IOB evaluation
Trading interests and values
Evaluation of the international trade and investment policy of the Netherlands

442 | Trading interests and values | IOB Evaluation | Nr. 442 | Trading interests and values | IOB Evaluation | Nr. 442 | Trading interests and values | IO

IOB evaluation
Trading interests and values
Evaluation of the international trade and
investment policy of the Netherlands

|2|

September 2021

Table of contents
List of abbreviations

7

Preface11
Executive summary 
14
Introduction15
Dutch trade and investment policy and multilayered, multi-stakeholder governance
15
The five case studies
17
Overarching observations, general conclusions and recommendations
23
1
1.1
1.2
1.3
1.4
1.5
1.6
1.7

Introduction
Background to the evaluation
Evaluation rationale and delineation
Research questions
Evaluation approach and definition of ‘success’
Methodology
Limitations
Structure of this report

27
28
30
31
32
33
33
34

2
2.1
2.2
2.3

Dutch international trade and investment policy and multilevel governance
Main observations
Introduction
Multilevel governance

35
36
37
38

3
3.1
3.2
3.3

Key external trends and factors in trade and investment politics
Introduction
Developments, issues and factors and their effect on trade and investment policy
Conclusion

56
57
57
65

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4
Trade defence instruments
4.1 Introduction
4.2 The Dutch position on trade defence policy
4.3	Extent of policy success
4.4 Conclusion
4.5 Recommendations

66
67
68
78
80
81

5
5.1
5.2
5.3
5.4
5.5

82
83
84
90
95
96

Trade and sustainable development chapters
Introduction
The Dutch position on TSD chapters
Extent of policy success
Conclusion
Recommendations

Trading interests and values

6
6.1
6.2
6.3
6.4
6.5

Trade in Services Agreement
Introduction
The Dutch position on TiSA
Extent of policy success
Conclusion
Recommendations

97
98
102
111
113
115

7
7.1
7.2
7.3
7.4
7.5

Investment protection and investor duties 
Introduction
The Dutch position on investor-state dispute settlement
Extent of policy success
Conclusions
Recommendations

116
117
122
132
134
136

8
Economic partnership agreements with Africa
8.1 Introduction
8.2 Obstacles in the EPA negotiations with Africa
8.3 The Dutch position on the EPAs with Africa
8.4	The Netherlands in its role as honest broker and the extent of policy success
8.5 Extent of policy success
8.6 Conclusion
8.7 Recommendations

137
138
139
141
143
149
153
154

9
9.1
9.2
9.3

156
158
166
169

Overarching observations, general conclusions and recommendations
Policy priorities and policy coherence
Dutch policy success in the EU
Capacity

Annex 1: Applied methodology

174

Annex 2: Dutch position on other trade issues
178
1 – Gender
179
2 – Trade facilitation
182
3 – Implementation and use of trade agreements
184
4 – Transparency, accountability and public support for trade and investment agreements 186
5 –TRIPS and medicines
190
Annex 3: Developments in the WTO

192

Annex 4: Annex to Trade Defence Instruments case study
Institutional setting
Implementation of EU trade defence policy
Reform of the EU trade defence mechanism

197
198
199
202

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Trading interests and values

Annex 5: Annex to TiSA case study
Dutch positions compared to the EU position

204
205

Annex 6: Annex to Investment case study
Dilemma’s in investment protection: balancing rights and duties of investors

207
208

Annex 7: A brief historical perspective on the EPAs

210

Annex 8: List of interviewees

217

Annex 9: Bibliography
Executive Summary
1 – Introduction
2 – Dutch international trade and investment policy and multilevel governance
3 – Key external trends and factors in trade and investment politics
4 – Trade defence instruments
5 – Trade and sustainable development Chapters
6 – Trade in Services Agreement
7 – Investment protection and investor duties
8 – Economic Partnership Agreements with Africa
9 – Overarching observations, general conclusions and recommendations
Annex 1 – Applied methodology
Annex 2 – Dutch position on other trade issues
Annex 3 – Developments in the WTO
Annex 4 – Annex to Trade Defence Instruments case study
Annex 5 – Annex to TiSA case study
Annex 6 – Annex to Investment case study
Annex 7 – A brief historical perspective on the EPAs

220
221
221
223
228
230
232
236
239
244
247
249
250
252
254
254
254
255

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Trading interests and values

Lists of figures, tables and boxes
Figure 2.1 	 Trade and investment policy at the national level
Figure 2.2 	Timeline of policy developments and implementation (in the evaluation period)
Figure 2.3 	 Trade and investment policy at the European level
Figure 2.4 	 Trade and investment policy at the international level
Figure A4.1 	 The EU trade defence process
Figure A7.1 	 Economic Partnership Agreements configurations 

43
45
52
54
200
212

Table 8.1 	
Table A7.1 	

Reasons for selecting specific regions for honest broker role
State of play of the EPAs

145
216

Box 2.1 	
Box 4.1  	
Box 4.2 	
Box 7.1 	
Box 7.2 	
Box 9.1 	
Box 9.2 	
Box 9.3 	
Box 9.4 	
Box 9.5 	
Box A7.1 	

Competence to negotiate investment agreements
Calculating anti-dumping duties under the LDR
The lesser duty rule and new AD calculations 
Main aspects ICS and MIC
Priority elements of the Model BIT, including critique, 
Good practices and lessons learned
Advocating the interests of developing countries
Weighing various and conflicting interests
Pragmatic practice and lessons learned
Good practice
Regional EPA with East Africa (EAC)

47
70
71
118
130
159
161
163
164
168
214

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Trading interests and values

List of abbreviations
AB
Appellate Body
ACIIL
Advisory Centre on International Investment Law
ACP
African, Caribbean and Pacific (countries)
ACWL
Advisory Centre on WTO Law
AD
Anti-dumping
AfCFTA
African Continental Free Trade Area
AFL-CIO
American Federation of Labor and Congress of Industrial Organizations
AS
Anti-subsidy
ASEAN
Association of Southeast Asian Nations
BHB
Broad Trade Council (Breed Handelsberaad)
BIT
Bilateral Investment Treaty
BHOS	Foreign Trade and Development Cooperation (Buitenlandse Handel en
Ontwikkelingssamenwerking)
BRI
Belt and Road Initiative
BRICS
Brazil, Russia, India, China and South-Africa
CAI
Comprehensive Agreement on Investment (EU–China)
CARIFORUM Caribbean Forum
CCP
Common Commercial Policy
CEPS
Centre for European Policy Studies
CETA
Comprehensive Economic and Trade Agreement (EU–Canada)
CoCo	Coordination Committee European Integration- and Association problems
(Coördinatie Commissie voor Europese Integratie- en Associatieproblemen)
COVID-19
Coronavirus 2019
CSO
Civil Society Organisations
CSR	Corporate Social Responsibility, also known as Responsible Business Conduct
(RBC)
CTEO
Chief Trade Enforcement Officer
DDA
Doha Development Agenda
DDE	Sustainable Economic Development Department (Directie Duurzame Economische
Ontwikkeling)
DG
Directorate General
DGBEB	Directorate General for Foreign Economic Relations (Buitenlandse Economische
Betrekkingen)
DIE
Directorate European Integration (Directie Integratie Europa)
DOL
Department of Labour
DSB
Dispute Settlement Body
DSM
Dispute Settlement Mechanism
DSU
Dispute Settlement Understanding
DTIB
Dutch Trade and Investment Board
EAC
East African Community
EBA
Everything But Arms (scheme of the EU)

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EBMA
European Bicycle Manufacturers Association
EC
European Commission
ECA
European Court of Auditors
ECDPM
European Centre for Development Policy Management
ECIPE
European Centre for International Political Economy
ECOFIN
Economic and Financial Affairs Council
ECOWAS
Economic Community of West African States
ECJ
European Court of Justice
EEC
European Economic Community
ENDA-CADID	African centre for trade, integration and development (Centre Africain pour le
Commerce l’intégration et le Développement)
EP
European Parliament
EPA
Economic Partnership Agreement
ESA
Eastern and Southern Africa
ETUC
European Trade Union Confederation
ETUI
European Trade Union Institute
EU
European Union
FA (minister) Foreign Affairs (minister of )
FAC
Foreign Affairs Council
FDI
Foreign Direct Investment
FNV
The Netherlands Trade Union Conferderation
FTA
Free Trade Agreement
FTDC
Foreign Trade and Development Cooperation
G20
Group of twenty (countries)
GATS
General Agreement on Trade in Services
GATT
General Agreement on Tariffs and Trade
GDP
Gross Domestic Product
GDPR
General Data Protection Regulation
GSP
Generalised System of Preferences (of the EU)
HACEU
High Level Administrative Committee on the EU
HIAM	Trade and investment agreements, and market access (Handels- en
Investeringsakkoorden en Markttoegang)
IA
Investment Agreement
IBO	Investment protection agreements (investeringsbeschermingovereenkomst)
ICS
Investment Court System
ICT
Information and communications technology
ICSID
International Centre for Settlement of Investment Disputes
ICTSD
International Centre on Trade and Sustainable Development
IFA
Investment Facilitation Agreement
ILO
International Labour Organization
IMH	International Trade Policy and Economic Governance Department
(Internationale Marktordening en Handelspolitiek)
IO
International organisation
IOB	Policy and Operations Evaluation Department (Internationaal Onderzoek en
Beleidsevaluaties)

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IRBC
International responsible business conduct
IRHP	Interdepartmental Council for Trade Policy (Interdepartementale Raad voor de
Handelspolitiek)
ISDS
Investor State Dispute Settlement
ISO NL
International Strategic Consultation
ITC
International Trade Centre
I&W
Ministry of Infrastructure and Water Management
KORUS
South Korea-United States Free Trade Agreement
KST
Parliamentary document, Kamerstuk
LDC
Least Developed Country
LDR
Lesser Duty Rule
LNV
Ministry of Agriculture, Nature and Food Quality
MAR
Market Access Regulation (of the EU)
MC
Ministerial Conference
MCEU
Ministerial Committee on the EU
MDTF
Multi-Donor Trust Fund (World Bank)
MEA
Ministry of Economic Affairs
MEP
Member of European Parliament
MES
Market Economy Status
MFA
Ministry of Foreign Affairs
Mercosur
Southern Common Market (South America)
mHREDD
mandatory human rights and environmental due diligence
MIC
Multilateral Investment Court
MNE
Multi-National Enterprises
MoF
Ministry of Finance
MP
Member of Parliament
MS
Member state(s)
MPIA
Multi-party interim appeal arbitration arrangement
NAFTA
North-American Free Trade Agreement (Canada, US, Mexico)
NGO
Non-Governmental Organisation
NL
The Netherlands
OECD
Organisation of Economic Cooperation and Development
PREU
Permanent Representative EU
PRUN
Permanent Representative UN
PSD
Private sector development
PvdD
Dutch Animal Party (Partij voor de Dieren)
QMV
Qualified Majority Voting
RBC
Responsible Business Conduct
REC
Regional Economic Communities
SADC
Southern African Development Community
SAIIA
South African Institute of International Affairs
SDG
Sustainable Development Goals
SER
Dutch Social and Economic Council
SME
Small and medium-sized enterprises
STDF
Standards and Trade Development Facility

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Trading interests and values

SZW
Ministry of Social Affairs and Employment
TA
Technical assistance
TDC
Trade Defence Instruments Committee
TDI
Trade Defence Instrument
TFA
Trade Facilitation Agreement
TFEU
Treaty on the Functioning of the European Union
TFAF
Trade Facilitation Agreement Facility
TiSA
Trade in Services Agreement
TMEA
TradeMark East Africa
ToR
Terms of Reference
TPC
Trade Policy Committee
TPCSI
Trade Policy Committee on Services and Investment
TPP
Trans-Pacific Partnership
TSD
Trade and Sustainable Development
TTIP
Transatlantic Trade and Investment Partnership (EU–US)
TRALAC
Trade Law Centre for Southern Africa
TRAPCA
Trade Policy Training Centre in Africa
UK
United Kingdom
UN
United Nations
UNCITRAL
United Nations Commission on International Trade Law
UNCTAD
United Nations Conference on Trade and Development
UNFCCC
United Nations Framework convention on climate change
US, USA
United States of America
USMCA
US-Mexico-Canada Agreement
USTR
United States Trade Representative
VNO-NCW	The Confederation of Netherlands Industry and Employers (Verbond van
Nederlandse Ondernemingen – Nederlands Christelijk Werkgeversverbond)
WCO
World Customs Organization
WPTQ
Working Party on Trade Questions
WTO
World Trade Organization

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Preface

Trading interests and values

Trade and investment account for a large share of the Dutch economy, the Netherlands being
an open economy and an important transit hub with a large service sector. Exports constitute
approximately one third of the Dutch economy (2017) and for almost a third of all jobs
(2015–2017). Globally, the Netherlands is one of the five largest countries regarding outgoing
and incoming foreign direct investment and hosts a large number of multinational
enterprises. Promoting trade and investment have long been continuous priorities for Dutch
cabinets.
In 2012, the post of Minister for Foreign Trade and Development Cooperation was created, aid
and trade being joined under one minister for the first time. Consequently, the DirectorateGeneral for Foreign Economic Relations moved from the Ministry of Economic Affairs to the
Ministry of Foreign Affairs. Thus, Dutch trade and investment policy became the
responsibility of the Minister for Foreign Trade and Development Cooperation at the time.
She introduced a focus on sustainability and the inclusion of developing countries in the
international trading system, while at the same time promoting Dutch business interests as
well as investments abroad.
This study evaluates Dutch trade and investment policy in the period 2013–2019, in particular
concerning article 1.1: the promotion of a sustainable trade and investment system, including
responsible business conduct. It is the first time since 2007 that IOB has evaluated trade and
investment policy. This evaluation sets out to identify the policy issues that the Netherlands
prioritised and whether policy goals on these issues were achieved.
As part of the research, five case studies were selected: trade defence instruments; trade and
sustainable development chapters in bilateral free trade agreements; the trade in services
agreement; investor protection; and economic partnership agreements with African regions.
The report includes overarching observations, general conclusions and recommendations,
and touches on overarching issues such as policy coherence for development, staff capacity
and the future of trade agreements. Balancing national economic interests and the pursuit of
non-trade concerns in trade policy was a recurring challenge.
Because the Netherlands largely operates in the context of the European Union, and trade
policy is an exclusive EU competence, trade and investment policy is the outcome of a
multilayered, multi-stakeholder process. This complicates not only determining the policy
success of Dutch interventions, but also success in itself. The Dutch position was often
aligned from an early stage with that of the Commission and like-minded member states.
Nevertheless, this study is able to show that where the Netherlands clearly pushed for certain
priorities, such as linking sustainability and trade, it did have policy success, contributing to
the EU position and putting its priority topics on the international agenda international
agenda.
The report was written by an evaluation team consisting of Stephanie Bouman, Otto Genee,
Martine de Groot, Kirsten Lucas, and Marit van Zomeren. Internal quality support was
provided by Anne Bakker, Pim de Beer, and Joep Schenk. An external reference group advised
on the report: Pieter Jan Kuijper of the University of Amsterdam, Winand Quaedvlieg of

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Trading interests and values

VNO-NCW and Myriam Vander Stichele of SOMO, who provided expert comments.
Furthermore, we thank the colleagues from the Directorate-General for Foreign Economic
Relations who were members of the reference group: Ralf van de Beek, Monique Bouman and
Tjalling Dijkstra.
Colleagues from the Ministry of Foreign Affairs, the Permanent Representation to the EU (PR
EU) in Brussels and WTO (PR WTO) in Geneva as well as other trade professionals of the
European Commission, stakeholders and experts provided valuable input as well.
This evaluation is part of a series that will inform the policy review of budget article 1 for
foreign trade and development cooperation, expected later in 2021. Final responsibility for
this report rests solely with IOB.
Peter van der Knaap
Director Policy and Operations Evaluation Department (IOB)
Ministry of Foreign Affairs, the Netherlands

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Executive summary

Trading interests and values

Introduction
For centuries, international trade and foreign direct investment have shaped the Dutch
economy. In 2018, a third of Dutch wealth was created through exports; domestic added value
of exports accounted for EUR 262 billion.1 In the same year, imports amounted to EUR 391
billion; and in 2019, the Netherlands was the world’s second largest outward investor.2
Government policy and international and European (i.e. EU) rules have influenced private
trade and investment flows. These policies and rules have evolved over time, adjusting to
political, economic and societal developments. While IOB evaluated EU trade policy several
times in the last 15 years, a review of the Dutch trade and investment policy has not been
carried out since 2007.3
The current study reviews Dutch trade and investment policy for the period 2013 up and until
2019, complemented with important developments since 2019. The study identifies which
trade and investment policy issues the Netherlands prioritised. In addition, it assesses if and
how the Netherlands contributed to the international agenda, decision-making and
implementation of agreements on these issues, in the context of the European Union (EU)
and the World Trade Organization (WTO). The report provides a building block for the
upcoming policy review on article 1 of the budget for Foreign Trade and Development
Cooperation (BHOS).
This summary describes the Dutch trade and investment policy and its multilayered
governance. Subsequently, it presents five case studies of specific fields of trade and
investment policy and concludes with some general observations and recommendations.

Dutch trade and investment policy and multilayered,
multi-stakeholder governance
This evaluation of the Dutch trade and investment policy finds that Dutch policy goals should
be more elaborated and should be more systematically operationalised into concrete policy
positions and instructions. Additionally, an up-to-date assessment framework to weigh trade
interests against other policy priorities has been missing, which has complicated taking a
coherent approach.
The new agenda for aid, trade and investment policy
In 2012, development cooperation and trade and investment policies were combined into
one policy agenda, and a Minister for Foreign Trade and Development Cooperation (BHOS)
was appointed. As a result, the directorate-general responsible for foreign economic

1
2
3

CBS (2020).
Ibid.
MEA (2007).

