Investment Treaty Arbitration

Last verified on Tuesday 28th September 2021

Investment Treaty Arbitration: Netherlands

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De Brauw Blackstone Westbroek

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

Netherlands

 

Substantive protections

Procedural rights

           

BIT Contracting party or MIT[1]

Fair and Equitable Treatment (FET)

Expropriation

Protection and security

Most-favoured-nation (MFN)

Umbrella clause

Cooling-off period

 

Local courts

Arbitration

Albania (1 September 1995)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Algeria (1 August 2008) 

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Argentina (1 October 1994)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes[2]

Armenia (1 August 2006) 

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Bahrain (1 December 2009)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Bangladesh (1 June 1996)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Belarus (1 August 1996)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Belize (1 October 2004)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Benin (15 December 2007)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Bosnia and Herzegovina (1 January 2002)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Brazil* (signed 25 November 1998; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Burundi (1 August 2009)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Cambodia (1 March 2006)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Cameroon (7 May 1966)

Yes

Yes

No

Yes

No

None

No

No

Cape Verde (25 November 1992)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Chile* (signed 30 November 1998; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

China (1 August 2004)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Costa Rica (1 July 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Côte d'Ivoire (8 September 1966)

Yes

Yes

No

No

No

None

No

No

Cuba (1 November 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Czech Republic** (1 October 1992)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Dominican Republic (1 October 2007)

Yes

Yes

Yes

Yes

Yes

4 months

Yes

Yes

Egypt (1 March 1998)

Yes

Yes

Yes

Yes

No

None

No

Yes

El Salvador (1 March 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Eritrea* (signed 2 December 2003; not in force)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Ethiopia (1 July 2005)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Gambia (1 April 2007)

Yes

Yes

Yes

Yes

No

None

No

Yes

Georgia (1 April 1999)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Ghana (1 July 1991)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Guatemala (1 September 2002)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Honduras (1 September 2002)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Hong Kong, China SAR (1 September 1993)

Yes

Yes

Yes

Yes

Yes

6 months

Yes[3]

Yes

Jamaica (1 August 1992)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Jordan (1 August 1998)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Kazakhstan (1 August 2007)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Kenya (11 June 1979)

Yes

Yes

No

Yes

No

None

No

Yes[4]

Korea, Republic of (1 March 2005)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Kuwait (31 May 2002)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Lao People's Democratic Republic (1 May 2005)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Lebanon (1 March 2004)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Macao, China SAR (1 May 2009)

Yes

Yes

Yes

Yes

Yes

Not specified[5]

No

Yes

Malawi (1 November 2007)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Malaysia (13 September 1972)

Yes

Yes

No

Yes

Yes

None

Yes

Yes[6]

Mali (1 March 2005)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Mexico (1 October 1999)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Moldova (1 May 1997)

Yes

Yes

Yes

Yes

No

None

No

Yes

Mongolia (1 June 1996)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Montenegro (1 March 2004)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Morocco (27 July 1978)

Yes

Yes

No

Yes

No

None

No

Yes

Mozambique (1 September 2004)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Namibia (1 October 2004)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Nicaragua (1 January 2003)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Nigeria (1 February 1994)

Yes

Yes

Yes

Yes

No

None

No

Yes

North Macedonia (1 June 1999)

Yes

Yes

Yes

Yes

No

None

No

Yes

Oman (1 February 1989)

Yes

Yes

Yes

Yes

No

None

No

Yes

Oman* (signed 17 January 2009; not in force)

Yes

Yes

Yes

Yes

No

None

No

Yes

Pakistan (1 October 1989)

Yes

Yes

Yes

No

No

None

No

Yes

Panama (1 September 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Paraguay (1 August 1994)

Yes

Yes

Yes

Yes

No

None

Yes

Yes

Peru (1 February 1996)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Philippines (1 October 1987)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Romania** (1 February 1995)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Russian Federation (20 July 1991)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Senegal (5 May 1981)

No

Yes

Yes

Yes

Yes

None

No

Yes

Serbia (1 March 2004)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Singapore (7 September 1973)

Yes

Yes

Yes

Yes

No

None

No

Yes

Sri Lanka (1 May 1985)

Yes

Yes

Yes

Yes

No

None

No

Yes

Sudan (27 March 1972)

Yes

Yes

Yes

No

No

None

No

No

Suriname (1 September 2006)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Tajikistan (1 April 2004)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Thailand (3 March 1973)

Yes

Yes

Yes

Yes

No

None

No

No

Tunisia (1 August 1999)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Turkey (1 November 1989)

Yes

Yes

Yes

Yes

Yes

12 months

Yes

Yes

Uganda (1 January 2003)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Ukraine (1 June 1997)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

United Arab Emirates* (signed 26 November 2013; not in force)

Yes

Yes

Yes

Yes

No

3 months

Yes

Yes

Uruguay (1 August 1991)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes[7]

Uzbekistan (1 July 1997)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Venezuela (1 November 1993)[8]

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Vietnam (1 February 1995)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Yemen (1 September 1986)

Yes

Yes

Yes

Yes

No

None

No

Yes

Zambia (1 March 2014)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Zimbabwe (1 May 1998)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

                 

Energy Charter Treaty

(16 April 1998)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes


* BITs that have been signed but not yet entered into force.

** Intra-EU BITs that are due to be terminated upon ratification by the other contracting party of the EU Agreement for the Termination of Intra-EU Bilateral Investment Treaties of May 2020.

The status of certain of the treaties referred to in this table is expected to change in light of the new Dutch Model BIT published in March 20199 (the '2019 Dutch Model BIT' or the '2019 Model BIT') and the EU Agreement for the Termination of Intra-EU Bilateral Investment Treaties10 of May 2020. The Netherlands ratified this Agreement on 31 March 2021, resulting in termination of its BITs with Bulgaria, Croatia, Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia and Slovenia.11 See questions 13 and 21.

The 2019 Dutch Model BIT has not been the basis for any investment treaty so far, and this position is not expected to change in the near future. All Dutch BITs in force are based on earlier Model BITs (particularly the 1997 and 2004 models, which are essentially identical).

As a consequence of its membership in the European Union (EU), the Netherlands is also party to some 71 treaties with investment provisions that have been concluded by the EU, of which 56 are currently in force. For the sake of brevity, these EU investment instruments are not addressed in this jurisdiction’s chapter.12

Answer contributed by , , , , and

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

Netherlands

Issue

Distinguishing features in relation to the definition of ‘investor’

Permissible investors

Typically, Dutch BITs protect three classes of investors:

  • natural persons having the nationality of the home state;
  • legal persons constituted under the law of the home state; and
  • legal persons not constituted in the home state but controlled ‘directly or indirectly’ by one of the two above-mentioned categories.

The 2019 Dutch Model BIT limits the second and third categories of investors mentioned above. Article 1 provides that legal persons are in all cases required (a) to be constituted under the law of the home state and (b) either (i) have ‘substantial business activities’ in its territory, or (ii) be directly or indirectly owned or controlled by a natural person having the nationality of the home state, or by a legal person constituted under the law of the home state and having substantial business activities in in its territory.

Nationality of natural persons

Nearly all of the Dutch BITs currently in force require that natural persons have the nationality of – as opposed to permanent residence in – the home state to qualify as an ‘investor’. In multiple BITs the term ‘national’ is also used expressly instead of ‘investor’.13

An exception to the nationality requirement is the Hong Kong-Netherlands BIT which defines ‘investors’ as including physical persons who have the ‘right of abode’. Conversely, the Cuba–Netherlands BIT defines ‘nationals’ of Cuba as natural persons having citizenship as well as permanent residence in Cuba. In this BIT, a ‘national’ of the Netherlands is, however, defined as a natural person having Dutch nationality only.

For the most part, the Dutch BITs do not contain provisions disqualifying investors with dual or multiple nationality and they are typically silent in this respect. An exception is the Macao, China SAR–Netherlands BIT which provides that individuals having both the nationality of the Netherlands and the Resident Identity Card of the Macao SAR are not considered Dutch investors for the purposes of protection of investments in Macao SAR.

The 2019 Dutch Model BIT similarly bases its qualification for a natural person-investor on nationality only. With regard to dual nationality, the 2019 Model BIT now provides some limitation, namely that a natural person having nationality of both contracting parties is deemed to be a natural person of the contracting party of his or her ‘dominant and effective nationality’.14 As such, dual nationals may still benefit from the protections afforded through the relevant BIT.

Substantial business activity of legal persons

Most Dutch BITs require legal persons to simply be constituted under the law of the home state in order to qualify as an ‘investor’.15 This allows companies to reap the benefits of Dutch BITs regardless of the substance of their business activities in the Netherlands.

In a significant shift from the prevailing trend, article 1 of the 2019 Dutch Model BIT has introduced the requirement that legal persons have ‘substantial business activities’ in the territory in which they are constituted in order to qualify as an investor. If a legal person does not itself have ‘substantial business activities’ in the Netherlands, it may still qualify as an investor if it is directly or indirectly owned or controlled by either a legal person that does have substantial business activities in the Netherlands or by a natural person having Dutch nationality.

The 2019 Model BIT further provides a non-exhaustive list of ‘indications’ of ‘substantial business activities’, that must be assessed case by case. These include:

  • establishment of a registered office and/or administration;
  • establishment of headquarters and/or management;
  • number of employees and qualifications;
  • turnover generated in the territory; and
  • establishment of an office, production facility and/or research laboratory in the contracting party.

To reinforce this requirement, the 2019 Model BIT also directs tribunals to decline jurisdiction if a legal person has ‘changed its corporate structure with a main purpose to gain the protection of this [BIT], at a point in time where a dispute had arisen or was foreseeable. This particularly includes situations where an investor has changed its corporate structure with a main purpose to submit a claim to its original home state.’16

Control of legal persons

Most Dutch BITs include as ‘investors’ legal persons not constituted under a contracting party’s laws but controlled by natural persons who are nationals of the contracting party or legal persons constituted under the laws of the contracting party. For example:

  • BITs with Gambia, Brazil, Belize, Armenia, Jordan, Moldova and others refer to legal persons ‘not constituted under the law of that Contracting Party’, but controlled by a national of the contracting party.
  • BITs with Peru, Argentina and Bangladesh refer to legal persons ‘wherever located, controlled, directly or indirectly by nationals of that Contracting Party’.

Some BITs exclude legal persons constituted in third countries17 even where they may be controlled by a national of a contracting party.

