.

(ii) on receipt from the United States of a request regarding a specific enterprise, provide to the United States the information listed in clause (i), for any enterprise that is not a covered entity or an enterprise excluded under Article 12.8.1 (d) and 12.8.1(e), with the understanding that the information may be made public.

3. The charging of different prices in different markets, or within the same market, where such differences are based on normal commercial considerations, such as taking account of supply and demand conditions, is not in itself inconsistent with this Article.

4. This Article does not apply to government procurement.

ARTICLE 12.4 : COOPERATION

The Parties recognize the importance of cooperation and coordination to further effective competition law and policy development in the free trade area and agree to cooperate on these matters.

ARTICLE 12.5 : TRANSPARENCY AND INFORMATION REQUESTS

1. The Parties recognize the value of transparency of their competition policies.

2. Each Party, at the request of the other Party, shall make available public information concerning the enforcement of its measures proscribing anticompetitive business conduct.

3. Each Party, at the request of the other Party, shall make available public information concerning government enterprises, and designated monopolies, public or private. Requests for such information shall indicate the entities involved, specify the particular products and markets concerned, and include some indicia that these entities may be engaging in practices that may hinder trade or investment between the Parties.

4. Each Party, at the request of the other Party, shall make available public information concerning exemptions to its measures proscribing anticompetitive business conduct. Requests for such information shall specify the particular products and markets of concern and include some indicia that the exemption might hinder trade or investment between the Parties.

ARTICLE 12.6 : CONSULTATIONS

1. To foster understanding between the Parties, or to address specific matters that arise under this Chapter, each Party shall, at the request of the other Party, enter into consultations regarding representations made by the other Party. In its request, the Party shall indicate, if relevant, how the matter affects trade or investment between the Parties. The Party addressed shall accord full and sympathetic consideration to the concerns of the other Party.

2. Where consultations under paragraph 1 concern conduct covered by Article 12.3.2(d)(ii), Singapore shall inform the United States of the steps it has taken or plans to take to examine the conduct at issue, shall apprise the United States when Singapore’s responsible authorities decide to initiate or not to initiate enforcement proceedings regarding the conduct, and shall keep the United States regularly apprised of developments in, and the results of, any enforcement proceedings it initiates.

ARTICLE 12.7 : DISPUTES

A Party shall not have recourse to dispute settlement under this Agreement for any matter arising under Article 12.2, 12.4, or 12.6.

ARTICLE 12.8 : DEFINITIONS

For purposes of this Chapter:

1. covered entity means:

(a) an enterprise organized under the laws of Singapore in which effective influence exists, or is rebuttably presumed to exist, whose annual revenue is greater than SGD 50 million;

(b) an enterprise organized under the laws of Singapore in which effective influence exists, or is rebuttably presumed to exist, whose total assets are greater than SGD 50 million; and

(c) any entity organized under the laws of Singapore in which the Government of Singapore owns a special voting share with veto rights relating to such matters as the disposal of the undertaking, the acquisition by any person of a specified percentage of the enterprise’s share capital, appointments to the board of directors or of management, winding up or dissolution of the enterprise, or any change to the constituent documents concerning the aforementioned matters; but excludes:.138

(d) government enterprises organized and operating solely for the purpose of:

(i) investing the reserves of the Government of Singapore in foreign markets; or

(ii) holding investments referred to in clause (i); and

(e) Temasek Holdings (Pte) Ltd. The revenue and total asset thresholds above shall be adjusted for inflation (or deflation) every five years. The Parties may otherwise revise the thresholds by mutual agreement;

2. covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party. Covered investments shall include those existing at the date of entry into force of this Agreement as well as those established, acquired, or expanded thereafter;

3. a delegation includes a legislative grant, and a government order, directive, or other act, transferring to the monopoly or government enterprise, or authorizing the exercise by the monopoly or government enterprise of, government authority;

4. designate means to establish, designate, or authorize a monopoly, or to expand the scope of a monopoly, to cover an additional good or service, whether formally or in effect; 

5. effective influence exists where the government and its government enterprises, alone or in combination:

(a) own more that 50 percent of the voting rights of an entity; or (b) have the ability to exercise substantial influence over the composition of the board of directors or any other managing body of an entity, to determine the outcome of decisions on the strategic, financial, or operating policies or plans of an entity, or otherwise to exercise substantial influence over the management or operation of an entity. Where the government and its government enterprises, alone or in combination, own 50 percent or less, but more than 20 percent, of the voting securities of the entity and own the largest block of voting rights of such entity, there is a rebuttable presumption that effective influence exists. Annex 12A provides an illustration of how the analysis of effective influence should proceed;

6. government enterprise means:

(a) for the United States, an enterprise owned, or controlled through ownership interests, by that Party; and

(b) for Singapore, an enterprise in which that Party has effective influence;

7. government monopoly means a monopoly that is owned, or controlled through ownership interests, by the national government of a Party or by another such monopoly;

8. in accordance with commercial considerations means consistent with normal business practices of privately-held enterprises in the relevant business or industry;

9. market means the geographical and commercial market for a good or service;

10. monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of such grant; and

11. non-discriminatory treatment means the better of national treatment and most-favored-nation treatment, as set out in the relevant provisions of this Agreement and subject to the terms and conditions set out in the relevant Annexes thereto.

Holding Company: A government enterprise, since the Government owns more than 50% of it (100%).

Company A: Presumed to be a government enterprise, since Holding Company, a government enterprise, owns more than 20% of its shares (assuming Holding Company is largest shareholder).

Company B: Presumed to be a government enterprise, since Holding Company and Company A, a government enterprise, together own more than 20% of its shares (21%) (assuming that the block of 21% owned by Holding Company and Company A is the largest block of shares).

Company C: Presumed to be a government enterprise, since Company A, a government enterprise, owns more than 50% of its shares (75%).

Company D: Presumed to be a government enterprise, since Company B, a government enterprise, owns more than 20% of its shares (30%) (assuming Company B owns the largest block of shares).

Company E: Presumed to be a government enterprise, since Company C, a government enterprise, and Company D, a government enterprise, together own more than 20% of its shares (22%) (assuming the block of 22% owned by Companies C and D constitutes the largest block of shares).

Company F: A government enterprise, since Holding Company owns more than 50% of its shares.

Company G: Not a government enterprise, since Company B, a government enterprise, and Company F, a government enterprise, together do not own more than 20% of its shares (15%).

Company H: Not a government enterprise, although Company D, a government enterprise, and Company E, together owns more than 20% of its shares (33%), Companies D and E do not, together, own the largest block of shares, since Company G, not a government enterprise, owns 67% of its shares.

Company I: Not a government enterprise, since Company G is not a government enterprise

CHAPTER 13 : GOVERNMENT PROCUREMENT

ARTICLE 13.1 : GENERAL

1. The Parties reaffirm their rights and obligations under the GPA and their interest in further expanding bilateral trading opportunities in each Party’s government procurement market.

2. The Parties recognize their shared interest in promoting international liberalization of government procurement markets in the context of the rules-based international trading system. The Parties shall continue to cooperate in the review under Article XXIV:7 of the GPA and on procurement matters in APEC and other appropriate international fora. The Parties shall also actively cooperate to implement the WTO Doha Ministerial mandate related to the negotiation of a multilateral agreement on transparency in government procurement.

3. Nothing in this Chapter shall be construed to derogate from either Party’s rights or  obligations under the GPA. 

4. The Parties confirm their desire and determination to apply the APEC Non-Binding Principles on Government Procurement, as appropriate, to all their government procurement that is outside the scope of the GPA and this Chapter.

ARTICLE 13.2 : SCOPE AND COVERAGE

1. This Chapter applies to measures adopted or maintained by a Party regarding government procurement.

2. For purposes of this Chapter, government procurement means a procurement:

(a) by an entity specified in a Party’s Schedule 1 to Annex 13A;

(b) of any combination of goods and services specified in a Party’s Schedule 2 to Annex 13A;

(c) by any contractual means, including those listed in Article I:2 of the GPA and any build-operate-transfer contract; and

(d) in which the contract has a value not less than the relevant threshold set out in Schedule 1 to Annex 13A.

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