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Trading interests and values

relations, the DGBEB, which used to be part of the Ministry of Economic Affairs,
was integrated into the Ministry of Foreign Affairs.
Trade and investment policies help to create the basic conditions and rules for countries
within which private business can trade and invest abroad. In 2013, a new Dutch policy for
aid, trade and investment was introduced, with three central aims: (1) the eradication of
extreme poverty in a single generation; (2) sustainable, inclusive growth all over the world;
and (3) success for Dutch companies abroad.4 In addition, in 2013, responsible business
conduct (RBC) became an explicit objective of the aid and trade agenda, and in 2018, gender
equality became a cross-cutting priority.5
Four objectives were formulated for international trade and investment policy specifically:
(1) concluding bilateral free trade agreements (FTAs) at EU the level; (2) internationalising the
Dutch private sector; (3) attracting foreign direct investment to the Netherlands; and
(4) protecting Dutch investments abroad.6 Whereas the nuances and focus areas in Dutch
policy have evolved over the reporting period, the objectives for trade and investment policy
remained in line with the objectives identified in 2013.
Beyond the policy papers of the Rutte II and III cabinets,7 these three overarching policy goals
(as well as the four specific objectives for international trade and investment policy) were not
much elaborated in underlying policy documents and were not systematically
operationalised, especially when it comes to investment policy.
Multilayered and multi-stakeholder governance
Because trade policy – and investment policy to a large extent – is an exclusive EU
competence, the European Commission (EC) prepares proposals and negotiating positions
and speaks on behalf of the EU and its member states, including the Netherlands, in the WTO
and in negotiations on free trade and investment agreements with third countries.
Dutch interventions are therefore primarily aimed at influencing international trade and
investment policy through the EU, including in the WTO: governance is thus multilayered.
In the EC, the Directorate-General for Trade (DG Trade) is the most important actor in this
context. It proposes policies, which are then further developed through formal and informal
meetings. Dutch officials mainly operate in the EU’s Trade Policy Committee (TPC, a working
party), and the Minister for BHOS represents the Netherlands at the political level in the EU’s

4
5

6
7

MFA (2013), p. 6.
MFA (2013) and MFA(2018). One can argue that these topics are in fact trade related, too. In this report we
define the term trade interests as national economic (and corporate) interests, while the term non-trade
concerns is mostly used to describe other public, social and environmental interests, such as sustainability,
RBC, gender and labour rights. Balancing conflicting interests was a recurring challenge throughout the
issues studied.
MFA (2013), pp. 41-43.
These policy notes are A world to gain (2013) and Investing in global prospects (2018).

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Trading interests and values

Foreign Affairs Council when that formation meets with the ministers responsible for
development cooperation and/or foreign trade.
Whereas the Minister for BHOS is responsible for the policy coherence between development
cooperation and foreign trade and investment policy,8 there is no up-to-date assessment
framework to weigh diverging or conflicting interests among Dutch trade and investment
policy, development cooperation policy and/or foreign policy, which makes it difficult to
ensure policy coherence.9 A range of non-state actors are consulted on a regular basis and
invited to comment on policy proposals. This allows for some non-trade interests to be taken
into account, although not completely overcoming the lack of an up-to-date assessment
framework.

The five case studies
Five case studies were conducted to identify if and how Dutch interventions contributed to
achieving Dutch policy goals in five specific areas, with a focus on policy success in the EU.
The cases were selected on the basis of interviews and because of the relevance of their topics.
While these case studies do not cover the whole field of trade and investment policy and
concerns files where the Netherlands was most active, they are representative of the most
important trade and investment dossiers in 2013–2019 that the Netherlands invested in with
political capital and diplomatic activity. Moreover, the case studies contain a variety of trade
and investment issues as well as different stages of policymaking, and EU and WTO-related
files. Several higher-level observations were identified from the case studies, which were
subsequently translated into recommendations. These will be presented at the end of this
executive summary.
Whereas some conclusions were unique to a specific case study, several overarching
conclusions emerged from these cases. The Netherlands has been actively holding the EC to
account on its policymaking, procedures and implementation. This occurred by demanding
more transparency, nudging (to different extents) the EU towards a more liberal position and
demanding proper policy implementation. The case studies illustrate areas in which the
Netherlands, individually or in joint efforts with like-minded countries, contributed to the EU
agenda and position on topics of Dutch priority. For instance, the Netherlands contributed to
the agenda and policymaking in the areas of trade and sustainable development (TSD)
chapters in free trade agreements, responsible business conduct, the ‘lesser duty rule’ (LDR)
in trade defence policy and enhanced transparency in FTA negotiations. Additionally, the
Netherlands demanded more transparency and advocated for the effective implementation of
policy, for instance on calculations to justify the implementation of trade defence measures
and for the effective implementation of commitments made in TSD chapters.

8
9

MFA (2013).
There is, however, an assessment framework on non-trade concerns that dates from 2009, (MFA, 2009).
Kamerstuk 2008–2009, 26 485, nr. 68.

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Trading interests and values

On other topics, results were more limited or less evident. The Netherlands could improve its
general performance by acting in a more strategic manner and operationalising objectives
into concrete positions.
The most important findings on each case study are presented below. Overarching
conclusions for the individual case studies are briefly reflected at the beginning of each case
(in italics).

Trade defence instruments
The Netherlands – together with some liberal partners – managed to maintain the liberal spirit of the ‘lesser
duty rule’ and was able to hold the EC accountable and demand evidence to justify adjustments. This is
considered a policy success.
Trade defence instruments (TDIs) such as anti-dumping or anti-subsidy measures can be used
in response to unfair trade practices. An important development in trade defence policy
during the period of evaluation was the reform of the EU’s trade defence mechanism, along
with a new anti-dumping methodology. Several global developments contributed to the
momentum for modernisation, including the need for more transparency and predictability
of investigations in the EU’s TDI mechanism. Some components of the EC’s proposal created
substantial disagreement among member states, putting negotiations in gridlock for several
years. In particular, the proposal for non-application of the ‘lesser duty rule’ (LDR) to address
dumping practices caused disagreement.
In general, the Netherlands favoured the EC’s initiative to reform the EU’s trade defence
policy. It believed several components of the proposed reforms would enhance the efficiency
and effectiveness of the system and promote a level playing field.10 However, with a liberal
cabinet and an open economy, the Netherlands strongly opposed some of the aspects of the
proposed reform. It was particularly critical about the suggested non-application of the LDR.
Together with other supporters of the LDR, the Netherlands believed that giving up this rule
might facilitate the abuse of anti-dumping measures beyond what was needed to restore
damage to import-competing industries, and would disregard the interests of other EU
stakeholders, processing industries and consumers.
Therefore, at the start of negotiations in 2013, the Netherlands took a firm stance, opposing
the proposal of non-application of the LDR. However, in late 2016, its position changed, and
the Netherlands became more willing to compromise. While the firm initial stance and the
witnessed change in 2016 is partly explained as a negotiation tactic, several external
developments also contributed to this. The accumulation of overcapacities in raw material
industries (such as steel), more protectionist trade policies of large players in world trade

10

This refers to competition in the global economy being ‘fair’, without distortion by market barriers and
government actions. A level playing field allows all countries and firms to compete on an equal footing
(OECD (2019)).

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Trading interests and values

(e.g. China and the United States), the debate about maintaining the Chinese non-market
economy status (2016), and political pressure contributed to the shift to a more flexible
approach. The change in position was furthermore the result of the input of the Permanent
Representation to the EU (PR EU), which signalled that the Netherlands was running a step
behind in negotiations. With negotiations quickly progressing in late 2016, the PR EU
considered that holding on to the firm Dutch position would not be fruitful and risked
placing the Netherlands on the sidelines in the TDI negotiations.
As for results, the Netherlands – together with liberal partners, yet in the minority – did
manage to maintain the liberal spirit of the LDR and was able to hold the EC accountable and
demand evidence to justify adjustments. This has been a policy success. Additionally,
recognising that it was only one of 28 member states (and that agreement and compromise
were needed), the Netherlands duly invested in coalition-building.
This case study is elaborated by describing Dutch positions and efforts on specific antidumping measures against imported biodiesel and e-bikes, with an initially liberal stance on
both issues. In line with the findings in the context of the TDI modernisation, the biodiesel
and e-bike cases illustrate the success of the Netherlands in holding the EC to account,
demanding transparency and calculations to justify measures.
Finally, the examples of biodiesel and e-bikes in this case illustrate the difficulty of achieving
policy coherence. For instance, developments in trade defence policy may conflict with Dutch
objectives in development policy and may affect bilateral relations with partner countries,
also on other topics.

Trade and sustainable development chapters
The Netherlands (and the United Kingdom) had mixed success in influencing the negotiating agenda of the EC
in this area. In the EU FTA with Japan, the Netherlands succeeded in getting animal welfare included, but not
whaling in particular. On gender, success was modest until 2019.
Since 2011, trade and sustainable development (TSD) chapters have become an integral part of
EU FTAs with third countries. By including social and environmental provisions, the EC tried
to (re)commit its trading partners to implement their existing obligations in relevant labour
and environmental agreements and conventions, and aimed to create a level playing field.
The Netherlands has been a front runner in this context: from the start, it was a big
proponent of TSD chapters in all agreements, also stressing the importance of their
enforcement. Because the Dutch and the EC position were aligned from the beginning,
it is impossible to attribute the inclusion of TSD chapters exclusively to Dutch efforts.
However, distinct results can be identified in various trade agreements.
For instance, in the case of the EU FTA with South Korea, the Netherlands advocated a bigger
role for the International Labour Organization (ILO) in dispute settlement. The Netherlands
preferred to put more pressure on South Korea, including the possibility of trade sanctions by

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withdrawing preferential benefits. In the end, it agreed to drop such sanctions, as the EU
decided to take more assertive action towards South Korea on outstanding violations of ILO
conventions.
In the case of the Transatlantic Trade and Investment Partnership (TTIP) negotiations, the
Netherlands and the United Kingdom (UK) had mixed success in influencing the negotiating
agenda of the EC. In the EU FTA with Japan, the Netherlands was successful in getting animal
welfare included in the FTA: it managed to put the issue on the agenda and the issue was
translated into policy. However, while animal welfare was included in the FTA with Japan and
the possibility to explore further cooperation was discussed, the TSD chapter talks about
‘a focus on farmed animals’,11 thus avoiding the issue of whaling, which was particularly
relevant in this case.
Success has thus far been more limited on the topic of gender. While gender equality was a
priority in Dutch trade and development policy, this position was not operationalised into
concrete objectives – and currently none of the finalised TSD chapters in FTAs concluded in
the reporting period contains provisions on gender.12

The Trade in Services Agreement
| 20 |

The Netherlands was active on this file and cooperated with a group of like-minded member states, nudging the
EU a bit towards more liberal positions.
From 2013 onwards, after GATS13 negotiations in the Doha Round had reached an impasse,
a select group of WTO members negotiated a draft agreement on trade in services (TiSA).
However, TiSA negotiations also stalled in late 2016, due to fundamental differences among
participants – including the United States (US) and the European Union. Negotiation partners
had conflicting views on how to liberalise trade in services, how to deal with issues such as
privacy and what exceptions to allow.
The Netherlands attached great importance to the TiSA because of the Dutch comparative
advantage in services, including digital services. It favoured an ambitious liberalisation
agreement, without excluding any sector in advance, which at the same time would safeguard
the interests of developing countries if multilateralised at a later stage. Whereas the EU
(EC and other member states) proposed far-reaching exceptions for public service sectors,
the Netherlands was not concerned that policy space would be limited and it claimed that the
TiSA would duly protect national interests in that context. As a liberal country with offensive
interests in other markets,14 the Netherlands did not want to shield any specific service sectors
in addition to the exceptions listed by the EU.
EU/JP/en, p. 482.
However, BEB colleagues have pointed out that in negotiations on the draft EU–Chile free trade agreement
there was agreement on most of the paragraphs on gender (EC (2020)).
13
General Agreement on Trade in Services.
14
‘Offensive interest’ here means the interest in gaining access to the market of your negotiating partner.
11

12

Trading interests and values

The Netherlands was active on this file and cooperated with a group of like-minded member
states, nudging the EU a bit towards more liberal positions. However, since the positions of
the EC and the Netherlands were mostly aligned and TiSA negotiations are now stalled,
we cannot identify any particular policy success and attribute that to the Netherlands.
On data flows and privacy protection, the Netherlands favoured an ambitious EU mandate
because of its own offensive interests. It took the EC some time to formulate a proposal that
was agreeable to all member states, which was facilitated by the adoption of the General Data
Protection Regulation (GDPR) in 2016. Another topic that the Netherlands was interested in
was the entry of temporary professional workers, influencing the EU position with a concrete
proposal. While the interests of least-developed countries were another Dutch priority, it was
impossible to get any relevant provisions into the text. Similarly, the desire to include
references to ILO conventions was dropped rather quickly, because of opposition by the US
and the few developing countries that participated.
A more general lesson learned is that reviving the route of an economic integration
agreement for a TiSA is a dead-end street (because of opposition from other WTO members).
The alternative of a plurilateral agreement in the context of the WTO that deals with market
access can probably only be achieved if the group is open-ended, with a critical mass of
countries at the table and application of the most-favoured nation concept, accepting some
‘free riding’ by smaller (developing) economies.

Investment protection, investor duties and dispute settlement
The Dutch effort on the reform of the investment protection system was visible, and the proposal of the EC on
the topic was in line with the proposals that the Netherlands and some other members had put forward. The
Dutch Model Bilateral Investment Agreement reflects progressive thinking, providing a theoretical example.
Investment agreements, which promote investment protection, need to balance the rights
and duties of investors. As developing countries grew stronger, which led inter alia to more
disputes between investing companies and states, and investment treaties were also
negotiated between OECD countries, investor-state dispute settlement (ISDS) became more
important and at the same time more controversial.
By 2015, the Netherlands – having a large network of bilateral investment treaties – was one
of the most active member states promoting the establishment of an investment court system
(ICS) as an alternative to ISDS. The ultimate aim was to establish a permanent multilateral
investment court. Such a reformed system would offer the possibility of appeal, independent
judges and a modernised arbitral procedure, with rights for affected third parties, thus
promoting a more level playing field. The proposal of the EC to reform the system was very
much in line with the proposals that the Netherlands had put forward together with some
other members. The Dutch effort was highly visible, but since the EC had similar views to the
Netherlands from the start of the discussions, this result cannot be attributed to the Dutch
alone.

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Furthermore, while the investment court system was introduced in some EU FTAs,
in particular the Comprehensive Economic and Trade Agreement (CETA) between the EU and
Canada, it is yet to be established. Some negotiating partners refused to include an ICS into
agreements. The EC and member states – including the Netherlands – usually considered the
rule of law to be sufficiently established in the countries concerned and did not hold on to
their desire in principle to have an investment protection chapter including an ICS, and/or
they left the question of dispute settlement mechanisms to future negotiations. In the end,
the EU and member states acted pragmatically on these issues. And a multilateral investment
court is likely to remain an aspirational goal only for the foreseeable future, given the state of
play in the deliberations.
On another, but related topic, the Netherlands set up a new Model Bilateral Investment
Treaty in 2018. This text was finalised after an inclusive and extensive consultation process.
The model text aims to make direct investments more sustainable, and it introduces
comprehensive provisions on the fair treatment of foreign investors and a modernised
investor-state dispute settlement mechanism. While the text is considered a significant move
forward, critics stress that it still offers very broad protection to investors – and direct access
to international dispute settlement. The Netherlands is renegotiating its bilateral investment
treaties with 10 countries, but due to the COVID-19 pandemic and other obstacles (from the
side of negotiating partners), the model text has not yet been truly put to the test, nor has it
been integrated into new agreements.

Economic partnership agreements with Africa
This case study shows moderately positive, but limited results. The Netherlands actively brought up the topic
of EPAs at the EU and WTO and promoted dialogue. The Netherlands played the part of ‘honest broker’ in EPA
negotiations and achieved some intermediate results, notably awareness raising and cooperation.
However, it is plausible that other countries also contributed to the end results and that some negative side
effects occurred. As to the EU’s success as a whole, while some negotiations with African regions have moved
forward, other negotiations largely failed or only led to partial results.
In 2001, the EU started negotiations with groupings of African countries as well as Caribbean
and Pacific states (the ACP countries) on WTO-compatible economic partnership agreements
(EPAs). This evaluation focuses on negotiations with African countries in the research period.
In EPAs, policy goals on development, trade and investment come together: Dutch policy
objectives in this context were, first, to promote the development of ACP countries as well as
their regional integration, advocating for adequate policy space and flexibility in covered
products, safeguards and transition periods for ACP countries. Second, other Dutch
objectives were to continue and strengthen trade and investment relations with these
countries. The Netherlands was among the most vocal member states on the development
friendliness of the EPAs, while largely supporting the EC’s actions.
In 2013, the Dutch Minister for Foreign Trade and Development Cooperation offered to
facilitate negotiations with the Southern African Development Community (SADC),

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West Africa and the East African Community (EAC). Taking on a role as honest broker, she
aimed to help speed up the negotiations and give substance to the new Dutch aid, trade and
investment agenda. Interestingly, this offer came as a surprise to the EC. To effectuate her
role, the minister commissioned a think tank to organise stakeholder meetings in the three
regions and in the Netherlands. The meetings were appreciated by the stakeholders involved.
She also raised the EPA negotiations with other ministers to promote progress. In addition,
the Netherlands took part in several initiatives, including sending a letter by European
‘Friends of EPA’ to the EC in late 2013, which was said to have had a positive effect. On the
other hand, the letter also caused some friction with the EC, which thought its negotiating
stance was being undermined.
The Netherlands achieved a moderately positive, albeit limited result in its role as honest
broker: especially intermediate results such as awareness raising and cooperation. While the
Netherlands stated that it played a key role in the progress of negotiations, the actual impact
is more nuanced when considering the counter-effects created and the likely impact of other
member states and think tanks. In addition, the role that the Netherlands plays as a member
of the EU and its role as an honest broker are difficult to combine, making impartiality a
challenging task.
Furthermore, while some negotiations with the African regions have moved forward,15 other
EPA negotiations in the African regions largely failed or only achieved limited results, such as
interim EPA agreements with individual countries or continued access under the market
access regulation. Additionally, adverse effects have also occurred: the EPAs created issues for
regional integration, and to some extent led to antagonised political relations between the
EU and Africa. Lessons learned include that the negotiations of the EU as a whole with African
regions as a whole should not be too ambitious. Where EPAs can add value, will differ per
country – and alternative ways of expanding market access need to be explored.
Overall, the lessons learned are, first, that the role of honest broker is difficult to play as a
member of the EU (being a party to the negotiations). A second lesson learned is that
stakeholders must be involved and informed to be able to address potential negative effects.

Overarching observations, general conclusions and
recommendations
From the case studies, three specific, overarching observations are evident. These are
discussed below and complemented with practical recommendations. The overarching
observations relate to policy coherence, Dutch policy success in the EU and capacity. These
issues are highlighted to provide suggestions for improved performance in trade and
investment policy. The discussion includes some conclusions, but does not serve to define

15

See Ecorys (2021), p. 158 for an overview of EPAs.