The 2019 Dutch Model BIT limits the scope of this class of investor by excluding legal persons in all other countries than the home state. In this respect, article 1(b)(iii) provides that ‘investor’ with regard to either contracting party means: ‘any legal person that is constituted under the law of that contracting party and is directly or indirectly owned or controlled by a natural person as defined in (i) or by a legal person as defined in (ii).’

Evidence of control

The majority of Dutch BITs provide that control of an investor can be either direct or indirect18 but guidance is not usually given as to what constitutes ‘control’. Some exceptions to this include:

  • The Argentina–Netherlands BIT regards ‘control’ by a national as being an affiliate of a legal person of the home state, having a direct or indirect participation of over 49 per cent in the capital of a company, or the direct or indirect possession of the votes necessary to obtain a ‘predominant position in assemblies or company organs’.
  • The Macao, China SAR–Netherlands BIT requires de facto control, to be determined by assessment of factors such as financial interest in, and ability to substantially influence management and operation of the investor.
  • The Bosnia and Herzegovina–Netherlands BIT identifies indirect control of an investment as control ‘in fact, determined after an examination of the actual circumstances in each situation’. A non-exhaustive list of factors to be considered include the investor’s financial interest in the investment, ability to exercise substantial influence over the management and operation of the investment and the ability to exercise substantial influence over selection of the board or other managing body.

The 2019 Dutch Model BIT refers to ‘evidence’ of control only in respect of the consultation procedure set out in article 18. In particular, a request for consultations must include ‘evidence establishing that the claimant is an investor of the other Party and that it owns or controls the investment and, where it acts on behalf of a locally established company, that it owns or controls the locally established company’. No other factors are indicated.

Answer contributed by , , , , and

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

Netherlands

Issue Distinguishing features in relation to the concept of ‘investment’
Eligible assets

All Dutch BITs currently in force include an asset-based, as opposed to enterprise-based, definition of ‘investment’. In most Dutch BITs currently in force, ‘investment’ is typically framed broadly as referring to ‘every kind of asset’, and is then followed by a non-exhaustive list of assets that may qualify for protection, such as:

  • movable and immovable property and other rights in rem;
  • rights derived from shares or bonds;
  • claims to money or other assets or performance having high economic value;
  • intellectual and industrial property rights such as copyrights, patents, designs, technical processes, goodwill and know-how; and
  • rights to prospect, explore and exploit natural resources.19

The 2019 Dutch Model BIT likewise defines ‘investment’ as ‘every kind of asset’ and sets out a similar non-exhaustive list as is typically found in older-generation Dutch BITs.20 However, the scope of investments is narrowed by the introduction of additional characteristics that an investment must possess. In this regard, article 1(a) provides: ‘’investment’ means every kind of asset that has the characteristics of an investment, which includes a certain duration, the commitment of capital or other resources, the expectation of gain or profit, and the assumption of risk.’ Accordingly, an investment may not be eligible for protection if it does not possess these additional characteristics. The 2019 Model BIT does not list a requirement that an economic contribution to the host state be made.

Excluded assets

Given the broad scope generally ascribed to investments, the majority of Dutch BITs currently in force do not specifically identify assets that are excluded from protection. The sole exception is the Mexico-Netherlands BIT, which excludes from the definition of ‘investment’ claims to money that arise solely from commercial contracts for the sale of goods or services, extension of credit in a commercial transaction and credits with a maturity of less than three years.21

The 2019 Model BIT excludes from the definition of ‘investment’ claims to money arising solely from commercial contracts for the sale of goods or services, the domestic financing of such contracts, or any related order, judgment or arbitral award.

Accordance with local laws of host state

Save for a small minority,22 Dutch BITs currently in force do not expressly require investments to be made in accordance with the laws and regulations of the host state.

In a shift from the general position observed in existing BITs, the 2019 Dutch Model BIT requires that investments be made in accordance with the host state’s law at the time they were made. It also requires that investors and investments comply with the domestic law of the host state, ‘including laws and regulations on human rights, environmental protection and labor laws’.23

Indirect control of assets

Most Dutch BITs do not contain explicit references to indirect control or ownership of assets by investors. Only a handful of BITs, for example, those with Turkey, Tunisia, Oman and Kuwait, contain such a reference.

An explicit inclusion of investments ‘directly or indirectly owned or controlled by an investor’ appears in the 2019 Dutch Model BIT.24

Answer contributed by , , , , and

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

Netherlands

Issue Distinguishing features of the fair and equitable treatment (FET) standard
Illustrations of the FET standard

Almost all of the BITs to which the Netherlands is a party and which are in force have unqualified FET formulations and use broad language (ie, that: ‘each Contracting Party shall ensure fair and equitable treatment of the investments of nationals of the other Contracting Party’).

The 2019 Dutch Model BIT maintains this language, however it identifies a list of measures which would constitute a breach of the FET obligation, including: ‘fundamental breach’ of due process, denial of justice in criminal, civil or administrative proceedings, manifest arbitrariness, direct or targeted indirect discrimination on wrongful grounds and abusive treatment of investors.25

Legitimate expectations only from inducement

Dutch BITs in force do not explicitly require the investors’ expectations to be based on the host state’s specific representations in order to be legitimate.26

Under the 2019 Model BIT, legitimate expectations arising from the FET standard will only cover investments that were induced by specific representations by the host state. Article 9(4) provides:

When applying paragraph 2 of this Article, a Tribunal may take into account whether a Contracting Party made a specific representation to an investor to induce an investment that created a legitimate expectation, and upon which the investor relied in deciding to make or maintain that investment, but that the Contracting Party subsequently frustrated.

The consequence of this is a significant restriction in protection typically offered to investors, in particular protection against regulatory changes affecting investments. This is supported by the right of contracting parties – set out in article 2 of the 2019 Model BIT – to regulate and modify the laws of the territory to achieve legitimate public policy objectives.

Customary international law

None of the Dutch investment treaties that are currently in force explicitly equate the FET standard with customary international law as a minimum standard.

Answer contributed by , , , , and

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

Netherlands

Issue Distinguishing features of the ‘expropriation’ standard
Scope and terminology

All Dutch BITs currently in force provide for protection against direct expropriation, and all but five BITs explicitly provide for protection against indirect expropriation.27 While some contain the language of ‘expropriation or nationalisation’,28 Dutch BITs most commonly refer to ‘measures depriving […] nationals of the other Contracting Party of their investments’.29

Indirect expropriation and other equivalent measures

Existing Dutch BITs do not define indirect expropriation or set out factors to be considered in determining whether indirect expropriation has occurred.

By contrast, article 12(3) of the 2019 Model BIT, which defines and limits ‘indirect expropriation’ to circumstances that substantially deprive the investor of ‘the fundamental attributes of property’:

Indirect expropriation occurs if a measure or a series of measures of a Contracting Party has an effect equivalent to direct expropriation, in that it substantially deprives the investor of the fundamental attributes of property in its investment, including the right to use, enjoy and dispose of its investment, without formal transfer of title or outright seizure.

The 2019 Model BIT also sets out factors for the determination of indirect expropriation in these terms, including the economic impact, duration and character of the measure. These factors are to be assessed on a case-by-case basis.30

Measures in the public interest

Dutch BITs currently in force commonly protect against expropriation that is not taken ‘in the public interest’.31 This phrasing is most common, although a small number of other BITs refer to ‘public necessity and utility’,32 ‘public purpose’33 or ‘public use, in the public interest or in the interest of national defence’.34

Measures taken in accordance with the ‘due process of law’

Dutch BITs require an expropriation to take place in accordance with ‘due process of law’,35 although alternative phrasing is sometimes seen. For example, the Burundi–Netherlands BIT requires expropriation or equivalent measures ‘in accordance with the good administration of justice’.

Non-discriminatory measures

Dutch BITs currently in force stipulate that expropriation or other measures must not be discriminatory36 or contrary to any undertaking or special arrangement that the contracting party has made.

Compensation

Dutch BITs require an expropriation to be accompanied by the payment of compensation. However, the formulation of ‘compensation’ differs slightly across the BIT network. Reference is largely made to ‘just’ compensation,37 ‘adequate’ compensation,38 or ‘just and equitable’39 compensation, while a number of BITs use the standard wording of the Hull Formula, namely: ‘prompt, adequate and effective compensation’.40

In respect of the determination of compensation, Dutch BITs generally set forth a market-related value of the investment that has been expropriated, although the precise wording varies. For example, reference is made to:

  • ‘genuine value’;41
  • ‘real value’;42
  • ‘market value’;43
  • ‘market value […] or, in the absence of a determinable market value, the actual loss sustained, on or immediately before the date of expropriation’;44
  • ‘real market value or in the absence thereof the genuine value’;45
  • ‘fair and equitable value’;46
  • ‘fair market value’;47 and
  • ‘fair market value, or in the absence of such a value the genuine value’. This BIT also provides that valuation criteria shall include the going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine the fair market value.48

Approximately a third of the Dutch BITs in force call for the value to be calculated as at a time immediately before the date of expropriation or when the impending expropriation became known.49

The 2019 Dutch Model BIT refers to ‘prompt, adequate and effective compensation’, where compensation shall amount to the fair market value at the time immediately before the expropriation or the impending expropriation became known, whichever is earlier. The 2019 Model BIT also sets out valuation criteria, including going concern value, asset value, declared tax value of tangible property ‘and other criteria, as appropriate, to determine fair market value’.50

Interest payable on compensation

Many Dutch BITs currently in force make provision for the payment of interest on the compensation for expropriation. Most commonly, these BITs specify that the rate of interest should be a ‘normal commercial rate’51 or ‘prevailing commercial rate’.52 As an exception, the Dominican Republic-Netherlands BIT does not link the interest to the market, and instead sets out that interest should ‘compensate adequately for any delay in payment that may occur from the date of expropriation until the date of real payment’.

Interest is typically calculated from the date that the measures were taken until payment of the compensation. An exception to this is the Ghana–Netherlands BIT, which provides that interest will only start to run six months from the date of determination of the compensation if it has not yet been paid within that period. The Kenya–Netherlands BIT does not refer expressly to interest but provides that compensation should be paid ‘in accordance with generally recognised rules of international law’. Only a few BITs do not make provision for interest at all.53

Payment

In general, existing Dutch BITs require compensation to be ‘paid and made transferable, without undue delay’ and in the currency of the state of which the investor is a national or a freely convertible currency acceptable to the investor.54 This requirement appears in the vast majority of Dutch BITs, although there may be some alternative phrasing, such as ‘effectively realisable and freely convertible’55 or ‘fully realisable’.56 The Kenya–Netherlands BIT contains a greater departure from the standard, specifying that compensation should be ‘transferable to the extent necessary to make it effective, within a reasonable time’.