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overall findings on the Netherlands’ success in influencing EU positions and international
negotiations (or the failure thereof ).16
Overall, we found that Dutch contributions to the EU’s position would benefit from ensuring
a more strategic approach and a more focused effort, with more operational policies and
more dedicated capacity.
Policy priorities and policy coherence
Policy goals at the level of the five topics studied tended to be rather broadly formulated.
They did not have a strategy outlining how to achieve the goals or operationalise priorities
(per file), nor did they identify clear performance indicators to measure success. In addition,
there is no up-to-date assessment framework to weigh (economic) trade concerns against
(other) non-trade-related priorities and to promote coherence among Dutch trade and
investment policy, development policy and foreign policy. Furthermore, formal positions
were not adjusted to changing circumstances consistently, on a regular basis or in a strategic
manner, nor were they translated into intermediate objectives or operational policy
objectives per negotiating issue.
We recommend that the Ministry of Foreign Affairs (MFA), in particular the DGBEB, select and
operationalise major policy priorities in a systematic manner, integrating them into all
instructions and documents. We also suggest reconsidering and updating the 2009
assessment framework on trade and non-trade concerns, to help come to a balanced position
in a transparent manner when there are conflicting interests, or concerns about the WTO
compatibility of intended measures. Finally, we recommend drafting framework instructions,
to delineate the bottom line, but moreover so that there be some flexibility to adjust
positions to changing circumstances on a regular basis.
Policy success in the EU
Dutch efforts have focused on translating policy views into the EC’s mandate for negotiations
with third countries and in the WTO. The five case studies had been selected in part because
they were said to be files where the Netherlands had made proactive and visible efforts.
Although on some specific files, the Netherlands indeed took an active approach and had a
vocal stance, the Netherlands generally took a rather reactive approach to Commission
proposals on trade and investment files. And in those cases, it seemed to lack tailor-made
efforts and a clear vision and strategy on the desired direction and policy of the EU. Where the
Netherlands took a more proactive stance, its contribution to the EU agenda and position was
notable, mostly in agenda-setting and formulating EU positions: it advocated effective trade
and sustainable development chapters in FTAs, and helped put gender and RBC on the
international agenda. However, success beyond agenda-setting has often been limited (thus
far). The Netherlands did successfully advocate transparency in the EC’s way of working and
consultation of stakeholders.

16

These are reflected in the case studies above and will not be repeated here.

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We recommend that for priority processes, Dutch policymakers customise their efforts and
conduct stakeholder analyses in a systematic manner, identify what coalitions to build, and
draft a strategy to promote major interests, while adjusting the strategy to current
circumstances on a regular basis. We also recommend continuing to engage closely with the
EC to enhance Dutch policy success, while at the same time holding the EC to account.
Capacity
The number of dedicated staff at the MFA and the permanent missions to the EU (PR EU) and
WTO (PR WTO) for trade and investment policy is limited. Maintaining a critical mass of
experienced staff is required to have policy success and to build coalitions, preferably at an
early stage of decision-making. This is particularly important if the Netherlands wants to
continue to push for priorities such as responsible business conduct and if, for instance, it
has the ambition to lead the liberal block of member states after Brexit. To be able to respond
to the evolving reality in the EU and EC in Brussels and in the WTO in Geneva – which is
different from the political reality in The Hague – continued close and strategic cooperation
with the permanent representations and other actors there (colleagues from the EC and other
member states, WTO and other experts) is important, including through informal contact.
We recommend that the MFA enhances the available capacity on important files, that
policymakers share and exchange information systematically, and continue to invest in
informal contact with other member states and the European Commission. Additionally,
we advise DGBEB to make smart use of the expertise and knowledge available elsewhere, for
instance through the strategic use of seconded national experts and other Dutch diplomats
abroad, including through informal contact.
Geopolitics, multilateralism and open plurilateral agreements: reflections
Considering the importance of the geopolitical context for Dutch trade and investment
policy, we close with some reflections for the future of this policy.
Major economies, notably the US, EU and China, are increasingly operating in competing
regional blocks, extending their geopolitical and economic spheres of influence. The EU’s
first priority therefore lies in reviving multilateralism, and more precisely, in revitalising and
modernising the WTO. Since reaching broad consensus in the WTO will remain difficult,
a multi-speed approach of varying coalitions of the willing will have to be explored.
Some members, including the EU, have already started plurilateral negotiations, as was the
case with TiSA. Such working groups need to be open-ended to ensure support among WTO
members, while accepting some free-riding by smaller economies, including developing
countries.
Joint Statement Initiatives may offer a better option to collaborate on new regulatory issues
at the multilateral level. These initiatives could ultimately result in covered plurilateral WTO
agreements, if adequate guarantees on no exclusion are given. The new leadership at the
WTO, a recommitment by the current US administration and the proposed strategy by the
European Commission – defined in its most recent Trade Review (2021) – are reason for

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cautious optimism. They provide opportunities for the Netherlands to continue to play its
role in strengthening global economic governance.

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1
Introduction

Trading interests and values

This report presents the evaluation of Dutch trade and investment policy, covering the period
from 2013 to 2019, complemented with important developments since 2019. It serves as a
building block for the policy review of the sustainable trade and investment policy – article 1
of the budget for Foreign Trade and Development Cooperation (BHOS17). It deals in particular
with the topics of sub-article 1.1: the promotion of a sustainable trade and investment system,
including responsible business conduct.
This evaluation has two objectives. First, it reviews which policy issues were prioritised and
why, and how Dutch policy positions were established. Second, it reviews if and how the
Netherlands achieved policy success, contributing to the agenda, decision-making and
implementation of trade and investment policy.

1.1 Background to the evaluation
International trade and investment are the cornerstone of the Dutch economy. This is
evident, for instance, in its export figures. In 2018, a third of Dutch wealth was created
through exports; domestic added value of exports18 accounted for EUR 262 billion, or 34% of
total Dutch GDP.19 The Netherlands also imports heavily. In 2018, imports amounted to EUR
391 billion.20 An important share of these imports consisted of raw materials and
intermediary goods, to be used in the production of Dutch exports.21 Also, foreign direct
investment (FDI) is an important element of the Dutch economy. In 2019, the Netherlands
was the world’s second largest outward investor, surpassed only by the United States (US).22
In 2013, the Rutte II cabinet (2012–2017) introduced a new policy for aid, trade and
investment, with three central aims: (1) the eradication of extreme poverty (‘getting to zero’)
in a single generation; (2) sustainable, inclusive growth all over the world; and (3) success for
Dutch companies abroad.23 Additionally, non-trade24 concerns such as gender equality and
responsible business conduct (RBC) were identified, providing cross-cutting priorities.
For international trade and investment policy specifically, the policy brief identified the
following four objectives: (1) concluding bilateral free trade agreements (FTAs) at EU the level;
Buitenlandse Handel en Ontwikkelingssamenwerking (BHOS) – Foreign Trade and Development Cooperation.
Defined as the value added by the Dutch economy to the products exported, calculated as the gross export
value minus required imported finished products (for re-export), semi-finished goods and raw materials.
Source: CBS (2019), p. 20. The policy review of BHOS budget article 2 is scheduled to be completed later
this year (2021).
19
CBS (2020).
20
Ibid.
21
Ibid.
22
Ibid.
23
A world to gain, MFA (2013), p. 6.
24
One could argue that these topics are trade related, too. In this report we use the term trade interests to
mean national economic (and corporate) interests, while non-trade concerns is mostly used to describe
other public, social and environmental interests, such as sustainability, RBC, gender and labour rights.
Balancing conflicting interests was a recurring challenge throughout the issues studied.
17

18

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(2) internationalising the Dutch private sector; (3) attracting foreign direct investment to the
Netherlands; and (4) protecting Dutch investments abroad.25 Whereas nuances and focus
areas have evolved over time, the objectives for trade and investment policy have largely
remained in line with the ones identified in 2013.26 A more elaborate description of Dutch
policy will be presented in Chapter 2.
Evaluating Dutch trade and investment policy will aim to identify if and how Dutch
interventions have contributed to achieving Dutch policy goals. However, it is important to
acknowledge the context in which the Netherlands operates, as this has affected the Dutch
interventions as well as our evaluation of the interventions.
First, Dutch trade and investment policy is characterised by layered, multilevel policymaking.
An important aspect is the fact that trade policy (and investment policy to a large extent)27 is a
full and exclusive EU competence. As a member state of the EU, Dutch trade policy is by and
large shaped at the EU level. Furthermore, as a member of the World Trade Organization
(WTO), Dutch policy is also influenced by WTO law. Consequently, an important part of Dutch
interventions takes place at the international level, and particularly at the EU level,28
consisting mainly of advocacy efforts to convey the Dutch position (established at the
national level) and contribute to policymaking in the political institutions, as well as the
overall performance of these organisations.
| 29 |

Second, evaluation of Dutch trade and investment policy must take note of the turbulent
times in which Dutch policy was designed and implemented. Trade and investment policy has
been under pressure in recent times, with, among others, an impasse in the WTO’s Doha
Round, increasing trade tensions, a backlash against trade liberalisation, failed Transatlantic
Trade and Investment Partnership (TTIP) negotiations, Brexit and concerns about the impact
of dispute settlement of investors on national policy space. Consequently, trade and
investment policy have become increasingly politicised.29 At the same time, the policy field of
trade and investment has widened and deepened, with increased demand for the integration
and prioritisation of upcoming themes and non-trade concerns,30 such as transparency,
gender, climate change and sustainable development, into trade and investment policy.31

Ibid, pp. 48-50.
For example, in 2019, the objectives formulated for the BHOS policy included: (1) participating in and
promoting a multilateral rules-based trade and investment system that focuses on sustainability,
inclusivity of developing countries and a level playing field, among others in the WTO, OECD and G20,
and (2) promoting sustainable and inclusive bilateral trade agreements between the European Union and
third countries, and effectively implementing these agreements. Memorie van Toelichting, 2019, p. 32.
27
Unlike trade policy, investment policy is not a fully exclusive EU competence. EU member states may,
with explicit permission from the EC, still renew existing bilateral investment treaties (BITs), except for
those with other EU member states. See Chapter 2 (box 2.1) and more detailed information.
28
Given that the EC negotiates and speaks on behalf of the EU in negotiations of the WTO, influence must be
exerted mainly via the EC.
29
De Bièvre, et al. (2018); Forbes (2018).
30
Non-trade concerns refer to a broad range of concerns about the environment (i.e. climate change,
the protection of biodiversity), respect for working conditions, but also animal welfare.
31
WB (2019); MFA (2019); WTO (2019b); SDIP (2019).
25

26

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All of these factors affect Dutch policymaking on trade and investment at the national, EU
and WTO levels.32

1.2 Evaluation rationale and delineation
1.2.1

Time frame and rationale

The current evaluation covers the period from 2013 to 2019. However, it is complemented
with relevant events that took place before 2013 but affected the evaluation period, and with
important developments since 2019, thus covering trade and investment policy developed
and implemented under the Rutte II and Rutte III cabinets.
Fundamental changes in trade and investment policy have occurred during the time under
evaluation. By the end of 2012, a new ministerial post was created: the Minister for Foreign
Trade and Development Cooperation. The new ministerial post merged policies on trade and
investment that were previously the responsibility of the Ministry of Economic Affairs (MEA),
with the policies on development cooperation and private sector development (PSD) in
developing countries, the responsibility of the Ministry of Foreign Affairs (MFA). These
policies became part of a joint policy agenda: the new agenda for aid, trade and investment.
Consequently, the Directorate-General for Foreign Economic Relations (DGBEB), which
previously fell under the Ministry of Economic Affairs, became part of the Ministry of Foreign
Affairs.
This fundamental change in trade and investment policy under the aid, trade and investment
agenda, as well as the fact that the most recent IOB review of Dutch trade and investment
policy dates back to 2007,33 underscore the relevance of the current evaluation.

1.2.2

Research scope

The type of trade and investment policies covered in this evaluation are foreign policies
aimed at improving trade and investment conditions for Dutch firms and efforts to create a
level playing field.34 This means, for instance, that the evaluation analyses Dutch policies and
positions on the content of bilateral investment agreements, but not Dutch policies intended
to attract foreign direct investment. Additionally, this evaluation includes reviewing the
favourable conditions that Dutch trade policy aims to set for companies to trade with third
countries, but does not analyse the specific policy to promote responsible business conduct
by Dutch firms.35

See also Chapter 3 for a further review of key external trends and factors that that have influenced trade
and investment politics.
33
MEA (2007).
34
Memorie van Toelichting (2019).
35
This has been analysed in a separate evaluation, see https://www.iob-evaluatie.nl/resultaten/
evaluatie-imvo-beleid.
32

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Furthermore, the evaluation reviews the integration of aid, trade and investment policy in
terms of identifying if and how trade and investment policy integrated sustainability and
more inclusive trade, taking account of the interests of developing countries.
Finally, whereas the current evaluation reviews the coherence within Dutch trade and
investment policy, a more comprehensive review of the overall coherence of Dutch aid, trade
and investment policy is scheduled to be part of the policy review of article 1 of BHOS later
this year.

1.2.3

Case study selection

The evaluation largely builds on the review of five specific case studies:36
1. Trade defence instruments;
2. Trade and sustainable development chapters in free trade agreements;
3. Investor protection and investor duties;
4. The Trade in Services Agreement; and
5. Economic partnership agreements with Africa.
The evaluation of these five specific areas in trade and investment policy (selected on the
basis of their importance to the Netherlands37) provided the basis for an in-depth analysis.
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1.3 Research questions
The objectives of this evaluation have been translated into the following two main research
questions:
1. Which policy issues did the Netherlands prioritise and why, and how were policy
positions established?
2. Have policy goals on these issues been achieved, and if so, how?
To answer these research questions, the following sub-questions were formulated:
1. How did Dutch trade and investment policy develop over time?
2. Which actors were involved in formulating trade and investment policy?
3. Which policy goals did the Netherlands want to achieve in the field of trade and
investment policy and why? And to what extent did Dutch trade and investment policy
take the interests of developing countries into account?
4. To what extent was the Netherlands’ policy successful?
5. To what extent did external trends and factors influence trade and investment policy?

See Annex 1 for more information about the case selection. Moreover, this annex presents the extra
research questions for the EPA case study.
37
Exploratory talks with policymakers were held to identify the most important files and topics, which were
further narrowed down to the five selected case studies. See Annex 1 for more information about the case
selection. The topics that were not covered as a case study are briefly discussed in Annex 2.
36

Trading interests and values

1.4 Evaluation approach and definition of ‘success’
According to research by political scientists, the policy process consists of five stages. First, in
the ‘agenda-setting phase’, a policy issue is put on the agenda. This can be done by states, but
also by non-state actors that actively lobby to get their issue on the policy agenda (be it a
formal agenda, or simply ‘on the radar’ of policymakers).38 At the WTO, there might be less
room for formal agenda-setting, but (Dutch) policymakers or representatives from civil
society or the private sector can try to bring certain issues to the attention of WTO members
(both through and outside of EU channels). Next is the ‘policy formulation stage’. For EU
trade policy, this means that the EC presents a policy proposal. Third, policy proposals are
discussed and adopted in the ‘policy decision stage’. Adopted policies are implemented in the
‘policy implementation phase’ and reviewed in the ‘policy evaluation stage’.
Not all issues that are put on the political agenda (or ‘put on the radar’) in the first phase of
the policy cycle are eventually translated into policy, let alone result in negotiated outcomes
at the EU or WTO level. Various aspects are of influence here. First, interventions by member
states other than the Netherlands, as well as third countries (with whom an agreement is
negotiated), affect the final outcome of the process. Second, the outcomes of trade and
investment dispute settlement rulings can influence the circumstances under which an item
is brought forward or a policy proposal is voted on. Third, the institutional context, which in
itself could also be shaped by actors such as the Netherlands, influences decision-making on
policies as well. Fourth, strong lobby practices (of both state and non-state actors) also affect
the process. Stakeholders can apply pressure and affect the process in order to serve their
interests and keep issues off the agenda.39 The multitude of forces and stakeholders involved
affects the ability of the Netherlands to affect the final outcome of policy development and
implementation. These forces need to be considered when evaluating the success of Dutch
interventions.
The current evaluation focuses on the following stages of the policy cycle: the stages of
agenda-setting, formulation of policy proposals, and adoption of policy proposals, and
where possible and/or applicable, the actual implementation of policy proposals. For each of
these stages, research was conducted to assess whether an effect had occurred that can be
contributed to Dutch interventions. An intervention is identified as successful when enough
evidence is found to substantiate that a Dutch intervention contributed to the observed
result. Success will further be reviewed to the extent that interventions have led to success at
higher levels of the policy cycle, e.g. translated into policy. Identifying why intermediate
successes did not lead to success regarding the final outcome of policy formulation or
implementation (e.g. because of strong counter forces, such as lobbying forces) will still
provide insight into the quality of interventions and the context of the playing field, and thus
provide input for the formulation of recommendations.

38
39

Bunea (2013); Carpenter (2007); Pralle (2006).
Dür et al. (2015); Murdie and Webeck (2015); Baumgartner et al. (2009).

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This will also shed light on if and where (additional) Dutch interventions may be preferred.
For example, if the study shows that the Netherlands has been able to put issues on the policy
agenda or put them on the radar, yet these issues are rarely translated into actual policy
decisions, this could indicate that more effort should be put into influencing the behaviour
of other EU (member) states, for example.
Furthermore, in evaluating Dutch success, one should keep in mind that external factors
could have complicated the policy influencing process for Dutch policymakers, or that the
position of the EC or the majority of EU member states was simply too far removed from the
Dutch position. The difficulty of evaluating the success of policy interventions is further
discussed in Section 1.6, which describes the limitations encountered in evaluating Dutch
trade and investment policy.

1.5 Methodology
This evaluation relies on desk research and semi-structured qualitative interviews with
stakeholders to trace the process of Dutch policy success. Desk research involved an analysis
of various different types of policy documents, a literature review and stakeholder mapping.
The evaluation further relied strongly on semi-structured interviews. IOB conducted
interviews with policymakers at the MFA department, EC officials and the Dutch permanent
representations in Brussels (PR EU) and Geneva (PR WTO). Additionally, interviews were
conducted with non-state actors, who in turn tried to influence policymakers, such as
business associations, companies and non-governmental organisations (NGOs). Finally,
interviews were conducted with trade and investment experts, to discuss external factors and
global trends that influenced policymakers’ efforts to promote the Dutch position on trade
and investment policy issues.
The interviews provided input for the policy reconstruction and the discussion of the involved
actors and the case studies.
Part of the research, namely the case study on the EPAs and the analysis of the political and
economic context in which trade and investment takes place nowadays, was conducted by the
consultancy firm Ecorys. Annex 1 discusses the research methods in more detail.

1.6 Limitations
As part of this evaluation, IOB encountered a number of limitations, two of which must be
discussed in more detail. First, as already introduced in Section 1.4 on defining what
constitutes success, one must recognise the difficulty of reviewing the attribution or
contributing effect of Dutch interventions in the multilayered context of policymaking,
the various different stakeholders and their impact as well as the EU’s exclusive competence
on trade policy. Because the EU has exclusive competence in the field of trade and (to a large

| 33 |

Trading interests and values

extent) investment policy, and there is therefore multilevel governance,40 one cannot
attribute a specific policy outcome to the efforts by Dutch policymakers in a straightforward
manner. To deal with and minimise this limitation, this evaluation focused on a limited
number of policy issues – the case studies – and reviewed Dutch interventions by tracing the
intervention logic of the process. This made it possible to trace mechanisms and make
statements about why Dutch efforts have been successful on certain policy issues, but not on
others.41 However, identifying the exact degree of attribution (and even contribution) of
Dutch interventions has been impossible. Furthermore, given that only five policy issues are
analysed in detail, drawing conclusions about the Dutch impact on trade and investment
policy in general is difficult and should thus be done with caution.
Second, a certain selection bias may be present in the case studies. The selection of case
studies is based on exploratory talks with policymakers working at the MFA. Only policy issues
on which the policymakers have actively worked during the period of evaluation are taken
into account. At the same time, this method also increases the likelihood of observing effects
of Dutch efforts if there are any. If this evaluation does not observe an effect of Dutch
interventions on policy issues that policymakers were said to have worked on actively and
visibly, it might still shed light on how to enhance Dutch efforts.