Recourse to local courts

A small number of existing BITs set out an investor’s right to have expropriation or other measures reviewed by a judicial authority or other competent authority in the host state. For example:57

  • The BITs with Ghana and Hong Kong, China SAR provide for prompt review by a judicial or independent authority of the host state regarding the expropriation and the valuation of the investment.
  • The Netherlands–Senegal BIT extends the right of prompt review to the expropriation, the valuation of the investment and the payment of compensation.
  • The Netherlands–Philippines BIT accords the investor the right to prompt review of the ‘amount and conditions of payment’ by competent judicial or independent authorities of the host state.
  • Under the Malawi–Netherlands BIT, the investor has the right, upon request, to review of the ‘legality of any measure’ in the manner prescribed and by a competent court in the host state.

Other BITs, however, do not provide for a right to review.58 Article 12(7) of the 2019 Model BIT stipulates that the investor has a right under the law of the host state to ‘prompt review of its claim and valuation of its investment, by a judicial or other independent authority’ of the host state.

Answer contributed by , , , , and

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

Netherlands

Issue Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard
Scope of national treatment (NT) and most favoured nation treatment (MFN) provisions

Most Dutch BITs in force afford wide NT and MFN protections. Such provisions are typically broadly formulated, as follows:

'Each Contracting Party shall accord to such investments treatment which in any case shall not be less favourable than that accorded either to investments of its own nationals or to investments of nationals of any third State, whichever is more favourable to the national concerned.'59

NT and MFN treatment are generally not limited to specific sectors, and there is no distinction between treatment in respect of substantive or procedural matters (ie, dispute resolution). Most Dutch BITs in force also do not contain an NT or MFN comparator that would require investors or investments to be in ‘like circumstances’ to invoke the protection. Some exceptions to this include, for example:

  • BITs with Armenia, Gambia and Mali require that investors be ‘in the same circumstances’ for NT and MFN to apply in fiscal matters.
  • The Mexico–Netherlands BIT requires that investments be ‘in relevant like circumstances’ to trigger the application of MFN and NT protection.

Only a small minority of the Dutch BITs in force contain narrow NT60 and MFN61 clauses, or do not contain such clauses at all.62

Narrower protection in 2019 Model BIT

The 2019 Dutch Model BIT also contains NT and MFN protections, although narrower than the standard of protection that is afforded to investors under the BITs currently in force.

First, the 2019 Dutch Model BIT extends NT and MFN protection to investors and their investments ‘in like situations’:63

Each Contracting Party shall accord to an investor of the other Contracting Party and to an investment of an investor of the other Contracting Party, treatment no less favorable than the treatment it accords, in like situations […] to its own investors and to their investments with respect to conduct, operation, management, maintenance, use, enjoyment and sale or disposal of their investments in its territory.

Second, the 2019 Model BIT provides that substantive obligations under other international investment and trade agreements do not constitute ‘treatment’ in and of themselves and cannot automatically give rise to a breach of MFN.

Third, the 2019 Model BIT expressly excludes investor-state dispute resolution procedures in other international agreements from the meaning of ‘treatment’.

In respect of the second and third remarks, article 8(3) provides:

Substantive obligations in other international investment and trade agreements do not in themselves constitute ‘treatment’, and thus cannot give rise to a breach of paragraph 2 of this Article, absent measures adopted or maintained by a Contracting Party pursuant to those obligations. Furthermore, the ‘treatment’ referred to in paragraph 2 of this Article does not include procedures for the resolution of investment disputes between investors and States provided for in other international investment and trade agreements.

Exclusions

Most Dutch BITs in force exclude MFN protection in the case of advantages granted to third states pursuant to economic integration agreements, usually identified as agreements that establish customs unions, economic unions, monetary unions, free trade zones or the like, or interim agreements leading to such structures.64 A similar limitation appears in article 2(5) of the 2019 Model BIT.

Further, most Dutch BITs provide that treatment afforded pursuant to double taxation treaties or on the basis of reciprocity with a third state is not inconsistent with MFN. See question 10.

Post-establishment treatment

Dutch BITs in force do not provide for pre-establishment NT and MFN. Similarly, the 2019 Dutch Model BIT accords post-establishment MFN and NT treatment only.

More favourable treatment under international law

Most Dutch BITs specify that if obligations under international law provide for more favourable treatment than set out in the BIT, those international law obligations will prevail.65 The majority of the BITs in force also extend this protection to domestic legal rules and regulations, whether current or rules that may be introduced in future.66

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7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

Netherlands

Issue Distinguishing features of the ‘protection and security’ standard
Scope

The vast majority of Dutch BITs in force provide for full protection and security (FPS); only five Dutch BITs currently in force do not contain an FPS clause.67 Most Dutch BITs accord ‘full physical security and protection’68 without further qualification. The wording changes slightly in some BITs, which refer to FPS as ‘adequate security and protection’,69 ‘constant protection and security’70 or ‘non-discriminatory security and protection’.71 In these cases, the omission of ‘physical’ suggests that protection extends beyond ‘physical’ investments only.

Link to international or domestic law

Typically, Dutch BITs do not explicitly link FPS to a minimum standard in international law or to domestic law. An exception to this is the Jordan–Netherlands BIT, which requires FPS ‘in accordance with the laws and regulations of the host Contracting Party’.

FPS tied to non-discrimination

A minority of BITs in force link FPS to non-discrimination standards. For example:

  • The Netherlands–Sudan BIT provides for the same security and protection as accorded to the host state’s nationals.
  • The Netherlands–Thailand BIT demands the same security and protection as accorded to nationals of third states.
  • The Argentina–Netherlands BIT requires the same security and protection as accorded to the host state’s or of any third state’s investors, whichever is more favourable.

The majority of the BITs in force are otherwise silent in this respect.

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8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

Netherlands

Issue Distinguishing features of any ‘umbrella clause’
Uniform scope of obligation

Most Dutch BITs contain umbrella clauses, the majority of which contain broad, uniform language directing the observance of ‘any’ obligation, namely: ‘Each Contracting Party shall observe any obligation it may have entered into with regard to investments of nationals of the other Contracting Party.’

Approximately a quarter of the existing BITs do not contain an umbrella clause.72

Qualification of the obligation

A small number of the Dutch BITs currently in force contain narrower formulations of the umbrella clause. For example, the Mexico–Netherlands BIT refers to obligations that the host state has assumed ‘in writing’, and the Netherlands–Philippines BIT refers to ‘a particular commitment’ the host state may have entered into with regard to ‘a specific investment’.

The latter formulation also appears in article 9(5) of the 2019 Dutch Model BIT, which refers to ‘written commitments […] regarding a specific investment’ entered into by the host state with the investors. The host state is prohibited from breaching that commitment ‘through the exercise of governmental authority in a way that causes loss or damage to the investor or its investment’. The 2019 Model BIT expressly provides that a breach of the BIT itself, another international agreement or domestic law is not in itself a breach of the umbrella clause.73

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9. What are the other most important substantive rights provided to qualifying investors in this country?

Netherlands

Issue Other substantive protections
Free transfer of funds

All Dutch BITs currently in force contain free transfer provisions, which provide that the parties shall guarantee that payments relating to an investment may be transferred. Such transfers shall be made in a freely convertible currency, without restriction or delay. All but nine of the BITs in force provide for the free transfer of funds without any exception or condition.74

Article 11 of the 2019 Dutch Model BIT likewise contains a provision on the free transfer of funds. This provision imposes the additional guarantee that transfers can be made at the market rate of exchange applicable on the date of transfer. The provision is subject to exceptions with respect to the host state’s obligations relating to international peace and security, and to various regulatory and criminal matters which fall under the domestic laws of the host state.

Armed conflict and civil unrest

Many Dutch BITs contain provisions on restitution, compensation, indemnification or other settlement for losses caused by war or another armed conflict, revolutions, states of national emergencies, and other such events. Most of those BITs provide that the treatment provided to investors in this respect is to be no less favourable than that granted to nationals of the host state or of a third state, whichever is more favourable.75

This approach is continued in the 2019 Dutch Model BIT, which provides in article 13 that where investors suffer loss in respect of their investments due to war or armed conflict, revolution, a state of national emergency, revolt, insurrection or riot in the territory of the host state, the investors shall be given restitution, indemnification, compensation or other settlement, no less favourable than that accorded by the host state to its own investors or investors of any third state, whichever is more favourable.

Non-impairment of operation, management, maintenance, use or disposal of investments

The majority of BITs to which the Netherlands is party include non-impairment provisions stipulating that a contracting party ‘shall not impair, by unreasonable or discriminatory measures, the operation, management, maintenance, use, enjoyment or disposal’ of investments of nationals of the other contracting party.76

Enforcement of rights under domestic law

In general, BITs to which the Netherlands is a party provide for dispute resolution either through arbitration or local courts, or both, but they do not include a requirement that the domestic law of the host state provide adequate measures to investors for assertion and enforcement of their rights related to the investment.

The position is different in the 2019 Dutch Model BIT, however, which obliges contracting parties to ensure that investors have access to effective mechanisms of dispute resolution and enforcement:77

Each Contracting Party shall ensure that investors have access to effective mechanisms of dispute resolution and enforcement, such as judicial, quasi-judicial or administrative tribunals or procedures for the purpose of prompt review, which mechanisms should be fair, impartial, independent, transparent and based on the rule of law.

Subrogation

The vast majority of Dutch BITs contain subrogation clauses. An exception is the Ivory Coast-Netherlands BIT.

Transparency

None of the BITs to which the Netherlands is currently party obligate host states to publish the relevant laws and regulations or otherwise make them available to investors and potential investors, nor do the Dutch BITs include any specific provisions with regard to the investor’s transparency obligations.

The 2019 Dutch Model BIT sets a tone for transparency in substantive and procedural matters, recognising the need to foster an ‘open and transparent policy environment’. In particular, article 4 of the 2019 Dutch Model BIT provides that contracting parties shall ensure that all laws, regulations, judicial decisions, procedures and administrative rulings of general application that relate to any matter covered by the BIT must be promptly published or made available to ‘interested persons and the other contracting party’, in English where possible.

Right to regulate and introduce other measures

The vast majority of Dutch BITs do not contain specific clauses regarding public policy, public health and the environment.

By contrast, the 2019 Model BIT expressly provides for the right of the contracting parties to regulate or modify laws to ‘achieve legitimate policy objectives such as the protection of public health, safety, environment, public morals, labor rights, animal welfare, social or consumer protection or for prudential financial reasons’. This right is reinforced by article 2(2), which provides that the mere fact that a contracting party regulates in a manner that negatively affects an investment or interferes with an investor’s expectations is not a breach of an obligation under the BIT.

Corporate social responsibility

None of the existing BITs contain express provisions on corporate social responsibility.

In a progressive shift, this is now addressed in the 2019 Dutch Model BIT, which reiterates the importance of human rights, environmental protection, labour laws, and due diligence to prevent and mitigate environmental and social risks caused by investment. The 2019 Model BIT also sets out a ‘duty’ on the contracting parties to protect against business-related human rights abuses, and to ensure that those affected by such abuses have access to an effective remedy.78 In terms of article 7, investors and their investments are bound by the laws and regulations of the host state on these issues, and investors may be liable in their home state for ‘acts or decisions made in relation to the investment’ that lead to significant damage, injury or loss of life in the host state.

In addition, article 23 of the 2019 Model BIT directs tribunals to consider an investor’s non-compliance in deciding the amount of compensation to be awarded:

Without prejudice to national administrative or criminal law procedures, a Tribunal, in deciding on the amount of compensation, is expected to take into account non-compliance by the investor with its commitments under the UN Guiding Principles on Business and Human Rights, and the OECD Guidelines for Multinational Enterprises.

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10. Do this country’s investment treaties exclude liability through carve-outs, non-precluded measures clauses, or denial of benefits clauses?

Netherlands

Issue

Other substantive protections

Exemption from taxation

Dutch BITs generally contain an exemption for double taxation agreements or other agreements relating to taxation under the MFN or NT protections. Such clauses are found in all but four of Dutch BITs.79

The 2019 Dutch Model BIT provides a comparable clause stating that, for the purpose of granting investors of the other contracting party treatment no less favourable than that accorded to its own investors or to those of any third state:

'any tax benefits granted by that Contracting Party pursuant to the following obligations shall not be taken into account:

  1. under an agreement for the avoidance of double taxation; or
  2. by virtue of its participation in a customs union, economic union, monetary union or similar institution, such as the European Union, or on the basis of interim agreements leading to such unions or institutions; or
  3. on the basis of reciprocity with a third State.'80

Non-precluded measures (NPM)

Save for one exception,81 Dutch BITs do not contain a NPM clause.

A small number of Dutch BITs contain only preambular references to the environment, health and safety.82

By contrast, the 2019 Model BIT expressly provides for the right of the contracting parties to regulate or modify laws to 'achieve legitimate policy objectives such as the protection of public health, safety, environment, public morals, labour rights, animal welfare, social or consumer protection or for prudential financial reasons'. This right is reinforced by article 2(2), which provides that the mere fact that a contracting party regulates in a manner that negatively affects an investment or interferes with an investor's expectations is not a breach of an obligation under the BIT.

Denial of benefits (DOB)

Dutch BITs do not contain DOB clauses.83 However, if the qualified definition of 'investor' in article 1(b)(ii) 2019 Dutch Model BIT is applied in the future, this may have a similar effect as a DOB clause. See question 2.

Joint interpretations

None of the Dutch BITs currently in force provide for a binding joint interpretation issued by the contracting parties (or a joint committee). Article 24 of the 2019 Dutch Model BIT provides that either contracting party may propose that consultations be held in any matter concerning the interpretation or application of the BIT, and the other contracting party shall (i) accord sympathetic consideration to such a proposal, and (ii) afford adequate consultations. In the event that a joint interpretative declaration is adopted as a result of consultations by the contracting parties, it shall be binding on a Tribunal. However, such declaration would not be applicable if a claim has already been submitted by an investor under such BIT.

 

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Procedural rights in this country’s investment treaties

11. Are there any relevant issues related to procedural rights in this country’s investment treaties?

Netherlands

Issue Procedural rights
Scope for investor-state dispute settlement (ISDS)

All but five BITs currently in force make provision for ISDS.84 In total, across the BIT network:

  • ICSID arbitration is provided for in 68 BITs;85
  • ad hoc arbitration under the UNCITRAL Rules is provided for in 29 BITs;86
  • 16 BITs provide for other fora, such as the ICSID Additional Facility Rules,87 the Court of Arbitration of the International Chamber of Commerce88 or non-UNCITRAL ad hoc arbitration;89 and
  • domestic courts as a forum for ISDS are mentioned in 26 BITs.

Some BITs provide a choice of forum to the investor, while other BITs prescribe a single forum for ISDS. Examples include:90

Single forum

  • 29 provide solely for ICSID arbitration (with no mention of other fora, be it other arbitral institutions, tribunals constituted under the UNCITRAL Rules or domestic courts);91
  • one BIT provides solely for UNCITRAL arbitration;92
  • one BIT provides solely for non-UNCITRAL ad hoc arbitration;93 and
  • no BITs provide solely for ISDS in domestic courts.
Scope for investor-state dispute settlement (ISDS) (cont.)

Choice of forum

  • 13 BITs provide the investor a choice between ICSID, UNCITRAL and domestic courts;94
  • nine BITs provide for resolution through local remedies or ICSID arbitration only;95
  • four BITs provide the investor a choice between ICSID, UNCITRAL, ‘other’ arbitral fora and domestic courts;96 and
  • three BITS provide for a choice between UNCITRAL ad hoc arbitration and ICSID only.97

Article 19 of the 2019 Dutch Model BIT provides for a choice between arbitration under the ICSID Convention, the ICSID Additional Facility Rules and PCA-administered UNCITRAL arbitration.

Alternative dispute resolution (ADR) and cooling-off periods

Many existing Dutch BITs provide for a certain period during which the disputing parties are required to attempt to reach an amicable resolution of the dispute before they may pursue resolution through domestic judicial organs or arbitration.99 The minimum time frame allotted for such amicable discussions or consultation processes to take place varies across the BIT network. Typical time periods are three months,100 four months,101 six months,102 and in some cases the BIT specifies ‘a reasonable lapse of time’.103

Overall, approximately 42 Dutch BITs in force include provisions for voluntary conciliation or mediation,104 while 31 do not contain any provision for such ADR mechanisms.105

Exhaustion or pursuit of local remedies

Dutch BITs in force do not require local remedies to be exhausted or pursued before ISDS can be commenced. The BITs with Argentina, Jamaica, Malaysia, Singapore and Sri Lanka are the only exceptions.

Of these, the BITs with Malaysia and Singapore require ‘the exhaustion of all local administrative and judicial remedies’.

By contrast, BITs with Argentina, Jamaica and Sri Lanka require that the investor pursue domestic remedies. In the case of Argentina and Jamaica, if resolution of the dispute was not reached within 18 months of referral to the relevant local body, the investor may resort to arbitral proceedings. In the case of the Sri Lanka BIT, the same principle applies but for a period of 12 months.

Fork-in-the-road and no U-turn (waiver) clauses

Dutch BITs do not contain fork-in-the-road clauses, with the exception of the Lebanon-Netherlands BIT.

Existing Dutch BITs also do not contain ‘No U-turn’ clauses, save for the BITs with China and Mexico.

Interim measures by domestic courts

In general, existing Dutch BITs do not contain provisions on the granting of provisional measures by domestic courts. The Kuwait–Netherlands BIT is the only exception, explicitly allowing the investor to seek ‘interim injunctive relief for the preservation of its rights and interest’ before the ‘judicial or administrative tribunals’ of the host state prior to or during the arbitration (under the ICSID Convention or UNCITRAL Rules).

Prescription

Save for one exception,106 current Dutch BITs do not contain any time limitations or prescription periods for the submission of a claim by an investor.

Several prescription periods have been introduced in the 2019 Dutch Model BIT:107

  • A request for consultation with the host state must be submitted within five years of the date the investor first acquired or should have acquired knowledge of the treatment and damage, or within two years of the investor exhausting or ceasing to pursue a claim before a local tribunal or court of the host state.
  • Overall, a request for consultations should not be submitted later than 10 years after the investor acquired, or should have acquired, knowledge of the treatment and loss or damage.
  • If consultations do not result in the resolution of the claim within six months from the date of written request, the investor may submit a claim in accordance with article 19. A claim under article 19 must be submitted within 18 months of a request for consultations, failing which the investor shall be deemed to have withdrawn its request for consultations. This period may be extended by agreement of the parties involved in the consultations.
Transparency

Dutch BITs in force do not contain express provisions promoting transparency in dispute settlement proceedings, such as provisions regulating participation of amicus curiae or requiring procedural documentation or awards to be made publicly available.

In contrast, the 2019 Model BIT sets forth a number of steps towards transparency. This is evident from the express incorporation of the UNCITRAL Transparency Rules, as well as in the following stipulations:108

  • The appointing institution shall publish the composition of the tribunal, names of the parties, the legal basis for the claim and the relief sought on its website.
  • Interested parties may, in accordance with the UNCITRAL Transparency Rules, request to make submissions as amicus curiae. The request may be denied, but the tribunal and the parties must give ‘positive consideration’ to such request.
  • Settlements must be made publicly available, save for information designated as confidential by a disputing party.
Third-party funding

Third-party funding is not excluded in Dutch BITs in force and it does occur in practice. Third-party funding is also not prohibited under the 2019 Dutch Model BIT. On the contrary, and in the spirit of transparency, the 2019 Dutch Model BIT obliges a claimant to disclose the name and address of any third party funder at the time of submission of the claim or as soon as possible if funding is granted later.109

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12. What is the approach taken in this country’s investment treaties to standing dispute resolution bodies, bilateral or multilateral?

Netherlands

Article 15 of the 2019 Dutch Model BIT makes aspirational reference to a Multilateral Investment Court (MIC), which would replace investment arbitration. The MIC is yet to be established through a multilateral international agreement, but the Model BIT requires state parties to 'pursue' the multilateral reform of ISDS.110 The MIC is also envisaged in certain EU agreements, such as the Canada-EU Comprehensive Trade and Economic Agreement, the EU-Vietnam Investment Protection Agreement, the EU-Singapore Investment Protection Agreement and also in the ongoing negotiations with Mexico. All of these instruments similarly require the parties to 'pursue' a multilateral investment tribunal.111 However, contrary to the 2019 Dutch Model BIT, it is notable that these EU agreements no longer provide for arbitration.