1.7 Structure of this report
The remainder of the report is structured as follows. Chapter 2 presents a reconstruction of
the Dutch international trade and investment policy and the actors involved, including at the
national, EU and international levels. Chapter 3 contains an overview of developments, issues
and factors that influenced trade and investment policy.
Chapters 4 to 8 review Dutch trade and investment policy in the context of the five case
studies: Trade defence instruments (Chapter 4), Trade and sustainable development chapters
in free trade agreements (Chapter 5), The Trade in Services Agreement (Chapter 6), Investment
protection and investor duties (Chapter 7), and Economic partnership agreements with Africa
(Chapter 8).
Finally, Chapter 9 presents conclusions and recommendations.

40
41

Hooghe and Marks (2001).
Dür (2008); Beach (2017); Collier (2011).

| 34 |

2
Dutch international trade and
investment policy and multilevel
governance

Trading interests and values

2.1 Main observations
Based on the overview of the development of Dutch trade and investment policy during the
evaluation period (2013–2019) that is presented below, the following observations can be
made. First, the international trade and investment policy of the Netherlands is characterised
by a limited number of policy goals, allowing for a focused approach. When compared to
‘A world to gain: a new agenda for aid, trade and investment’42 of 2013, the policy goals
presented in ‘Investing in global prospects: for the world, for the Netherlands’43 (2018) are
fairly similar. Both policy documents stress the importance of coherence between trade and
investment policy and development policy. And both documents acknowledge that tensions
can arise when trying to combine these different policy areas. However, the weighing of
conflicting interests was made more explicit in ‘Investing in global prospects’. But what also
becomes clear is that none of the policy documents introduces an up-to-date assessment
framework to weigh possible conflicting interests of the Netherlands against the interests of
developing countries.
This links to our second observation, namely that the overarching policy goals of the
Netherlands,44 and the more specific policy objectives for trade and investment policy,45 are
barely operationalised, and it remains unclear how exactly the Netherlands plans to achieve
policy goals. For example, the policy documents do not depict a roadmap to a multilateral
rules-based trade and investment system. And even if more concrete goals are formulated,
the policy documents do not specify how the Dutch diplomatic efforts to achieve these will be
assessed. In the Trade Agenda, for example, the only measurable indicator under article 1.1 of
the BHOS-budget relates to RBC, while the four priorities (such as market access or providing
services to SMEs) are not translated into indicators.46 This makes it challenging for
policymakers to identify specific policy goals that the Netherlands wants to achieve.
Moreover, it is no easy task for policymakers (nor for citizens, non-state actors and
politicians) to assess whether or not Dutch advocacy efforts on these policy goals were
successful. A possible explanation for this might be that trade and investment policy covers
such a wide range of topics that it is difficult to introduce more concrete actions in the policy
documents such as ‘A world to gain’ or ‘Investing in global prospects’. One could argue that
the aim of these documents is to provide ultimate goals, not to provide explicit plans on how
to get there. If that is indeed the case, one would expect underlying policy documents that
elaborate on the broad plans. This is why in Chapters 4 to 8, we analyse the policy goals and
strategies used by Dutch policymakers on five specific case studies.

From now on referred to as ‘A world to gain’.
From now on referred to as ‘Investing in global prospects’.
44
See Chapter 1. Central policy goals of the aid, trade and investment policy are: (1) eradicate extreme
poverty (‘getting to zero’) in a single generation; (2) sustainable, inclusive growth all over the world; and
(3) success for Dutch companies abroad (MFA, 2013, p. 6.)
45
See Chapter 1. For Dutch trade and investment policy specifically, the policy document identified four
goals: (1) concluding bilateral free trade agreements at the EU level, (2) internationalising the Dutch private
sector, (3) attracting foreign direct investment to the Netherlands, and (4) protecting Dutch investments
abroad (MFA, 2013, p. 48-50).
46
Ministerie van Buitenlandse Zaken (2019), p. 8.
42
43

| 36 |

Trading interests and values

Third, the Netherlands’ trade and investment policy focuses more on trade than on
investment issues. As mentioned earlier, not all dimensions of the overarching Dutch
objectives are translated into more concrete goals. But this is even more limited when it
comes to investment policy. In the Trade Agenda of 2018, for instance, the Dutch cabinet only
mentioned the negotiations on the reform of Dutch investment agreements as an important
policy goal.47 Note that Chapter 7 discusses Dutch policies concerning investment policy.
Fourth, Dutch trade and investment policy is not only a complicated policy area because it
covers such a broad range of topics but also due to the fact that trade policy (and investment
policy to a large extent)48 is a full and exclusive EU competence. The EC has the right of
initiative and is thus responsible for planning, preparing and proposing new European
legislative and budgetary initiatives concerning trade policy. In addition, the EC, among other
things, negotiates and speaks on behalf of the EU in negotiations that take place at the
international level (in the WTO) and negotiates FTAs with third countries. Against this
background, an important part of Dutch advocacy efforts are aimed at conveying the Dutch
position on trade and investment policy to the European level (with a strong focus on the EC).
Policymakers in The Hague are supported in these efforts by the Permanent Representation
of the Netherlands in Brussels (PR EU) and the Permanent Representation of the Netherlands
in Geneva (PR UN). Of course, effectively conveying the Dutch policy positions requires good
communication and coordination between Brussels, Geneva and The Hague. It also requires
sufficient capacity – which is currently not there – to attend meetings in both Brussels and
Geneva on a regular basis and to participate in informal meetings with other member states
in between meetings. In Chapters 4 to 8, more attention will be paid to this coordination,
to the specific advocacy efforts used for the different policy issues and to what extent these
have led to Dutch policy success.

2.2 Introduction
Dutch international trade and investment policy covers a very broad range of topics,
including trade defence instruments, sustainable development, e-commerce, and trade and
investment agreements. Who exactly develops this trade and investment policy? And what is
the common thread in the policy of the Netherlands? This chapter discusses the main
developments of Dutch international trade and investment policy during the research period
of 2013–201949 and the actors involved.

Ibid, p. 2. See Chapter 7 for more information.
Further explained in Section 2.3.2.
49
Although the focus of this evaluation is the period 2013–2019, developments in the years before are taken
into account when they have shaped the policymaking structures and the actual policy.
47

48

| 37 |

Trading interests and values

2.3 Multilevel governance
It is impossible to study trade policy purely at the Dutch level, given that the development of
trade policy at the national level is intertwined with policymaking at the European (EU) level
and international level (e.g. WTO). Trade and investment policy is thus the result of what
political scientists have called ‘multilevel governance’.50 The next sections will focus
specifically on policies developed at these multiple levels, the actors that are involved and the
way this shapes the actions of the Netherlands.

2.3.1

The national level

Since 2012, the Netherlands has had one Minister for Foreign Trade and Development
Cooperation (BHOS), thus placing trade affairs and development cooperation under the
responsibility of a single minister at the cabinet level.51 With this change, the directorategeneral responsible for trade within the Ministry of Economic Affairs, the Directorate-General
for Foreign Economic Relations (DGBEB), moved in its entirety to the Ministry of Foreign
Affairs.52 It became the responsibility of the Minister of BHOS, who together with the Minister
of Foreign Affairs (FA) heads the Dutch MFA.53 The DGBEB is tasked with strengthening the
Dutch competitive position, and promoting an open world economy and sustainable
globalisation. Within this DG, when it comes to trade and investment policy, the BHOS
Minister is specifically supported by the International Trade Policy and Economic Governance
Department (IMH).54
Shortly after the DGBEB was moved in April 2013, Minister Ploumen issued the policy
document ‘A world to gain’. It explained the rationale behind the merge between trade policy
and development cooperation.55 According to the Dutch cabinet at the time, developments at
the global level, such as rapidly emerging economies, increased global interconnectedness
and interdependence, changing patterns of poverty, and economic problems within the EU
were causing a shift in power relations. This shift also has an impact on the role of the
Netherlands in the world. The policy document states that ‘[t]he influence of the Netherlands
as a country is decreasing due to the emergence of new actors on the world stage’.56

Hooghe, L. and G. Marks (2001), p. 4.
This was a major shift in responsibilities. Until 2012, a state secretary at the Ministry of Economic Affairs
was responsible for trade. The responsibility for development cooperation changed between the level of
minister and state secretary, but was placed under the umbrella of the Ministry of Foreign Affairs.
In November 2012, with the Rutte II cabinet (2012–2017), both policy areas were brought together under
one newly created minister for BHOS, placed at the MFA.
52
The tasks between the two ministers are divided as follows: the Minister for BHOS is responsible for
policies regarding trade and investment policy and development cooperation, while the Minister of FA is
responsible for Dutch foreign policy as well as policy regarding the EU.
53
Although trade affairs have now been placed under the MFA, the MEA is still involved in formulating trade
policy on certain aspects as it represents the economic and business point of view.
54
In addition to IMH, the DGBEB consists of two other departments; the Economic Diplomacy and Transition
Department and the International Enterprise Department (Ministry of Foreign Affairs (2020b)).
55
Ministry of Foreign Affairs (2013).
56
Ibid, p. 16.
50
51

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Trading interests and values

In addition, ‘[i]t is becoming increasingly difficult to use aid to exert influence on poverty and
equity issues’, given that the relations with low- and middle-income countries are now on a
more equal footing because these countries not only receive aid but are also trading
partners.57 These developments required a new agenda for aid, trade and investment.
The BHOS Minister is responsible for making sure that the consequences of Dutch policy for
low- and middle-income countries are taken into account in decision-making.58, 59
Moreover, the policy document pushed for a change of focus in trade partners. While good
relations existed with (some of ) the emerging economies as a result of Dutch development
cooperation, ‘A world to gain’ claims that Dutch trade policy remained focused on the more
‘traditional’ and neighbouring trade partners and that the Netherlands did not fully seize the
opportunities related to the economic growth in emerging countries.60
‘A world to gain’ presented a broad agenda with three goals at the international level:
(1) to ban extreme poverty worldwide in a single generation, (2) stimulate sustainable and
inclusive growth all over the world, and (3) create success for Dutch businesses abroad.61
The role of the private sector was emphasised more than under previous cabinets, as well as
the importance of FDI for inclusive, sustainable growth and poverty reduction, alongside
promoting and supporting Dutch exports and investments. The cabinet recognised that
merging aid, trade and investment policy would lead to actions motivated by ‘both solidarity
and enlightened self-interest’,62 and that conflicts of interest might arise between the
different objectives. After all, success for Dutch businesses abroad (goal number 3) does not
automatically go hand in hand with the banning of extreme poverty (goal number 1). If such a
conflicts of interest were to arise, sustainable and inclusive growth (goal number 2) was taken
‘as our guiding principle’.63 However, an operational assessment framework on how to weigh
the different interests was not introduced.64
‘A world to gain’ identified four objectives for Dutch trade and investment policy:
(1) concluding bilateral free trade agreements (FTAs) at EU the level; (2) internationalising the
Dutch private sector; (3) attracting foreign direct investment to the Netherlands; and (4)

Ibid, p. 16.
Ibid, p. 21.
59
The amount of coherence or synergy between development cooperation and trade in general will not be
discussed in this evaluation, but will be part of the review of the overall policy under article 1 BHOS (also
conducted by IOB in 2021). However, this evaluation includes the question of whether the trade and
investment policy issues that the Dutch policymakers emphasised are also in line with the development
cooperation agenda. And whether merging development cooperation and trade and ministries also had an
impact on determining the Dutch position.
60
Ibid, p. 10.
61
Ibid, p. 11.
62
Ibid, p. 7.
63
Ibid, p. 7.
64
A cabinet vision on non-trade concerns and trade policy was presented in 2009, with a view to making
production more sustainable. It describes when to act in a multilateral context, in the context of the EU or
unilaterally, with an assessment framework for unilateral action, taking into account sustainability
(Tweede Kamer, vergaderjaar 2008-2009, 26 485, nr. 68).
57

58

| 39 |

Trading interests and values

protecting Dutch investments abroad.65 In addition, creating a level playing field66 was
identified as an important related objective, as a way to facilitate these objectives.
These objectives cannot be achieved by the MFA alone. When it comes to support to Dutch
business abroad or poverty reduction in developing countries, for example, other ministries
are closely involved in defining cabinet positions. Of all the Dutch ministries, the MFA works
especially close with the Ministries of Finance (MinFin), of Economic Affairs and Climate
Policy (MEA), of Social Affairs and Employment (SZW), of Agriculture, Nature and Food
Quality (LNV), and of Infrastructure and Water Management (I&W).67 This cooperation
obviously requires coordination. To this end, two coordination bodies were used. First,
the Interdepartmental Council for Trade Policy (IRHP) was re-established in 2014, under the
authority of the BHOS Minister.68 The IRHP, chaired by the DGBEB, meets every week and
prepares and coordinates the Dutch position on trade and investment policy, to be translated
into instructions for delegations that represent the Netherlands in international meetings
(e.g. at the OECD or the WTO), the EU, and in bilateral meetings.69 IRHP meetings, where
representatives from the different departments and the PR EU in Brussels and PR WTO discuss
relevant topics, are said to be constructive.70 Second, the weekly Coordination Committee for
European Integration and Association problems (CoCo) is mandated to determine the Dutch
position in relevant specialist councils and the Council of the European Union in Brussels.71
The CoCo is the gateway to the Dutch Council of Ministers; CoCo-conclusions are discussed
and adopted in the weekly Council of Ministers. Equipped with a coordinated position,
Dutch representatives then participate in meetings and negotiations in the EU and other
international organisations (IOs), such as the WTO.
The coordinated Dutch positions on the different trade and investment topics are often
reactive, in response to EC proposals, rather than designed proactively. A reason for this could
be the limited capacity at IMH at the DGBEB. As indicated earlier, many topics are covered
Ibid, p. 48-50.
This refers to competition in the global economy being ‘fair’, without distortion by market barriers and
government actions. A level playing field allows all countries and firms to compete on an equal footing
(OECD (2019)).
67
Interview with Dutch policymaker working at the MFA, held on 21 October 2019.
68
Before 2014, IRHP was placed under the authority of the Minister of Economic Affairs; Source: Ministry of
Foreign Affairs (2014).
69
Including specialised councils and committees such as the European Council Working Party on GSP or the
Working Party on Trade Questions, the EU Trade Defence Committee or the Committee on rules of origin
of the WTO.
70
Source: interviews with Dutch policymakers from MEA and LNV, held on 20 April and 11 May 2021.
Both respondents identified IRHP meetings as ‘constructive’ and ‘substantive’ and with room for input
from the department-specific perspective.
71
The CoCo is chaired by the Director of the Directorate for European Integration (DIE), on behalf of the
Minister of Foreign Affairs. DIE also runs the secretariat. More politicised dossiers are being discussed in
the High Level Administrative Committee on the EU (HACEU), which consists of high-level officials from
several departments. HACEU is the door to the Ministerial Committee on the EU (MCEU), which is chaired
by the Prime Minister’s Office. MCEU deals with the strategic European agenda, preparations for the
European Council and the Economic and Financial Affairs Council (ECOFIN), focused on international
financial institutions and the G20.
65

66

| 40 |

Trading interests and values

under trade and investment policy, and the actual topics are very broad. Moreover, there are
several bilateral (EU) agreements on a number of different topics that require attention.
There are only so many policy officers at IMH.72 Furthermore, the turnover rate for policy
officers is usually every four years, which sometimes leads to a loss in institutional capacity
and knowledge of certain trade and investment topics.
Many non-state actors based in the Netherlands criticised the merging of foreign trade and
development cooperation. They feared that the policy note ‘A world to gain’ did not provide
an effective approach to dealing with possible trade-offs and clashing interests between trade
and development cooperation.73 In the 2016 action plan on ‘Policy coherence for
development’, the cabinet elaborated on how it planned to tackle these possible tensions.
The action plan, written at the request of the Dutch Parliament, aimed to create greater
coherence between different policy areas that affect development.74 The action plan covered
eight themes: trade agreements, investment protection, access to medicines, tax avoidance
and evasion, sustainable value chains, the cost of monetary transactions, climate change and
food security. According to the plan, achieving policy coherence begins by explicitly
recognising the importance of development at the outset of policy formulation. A clear link is
made to the Sustainable Development Goals (SDGs) that were adopted in 2015 by all United
Nations (UN) member states, including the Netherlands,75 because the eight themes covered
in the action plan correspond to one or multiple SDGs.
| 41 |

In the 2016 action plan ‘Policy coherence for development’, the cabinet acknowledges that
achieving policy coherence between trade and investment policy, on the one hand, and
development policy on the other hand, is not an easy task. The interests of the poorest people
sometimes clash with other Dutch interests, for example economic ones. The cabinet
therefore stresses that policy coherence is a matter of balancing those interests. What this
policy document fails to do, though, is introduce an up-to-date assessment framework on
how exactly to balance those interests. It is left up to policymakers to weigh possible
conflicting interests of the Netherlands against the interests of development countries.
However, according to the action plan, achieving positive results for the poorest is a leading
concern for the Netherlands, and Dutch representatives are instructed to express this position

IMH counts 52 FTEs, which is about 57 employees. The trade and investment agreements and market
access cluster (HIAM) – which covers the topics of this evaluation – counts less than 20 employees.
73
ActionAid (2013); OxfamNovib (2016); FGG Alliance (2013).
74
Tweede Kamer, vergaderjaar 2015–2016, 33 625, nr. 219.
75
The ‘2030 Agenda for Sustainable Development’ contains 17 SDGs, which are an urgent call to developed
and developing countries to work together to end poverty and other deprivations, improve health and
education, reduce inequality and spur economic growth. In addition, the SDGs also focus on tackling
climate change and preserving the oceans and forests, and they stress the importance of sustainable
development (UN (2015)).
72