The proposed establishment of a MIC is not without objection from other states and actors. Negotiations are ongoing within Working Group III of UNCITRAL, but there is no clear indication of when they will be finalised. Until such time as an agreement comes into force, existing ISDS provisions apply.112

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13. What is the status of this country’s investment treaties?

Netherlands

At present, there are 77 Dutch BITs in force and five BITs that have been signed but that have not yet entered into force.113 In addition, there are 71 treaties with investment provisions concluded by the EU, out of which 56 are in force. To date, Dutch BITs remain the second most-invoked BITs globally, after those concluded by the United States.114 The Dutch treaty network has undergone certain changes in relation to the Netherlands' former BITs with EU member states (intra-EU BITs), of which only two are still in force.

Intra-EU arbitrations

Two recent judgments of the Court of Justice of the EU (ECJ) are of particular significance, namely: Slovak Republic v Achmea BV (Achmea judgment) and Republic of Moldova v Komstroy LLC (Komstroy judgment).115 In its Achmea judgment of 2018, the ECJ found that the arbitration clause contained in the Netherlands-Slovakia BIT was incompatible with EU law. In the Komstroy judgment of 2021, the ECJ held that the arbitration clause contained in article 26 of the ECT is not applicable to intra-EU disputes. The reasoning of the Komstroy judgment largely follows the Achmea judgment. Since the Achmea judgment, there have been a number of developments within the EU, including a declaration by 22 member states, including the Netherlands, in January 2019 that investor-state arbitration clauses in intra-EU BITs are contrary to EU law and therefore inapplicable116 In May 2020, the Netherlands along with 22 other EU member states signed the Agreement for the Termination of Intra-EU Bilateral Investment Treaties.117

The Netherlands, following a majority of other signatory EU member states, has ratified the Agreement which entered into force on 31 March 2021. For the Netherlands, this means termination of its BITs with Bulgaria, Croatia, Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia and Slovenia. The BITs with the Czech Republic and Romania are to be terminated upon ratification of the Agreement by these EU member states.

In the envisioned departure from traditional ISDS mechanisms, EU member states have undertaken to provide sufficient remedies for ensuring ‘effective legal protection’ of investors’ rights under EU law:118

Member States are obliged to provide remedies sufficient to ensure the effective legal protection of investors’ rights under Union law. In particular, every Member State must ensure that its courts or tribunals, within the meaning of Union law, meet the requirements of effective judicial protection.119

As regards the path forward for international dispute settlement arising from foreign investment, there is support for a Multilateral Investment Court (MIC), which is yet to be established through a multilateral treaty. The MIC is referred to in the 2019 Dutch Model BIT as well as the Canada–EU Comprehensive Trade and Economic Agreement, the EU–Singapore Investment Protection Agreement and the EU–Vietnam Investment Protection Agreement. See question 19.

BITs with third states

In March 2019, the Dutch government published the final version of the 2019 Dutch Model BIT,120 which is intended to be the basis of renegotiation or replacement of Dutch BITs with third states. There are currently some 75 BITs between the Netherlands and third states, and each will need to be renegotiated individually. To do so, the Netherlands must obtain the consent of the European Commission to renegotiate or conclude new BITs. Any revisions arising from renegotiations must be ratified by the Dutch Parliament and approved by the European Commission.

In May 2019, the European Commission authorised the Netherlands to open formal negotiations to conclude BITs with Iraq and Qatar, and to amend its BITs with Argentina, Burkina Faso, Ecuador Nigeria, Tanzania, Turkey, the United Arab Emirates and Uganda. Save for the termination of the Ecuador–Netherlands BIT in July 2021, the status and progress of these negotiations are not yet known, nor is it known which BITs the Netherlands intends to address subsequently.

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Practicalities of commencing an investment treaty claim against this country

14. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

Netherlands

Government entity to which claim notices are sent

In the event of a dispute, a notice should be addressed to the government department overseeing the relevant industry or involved in the events giving rise to the dispute, with a copy to the Ministry of Foreign Affairs. In the absence of such engagement or other knowledge of the applicable government department, notices should be addressed to the Ministry of Foreign Affairs.

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15. Which government department or departments manage investment treaty arbitrations on behalf of this country?

Netherlands

Government department that manages investment treaty arbitrations

The Ministry of Foreign Affairs is responsible for overseeing investment treaty arbitrations. In practice those Ministries that have involvement in the events giving rise to the dispute may play a prominent role.

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16. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

Netherlands

Internal/external counsel

The Netherlands has never been a respondent in investment arbitration proceedings, until recently. The Netherlands is presently a respondent/host state in two proceedings (Uniper v. Kingdom of the Netherlands (ICSID Case No. ARB/21/22) and RWE v Kingdom of the Netherlands (ICSID Case No. ARB/21/4)). For both proceedings, external counsel has been appointed.

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Practicalities of enforcing an investment treaty claim against this country

17. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

Netherlands

Washington Convention implementing legislation

The Netherlands has signed and ratified the Washington Convention with effect from 14 October 1966. There is no specific legislation implementing the Washington Convention in domestic law, although an Act of 1 November 1980 designates the preliminary relief judge of The Hague District Court as the competent court for the enforcement of ICSID awards.

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18. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

Netherlands

New York Convention implementing legislation

The Netherlands has signed and ratified the New York Convention with effect from 24 April 1964. The New York Convention is in part incorporated into domestic law through the Netherlands Arbitration Act, contained in Book IV of the Dutch Code of Civil Procedure, and may also be directly invoked before the Dutch courts.

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19. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

Netherlands

Legislation governing non-ICSID arbitrations

The Dutch Code of Civil Procedure applies to all arbitrations seated in the Netherlands. There is no special legislation for non-ICSID arbitrations.

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20. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

Netherlands

Compliance with adverse awards

Not relevant for this jurisdiction. According to available records, no adverse investment treaty award has been rendered against the Netherlands. 

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21. Describe the national government’s attitude towards investment treaty arbitration

Netherlands

Attitude of government towards investment treaty arbitration

The Dutch government has a favourable attitude towards investment treaty arbitration and the protection and promotion of investment in turn. This is evident, in part, in the Netherlands' sophisticated and expansive investment treaty network comprising approximately 77 BITs and the ECT. Most of these instruments afford broad protection to investors and provide for investor-state dispute resolution mechanisms. The Netherlands is also party to the New York Convention and the ICSID Convention. The Netherlands is a signatory to the Mauritius Convention on Transparency although this treaty has not yet been ratified.121

Recent developments have signalled a departure from certain aspects of traditional investor-state arbitration for the future:122

  • Following the Achmea judgement of the ECJ, the Netherlands has signed and ratified a plurilateral agreement with other EU member states to terminate intra-EU BITs. This includes 11 BITs to which the Netherlands is a contracting party, of which nine have already been terminated and two are to be terminated upon ratification by the other contracting party. See question 13.
  • The Dutch government has also published a final version of its 2019 Model BIT, which is intended to be the basis of renegotiation and/or replacement of Dutch BITs with third (non-EU) states in the longer term.

Article 15 of the 2019 Dutch Model BIT makes aspirational reference to a Multilateral Investment Court (MIC), which would replace investment arbitration. The proposed establishment of a MIC is not without objection from other states and actors. Negotiations are ongoing within Working Group III of UNCITRAL, but there is no clear indication of when they will be finalised. Until such time as such agreement comes into force, existing ISDS provisions apply.123 See question 12.

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22. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

Netherlands

Attitude of local courts towards investment treaty arbitration

Dutch courts are supportive and respectful of investment treaty arbitration and the recognition and enforcement of arbitral awards. This ‘pro-arbitration’ attitude of Dutch courts is one of the contributing factors to the attraction of the Netherlands as a seat of arbitration.

A recent example of local courts’ support for investment treaty arbitration is the landmark decision in February 2020, by which The Hague Court of Appeal reinstated three arbitral awards in an amount of US$50 billion rendered against the Russian Federation in Yukos v Russian Federation.124 The arbitral proceedings arose from a breach of the Energy Charter Treaty and were conducted under the auspices of the Permanent Court of Arbitration (PCA).

In 2019, the Dutch Supreme Court upheld the arbitral awards rendered against Ecuador in the Ecuador v Chevron investment arbitration – conducted under the Ecuador–US BIT and also administered by the PCA – that had ordered Ecuador, by way of interim measures, to take all measures at its disposal to suspend the enforcement or recognition of a judgment of the Ecuadorian courts.125

In specific circumstances, Dutch courts have also granted leave for enforcement of awards that have been set aside at the seat of arbitration, although this remains the exception.126 No Dutch court decisions on the enforcement of ICSID awards are publicly available but such decisions have been rendered in practice.

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National legislation protecting inward investments

23. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

Netherlands

Dutch legislation does not distinguish between foreign and domestic investments in most respects. As such, there is no specific legislation protecting foreign direct investment in the Netherlands. Instead, foreign investments will generally be given the treatment and protections that are afforded to local investors under Dutch law.

For example, property rights in the Netherlands are protected by article 14 of the Dutch Constitution as well as article 1 of the First Protocol of the European Convention on Human Rights. 'Property' is framed broadly, including not only movable and immovable assets but also intangible property such as legal rights or claims. The expropriation of property is specifically regulated by the Expropriation Act (Onteigeningswet), which provides, inter alia, that public law authorities may only seek expropriation if this is in the public interest, and must fulfil a number of requirements in order to do so. Compensation must also be provided.

Judicial review of government decisions and permits is provided for under Dutch administrative law, while Dutch civil law protects rights arising out of contracts. Foreign direct investments in the Netherlands are thus afforded broad protections under the domestic legal framework.

Screening of foreign direct investments

Until recently, inward foreign investment to the Netherlands was potentially only subjected to certain sector-specific screening mechanisms. Examples include the Electricity Act (Elektriciteitswet 1998), the Gas Act (Gaswet), and the Undesired Control in Telecommunications Act (Wet ongewenste zeggenschap telecommunicatie).