Trading interests and values

in the EU and other IOs.76, 77 To strengthen Dutch advocacy efforts and to mobilise support,
the cabinet builds on academic research and cooperates with other countries and non-state
actors.78
Two institutions were of particular importance for exchanging views and cooperating with
non-state actors during the evaluation period. First, the Dutch Trade and Investment Board
(DTIB), which brings together policymakers and representatives from the private sector three
to four times a year.79 In this board, they discuss how the government could support and
stimulate ‘internationally active entrepreneurs’. State Secretaries, the Ministers of Foreign
Affairs and Economic Affairs, civil servants, and, from a later date, the representatives of the
five largest municipalities are all present in the DTIB. Participants from the private sector
include the chairpersons of employers’ organisation VNO–NCW, the alliance of small and
medium-sized enterprises (SMEs) MKB-Nederland as well as representatives of Randstad,
Royal HaskoningDHV, Shell and other companies.80 Second, the Breed Handelsberaad (broad
trade council, BHB), established in 2017, is an important forum in which policymakers and
non-state actors meet at least five times a year. The BHB was established to enhance
transparency and increase the involvement of non-state actors in the policymaking process,
while at the same time making sure that there was a balance between represented parties
(i.e. both business organisations and NGOs).81 The BHB consists of more than
17 representatives of trade unions (such as FNV), business associations (e.g. EVO–Fenedex or
MKB–Nederland), companies (such as Unilever, Shell), civil society organisations (e.g. Both
ENDS, Milieudefensie, SOMO) and the Association of Dutch Municipalities. Regular BHB
meetings take place four times a year before the Foreign Affairs Council (FAC) on Trade
(see the section on the European level below). The discussion in the regular BHB meeting
follows the agenda of the FAC.82 About twice a year, a thematic meeting takes place, which
focuses on one specific topic. Examples include sustainability chapters in the FTAs (Chapter 5)
and the new model text for investment agreements (Chapter 7). The representatives can
express their concerns, put forward new ideas or put questions to the MFA. All the
(confidential) information exchanged in the BHB serves as input for the MFA to determine
the Dutch position concerning trade and investment policy. In addition to the four regular

Tweede Kamer, vergaderjaar 2015–2016, 33 625, nr. 219.
It is interesting to note that this Dutch position goes further than Article 208 (TFEU) in which EU MS have
agreed to ‘take account of the objectives of development cooperation in the policies that it implements
which are likely to affect developing countries’ (EUR-LEX (2016). The Netherlands expresses in the action
plan that the effects on developing countries are not only taken into account, but are actually ‘leading’
(Tweede Kamer, vergaderjaar 2015–2016, 33 625, nr. 219, p. 2).
78
Ibid.
79
This board was established as the Dutch Trade Board in 2004 and became the DTIB 10 years later. In 2018,
the board was merged with the International Strategic Board, now called the International Strategic
Consultation (ISO NL).
80
FTM (2018); TNI (2019); minutes of the DTIB and ISB NL/ISO NL.
81
Interview with Dutch policymaker working at the MFA, held on 21 October 2019.
82
In the Dutch Parliament, the parliamentary committee on BHOS also (partly) follows the agenda of the
FAC. In this committee, members of parliament (MP) meet to discuss the agenda of the FAC (and are joined
by the BHOS minister), but these MPs also organise roundtables on FTAs, technical briefings etc.
76
77

| 42 |

Trading interests and values

meetings and the two thematic meetings, the BHB also meets at least once a year to discuss
the more strategic long-term vision on Dutch trade policy.
Besides these two institutions, the Netherlands also organises (online) consultations on a
regular basis in which non-state actors (such as trade unions, business associations,
companies, NGOs, universities and research institutes), citizens, IOs and municipalities
provide their views on policy proposals. For example, the 2018 coalition agreement presented
a renewed BHOS policy, with a focus on, among other things, tackling the underlying causes
of poverty, migration, climate change, sustainable production chains and inclusive economic
development.83 While developing this policy document, the MFA invited non-state actors,
citizens and other interested parties to share their views based on nine questions (e.g. on
which priority areas the government should focus and how the government can contribute to
the achievement of the SDGs).84 The MFA received 230 responses85 that were (to some extent)
used to help shape the new policy.86
Figure 2.1 Trade and investment policy at the national level

Private sector
and civil society

BHB

Ministry of
Foreign Affairs
IMH
| 43 |

Other ministeries,
e.g. MinFin, SZW

IRHP

CoCo

Council of the EU

EU Trade Policy
Committee (TPC)
Specialised committees, e.g. WTO
Committee on Rules Of Origin

TPC deputies

Only a few months later, in May 2018, the new BHOS Minister presented the policy document
‘Investing in global prospects’, fleshing out various policies announced in the coalition
agreement under the third cabinet of Prime Minister Rutte.87 This document builds on
‘A world to gain’ of 2013 and ‘Policy coherence for development’ of 2016, by continuing the

Ministry of Foreign Affairs (2018e).
Ministry of Foreign Affairs (2018f).
85
See, for example, VNO–NCW and MKB–Nederland (2018); ONL voor Ondernemers (2018).
86
In the report of the consultation, the MFA emphasises that the consultation largely supported the intended
structure and content of the policy document. Not all input was incorporated, for example because of the
detailed level or the focus on specific countries. However, all responses received were shared with the
responsible policy directorates to serve as input for policy on FTDC, outside of the policy document
(Ministry of Foreign Affairs (2018c)).
87
Ministry of Foreign Affairs (2018a).
83

84

Trading interests and values

focus on coherence between trade and investment policy and development policy. ‘Investing
in global prospects’ present four overarching BHOS goals: (1) preventing conflict and
instability, (2) reducing poverty and social inequality, (3) promoting sustainable inclusive
growth and climate action worldwide, and (4) enhancing the Netherlands’ international
earning capacity. Throughout these four goals, gender equality and empowerment of women
and girls is a cross-cutting theme.88 One year later, in 2019, the ‘Trade agenda to the policy
document investing in global perspectives’ was presented to Parliament.89 With this agenda,
the cabinet aimed to show how it implements the ambition to enhance the international
earning capacity of the Netherlands (overarching goal 4).90 The ‘Trade agenda’ is based on
four priorities: (1) market access and Brexit, (2) providing an excellent service to small and
medium-sized enterprises (SMEs) and start-ups, (3) customised economic diplomacy, and
(4) redesign of the public and private trade promotion, innovation and investment network.91
Both ‘Investing in global prospects’ and the ‘Trade agenda’ emphasise the importance of
sustainable trade and investment agreements (for example, through sustainability chapters
in FTAs), investment facilitation in developing countries, the multilateral trade system (with a
crucial role for a modernised WTO), and the rise of digitalisation and services trade.92
Both documents encountered criticism by non-state actors. The criticism of ‘Investing in
global prospects’ concerned the ‘rather superficial analysis’ on which the policy documents
were based, where earlier Dutch policies on trade and development cooperation and the
reasons for success and failure were not taken into account,93 as well as criticism for not
paying enough attention to climate action94 and criticism of the strong focus on Dutch
self-interests.95 Additionally, there were complaints that the ‘Trade agenda’ did not devote
attention to the central themes of ‘Investing in global prospects’, such as gender equality,
the SDGs and sustainable inclusive growth,96 while others argued that it focused excessively
on the SDGs and did not provide enough action aimed at trade.97 In 2019, the BHOS Minister
provided an update on the ‘Trade agenda’, describing the progress on each of the four focus
points.98 However, since the above-mentioned actions with regard to international trade and
investment mostly focused on the long term, the reported progress was relatively limited.
In ‘Investing in global prospects’, the cabinet also announced reforms to the 2016 action plan
on ‘Policy coherence for development’. In this reformed plan, presented to Parliament in July
2018, the previous eight areas were merged to create five: development-friendly trade
agreements, a development-friendly investment regime, tax avoidance and evasion,

Ibid.
Ministry of Foreign Affairs (2018b).
90
Ibid, p. 1.
91
Ibid.
92
Ibid, Ministry of Foreign Affairs (2018a).
93
Hoebink, P. (2018), pp. 1-14.
94
Hirsch, D. (2018).
95
Paassen, Barbara van (2018).
96
SOMO, TNI, Women, Both ENDS and ActionAid (2018).
97
Evofenedex (2018); Evofenedex (2019).
98
Ministry of Foreign Affairs (2019).
88
89

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Trading interests and values

combating climate change, and sustainable production and trade (SDG 17).99 According to
cabinet, the reformed plan emphasises policy areas that help developing countries to achieve
the SDGs and ‘where the Netherlands can make a difference’.100 At the same time, it should be
noted that this policy document still does not provide a clear framework on how to balance
the interests of the Netherlands against the interests of developing countries.
In July 2019, the BHOS Minister presented a progress report on the plan to Parliament,
for example on tax agreements, modernising investment protection agreements (IBOs),
implementing economic partnership agreements (EPAs), improving the social and
environmental circumstances in supply chains and climate diplomacy.101 Moreover, in
May 2020, (limited) progress was reported on tax avoidance and evasion, mandates for the
European Commission (EC) to convert the EPAs into full-fledged trade agreements, the
reform of investor-state dispute settlement, improving working conditions in supply chains
and intensifying Dutch climate diplomacy.102
Figure 2.2 Timeline of policy developments and implementation (in the evaluation period)
A single Minister for
Foreign Trade and
Development
Cooperation (BHOS)

2012

Trade department
from Ministry of
Economic Affairs to
Foreign Affairs

BHOS-Minister
presents:
‘A world to gain’

2013

Cabinet presents:
‘Action plan for the
policy coherence’

‘One-year
Trade agenda’
| 45 |

Cabinet presents:
‘Reformed action plan
for policy coherence’

2015

EC presents:
‘Trade for all’

2016

2018

New
‘Trade
agenda’

2019

BHOS Minister
presents ‘Investing in
global prospects’

The goals of providing access to medicines, the cost of monetary transactions and food security were no
longer mentioned as separate goals. These have been integrated into the five themes where incoherence
can occur. Food security, for instance, remains a focal point when discussing trade and climate action.
And access to medicines is an important part of negotiations on trade agreements (Ministry of Foreign
Affairs (2018d), p. 3).
100
Ibid, p. 1.
101
Tweede Kamer, vergader jaar 2018–2019, 33 625, nr. 285.
102
Ministry of Foreign Affairs (2020a).
99

Trading interests and values

2.3.2

The European level

The Netherlands is an EU member state, and trade policy (and investment policy, to a large
extent – see Box 2.1) is a full and exclusive EU competence. This means that the Netherlands,
together with the other member states (MS), has transferred its policymaking power on these
issues to the European level. Therefore, member states do not ‘provide the sole interface
between supranational and subnational arenas, and they share, rather than monopolise,
control over many activities that take place in their respective territories’.103
An important part of Dutch trade and investment policy is therefore to influence policy that is
made within the three political institutions of the EU: the EC, the Council of the European
Union (Council), and (to a lesser extent) the European Parliament (EP).104 The EC is a crucial
player, because it has the right of initiative and is thus responsible for planning, preparing
and proposing new European legislative and budgetary initiatives concerning trade policy.105
In addition, the EC negotiates and speaks on behalf of the EU in (multilateral) negotiations
that take place in the WTO, for example on a plurilateral investment facilitation agreement
that would deal with policies that promote investment.106 Moreover, the EC negotiates Free
Trade Agreements (FTAs) with third countries on behalf of the EU and develops and
implements the preferential EU trade policy towards developing countries in the Generalised
Scheme of Preferences (GSP).107 Moreover, since the Lisbon Treaty in 2009, the EU has the
competence to negotiate new investment agreements dealing with foreign direct investment
(FDI), as discussed in Box 2.1. The EU and WTO institutions thus play a pivotal role in trade
and investment policymaking.

Hooghe, L. and G. Marks (2001), p. 4.
Contact between Dutch policymakers/diplomats and members of the EP (MEPs) is fairly limited (interviews
with Dutch policymakers working at the MFA, held on 9 April 2020, 16 April 2020 and 31 August 2020,
Interview with Dutch diplomat, held on 18 February 2020).
105
EUR-LEX (2019).
106
Plurilateral trade agreements are made between countries with similar interests. With those agreements,
it is not mandatory that all WTO countries are involved or that the agreements are negotiated within the
WTO framework (European Parliament (2019)).
107
GSP removes or lowers import duties for products that vulnerable developing countries put on the
EU market (EC (2019b)).
103

104

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Trading interests and values

Box 2.1 Competence to negotiate investment agreements108, 109, 110, 111, 112, 113

Since 2009, as part of the negotiated Lisbon Treaty (2007), the competence for
negotiating new investment agreements moved to the EU level. Investment
protection of foreign direct investment and possibly opening markets for new FDI
could be negotiated in the context of comprehensive EU FTAs with third countries.108
An opinion of the European Court of Justice in 2015, on the allocation of
competences between the EU and EU member states for concluding the EU–
Singapore FTA somewhat changed this. The ruling made clear that the following
areas are still a ‘shared competence’:109 (1) portfolio investment; (2) investor-state
dispute settlement (ISDS); and (3) state-to-state dispute settlement relating to
portfolio investment.110 On those issues, the ECJ concluded that provisions ‘cannot
be approved by the European Union alone’. Consequently, investment agreements
must be stand-alone agreements and cannot be incorporated in ‘deep’ and comprehensive FTAs.111
Member States may, with the explicit permission of the EC, still renew existing
bilateral investment treaties (BITs), except for those with other member states.112, 113
Besides requiring permission to renew existing BITs, member states must implement
any newly negotiated EU agreements, directives and regulations on investment.

With the Lisbon Treaty, the Common Commercial Policy (CCP) has been expanded to include FDI. This has
thus given the EU exclusive competence in this area (Consolidated Version of the Treaty on the Functioning
of the European Union art. 3(1), 2009 O.J. C 326/49, [hereinafter TFEU]).
109
‘Shared competence’ allows both the EU and its member states to adopt legally binding acts for the policy
area in question.
110
European Court of Justice (2015), Opinion 2/15, para 244.
111
Here it is important to note that Opinion 2/15 seems to use a different understanding of ‘shared
competence’ as defined in Art. 2 TFEU (see Thym, D. (2017)).
112
Bilateral investment agreements deal with the protection of FDI against risks such as expropriation
without prompt, adequate and effective compensation, and provide for dispute settlement outside the
national court system in case of investor-state disputes. Through BITs, covered investors have the right to
binding international arbitration (so-called investor-state dispute settlement) if ‘national treatment’ (i.e.
to be treated the same way as an investor from that country), ‘most-favoured nation’ (conditions can be in
place, as long as they are not discriminatory) and the right to transfer capital freely (from and to the
country of choice) are violated (Source: Rijksoverheid (2019)).
113
Besides its own BITs, the Netherlands is involved in negotiating broader European investment agreements,
efforts to establish a multilateral investment court, and multilateral negotiations on investment in the
OECD and the WTO, including an effort to establish a plurilateral investment facilitation agreement in the
WTO.
108

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Trading interests and values

Given the EU’s exclusive competence on trade policy (and investment policy to a certain
extent), an important aspect of Dutch interventions consists of conveying the Dutch position
on trade and investment policy to the European level. This was already mentioned in ‘A world
to gain’: ‘[i]ncreasingly, we are exerting our influence through the European Union’.114
According to this policy document, ‘[w]e can exercise more influence as a member of the EU
than we can alone. That is why for us the EU is the most relevant framework within which to
conduct a coherent policy’.115 The PR EU plays an important role. It interacts with the EC,
Council and the EP, with other permanent representations and the large community of
non-state actors.116 Examples of non-state actors active at the European level are think tanks
(e.g. the European Centre for International Political Economy, ECIPE; Bruegel; the Centre for
European Policy Studies, CEPS), companies (including multinationals such as Google),
business associations (individual associations for each single sector and overarching
associations such as BusinessEurope, which represents 40 national business associations
including VNO–NCW,117 and EUROCHAMBRES, the Association of European Chambers of
Commerce and Industry), trade unions (e.g. European Trade Union Confederation, ETUC;
European Trade Union Institute, ETUI) and non-governmental organisations (e.g. Oxfam
International) that are involved in trade and investment policy. All of these organisations try
to impact policymaking, among others, through (online) consultations and by organising
events, generating media attention and directly contacting policymakers.118
Moreover, the PR EU works in close collaboration with policymakers at the department in
The Hague, specifically with the DGBEB. The DGBEB determines the Dutch trade and
investment policy, based on input from, among others, the PR EU in Brussels and the Dutch
permanent representation to the WTO and/or to the UN in Geneva.119 The PR EU, for example,
provides the DGBEB with an analysis of the arena, i.e. the various positions (revealing which
member states are in favour or against a certain proposal), estimates the feasibility of Dutch
initiatives and advises when to bring new proposals to the table.120 Policymakers of the
DGBEB travel to Brussels regularly to attend meetings, but are themselves, as experts on
certain policy issues, also in close contact with policymakers at the EU institutions,
representatives of other EU MS and the EP.121
The extent to which policymakers can bring forward the Dutch position in official meetings
or promote the Dutch views during informal talks with other member states in between
meetings is finite. For example, at the Dutch PR EU there is only one employee responsible
for trade, compared to two employees at the Maltese PR EU (which is a much smaller trade
Ministry of Foreign Affairs (2013), p. 16.
Ibid, p. 56
116
Interview with Dutch diplomat, held on 18 February 2020.
117
https://www.businesseurope.eu/
118
Beyers, J. (2002), pp. 585-612; Beyers, J. (2004), pp. 211-40; De Bruycker, I. and J. Beyers (2019), pp. 57-74;
De Bruycker (2015), pp. 599–616; De Bruycker, I. and J. Beyers (2015), pp. 453-474; Dür, A. and D. de Bièvre
(2007), pp. 79-101; Quittkat, C. (2011), pp. 653-674.
119
Interviews with Dutch diplomats, held on 21 October 2019, 31 October 2019 and 18 February 2020.
120
Interview with a Dutch diplomat, held on 18 February 2020.
121
Interviews with Dutch policymakers working at the MFA, held on 9 April 2020, 16 April 2020 and 31 August
2020; interview with EC trade officer, held on 6 March 2020.
114
115

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Trading interests and values

nation) or four at the Italian PR EU. The high-speed train connection between The Hague and
Brussels is an advantage for the Dutch officials when attending official meetings in Brussels:
meetings almost always fit in the schedule, and when necessary the Netherlands can visit with
a larger delegation more easily. At the same time, it also has a disadvantage. Because of the
fast connection, many Dutch officials travel back on the same day, unlike officials from other
countries who travel by plane and often leave the next day. This provides fewer opportunities
for Dutch government officials to hold informal meetings, compared to other countries.122
At the European Commission, DG Trade has the lead on trade policy. This DG, led by a trade
commissioner, coordinates, among others, the trade relations between the EU and third
countries. The DG is divided into policy directorates that deal, for example, with services and
investment (directorate B), trade defence (directorate H) and regional directorates (such as
directorate C, which deals with Asia and Latin America).
In 2015, the EC presented its ‘Trade for All’ strategy, which made a clear link between
development policy, on the one hand, and trade and investment policy, on the other hand.123,
124
This link between these policy areas is, of course, in line with the policies and the
institutional set-up (with one minister for BHOS) of the Netherlands, and is also something
that has been frequently advocated by Dutch representatives.125 The ‘Trade for All’ strategy
stresses how ’trade policy, combined with development cooperation, is a powerful engine of
growth in developing countries’ and how the ‘Trade for All’ strategy should be combined with
the commitments to the SDGs.126 Moreover, the strategy reflects on the changing world
economy and how EU trade and investment policy can help to boost employment and
growth. For example, the EC states that trade in services, which accounts for 70% of EU GDP
and employment, will be prioritised in trade negotiations (e.g. through a plurilateral Trade in
Services Agreement (TiSA)). In addition, the EC agrees to strive for better implementation of
FTAs, a stronger enforcement of the EU’s rights, and to make trade and investment policy
more transparent (by opening up negotiations to more public scrutiny). Moreover, the
strategy talks about reinvigorating the multilateral trading system, for instance by making
progress at the WTO and by actively pushing for the conclusion of the Doha Round
(see 2.3.3 and Annex 3 for more information).127