With the adoption of Regulation 2019/452 (Regulation), which applies from 11 October 2020, the EU has introduced a potential general screening mechanism in EU member states. The Regulation establishes a framework for the screening of foreign direct investments into the EU likely to affect security or public order of an EU member state or of the EU, and a mechanism for cooperation between EU member states on the one hand, and between EU member states and the European Commission on the other. In determining whether an investment may affect security or public order, relevant factors include the effects on critical infrastructure and critical technologies. In this way, the Regulation seeks to screen takeovers and/or investments in vital sectors such as transport, water management, telecommunications and high-value sensitive technology, in order to assess and limit the risks posed to national security and public order.127

EU member states and the European Commission must cooperate with each other in the screening process, for example by exchanging information upon request and by issuing opinions on investments. However, the final decision with respect to foreign direct investment undergoing screening remains the sole responsibility of the host EU member state; the opinions issued by the European Commission and the comments of other EU member states are not binding on the host. Furthermore, the decision on whether to set up a screening mechanism remains the sole responsibility of EU member states themselves.

Following the adoption of the Regulation, on 4 December 2020 the Foreign Direct Investments Screening Regulation Act (Uitvoeringswet screeningsverordening buitenlandse directe investeringen) entered into force in the Netherlands. In this act, the Minister of Economic Affairs and Climate is designated as the Dutch contact point, tasked with sending and receiving information from other EU member states and the European Commission with regard to foreign direct investments.

Further, the Investment, Mergers and Acquisitions Security Test Act (Wet veilligheidstoets investeringen, fusies en overnames) is currently awaiting approval in the Tweede Kamer (the lower house of the Dutch Parliament).128 This act aims to introduce a security test for investments, mergers and acquisitions that pose a risk to national security. Under this act, investors will have to report changes of control to the Ministry of Economic Affairs and Climate Change, upon which the Ministry will determine whether there is a potential risk to national security. If so, the investment, merger or acquisition will have to pass a security test. The act contains a list of measures that the Ministry can impose to prevent or mitigate risks to national security. In terms of this act, the Ministry would be empowered to prohibit the investment, merger or acquisition in extreme cases, even retroactively.

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National legislation protecting outgoing foreign investment

24. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

Netherlands

Relevant guarantee scheme Qualifying criteria, substantive protections provided and practical considerations
Atradius Dutch State Business (Atradius)

Atradius, acting on behalf of the Dutch government, offers political risk insurance for investments abroad, as well as supplemental insurance against breach of contract risk.

These insurance schemes are available to Dutch nationals, foreign corporations with a Dutch presence, and banks financing Dutch enterprises’ investments abroad. The investment insurance protects against expropriation, transfer restrictions, war or civil war and other forms of political violence. Some commercial risks, including force majeure, are also covered. The insurance covers up to €75 million for loans and €100 million for investments in assets. It also protects revenue from investments, to an annual maximum of 12 per cent of the insured amount.

Atradius also offers various additional products for investors and exporters. For example, the Dutch Good Growth Fund (DGGF), set up by the Dutch Ministry of Foreign Affairs, offers loans, participations, guarantees, export credit insurance, and export finance (with a repayment obligation). These are available to Dutch investors in developing countries and emerging markets, with a maximum cover of €30 million. Atradius further offers export credit guarantees, which enable banks to obtain funding on competitive terms and conditions for the financing of Dutch export transactions.

Dutch Trade and Investment Fund (DTIF)

DTIF offers support through loans, guarantees and direct or indirect shares (with a repayment obligation), up to approximately €79 million. The fund is available to entrepreneurs with companies established in the Netherlands who conduct substantial activities in the country and who invest in foreign markets other than the developing countries covered by the DGGF.

The investment activities must not be featured on the exclusion list of the Dutch Development Bank (FMO) and the project must be implemented in accordance with the OESO guidelines for international corporate social responsibility.

Multilateral Investment Guarantee Agency (MIGA)

The Netherlands is a signatory to the MIGA Convention 1988, which seeks to promote foreign direct investment in developing countries in order to support economic growth. Under the Convention, Dutch nationals and legal persons may be eligible – upon application – for political risk insurance for new and existing foreign investments made in developing MIGA member states. A wide range of foreign investments can be insured, for example: shareholder loans, shareholder loan guarantees, non-shareholder loans, equity, asset securitisations, licensing agreements and franchising. MIGA’s political risk insurance covers currency incontrovertibility and transfer restriction, expropriation, war, terrorism and civil disturbance, breach of contract and the non-honouring of financial obligations.

Insurance and assistance from MIGA is subject to certain conditions, including a social and environmental sustainability assessment.

Answer contributed by , , , , and

Awards

25. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

Netherlands

Based on available records, there are 125 investment arbitrations involving either a Dutch investor as the claimant, or the Netherlands as the respondent. Save for two pending cases in which the Netherlands is a respondent/host state,129 in all cases listed below the Netherlands has been the home state of the claimant/investor.130

Of these arbitrations:

  • 21 have been decided in favour of the investor;
  • 24 have been decided in favour of the host state;
  • four have resulted in a finding of liability with no award for damages;
  • 24 have been settled;
  • 11 have been discontinued;
  • two resulted in an award that was not published and therefore the result is unknown; and
  • 39 are currently pending.

Available arbitration awards

FEDAX v. Venezuela (ICSID Case No. ARB/96/3)

CME v. Czech Republic (2000)

Funnekotter v. Zimbabwe (ICSID Case No. ARB/05/6)

Eastern Sugar v. Czech Republic (SCC Case No. 088/2004)

TSA Spectrum v. Argentina (ICSID Case No. ARB/05/5)

Oostergetel v. Slovakia (2006)

Rompetrol v. Romania (ICSID Case No. ARB/06/3)

Azpetrol v. Azerbaijan (ICSID Case No. ARB/06/15)

Invesmart v. Czech Republic (2007)

Liman Caspian Oil v. Kazakhstan (ICSID Case No. ARB/07/14)

Saba Fakes v. Turkey (ICSID Case No. ARB/07/20)

Mobil and others v. Venezuela (ICSID Case No. ARB/07/27)

ConocoPhillips v. Venezuela (ICSID Case No. ARB/07/30)

Alapli v. Turkey (ICSID Case No. ARB/08/13)

Achmea v. Slovakia (I) (PCA Case No. 2008-13)

HICEE v. Slovakia (PCA Case No. 2009-11)

KT Asia v. Kazakhstan (ICSID Case No. ARB/09/8)

AES v. Kazakhstan (ICSID Case No. ARB/10/16)

Highbury International v. Venezuela (ICSID Case No. ARB/11/1)

Khan Resources v. Mongolia (PCA Case No. 2011-09)

Longreef v. Venezuela (ICSID Case No. ARB/11/5)

Tulip Real Estate v. Turkey (ICSID Case No. ARB/11/28)

The PV Investors v. Spain (PCA Case No. 2012-14)

OIEG v. Venezuela (ICSID Case No. ARB/11/25)

Enkev Beheer v. Poland (PCA Case No. 2013-01)

Emmis v. Hungary (ICSID Case No. ARB/12/2)

Charanne and Construction Investments v. Spain (SCC Case No. 062/2012)

Fabrica de Vidrios v. Venezuela (ICSID Case No. ARB/12/21)

Guardian Fiduciary v. Macedonia (ICSID Case No. ARB/12/31)

MNSS and RCA v. Montenegro (ICSID Case No. ARB(AF)/12/8)

Achmea v. Slovakia (II) (PCA Case No. 2013-12)

Spentex v. Uzbekistan (ICSID Case No. ARB/13/26)

Isolux v. Spain (SCC Case No. 2013/153)

Antin v. Spain (ICSID Case No. ARB/13/31)

Horthel and others v. Poland (PCA Case No. 2014-31)

Masdar v. Spain (ICSID Case No. ARB/14/1)

Vodafone v. India (I) (PCA Case No. 2016-35)

City-State v. Ukraine (ICSID Case No. ARB/14/9)

NextEra v. Spain (ICSID Case No. ARB/14/11)

Trinh and Bin Chau v. Viet Nam (II) (PCA Case No. 2015-23)

Tallinn v. Estonia (ICSID Case No. ARB/14/24)

JKX Oil & Gas and Poltava v. Ukraine (PCA Case No. 2015-11)

B3 Croatian Courier v. Croatia (ICSID Case No. ARB/15/5)

MMEA and AHSI v. Senegal (ICSID Case No. ARB/15/21)

Álvarez y Marín Corporación and others v. Panama (ICSID Case No. ARB/15/14)

Lao Holdings v. Laos (I) (ICSID Case No. ARB(AF)/12/6)

Silver Ridge v. Italy (ICSID Case No. ARB/15/37)

Watkins Holdings v. Spain (ICSID Case No. ARB/15/44)

CEF Energia v. Italy (SCC Arbitration V (2015/158))

 

Pending proceedings

Williams Companies and others v. Venezuela (II) (ICSID Case No. ARB(AF)/19/3)

ABCI Investments v. Tunisia (ICSID Case No. ARB/04/12)

Venoklim v. Venezuela (ICSID Case No. ARB(AF)/17/4)

Natland and others v. Czech Republic (PCA Case No. 2013-35)

Alten Renewable v. Spain (SCC Case No. 2015/036)

Gilward Investments v. Ukraine (ICSID Case No. ARB/15/33)

Eurus Energy v. Spain (ICSID Case No. ARB/16/4)

Lao Holdings v. Laos (II) (ICSID Case No. ARB(AF)/16/2)

Infracapital v. Spain (ICSID Case No. ARB/16/18)

Nova Group v. Romania (ICSID Case No. ARB/16/19)

Shell Philippines v. Philippines (ICSID Case No. ARB/16/22)

Sevilla Beheer and others v. Spain (ICSID Case No. ARB/16/27)

Amlyn v. Croatia (ICSID Case No. ARB/16/28)

Emergofin and Velbay v. Ukraine (ICSID Case No. ARB/16/35)

Buse v. Panama (ICSID Case No. ARB/17/12)

ICL Europe v. Ethiopia (PCA Case No. 2017-26)

Gardabani and Silk Road v. Georgia (ICSID Case No. ARB/17/29)

Gardabani Holdings B.V. and others v. Georgia (ICSID Case No. ADM/19/1 and SCC Case No. V2018/039)

Future Pipe v. Egypt (ICSID Case No. ARB/17/31)

Elitech and Razvoj v. Croatia (ICSID Case No. ARB/17/32)