Interview with a Dutch diplomat, held on 18 February 2020.
European Commission (2015).
124
The combination of EU trade and development policy has a long tradition; already with the Lomé
Convention of 1975 the European Economic Community (EEC) combined trade and aid to 71 African,
Caribbean and Pacific (ACP) countries.
125
For example, concerning negotiations taking place in the context of the WTO (see Tweede Kamer,
vergaderjaar 2013–2014, 25 074, nr. 186; IRHP 2016-28b TPC Handleiding Plv 22-07-2016; IRHP 2017-18b
Handleiding Plv 9 June 2017), or discussions within the EU itself (see IRHP 2016-10b TPC Handleiding Plv
11-03-2016). Although a policymaker also pointed out that this link was stressed by multiple member
states and that the Commission was already working on it (interview with Dutch policymaker working at
the MFA, held on 14 October 2019).
126
Ibid, p. 7.
127
Ibid.
122
123

| 49 |

Trading interests and values

Two years later, in 2017, the EC presented a report on the implementation of Trade for All.128
In this progress report, the EC mentioned ‘considerable concrete progress towards an
effective, transparent and responsible trade policy that responds to economic challenges and
seizes opportunities’.129 It cited the examples of the FTAs with Canada and Japan. At the same
time, the EC also pointed out that carefully implementing achieved agreements requires
attention (for example on sustainable development130), as do, among other issues,
investment liberalisation,131 the reform of the WTO132 and gender equality.133
While the EC talked about ‘considerable concrete progress’, it should be noted that, at that
time, large parts of CETA were only applied provisionally, awaiting its ratification by the EU
MS, the EU and Canada. And even today, CETA has still not been ratified.134 Moreover, several
non-state actors were critical about the level of transparency, especially regarding the TTIP
negotiations.135 For example, the European Trade Union Confederation (ETUC) stated, ‘the
transparency we have called for has not been achieved’136 and Corporate Europe Observatory
argued that ‘despite the public relations [TTIP] is still under a cloak of secrecy’.137 Greenpeace
leaked some of the negotiating documents, in order ‘to bring some much-needed
transparency to the debate on TTIP’.138 At the same time, it should be noted that business
organisations were more satisfied with the transparency initiatives of the European
Commission. The Confederation of Swedish Enterprise even warned that more transparency
‘risk[s] compromising the negotiations’.139
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In June 2020, the EC launched a major review of the EU’s trade policy. The aim was to define a
new medium-term direction, responding to global challenges (such as the Brexit trade talks,
the future of the WTO, shifting power balances and the economic effects of COVID-19).140
The review, which included a large public consultation,141 was led by the Trade

European Commission (2017), pp. 1-16).
Ibid, p. 16.
130
European Commission (2017), p. 9. See Chapter 5 for more information.
131
Ibid, p. 8. See Chapter 7 for more information.
132
Ibid, p. 14.
133
Ibid, p. 10.
134
In the Netherlands, the House of Representatives has approved the treaty, but the Senate has yet to vote.
135
For a detailed analysis of the different positions of non-state actors, see Gheyle, N. and F. De Ville (2017),
pp. 16-28.
136
ETUC (2016).
137
Corporate Europe Observatory (2015).
138
Greenpeace (2016).
139
In the context of the TTIP negotiations, several business associations, including the American Chamber of
Commerce, BusinessEurope and Copa-Cogeca (representing the agricultural industry), commended the
Commission on its level of transparency. Exceptions are agricultural business groups, such as the European
Milk Board and the Irish Creamery Milk Suppliers Association, who sided with NGOs and trade unions
(Gheyle and De Ville (2017), p. 19). All responses to the public consultation can be found here: European
Ombudsman (2014). https://www.ombudsman.europa.eu/en/correspondence/en/58643
140
European Commission (2020b).
141
More than 400 submissions from a wide range of stakeholders were received (European Commission
(2021)).
128
129

Trading interests and values

Commissioner142 and resulted in a revised strategy that was adopted in February 2021.
The strategy has three core objectives: strengthen the capacity of trade to support the digital
and climate transitions; shape global rules for a more sustainable and fairer globalisation;
and increase the EU’s capacity to pursue its interests and enforce its rights.143 The EU’s strategy
is fully supported by the Netherlands. The Dutch representative in the Trade Policy
Committee (TPC) welcomed the focus on the major reform of the WTO (e.g. because the
Netherlands is pushing for a solution to the fishery subsidies within the WTO framework),
sustainability and the objective to enforce the EU’s rights (e.g. the enforcement of trade
agreements that include a sustainability chapter – see Chapter 5), as well as the use of trade
defence instruments (see Chapter 4).144
The Trade Policy Committee (TPC) is a forum in which trade and investment policy is
discussed. The TPC is also known as Committee 133, after article 133 in the 1992 Maastricht
Treaty, which states that the EC has competence over trade policy. In the TPC, the EC informs
MS about trade negotiations with third countries and/or in international organisations, and
MS provide advice and assistance. The TPC deals with three important policy areas: (1) the
World Trade Organization, (2) bilateral trade agreements, and (3) new EU regulations on
trade. Moreover, this committee prepares the decision-making process of the European
Council concerning EU trade policy. The TPC also has a Services and Investments sub-group
that meets to discuss agreements on trade in services, investment and investment protection,
services and investment-related matters in FTAs, and separate investment protection
agreements between the EU and third countries. The PR EU represents the Netherlands
(although the capacity is limited to one person only), based on instructions it receives from
The Hague, in the meeting of the deputy members, which takes place once a week. When the
full members145 of the TPC meet, once a month, Dutch interests are represented by DGBEB.
In addition, once every six months, the full members gather in an informal meeting in the
country that holds the rotating presidency of the Council of the EU. In those meetings,
the Netherlands is again represented by DGBEB.
Trade ministers from all EU member states meet in the Foreign Affairs Council on Trade
(FAC Trade). Meetings of the FAC on common commercial policy issues are presided by the
representative of the EU member state holding the rotating presidency of the Council. The
FAC Trade takes place four times a year, with two formal meetings and two informal
meetings.

Only two months after the launch, Trade Commissioner Hogan had to resign after a political scandal
(European Commission (2020c)). Hogan has been succeeded by Valdis Dombrovskis (Politico (2020)).
143
European Commission (2021).
144
Ministry of Foreign Affairs (2021).
145
Usually General Directors/Head of Trade divisions in the relevant ministries of EU member states.
142

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Trading interests and values

Figure 2.3 Trade and investment policy at the European level
Min of Foreign Affairs
PR EU

TPC deputies
Other EU MS

Council of the EU
FAC/Trade

Trade
Committees:
TPC-full members
TPCSI
Trade Defence Committee
Working Party Trade Questions
Market Access Committee
Etc.

European
Commission

European
Parliament

DG Trade

| 52 |
Civil society

2.3.3

The international level

The most important institution at the international level dealing with trade and investment
policy is the WTO (see Annex 3 for background on how the WTO has developed over time),
which is based in Geneva. This intergovernmental organisation, established in 1995 and
succeeding the General Agreement on Tariffs and Trade (GATT), is concerned with the
regulation of international trade and currently has 164 members. The Netherlands has been
a member since the beginning.
In Geneva, the Dutch Permanent Representation (PRUN), and more specifically the Deputy
Permanent Representative to the WTO, deals with all matters related to trade policy (and
investment policy to the extent that it is discussed within the WTO framework). The task of
this Permanent Representative to the UN and his limited team is to represent Dutch interests
and provide input for policymakers in The Hague. The team is relatively small: including the
Deputy Permanent Representative there are only five employees working on trade, one of
which focuses solely on investment and on labour, and they often work at the PR UN on

Trading interests and values

economic affairs as well.146 At the same time, according to diplomats working at the PR UN,
policymakers from The Hague should be more visible in Geneva. These diplomats feel that
having contacts in Geneva with other WTO members and knowing the debates that are taking
place there is essential for developing effective trade (and investment) policy.147 Currently,
though, policymakers in The Hague only occasionally travel from The Hague to Geneva to
participate in (expert) councils and committees. In addition, every two years, Dutch
policymakers attend the WTO Ministerial Conferences (MCs).148 However, policymakers in
The Hague mostly rely on the information they receive from the PR UN after the meeting of
EU ambassadors to the WTO (taking place on Wednesdays) to serve as input for the TPC
(taking place on Fridays in Brussels).149
Given that trade policy is an exclusive EU competence (as was discussed in Section 2.3.2),
it is the EC that negotiates on behalf of the European Union within the framework of the
WTO.150 In Geneva, the EU has two-fold representation.151 First, there is the Delegation of the
EU to the UN and other international organisations. This Delegation is part of the network of
140 EU delegations worldwide, carrying out the EU’s foreign policy and supporting the High
Representative of the EU for Foreign Affairs and Security Policy. Second, there is the
Permanent Mission of the European Union to the WTO, supporting the EU Trade
Commissioner.
At the WTO, the EU is a member in its own right as a customs union, as are each of its member
states. However, while the member states coordinate their position in Brussels and Geneva,
the EC represents the EU and its 28 member states in the councils and committees of the WTO
and in the MCs.152, 153 In addition, the EC is involved in negotiations of the Doha Development
Agenda (DDA), but also in plurilateral initiatives such as the Information Technology
Agreement (initiated by the EU and signed by 82 members of the WTO), the Environmental
Goods Agreement (negotiated by the EU and 16 other WTO members) and the Trade in
Services Agreement (negotiated by 23 members of the WTO, including the EU, though
currently on hold). Moreover, the EC makes active use of the dispute settlement mechanism
of the WTO. This mechanism provides a legal framework to WTO members for resolving
disputes when negotiations fail to resolve them.154 While the EU is thus speaking on behalf of
The Permanent Representative and his team not only work on the WTO but also deal with the United
Nations Conference on Trade and Development (UNCTAD) and the International Labour Organization (ILO)
(interview with Dutch diplomat, held on 31 October 2019).
147
Interviews with Dutch diplomats, held on 31 October 2019 and 1 November 2019.
148
The MCs are the highest decision-making body of the WTO and are attended by trade ministers and other
senior officials from the WTO members. The MC can take decisions on all matters under any of the
multilateral trade agreements. At the MCs, the EC regularly updates MS on the progress of the
negotiations.
149
Interviews with diplomats, held on 16 October 2019 and 21 October 2019.
150
European Commission (2019c).
151
Established following the Lisbon Treaty of 2007.
152
Ibid; interview with a Dutch diplomat held on 21 October 2019.
153
There are two exceptions: MS speak on their own behalf in the WTO Budget Committee and
representatives of MS can also perform duties as chairpersons of WTO councils and committees.
154
While the EC is the EU’s executive arm and thus conducts negotiations, for example, WTO materials tend
to refer to the ‘EU’ instead of the ‘EC’ (WTO (2019)).
146

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Trading interests and values

all the member states, a Dutch diplomat pointed out that every country still has its own
representation in Geneva. According to this diplomat, this shows that none of the EU
member states feel comfortable with ‘the EU doing its thing’.155
Figure 2.4 Trade and investment policy at the international level
Ministry of Foreign Affairs
PR UN, Geneva
TPC

EU coordination
meeting

European Commission

Non-EU WTO
member countries
WTO
International
organisations

Ministerial
Conference

WTO
Committees
e.g.: SPS, TSD,
TRIPS

Every week, the EU organises coordination meetings, attended by all MS. The coordination
meetings are used by the EC to communicate the EU position and to update the MS on the
progress of negotiations. Moreover, member states are invited to express their opinion on
proposals by the EC or on the way the EU is conducting negotiations in the context of the
WTO.156 These meetings thus provide the most important opportunity to represent the
interests of the Netherlands on trade and investment policy. At the same time, though, the EC
gives MS very little to no room to lobby on their own, eager to protect the EC exclusive
competence.157 For example, MS are informed only in broad terms about statements that the
EU makes during WTO negotiations. This means that EU MS are unable to effectively use the
breaks during meetings; it is difficult to talk to third countries about how the position of
those countries only slightly differs from the EU position, given that the member states are
not familiar with the specifics of the EU position themselves.158 According to Dutch
diplomats, this works against the effectiveness of the EU at the international level. The EC
should use the permanent representations of member states as important vehicles to
Interview with Dutch diplomat, held on 31 October 2019.
Interview with EU diplomat, held on 30 October 2019.
157
Interviews with Dutch diplomats, held on 21 October 2019 and 31 October 2019.
158
Interview with Dutch diplomat, held on 1 November 2019.
155

156

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Trading interests and values

enhance the visibility of EU initiatives and enhance and explain the EU position, for example
by capitalising on the bilateral contacts that member states have.159
In addition to the EU and international levels, the Netherlands also operates at the bilateral
level, advocating its positions in informal and formal meetings with one or more
counterparts. When the minister attended ministerial level meetings, her files often
contained speaking notes on priority policy topics including trade and investment issues.
For instance, in the period 2015–2018, at the OECD ministerial councils, bilateral meetings on
trade and investment (including EU free trade agreements) included notes on trade and
gender, responsible business conduct, an improved investment dispute settlement system
and the Dutch Model Bilateral Investment Treaty.

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159

Interviews with Dutch diplomats, held on 21 October, 31 October 2019 and 1 November 2019.

3
Key external trends and factors in
trade and investment politics

Trading interests and values

3.1 Introduction
Although the Netherlands has its own objectives for trade and investment policy,
Dutch policy formulation and implementation does not happen in a vacuum. In fact,
trade and investment policy is shaped and influenced by various national and international
developments, issues and factors, which are interlinked and complex.
This chapter presents a review of the most important developments, issues and factors that
shaped and affected Dutch trade and investment policy during the period under evaluation.
The chapter is based on the study by Ecorys (2021) as commissioned by IOB.160

3.2 Developments, issues and factors and their effect on
trade and investment policy
The different trends and developments that influenced trade and investment policy can be
categorised as follows: (1) geopolitical developments; (2) socio-economic factors; (3) public
opinion and politics; (4) business and technological developments; and (5) environmental
issues.
It is important to note the interconnectedness of these developments. Key developments in
one category have the potential to enhance or counter the effect of developments in other
categories. The (perceived) negative effects of globalisation, socio-economic trends and
business and technological developments influenced public opinion and politics, and
subsequently influenced trends and events: for instance, the election of Donald Trump in the
US in 2016 and, second, the mobilisation of public opinion on the Transatlantic Trade and
Investment Partnership (TTIP) and the Trade in Services Agreement (TiSA), and the
subsequent opposition to trade and investment negotiations.161 The interplay of these
developments, factors and trends – and their effect on trade and investment policy – is very
complex.
What follows is a discussion of the key developments, trends and factors. Key developments
discussed include: the rise of China over time and the election of President Trump in 2016
(geopolitical developments); income and welfare inequality and gender inequality (socioeconomic factors); internationalisation and integration of business and technology (business
and technology development); and climate change (environmental issue). These thematic
issues were selected partly because they have been priorities of the ministers for Foreign
Trade and Development Cooperation (BHOS, in Dutch).
Note that this evaluation covers the period 2013–2019. Where relevant, longer-term
developments, issues and factors are included. Moreover, the review takes account of some

See Chapter 1 (pp. 13-24) and Annex B (pp. 165-171) in Ecorys (2021) for a more detailed overview of the
developments, issues and factors.
161
Ibid.
160

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Trading interests and values

important developments since 2019, but only where these are explicitly related to the selected
developments, issues and trends highlighted in this report. A key development that is
therefore not discussed is the COVID-19 pandemic, even though it has had an impact on trade
and investment policy. The pandemic will be briefly discussed in Chapter 9, however.162

3.2.1	Geopolitical developments: the rise of China and the election of
Donald Trump
The continued rise of China and the EU’s response
A geopolitical development that particularly stands out is the continued rise of China. Since
the economic reform and trade liberalisation over 40 years ago, China has been among the
world’s fastest-growing economies.163 By 2013, China had overtaken the US as the world’s
largest economy on a purchasing power parity basis, and in 2019, it accounted for 19% of the
global economy.164 China further increased its economic position in global trade with
initiatives such as the Belt and Road Initiative (BRI, which started in 2013),165 to facilitate the
integration of the Chinese economy in the global market. Besides accelerating Chinese
growth through increased connections, its infrastructure projects also facilitated work for
Chinese construction firms across the globe on an unparalleled scale.166 Additionally, China
enhanced its economic position through its many regional and bilateral trade agreements
with third countries, especially in the framework of the BRI.167
| 58 |

China also established its geopolitical power through its influence in international
organisations. It became a WTO member in 2001, created the Asian Infrastructure Investment
Bank, and joined in the establishment of other new organisations.168 China further increased
its political influence by taking on more international responsibility in terms of foreign aid,
peacekeeping, nuclear non-proliferation and regional security mechanisms, as well as –
among other things – by opening of a military base in Djibouti. 169
Given China’s rising economic size and political influence, its development has had a
profound effect on European and Dutch trade and investment. Positive effects include the
enhanced market for European exporters and increased Chinese investments in the European
Union (EU). Between 2013 and 2019, EU exports to China increased by 46%, from EUR 148
billion in 2013 to EUR 217 billion in 2019.170 In the same period, Chinese (state-owned and
private) foreign direct investment (FDI) in the EU increased by 73%, from EUR 6.7 billion in

In its concluding chapter, the Ecorys report (2021, pp. 134-135) also touches on COVID-19.
Purdie (2019).
164
Ibid.
165
This multibillion-dollar investment plan consists of infrastructure projects in 71 countries across Asia,
Africa and Europe.
166
Kuom and Kommenda (2018).
167
Ecorys (2021).
168
Such as the BRICS development bank. BRICS is the acronym for the group of Brazil, Russia, India, China
and South Africa.
169
Ecorys (2021); Chen (2014).
170
ITC Trade Map, undated. European Union (EU 28)’s exports to China.
162
163