Fynerdale v. Czech Republic (PCA Case No. 2018-18)

Delta Belarus v. Belarus (ICSID Case No. ARB/18/9)

Kimberly-Clark v. Venezuela (ICSID Case No. ARB(AF)/18/3)

LSG Building Solutions and others v. Romania (ICSID Case No. ARB/18/19)

Smurfit Holding B.V. v. Venezuela (ICSID Case No. ARB/18/49)

Nationale-Nederlanden Holdinvest and others v. Argentina (ICSID Case No. ARB/19/11)

Adria Group v. Croatia (ICSID Case No. ARB/20/6)

SMM Cerro Verde v. Peru (ICSID Case No. ARB/20/14)

Rabobank v. Mexico (ICSID Case No. ARB/20/23)

Meijer v. Georgia (ICSID Case No. ARB/20/28)

Eni and others v. Nigeria (ICSID Case No. ARB/20/41)

Akfel and I-Systems v. Turkey (ICSID Case No. ARB/20/36)

Arka Energy v. Albania (ICSID Case No. ARB/20/54)

Quanta Services Netherlands B.V. v. Peru (ICSID Case No. ARB/21/1)

RWE AG and RWE Eemshaven Holding II BV v. Netherlands (ICSID Case No. ARB21/4)

United Group B.V., Adria Serbia Holdco B.V. v. Serbia (ICSID Case No. ARB21/5)

Shell Petroleum N.V. and other v. Nigeria (ICSID Case No. ARB21/7)

Uniper SE, Uniper Benelux Holding B.V. and Uniper Benelux N.V v. Netherlands (ICSID Case No. ARB/21/22)

Alamos Gold Holdings Cooperative and other v. Turkey (ICSID Case No. ARB/21/33)

Answer contributed by , , , , and

Reading List

26. Please provide a list of any articles or books that discuss this country’s investment treaties.

Netherlands

Article/Book

A. Marsman, International Arbitration in the Netherlands (2021) Wolters Kluwer. 

A.S. Hartkamp, ‘Gevolgen van het Achmea-arrest voor de praktijk van de investeringsarbitrage binnen de EU’, Ars Aequi 2018/0732.

C. Verburg, ‘De Bescherming en Bevordering van Buitenlandse Energie Investeringen in Europese Investeringsverdragen: Het Einde van de Nederlandse Gouden Standaard”?’, Tijdschrift voor Energierecht 2017/4, p. 138.

C.E. Drion, ‘CETA en arbitrage’, Nederlands Juristenblad 2020/423.

De Brauw Blackstone Westbroek, ‘New Model Treaty to Replace 79 Existing Dutch Bilateral investment treaties’, 2018, available at https://www.debrauw.com/newsletter/new-model-treaty-to-replace-79-existing-dutch-bilateral-investment-treaties/.

E. Breukink, ‘Een investeringstoets voor vitale vennootschappen’, Maandblad voor Ondernemingsrecht 2017/8-9.

E. De Brabandere, ‘De Achmea-zaak voor het Europees Hof van Justitie. Het einde van intra-EU-investeringsverdragen?’, Nederlands tijdschrift voor Europees Recht 2018/5.

F. Ambtenbrink, R.A. Wessel, D. Prevost, ‘Shifting Forms and Levels of Cooperation in International Economic Law: Structural Developments in Trade, Investment and Financial Regulation’ in Netherlands Yearbook of International Law 2017, vol. 48.

F. Baetens, ‘De giftigste acroniemen in Europa: EU-handels- en investeringsverdragen en het investeerder-staat geschillenbeslechtingsmechanisme’, SEW: Tijdschrift voor Europees en economisch recht 2016/6.

F. Baetens, ‘Investment chapters including dispute settlement mechanisms in bilateral trade agreements’, Royal Dutch Society of International Law Journal 2015, p. 35

George Kahale III, ‘The new Dutch sandwich: The issue of treaty abuse’, Columbia FDI Perspectives (2011) 48, available at http://ccsi.columbia.edu/files/2014/01/FDI_48.pdf.

H.J. Snijders, ‘BITs, MITs, TTIP en IDR’, Tijdschrift voor Arbitrage 2016/1.

Kabir A. N. Duggal and Laurens H. van de Ven, ‘The 2019 Netherlands Model BIT: Riding the new investment treaty waves’, Arbitration International, 2019

Netherlands Ministry of Foreign Trade and Development Cooperation, policy note ‘Investeren in Perspectief’ (‘Investing in Perspective’), 2018, available at https://www.rijksoverheid.nl/documenten/beleidsnota-s/2018/05/18/pdf-beleidsnota-investeren-in-perspectie.

N. Schrijver and V Prislan, ‘The Netherlands’, in Chester Brown (ed.), Commentaries on Selected Model Investment Treaties (2013)

S. Rezai, ‘Bescherming van aandeelhouders in het ICSID-investeringsrecht’, Vennootschap & Onderneming 2011/1, p. 6T.M. Stevens, ‘Investeringstoets telecommunicatie’, Ondernemingsrecht 2019/85.

T. Nelson, ‘Going Dutch – the Many Virtues of the Netherlands Model BIT’, (2012) 6(2) Dispute Resolution International 162.

UNCTAD/DIAE, ‘Treaty-based ISDS Cases Brought under Dutch IIAs: an Overview’, 2015, available at https://investmentpolicy.unctad.org/publications/135/treaty-based-isds-cases-brought-under-dutch-iias-an-overview.

Notes

[1] This table has been formulated with reference to the UNCTAD International Investment Agreements Navigator and the Dutch Verdragen Bank, based on data available up to September 2021. Further detail and links to each instrument can be accessed here: https://investmentpolicy.unctad.org/international-investment-agreements/countries/148/netherlands and https://verdragenbank.overheid.nl/

[2] Only permitted after a period of 18 months from the submission of the dispute to the administrative or judicial organs of the Contracting Party in the territory in which the investment has been made. See article 10(3).

[3] Only by agreement of the parties. However, if no procedure for final settlement of the dispute has been agreed within six months of the date of written notification of the claim, then the dispute shall be submitted to arbitration. See article 10.

[4] Only by agreement of the host state, following a request by the investor to submit the dispute to ICSID. See article 11 which requires the host state to 'give sympathetic consideration' to such a request.

[5] Article 9(2) refers to 'a reasonable lapse of time'.

[6] Only 'after the exhaustion of all local administrative and judicial remedies'. See article 12.

[7] Only if the dispute has not been resolved by the judgment of the local court within 18 months of commencement of such proceedings, or as an appeal to a judgment of such court in which the application of domestic legislation was manifestly unfair or violated international law. See article 9.

[8] This BIT was terminated on 1 November 2008 but the sunset clause contained therein protects existing investments, made prior to termination, until 1 November 2023.

[9] The final version was published by the Dutch government on 22 March 2019. The 2019 Model BIT can be accessed here: https://www.rijksoverheid.nl/ministeries/ministerie-van-buitenlandse-zaken/documenten/publicaties/2019/03/22/nieuwe-modeltekst-investeringsakkoorden.

[10] The text can be accessed here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22020A0529(01).

11 See the status of the Agreement for the Termination of Intra-EU Bilateral Investment Treaties at: https://www.consilium.europa.eu/en/documents-publications/treaties-agreements/agreement/?id=2019049&DocLanguage=en.

[12] A list of these instruments is accessible here: https://investmentpolicy.unctad.org/international-investment-agreements/groupings/28/eu-european-union-.

[13] See eg, BITs with Mozambique, Cuba, the Republic of Korea, Nigeria and Bahrain.

[14] 2019 Dutch Model BIT, article 1(b).

[15] An exception to this is the Argentina-Netherlands BIT which requires that legal persons 'actually [be] doing business under the laws in force in any part of the territory of that Contracting party in which a place of effective management is situated'.

[16] 2019 Dutch Model BIT, article 16(3).

[17] See, eg, BITs with Mexico, Malaysia, Philippines and Guatemala.

[18] See, eg, BITs with Argentina, Albania, Belize, Bangladesh, Cambodia, Gambia, Nigeria, Cuba, Panama, Mozambique, Jordan and Bahrain.

[19] See, eg, BITs with Argentina, Brazil, Albania, Bangladesh, China, Cambodia, Belize, Eritrea and Bahrain.

[20] See 2019 Dutch Model BIT, article 1(a).

[21] See Mexico–Netherlands BIT, article 1(c).

[22] See, eg, BITs with the Russian Federation, Turkey, Pakistan, Morocco, Malaysia and Argentina.

[23] 2019 Dutch Model BIT, article 2(1) and article 7(1).

[24] 2019 Dutch Model BIT, article 2(1).

[25] 2019 Dutch Model BIT, article 9.

[26] See, eg, BITs with Albania, Armenia, Costa Rica and the Dominican Republic.

[27] See BITs with Cameroon, Kenya, Malaysia, Mozambique and Sudan.

[28] See, eg, Netherlands–Philippines BIT.

[29] See, eg, BITs with Mozambique, Jordan, Cuba and Jamaica.

[30] 2019 Dutch Model BIT, article 12(4).

[31] See, eg, BITs with China, Gambia, Singapore, Argentina, Pakistan, Paraguay, Jordan, Mexico, Oman and Nicaragua.

[32] Netherlands–Peru BIT.

[33] See BITs with the Republic of Korea and Kuwait.

[34] Netherlands–Philippines BIT.

[35] See, eg, BITs with Jamaica and the Dominican Republic.

[36] See, eg, BITs with China, Viet Nam, Mexico, Nicaragua, Gambia, Bahrain, Argentina, Bangladesh, Oman, Pakistan and the Russian Federation.

[37] See, eg, BITs with Argentina, Burundi, Gambia, Korea, Russia, Zimbabwe, Kazakhstan, Jordan, Dominican Republic, Lebanon, Malawi, Oman, Philippines, Tajikistan, Turkey and Nigeria.

[38] See, eg, BITs with Jamaica and Kenya.

[39] Mozambique–Netherlands BIT.

[40] See, eg, Laos, Costa Rica, Ethiopia, Honduras, Malaysia, Senegal and Sri Lanka.

[41] See, eg, BITs with Oman, Panama, Zimbabwe, Argentina, Kazakhstan, the Dominican Republic, Ghana, Lebanon, Turkey, Malawi, Sri Lanka and Tajikistan.

[42] BITs with the Russian Federation and Hong Kong, China SAR.