Trading interests and values

2013 to EUR 11.6 billion in 2019, with much higher increases in some of the years171
in-between.172 Private foreign direct investment, in particular, increased significantly over
time.173
However, there are equally evident negative effects related to China’s rise, such as increased
strategic competition among global powers combined with protectionist foreign economic
policies, notably between China and the US, but also between China and the EU. In addition,
problems with Chinese dumping practices (such as overcapacity in steel production) and its
powerful state-owned enterprises continued to grow. International media, parliaments and
activists have also asked for attention to labour, human rights and environmental issues in
China, including in the context of trade negotiations.174
The expiration of China’s non-market economy status in the WTO175 in 2016 had a significant
influence on WTO and EU trade and investment policy. In the years prior to 2016, in
anticipation of China’s market economy status, the debate at the national and international
levels sped up. This change of status required a careful redesign of policy – especially of trade
defence policy – to avoid Chinese exports becoming ‘too competitive’, but also to avoid a
deterioration of political relations with China (see also Chapter 4 on trade defence policy).
The sum of these combined effects is defined in the European Commission’s EU China
strategic outlook of 2019, which states: ‘China is, simultaneously, in different policy areas,
a cooperation partner with whom the EU has closely aligned objectives, a negotiating partner
with whom the EU needs to find a balance of interests, an economic competitor in the
pursuit of technological leadership, and a systemic rival promoting alternative models of
governance’.176
EU Communications since 2019 reveal the impact of the rise of China on trade and investment
policy as well. The European Commission (EC)’s 2021 Trade Policy Review,177 for example,
underscores the impact expected from the continued rise of China on the global economic
and political order: ‘The continued rise of China will impact heavily on global economic
developments over the next ten years’178. The EU’s trade and investment policy will aim to
protect the EU’s essential interests, while simultaneously building a fairer and rules-based
E.g. in 2016, 2017 and 2018, Chinese FDI into the EU totalled EUR 21 billion, EUR 37 billion and EUR 29
billion respectively (Statista.com (2021).
172
Statista.com (2021).
173
Ibid.
174
Ecorys (2021).
175
Under the WTO’s Accession Protocol, China was treated as non-market economy for 15 years (since 2001).
This allowed other countries to use a special methodology for calculating the dumping margin in
anti-dumping measures for Chinese goods. Thus, easier and higher anti-dumping duties could be imposed
on Chinese exports. See Ecorys (2021, p. 121) for more details. More generally, on China Ecorys adds that
‘Import-competing industrial stakeholders see China as a highly problematic trade partner and market
participant and are largely supportive of the EU’s trade defence policy towards China’ (p. 122).
176
EC (2019), p. 1.
177
EC (2021).
178
Ibid, p. 3.
171

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Trading interests and values

economic relationship with China, with greater obligations for that country in international
trade.179
Surprisingly, the Dutch BNC fiche180 (March 2021), which discusses the new EC Trade Policy
Review and the Dutch position towards it, does not explicitly address the developments of
the continued rise of China or its implications (for instance, on the competitiveness of Dutch
trade), nor does it address the Dutch stance on trade and investment policy on this matter.181
US policy and the response of the EU
A second key development influencing trade and investment policy and global geopolitics
was the election of Donald Trump in 2016. His ‘America First’ attitude increased protectionist
US foreign economies policies. The US withdrew from the Transpacific Partnership182 and
renegotiated ‘outdated and imbalanced’ agreements with Mexico (NAFTA), Canada (USMCA)
and South Korea (KORUS).183 The US also increased its trade defence measures, initially to
affect Chinese products. In early 2018, the US levied steel and aluminium tariffs on China,
setting in motion an upward spiral of tariffs.184 In June 2018, the EU was also confronted with
import tariffs by the US on steel and aluminium, affecting EUR 6.4 billion worth of EU
goods.185 The EU retaliated with measures, affecting EUR 2.8 billion worth of US imports.186
In addition, the international leadership of the US in the multilateral trading system
dissolved, with increased criticism on and actions in the WTO.187 Already under the Obama
administration, the US blocked the appointment of new members of the WTO’s Appellate
Body and refused to engage in serious discussions on reform, a position that has (so far) been
continued by the Trump and Biden administrations. To ensure the continuation of
international dispute settlement in the midst of this paralysis, in April 2020 the EU and other
WTO members188 formally introduced an interim appeal arrangement for WTO disputes.189
With the Biden administration, the EU sees opportunities for improving the Transatlantic
relationship. The EC’s new Trade Policy Review also addresses the EU’s geopolitical ambitions
in this context, and identifies opportunities for cooperation on trade and investment.
It states that the current US administration ‘provides an opportunity to work together to
Ibid.
A BNC fiche is a note by an interdepartmental working group describing and assessing new proposals by
the European Commission. IOB obtained a draft fiche on the Trade Policy Review in late March 2021.
181
In line with the pursued position in previous years, the BNC fiche does address the importance for the
Netherlands to pursue a policy that facilitates an open, fair and rule-based system.
182
The Trans-Pacific Partnership was, effectively, the largest investment agreement ever negotiated and
involved negotiating partners Australia, Canada, Chile, Mexico, Peru, Singapore and Vietnam (Mandel
(2020)).
183
BDI (2020).
184
Ibid; Press release 31 May 2018. https://ec.europa.eu/.
185
EC (2018a).
186
EC (2018b).
187
BDI (2020).
188
Including, among others, Australia, Brazil, Canada, China, Colombia, Mexico, New Zealand and
Switzerland.
189
EC (2020).
179

180

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Trading interests and values

reform the WTO, including by reinforcing its capacity to tackle competitive distortions and to
contribute to sustainable development’.190
The EC also aims to modernise the global rule book to achieve more sustainable and fairer
globalisation – partly in response to protectionist and unilateral policies. The 2020
communication of the EU High Representative191 on ‘a new EU–US agenda for global change’,
speaks more explicitly about protectionist measures in EU–US bilateral trade. The EU aims to
renew EU and US commitments to more open and fairer trade, to improve the level playing
field and address the challenges of protectionism and unilateralism.192
The Dutch Ministry of Foreign Affairs embraces the EC’s strategy, as explained in the BNC
fiche, particularly its focus on modernising the WTO, including reforms of the Appellate Body,
and its ambition to guarantee open and fair trade.

3.2.2	Socio-economic factors: income and welfare inequality and trade
inequality
Several socio-economic factors have substantially influenced the development of trade and
investment policy. Whereas EU citizens continue to largely support enhanced liberalisation of
trade and investment in the institutional context of the WTO and the EU, including within the
Netherlands,193 there is widespread recognition that trade and investment liberalisation in
itself do not automatically benefit all citizens, nor to the same extent. Consequently,
mitigating the negative social effects of globalisation have influenced and become part of
trade and investment policy.
For example, increasing inequality worldwide has had a strong socio-economic influence on
trade and investment policy.194, 195 Although the extent to which trade and investment
liberalisation has affected inequality is a matter of debate, there is a widespread perception
that the benefits of globalisation have not been shared equally.196 This increasing inequality
has fed into the debate to address the disruptive effects of globalisation and has led to
concerns about growing inequalities from uneven income distribution, poor working
EC (2021), pp. 8-9.
The High Representative of the Union for Foreign Affairs and Security Policy.
192
EC & HRVP (2020).
193
For example, results from the Eurobarometer survey on international trade of 2019 identified that the
majority of EU citizens (60%) believe they benefit from international trade. This was even higher for Dutch
citizens, at almost 80%. Additionally, over 70% of EU citizens, and almost 90% of Dutch citizens believed
that the EU was better able to defend their interests than member states could independently
(Eurobarometer, 2019).
194
Ecorys (2021).
195
There is broad consensus that inequality in many developed countries has increased in recent years,
but there is less consensus as far as inequality between countries is concerned. A perception that the
benefits of globalisation are not equally shared has fed into broader discontent with globalisation and the
fairness of the rules. This discontent goes beyond inequality, including concerns about tax avoidance by
multinationals and a perceived lack of a level playing field under current rules for trade and investment,
fearing social or environmental dumping, for example (Ecorys (2021)).
196
Ecorys (2021).
190
191

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Trading interests and values

conditions, tax avoidance and an unequal playing field, as well as a fear of social and
environmental dumping.197 These issues made their way into trade and investment policies,
including the negotiation of new trade and investment agreements (for instance, into the
Trade and Sustainable Development (TSD) chapters in free trade agreements (FTAs).
Additionally, specific stakeholders have gained a stronger voice, such as civil society and
consumer groups. Indeed, civil society has become a more prominent actor in the
negotiation and implementation of the TSD chapters of the EU’s FTAs.
Another topic that influenced trade and investment policy in the period under review is
gender inequality and the role of women in trade. Whereas gender equality was initially
addressed as a fundamental principle, it has now become a policy goal. For example, gender
was not part of the EU’s Trade for All Strategy in 2015, and trade was not included in the
2010–2015 Strategy for Equality between Women and Men.198 However, the updated Gender
Equality Strategy 2020–2025 does explicitly include gender equality as an objective of EU trade
policy.199 At the same time, simply mentioning gender equality is not enough to have an
impact on trade and investment policy. In this context, Chapter 5 will discuss the extent to
which gender equality is translated into policy when the EU is negotiating FTAs with third
countries.
Both inequality and gender were priority topics for the ministers for Foreign Trade and
Development Cooperation in the period under review, as spelled out by the policy notes of
Minister Ploumen and Minister Kaag: A world to gain (2013) and Investing in global prospects
(2018), respectively. Dutch trade and development policy has since focused on poverty
reduction and reaching poor and vulnerable countries and groups, including women and
girls.

3.2.3

Business and technological developments

Another important development was the continued internationalisation and integration of
business and technology. In the past decade, we have seen the start of the transition to a
digital economy. Developments such as lower transport costs and innovations in ICT,
e-commerce and logistics have advanced cross-border production, increased efficiency and
fragmented global value chains even further. These developments directly affected trade and
investment policy. Sometimes policymakers had to deal with highly specific and technical
issues. Examples include digital trade and related privacy law issues or the protection of
personal data, competition issues and tax implications. These developments also required
new regulations to deal with the trade in goods and services that were previously non-existent
or were not traded; to deal with increased risks of fragmented production;200 and to deal with

Ecorys (2021); EC (2021).
Viilup (2015), as cited in Ecorys (2021).
199
EUR-Lex (2020) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0152, as cited in
Ecorys (2021).
200
For example, via production and processing standards.
197

198

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Trading interests and values

investment arbitration. They also increased the importance of trade defence measures,
the regulation of standards and the regulation of intellectual property rights.201
These developments affected trade and investment policy indirectly as well. For instance,
the combination of increased fragmentation of value chains and enhanced insight on
production and investment practices revealed unethical and unsustainable practices in supply
chains.202 Increased global social interconnectedness increased access to such information
and hence increased public awareness. Opposition to agreements such as TTIP, CETA and TiSA
was led by civil society and interests groups that were connected globally. This public
awareness, in turn, increased the demand for the integration of responsible business conduct
into trade and investment policy and beyond. In addition, digitalisation has required an
effort to increase consumer protection. All of these developments call for a cross-border,
multilateral approach, and an increasing role for organisations such as the EU and WTO.
EC communications after 2019 reflect the importance of these developments and the need for
new regulations. They affirm that Europe’s digital transformation requires policies on digital
goods, the increased trade of (new) services, the protection of intellectual property and
innovation.203 Trade and investment policy related to digital developments should be shaped
at the global level, according to the EC. It therefore aims for a rapid conclusion of an
ambitious and comprehensive WTO agreement on digital trade.204 The Dutch cabinet also
identifies the need to take account of business and technological developments, stating in
the BNC fiche: ‘A point for consideration is the reform of trade policy to support the digital
transition of trade and (digital) services’. The Netherlands supports the policy proposals of the
EC, and stresses the need to take account of the interests of consumers and developing
countries, as well as national security, privacy and fundamental rights.205
The past two Dutch cabinets prioritised digital trade, because of its importance for the Dutch
economy. Minister Kaag issued a policy paper on the topic in June 2019: the Digital Agenda.206
In Chapter 7 on trade in services, we will come back to some of the challenges around the
digitalisation of trade.

3.2.4

Environmental issues: climate change

Climate change and environmental degradation have increasingly affected trade and
investment, and subsequently affected trade and investment policy. Public awareness of the
environmental impact of trade and investment has grown over the reporting period, and the
sustainability of free trade – leading to greenhouse gas emissions, pollution and the
For more details, see Ecorys (2021).
Note, however, that these developments may also positively influence trade and investment policy,
for instance by reducing the need for standards and regulations in light of the enhanced use of block chain
methods.
203
EC (2021).
204
EC (2021).
205
BNC Working Party (2021). Internal document.
206
MFA (2019). This was an extension of the Dutch digitisation strategy from 2018.
201

202

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Trading interests and values

depletion of natural resources – has been questioned. Governments started promoting
climate-resilient investments and procurement, especially in the areas of infrastructure,
energy and transport. They started to introduce carbon pricing systems, and recently the EU
even designed a carbon border adjustment mechanism, trying to prevent ‘carbon leakage’.
Companies, meanwhile, are reassessing their assets (mitigating the risk of stranded assets).
Some companies started reporting on their global footprints, the ‘true price’ of products and
the ‘true costs of trade’, as well as on their adherence to international standards on
responsible business conduct. Many companies now participate in international initiatives to
fight climate change. Investors have started to work on ‘social and environmental impact
investments’, and government and private sector investors have started greening their
financial instruments.
Given the global nature of climate change, policy responses are often developed at the
international and global levels. The Sustainable Development Goals (2015) and the Paris
Agreement (2015) helped shape the international policy debate. Indeed, strict climate policies
in one country have little effect if insufficient international measures are taken to reduce
carbon emissions. Environmental dumping has also been a concern in trade discussions.
Trade agreements could provide a platform for addressing such environmental issues.207
These issues have clearly had an effect on trade and investment policy, as demonstrated by
mitigating policies, trade and investment standards and trade defence measures (e.g. related
to environmental dumping and carbon tariffs). EU free trade agreements have started to
include chapters on TSD, including clauses on responsible business conduct and
environmental sustainability. Some trade agreements specifically refer to climate change and
parties’ commitments in the context of the UNFCCC.208 The EU Trade Policy Review (2021)
highlights climate change and a green transition of the economy as one of the priorities of
our time.209
Climate change, sustainable development and responsible business contact have been
among the top priorities for the Dutch cabinet since 2013, and for the ministers for Foreign
Trade and Development Cooperation in particular. The Netherlands presents itself as a leader
in these fields, with high ambitions nationally and internationally. The ministry has also
strongly promoted the inclusion of sustainable development chapters in free trade
agreements. Chapter 5 will elaborate on this topic.

Ecorys (2021). After the period under review, the EU developed a legislative proposal on a carbon border
adjustment mechanism. Environmental dumping is the practice of transporting waste to another country.
208
Ecorys (2021). UNFCCC is the United Nations Framework Convention on Climate Change. Other relevant
international frameworks impacting trade and investment policies include the OECD Guidelines for
Multinational Enterprises on Responsible Business Conduct (2011) and the UN Sustainable Development
Goals (which are part of the 2030 Agenda for Sustainable Development, 2015).
209
EC (2021). ‘The acceleration of climate change, together with biodiversity loss and environmental
degradation, paired with tangible examples of their devastating effects have led to the recognition of the
green transition as the defining objective of our time’, it states.
207

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Trading interests and values

3.3 Conclusion
The developments, issues and factors addressed in this chapter and the different effects and
ways in which they influence trade and investment policy are rich and diverse. ‘An observer of
trade and investment policy could hardly have felt bored in recent times’, as Ecorys concluded
in their report for this study.210
This chapter has shown the complexity that policymakers face in the design, implementation
and enforcement of trade and investment policy. These developments and their effects need
to be taken into account on a continuous basis. They need to address the ways in which they
affect trade and investment, and identify how they affect the national and international
context and different stakeholders. Policymakers need to adjust policies to changing
circumstances, balancing the interests of different stakeholders and serving their own
strategic goals.

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210

Ecorys (2021).

4
Trade defence instruments

Trading interests and values

4.1 Introduction
Trade defence instruments (TDIs) can be used by importing countries to respond directly to
alleged unfair trade practices of individual third-party exporters (the distortion of competition
by the third party caused by dumping or actionable subsidies), via anti-dumping (AD) or
anti-subsidy (AS) measures. Additionally, TDIs can be used against fair trade, via so-called
safeguard measures, to provide the domestic industry temporary relief in case of an
unforeseen, sharp and sudden influx of competing foreign goods. Most TDI measures come
in the form of higher tariffs on the offending exporter or product in order to ‘restore’ the
competitive status quo, or as price undertakings in the case of anti-dumping.
As a member of the EU and the WTO, Dutch trade defence policy is by and large formed and
constrained by the institutional setting, rules and jurisprudence of the EU and the WTO
agreements and relevant dispute settlement rulings.211
Trade defence policy and multilateral rules in this area provide a valuable instrument to
achieve the overarching Dutch policy goals of trade and investment policy. This instrument is
particularly relevant to the Dutch objective of participating in and promoting a multilateral
rules-based trade and investment system, with a level playing field. Establishing a level
playing field implies applying TDIs when necessary, while combatting the abuse of TDIs. It is
important to note the double-edged sword of these instruments. The use of TDIs comes at the
expense of other EU stakeholders, such as consumers, importers and processors. Therefore,
applying trade measures requires their optimal use, taking into account all EU interests.
This chapter reviews Dutch trade defence policy, building on the background study conducted
by Ecorys,212 and includes an analysis of the Dutch positions and objectives, interventions
undertaken and the extent to which Dutch interventions contributed to achieving Dutch
trade defence policy goals.213 Central to the review are the interventions undertaken in the
context of the reform of the EU’s trade defence mechanism, especially in response to the
anticipated altering position of China to the status of a market economy, as committed to in
the 2001 WTO Accession Protocol.214 To provide further depth to the review, Dutch
interventions are assessed for two goods considered of special interest to the Netherlands:
electric bicycles and biodiesel. Annex 4 provides additional information and explanation.215

See Annex 4 for a more elaborate description of trade defence measures and the institutional setting in
which they are applied.
212
Ecorys (2021), chapter 6, pp. 114-133.
213
See chapter 1 for an explanation of the approach used in this evaluation to analyse policy success.
214
China acceded the WTO on 10 November 2001 based on the Accession Protocol. Under Article 15 (d) of the
Accession Protocol, China agreed to be treated as non-market economy for the period of 15 years.
This would expire in 2016, after which China would be treated as a market economy, which had
consequences for the calculation of AD measures. The matter will be discussed in more detail in
Section 4.2.1. Also see Ecorys (2021), chapter 6, p. 122 for more details on China and the WTO.
215
Annex 4, as mentioned earlier, provides an elaborate overview of the WTO and EU legal contexts; of
regulations and procedural practices of implementation in the EU system; and key developments of trade
defence policy.
211

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Trading interests and values