[43] Jamaica–Netherlands BIT.

[44] Netherlands–Philippines BIT.

[45] Honduras–Netherlands BIT.

[46] Malaysia-Netherlands BIT

[47] See, eg, BITs with Namibia, China, Costa Rica, Ethiopia, Senegal and Turkey.

[48] Mexico–Netherlands BIT.

[49] See, eg, BITs with Bosnia and Herzegovina, China, Costa Rica and El Salvador.

[50] 2019 Dutch Model BIT, article 12(1) and (5) respectively.

[51] See, eg, BITs with Jordan, Kazakhstan, Costa Rica, Honduras, Hong Kong, China-SAR, Jamaica, Lebanon, Malawi, Mexico, Sri Lanka, Namibia, Tajikistan and Senegal. The Ethiopia-Netherlands BIT refers to the 'normal banking commercial rate'.

[52] China–Netherlands BIT.

[53] See, eg, BITs with the Russian Federation, Malaysia and Turkey.

[54] See,eg, BITs with Argentina, China, Kazakhstan, Jordan, the Dominican Republic, Ethiopia, Ghana, Honduras, Jamaica, Lebanon, Malawi, Namibia, Oman and Panama.

[55] See, eg, Hong Kong, China SAR and Philippines.

[56] See, eg, Mexico–Netherlands BIT.

[57] See, eg, BITs with Ghana and Hong Kong, China SAR.

[58] See BITs with Costa Rica, Ethiopia, Lebanon, Kenya, Malaysia, Panama, Turkey and Yemen.

[59] See, eg, BITs with United Arab Emirates, Bahrain, the Dominican Republic, Malawi, Cambodia, Zambia, Kazakhstan, Belize, Gambia, Chile, Tunisia, Georgia, Jordan, Zimbabwe and Moldova.

[60] The Côte d'Ivoire–Netherlands BIT only contains NT provisions regarding taxes and duties and industrial property. A similar provision regarding the protection of industrial property can be found in BITs with Malaysia and Morocco.

[61] The Cameroon-Netherlands BIT only provides for MFN in matters of maritime navigation, and the Kenya-Netherlands BIT refers to MFN in respect of fiscal matters.

[62] BITs with Côte d'Ivoire, Pakistan and Sudan do not contain a MFN clause. BITs with Pakistan, Kenya, Nigeria and the Philippines do not contain an NT clause.

[63] See 2019 Dutch Model BIT, articles 8(1) and (2).

[64] See, eg, BITs with Jamaica and Oman.

[65] See, eg, BITs with Armenia, Bangladesh, Belize and Jamaica.

[66] See, eg, the Netherlands–Panama BIT, which stipulates that if the domestic law of either of the contracting parties or obligations under international law contain regulations entitling investments to a treatment more favourable than provided in the BIT, that regulation shall prevail. See also Argentina-Netherlands BIT.

[67] See BITs with Cameroon, Kenya, Malaysia, Morocco and Cote d'Ivoire.

[68] See, eg, BITs with Vietnam, Albania, Cuba, Gambia, Armenia, Suriname and the Macao, China SAR. For example, the Netherlands–Vietnam BIT explicitly defines 'physical security and protection' as having 'the limited meaning of protection by police, fire department, army and similar institutions that should give equal protection to the person and assets of national and foreign investors alike'.

[69] See Jordan–Netherlands BIT. In this BIT, the term 'adequate security and protection' is defined as 'full security and protection' in accordance with the laws and regulations of the host state.

[70] See BITs with China, Montenegro and Serbia.

[71] See Namibia–Netherlands BIT.

[72] See, eg, BITs with Thailand, Sri Lanka, Yemen and Pakistan.

[73] See 2019 Dutch Model BIT, article 9(6).

[74] See BITs with Sri Lanka, Jamaica, Serbia, Philippines, Honduras, Mexico, Tunisia, Belize and Montenegro.

[75] See, eg, BITs with Ghana, Argentina, Albania, Kazakhstan, Cambodia and Ethiopia.

[76] See,  eg, BITs with Turkey, Albania, Viet Nam, Georgia, Cuba, China and Ethiopia.

[77] See 2019 Dutch Model BIT, article 5(2).

[78] 2019 Dutch Model BIT, article 5(3).

[79] BITs with Kenya, Pakistan, Singapore and Sudan.

[80] 2019 Dutch Model BIT, article 10.

[81] Mexico-Netherlands BIT.

[82] See BITs with Dominican Republic, Mozambique, Namibia and Suriname.

[83] A denial of benefits clause can, however, be found in article 17 of the ECT.

[84] BITs with Cameroon, Malta, Sudan, Thailand and Côte d'Ivoire are the exceptions.

[85] Exceptions to this include the BITs with Hong Kong, China SAR, Oman and the Russian Federation.

[86] See, eg, BITs with Viet Nam, Zambia, Guatemala, Ethiopia, El Salvador, Costa Rica and Argentina.

[87] See, eg, Lebanon, Guatemala, Serbia, the Dominican Republic and Suriname.

[88] See BITs with Egypt, the Dominican Republic, Serbia and Cuba.

[89] Netherlands–Oman BIT.

[90] See, eg, BITs with Argentina, Bahrain, China, Cuba and the Republic of Korea.

[91] Data retrieved from UNCTAD International Investments Agreements Navigator as at September 2021.

[92] See, eg, BITs with Senegal, Philippines, Mozambique, Nigeria, Jordan and Bangladesh.

[93] Hong Kong, China SAR-Netherlands BIT.

[94] Netherlands–Oman BIT.

[95] See, eg, BITs with Argentina, Cuba, Ethiopia, El Salvador, Lebanon, Zambia, the Dominican Republic, Costa Rica and Mexico.

[96] See, eg, BITs with Panama, Paraguay and Turkey.

[97] See, eg, BITs with Cuba and the Dominican Republic.

[98] BITs with Albania, Moldova and Ukraine.

[99] Please refer to question 1, specifically the column titled 'cooling-off period'.

[100] See, eg, BITs with Vietnam and Lebanon.

[101] The Dominican Republic–Netherlands BIT.

[102] See, eg, BITs with Ghana, El Salvador, Cuba and Kuwait.

[103] Macao, China SAR-Netherlands BIT.

[104] See, eg, BITs with Argentina, Ethiopia, Kenya, Malawi, Malaysia, Philippines, Peru, the Russian Federation and Vietnam.

[105] See, eg, BITs with Egypt, El Salvador, Ghana, Kazakhstan, Singapore, Morocco, Cuba and China.

[106] Mexico–Netherlands BIT.

[107] 2019 Dutch Model BIT, article 18 and 19(1).

[108] See articles 17(2), 19(8), 20(4) and 20(13).

[109] See article 19(8).

[110] See article 15 of the 2019 Dutch Model BIT: 'The Parties shall pursue with each other and other interested partners the multilateral reform of ISDS. Upon the entry into force between the Contracting Parties of an international agreement providing for a multilateral investment court applicable to disputes under this Agreement, the relevant provisions set out in this Section shall cease to apply.'

[111] The investment protection provisions of the Canada-EU Comprehensive Trade and Economic Agreement, the EU–Viet Nam Investment Protection Agreement and the EU-Singapore Investment Protection Agreement are not yet in force.

[112] See article 15 of the 2019 Dutch Model BIT.

[113] See BITs with Brazil, Chile, Eritrea, Oman and United Arab Emirates. The most recent BIT signed but not yet entered into force is the Netherlands–United Arab Emirates BIT, which was signed in 2013. See question 1.

[114] See question 25. Data primarily retrieved at https://investmentpolicy.unctad.org/investment-dispute-settlement and https://icsid.worldbank.org/cases/case-database. 

[115] Slowakische Republik v Achmea BV, Case C-284/16, Judgment of the Court (Grand Chamber), 6 March 2018, ECLI:EU:C:2018:158, available here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=199968&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=14223242. See also Republic of Moldova v Komstroy LLC, Case C-741/19, Judgment of the Court (Grand Chamber), 2 September 2021, ECLI:EU;C:2021:655, available here: https://curia.europa.eu/juris/document/document.jsf?text=&docid=245528&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4530121

[116] Declaration of the Representatives of the Governments of the Member States on the Legal Consequences of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union, 15 January 2019. Available at: https://ec.europa.eu/info/sites/info/files/business_economy_euro/banking_and_finance/documents/190117-bilateral-investment-treaties_en.pdf.

[117] The text can be accessed here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22020A0529(01).

[118] The current status can be accessed here: https://www.consilium.europa.eu/en/documents-publications/treaties-agreements/agreement/?id=2019049&DocLanguage=en.

[119] Declaration of the Representatives of the Governments of the Member States on the Legal Consequences of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union, 15 January 2019. Available at: https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/190117-bilateral-investment-treaties_en.pdf.

[120] Text accessible here: https://www.rijksoverheid.nl/ministeries/ministerie-van-buitenlandse-zaken/documenten/publicaties/2019/03/22/nieuwe-modeltekst-investeringsakkoorden.

[121] For the current status see https://uncitral.un.org/en/texts/arbitration/conventions/transparency/status.

[122] See question 13.

[123] See article 15 of the 2019 Dutch Model BIT.

[124] The Hague Court of Appeal, Veteran Petroleum Limited et al. v. The Russian Federation, 18 February 2020, ECLI:NL:GHDHA:2020:234, TvA 2020/31, available here: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2020:234.

[125] Supreme Court of the Netherlands, Republic of Ecuador v. Chevron Corporation and Texaco Petroleum Company, 4 December 2019, ECLI:NL:HR:2019:565, NJB 2019/849, available here: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:565.

[126] See Supreme Court of the Netherlands, [Confidential] v. Ojsc Novolipetsky Metallurgichesky Kombinat, 11 November 2017, ECLI:NL:HR:2017:2992, NJB 2017/2296, available https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2017:2992.

[127] This follows EU Regulation 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union, which entered into force on 11 October 2020. Accessible at: https://eur-lex.europa.eu/eli/reg/2019/452/oj.

[128] https://www.tweedekamer.nl/kamerstukken/wetsvoorstellen/detail?id=2021Z12360&dossier=35880.

[129] See https://icsid.worldbank.org/cases/case-database.

[130] See https://investmentpolicy.unctad.org/investment-dispute-settlement/country/148/netherlands/investor (last updated at 31 December 2020) and https://icsid.worldbank.org/cases/case-database.

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