4.2 The Dutch position on trade defence policy
The Netherlands has always taken a liberal approach to trade and has been reluctant to use
TDIs.216 In fact, within the EU, the Netherlands has often taken the most liberal position of all
member states because of the risk of potential abuse of AD measures and the negative effect
on user industries and consumers.217 A number of factors further motivate this stance.
First, the Dutch position is heavily influenced by the context of its economy and the type of
trade. As an open economy, geographically conveniently located with the infrastructural
capacity to serve as a European logistical hub, international trade is the cornerstone of the
Dutch economy.218 Dutch exports are characterised by re-exports and the export of processed
goods with complex value chains that use imported intermediate inputs. The Netherlands has
fewer import-competing manufacturing industries than most larger or more protectionist EU
member states. The goods produced in the Netherlands generally have less value added,219
and benefit from open trade and cheaper sourced inputs. TDIs generally do not protect an
import-competing Dutch industry and therefore harm the Dutch economy and consumers.
Second, the Netherlands believes that trade defensive measures, when invoked, must serve
the interests of various stakeholders, including producers, industrial users (importers,
processors and re-exporters), employers, workers and consumers in a balanced220 manner.221
To do so, the Netherlands has always taken a reluctant stance; TDIs must be used only to
restore a distorted playing field and should not become unnecessarily protectionist and
permanently shield non-competitive industries.222
Third, the Dutch position stipulates the Netherlands’ objective of maintaining good relations
with non-EU WTO members and other trade partners. Abusive protectionist trade defence
measures by the EU risk retaliatory measures against our exporters that may escalate in a
tit-for-tat trade war and sour mutually beneficial trade relations with trade partners affected
by the EU measures.223
To contribute to Dutch trade, while protecting the interests of Dutch stakeholders and
maintaining good relations with trade partners, Dutch interventions have specifically aimed
to contribute to the EU’s TDI policymaking and the implementation of this policy: restrain

Interview with EC Deputy Director, held on 25 March 2020; Interviews with MFA policy officers, held on
16 and 17 April 2020.
217
Interview with policy officer at MFA, held on 16 April 2020.
218
See Chapter 1 of this report.
219
For example, in 2018, the added value of Dutch exports amounted to 40 cents per euro (CBS (2019).
220
The so-called Union interest test: the analysis to determine the appreciation of all the interests taken as a
whole, including the interests of the domestic industry and users and consumers, systematically applied in
TDI investigations. Article 21 of the Basic Anti-Dumping Regulation; Article 31 of the Basic Anti-Subsidy
Regulation. For more details, see Annex 4 and the TDI case study of Ecorys (2021).
221
Permanent Representation to the EU (2020).
222
Tweede Kamer, vergaderjaar 2015–2016, 21 501-02, nr. 1615.
223
E.g. in IRHP 2016-34b TPC Handleiding Ldn 28-10-2016.
216

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Trading interests and values

(overly) protectionist measures; address imbalances and market imperfections; and hold the
European Commission accountable for the design and implementation of TDI policy.224

4.2.1

EU reform of trade defence instruments

An important development in trade defence policy has been the reform of the EU trade
defence instruments, known as the ‘TDI modernisation’.225 Attempts to modernise the EU
trade defence system date back to 2008, but it would take another 10 years for the reforms to
be finally adopted by the EU Council and the EP. The TDI modernisation entered into force in
June 2018.226 Negotiations on adjusting calculations of the anti-dumping margins, for which
the new regulation entered into force December 2017, took place in parallel with the TDI
modernisation.227 In this chapter, the two reforms will be discussed together.
In April 2013, the EC put forward a proposal to reform the EU’s TDIs, to enhance the
transparency and predictability of investigations, to increase the effectiveness and
enforcement of anti-dumping and anti-subsidy measures, and to deal more efficiently with
the threat of retaliation.228, 229
Several components of the April 2013 proposal, however, created substantial disagreement
between member states, causing the negotiations to last for several years. It was the reform of
the ‘lesser duty rule’ (LDR) in particular that caused disagreement. The LDR is used when
calculating the anti-dumping margin on imported goods in case the EC establishes that a
dumping practice has occurred for a specific imported good.230 Box 4.1 below provides an
example of the application of the LDR.

Observation obtained from interviews with various MFA policy officers (e.g. interviews held on 8 July 2019,
and 16 and 17 April 2020) and various documents, including letters to parliament and reports from EU
meetings (see e.g. KST 21501-02, 2016; MFA (2016); and IRHP 2016-34b TPC Handleiding Ldn 28-10-2016).
225
See Annex 4 for an elaborate discussion on this reform.
226
Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 amending
Regulation (EU) 2016/1036 on protection against dumped imports from countries not members of the
European Union and Regulation (EU) 2016/1037 on protection against subsidised imports from countries
not members of the European Union, OJ L 143, 7 June 2018, p. 1.
227
Regulation (EU) No 2017/2321 amending Regulation (EU) 2016/1036 on protection against dumped imports
from countries not members of the European Union and Regulation (EU) 2016/1037 on protection against
subsidised imports from countries not members of the European Union [2017] OJ L 338 of 19.12.2017.
228
EPRS (2018). See Annex 4 for a comprehensive overview of the substance and process of the TDI
modernisation.
229
The reform was intended to enhance the transparency and predictability of investigations and increase the
effectiveness and enforcement of AD/AS measures.
230
Establishing that a dumping practice has occurred is established through an investigation carried out by
the EC, after a complaint is filed by the affected EU industry, or (in less than 1 percent of the cases) after the
EC initiates a procedure ex officio. See Annex 4 for an overview of the steps in this process.
224

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Trading interests and values

Box 4.1

Calculating anti-dumping duties under the LDR231

A third-country producer sells its product in its home market at a price of EUR 100
(price A in the figure below). This price is known as the normal value, commonly based
on the cost of production plus a reasonable profit. The third-country producer also
exports its product to the EU but sells it at a lower price, at EUR 80 (price C). When
this occurs, the EU industry may file a complaint (because it cannot compete with the
low price of the exporter). After investigation, the EC may indeed find that a dumping
practice occurred.
Under WTO law, when determining the size of the duty, the duty may at most be
equal to the ‘dumping margin’: the normal value (price A) minus the selling price in
the EU market (price C), or EUR 20 in our example.
100

dumping margin:
100 - 80 = 20

100

90

90

80

injury margin:
90 - 80 = 10
80

| 70 |

70
60
50

A: Price home
market
(normal value)

B: Price without
damage in
EU market

A: Price for
EU market

The lesser duty rule, however, implies that the AD duty must be based on the
dumping margin, unless a lower duty would suffice to remove the injury to the EU
industry. This rate is known as the ‘injury margin’ and calculated as the difference
between the exporter’s price in the EU market (price C), and the price of EU producers
(to be calculated). The actual injury incurred by EU producers is based on an
estimated selling price, one where there is no damage for the EU industry. In our
example, the injury margin is calculated at EUR 10: EU producers would already avoid
injury if the third-country exporter sells its product for EUR 90 (price B). Therefore,
under the LDR, setting a duty that suffices for EU producers to be injury free, would
require a duty of EUR 10.
The purpose of the LDR is clearly illustrated in the above example: duties are set at
the lowest necessary level to restore the level playing field while minimising the
hindrance to trade.

231

Based on information provided in: Tweede Kamer, vergaderjaar 2015–2016, 21 501-02, nr. 1615.

Trading interests and values

Under the pre-2017 regulation, with China being a non-MES in China’s WTO
Accession Protocol, Chinese exports were subject to the non-market economy (NME)
methodology for calculating AD duties. Chinese home market prices were not
considered to be representative, market-driven prices, so calculations of the normal
value were based on the costs of other ‘appropriate’ third-country exporters (e.g. the
US, Australia or Canada). These calculations often generated a relatively high price
for Chinese production costs.

The 2013 EC proposal included non-application of the LDR. Non-application of the LDR was
particularly important when it came to Chinese products. This was connected to China’s high
level of steel production (causing global overcapacities) and was in anticipation of the
changes resulting from China’s WTO Accession Protocol and the expiry of the alternative
methodologies contained in the protocol by December 2016,232 which would no longer allow
the EU to use alternative LDR calculations. The decision on what to do with China’s market
economy status and how to integrate this into the reforms is discussed in Box 4.2 below.
Box 4.2 The lesser duty rule and new AD calculations233, 234

In anticipation of China obtaining market economy status (MES) in December 2016,
four options were put on the table in the modernisation negotiations:233
1.Unconditionally grant China MES;
2. Decide on MES on a case-by-case basis;
3. Change the EU’s methodology to allow the EU to treat China differently in AD
cases; or
4. Grant China MES and continue to apply the existing methodology.
In May 2016, France and Germany proposed to solve the issue of China’s MES by a
reform of the TDI legislation in a WTO compatible manner (option 3).234 The new
methodology allowed alternative calculations of anti-dumping margins on imports
from third countries where significant market distortions have been found.

In late 2016, member states finally agreed on the reform of TDIs, including amendments to
the LDR. The EC will no longer apply the LDR in two situations: (1) in case of systemic raw
materials distortions235 in the exporting country (see also Box 4.2) and (2) in case the
countervailing subsidies granted by third countries are distortive to trade.236

Van Bael and Bellis (2017), pp. 1-2.
De Ville (2019).
234
Ibid.
235
‘Structural distortions’ related to state-induced raw material distortions (e.g. dual pricing or export taxes),
which create an unwarranted competitive advantage to the exporting company in the EU market, Van Bael
& Bellis (2017). Van Bael & Bellis (2017), pp. 1-2.
236
Ecorys (2021), chapter 6, p. 120.
232
233

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Trading interests and values

The EC may decide not to apply the LDR if this is in ‘the Union’s interest’ and if it can waive it
for companies considered non-cooperating.237
In general, the Netherlands favoured the EC’s initiative to reform the EU TDI mechanism.
It believed several components of the proposed reforms would enhance the efficiency and
effectiveness of the system and would promote a more level playing field. Nevertheless, on
some proposed reforms the Dutch position deviated from or opposed the EC’s proposal.
On the most specific feature of the reforms, the LDR, the Netherlands was highly critical.
The Netherlands has continuously voiced its position in favour of the use of the LDR in EU
meetings. Fully retaining the LDR in its initial form was essential for the Netherlands.238
On this matter, the Netherlands took a firm stance against alteration of the use of the LDR.
Dutch policy documents in the early years since 2013 even identify this element of the EC’s
proposal as a ‘breaking point’ in the reform process,239 because even ‘partial abolition of the
LDR does not lead to modernisation of the TDIs, but to reinforced protectionism’.240
The Netherlands demanded more transparency and an explanation on the extent of use of
non-application of the LDR (and under which circumstances), and the execution of impact
assessments to substantiate the reform. For example, TPC talking points of April 2016 state:
‘If we were ever to change the LDR, we would need more information regarding why we need
to change it and what the effects and costs would be... We have been asking for this
information since 2013 and have yet to receive it. Without this information, we cannot have a
proper discussion with our stakeholders, [who] have to deal with the consequences of this
change in practice’.241
Among the other most prominent elements negotiated under the TDI reform, the Dutch
position focused on: (1) support to the EC’s proposal to maintain the investigation period of
AD procedures to protect the quality of investigation;242 (2) a more lengthy/full-fledged
‘shipping clause’;243 (3) enhanced (timely) information provided to affected parties; and (4)
increased transparency in TDI procedures for stakeholders, including businesses and member
states.244, 245

Ibid.
IRHP 2014-035b TPC Handleiding Plv. 04-07-2014.
239
E.g. IRHP 2014-046b TPC Handleiding LDN 3 October 2014.
240
IRHP 2014-035b TPC Handleiding Plv. 04-07-2014.
241
IRHP 2016-34b TPC Handleiding Leden 28 October 2016, Pos. 237.
242
The Netherlands supported the EC to maintain the existing investigation period of maximum nine months
(instead of seven as proposed by other member states) to the provisional measure and respectively a
maximum of 13 and 15 months to the definitive measure.
243
The ‘shipping clause’, and complementary pre-disclosure clause, aimed to provide more predictability,
especially for importers. The clause covers the effective shipment time from the countries of origin,
providing and exclusion of products from a preliminary defence measure if goods are already ‘on the
water’. The Netherlands advocated for a full-fledged shipping clause with a time period of at least four
weeks (see, for instance, IRHP 2014-035b TPC Hand Plv 04-07-2014).
244
Tweede Kamer, vergaderjaar 2015-2016, 21 501-02, nr. 1615.
245
See Annex 4 for a more comprehensive discussion of the TDI reform.
237

238

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Trading interests and values

In addition to expressing the need to avoid overly protective measures in the interest of
Dutch industry in the TPC, this position was also expressed in the Working Party on Trade
Questions (WPTQ), the Trade Defence Instruments Committee (TDC), and in high-level
meetings. For example, the Minister of BHOS frequently represented the interests of Dutch
steel importers in the FAC on Trade, addressing the imbalance of protecting EU steel
producers but thereby neglecting the interests of EU steel importers and users.246
Dutch interventions show a slow change in terms of the Netherlands’ negotiation position
over time, from efforts that express a firm negotiation position, particularly an unwillingness
to compromise on the use of the LDR in its existing form, towards eventually willing to
compromise. This is illustrated by TPC reports, for example.247 In TPC meetings,
the Netherlands expressed the same, firm position for three and a half years:
‘The Netherlands is in favour of fully [retaining] the LDR in its initial form’. A somewhat
altered position was eventually taken by October 2016. TPC reports since late 2016 identify a
more flexible approach, stating that the Netherlands was willing to help reach a compromise
on the LDR (under certain conditions).248 While the altering position can be explained as part
of negotiation tactics, several external developments also contributed to this.
Important external developments included global overcapacity in several raw material
industries (including steel), especially accumulating in China (2015), developments towards
protectionist trade policies of large players in world trade (e.g. China and the US),249 and the
debate about maintaining the Chinese non-market economy status (2016) notwithstanding
the commitments in the 2001 WTO Accession Protocol of China.250 Interviewees further
identified the pressure exerted by Dutch Parliament, demanding an altered position due to
the above-mentioned developments, particularly those in China (specifically the stateinterfering trade distortions) and the repercussions of the aggressive US trade policy under
the Trump administration on third countries, including the EU. Interviewees stated that when
there is no longer confidence that the largest players on the world stage will uphold
international rules or act in the spirit of the game, the Dutch objective to continuously hold
on to the spirit of free trade would become unsustainable.251
The change in the Dutch stance followed furthermore with input from the PR EU. In late 2016,
when negotiations gained momentum and quickly progressed, the PR signalled that
continuing to hold on to the firm Dutch position would not be fruitful and would place the
Netherlands on the sidelines in the TDI negotiations.252 It was deemed to be more effective to
Interview with MFA policy officer, held on 16 April 2020.
IRHP 2014-027c TPC Verslag Ldn 23-05-2014 to IRHP 2017-34c TPC Verslag Leden 24-11-2017.
248
The conditions mentioned, for example in TPC Guidelines, included the willingness to accept adjustments
to the LDR: only in AD cases, with raw materials composing at least 40% of the production costs, provided
that a shipping clause of at least four weeks is included and following intense discussions of the
adjustment (source: IRHP 2017-32b Handleiding TPC Ldn 27-10-2017, Pos. 512-531; IRHP 2017-14b
Handleiding Ldn 28-04-2017, Pos. 178-179).
249
See also Chapter 3.
250
See Annex 4 for more details.
251
Interviews with MFA policy officers, held on 8 July 2019 and 16 April 2020.
252
Interview with MFA policy officer, held on 18 February 2020.
246
247

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Trading interests and values

engage and adopt a more pragmatic approach (see also Section 4.3). Although this pragmatic
approach was eventually taken to regain a position in negotiations, the firm stance lasted a
long time. Even if the initial firm stance was part of the negotiation tactic, taking a firm
stance for a long time may signal that you are not willing to engage in discussions – and may
create the risk of being placed on the sidelines. Given that negotiations suddenly developed
quickly, the PR EU advised to signal to other member states that the Netherlands was indeed
open to negotiate. The Dutch approach would have benefitted from showing openness to
compromise in TPC meetings and from considering trade-offs sooner.
The Netherlands found support for its position on the LDR primarily from countries that are
traditionally more liberal when it comes to trade (such as the UK and Nordic countries).253
In addition to fearing over-protective measures, these countries saw the LDR as something
the EU could take pride in, since it had the effect of de-escalating trade disputes by obliging
the EU to restrain itself when imposing duties.254 Dutch representatives collaborated with
various like-minded member states – in formal and informal (bilateral) contacts – to find
common ground, and speak with one voice in the TDI reform process in the relevant working
groups and committees. Forming a blocking minority in the Council, the Netherlands and
like-minded member states argued against amendments to the LDR and in favour of a
full-fledged shipping clause and a shorter investigation time in AD and AS procedures as
proposed by the Commission.255 Moreover, in 2017, Dutch representatives cooperated with
other like-minded member states, which resulted in a non-paper, to press the EC to provide
more information on the impact of the TDI reform.256 The Netherlands was mentioned as the
most vocal of the liberal group (together with Sweden) in this process.257 In contrast,
southern member states, particularly Mediterranean countries such as France, Italy, and
Spain, pushed the Commission to further strengthen the EU trade defence tools, to have
‘greater firepower’ in its AD arsenal.258 While the Netherlands mainly interacted with
like-minded member states, it was invited to an informal meeting with several member
states, chaired by Germany and France, to find ‘common ground’ on TDI reform.
In addition to coalition-building, Dutch policymakers and diplomats also had frequent
(often informal) contact with the EC and Dutch EC diplomats. Influencing policy formulation
through direct contact with the EC (including the European Commissioner for Trade) became
more important in this area since the Lisbon Treaty of 2007 went into force.259
Informal contact with EC diplomats with a Dutch nationality were also used to lobby for
In policy documents from 2014, like-minded countries identified in the context of the LDR included Austria,
Belgium (although it would leave the group later on), Cyprus, Czech Republic, Denmark, Estonia, Finland,
Ireland, Latvia, Malta, Slovenia, Sweden and the UK. The group decreased somewhat in size over time.
254
Koeth (2018).
255
IRHP 2014-035b TPC Handleiding Plv. 4-07-2014.
256
IRHP 2016-34b TPC Handleiding Leden 28 October 2016.
257
Interviews with MFA policy officers, held on 8 July 2019.
258
Ibid.
259
The Lisbon Treaty enhanced the role of the EC by applying comitology procedures in the implementation
of specific and temporary AD and AS measures, reversing the original requirement of having qualified
majority voting (QMV) to adopt a measure proposed by the Commission to having QMV to block a
proposal. See also Ecorys (2021) for more information on the Lisbon Treaty.
253

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Trading interests and values

Dutch priorities in TDI policymaking. However, policy officers at IMH and the PR EU
experienced difficulties in influencing these EC diplomats, because their first loyalty was to
the EC position. Furthermore, unlike Italy or France, for instance, the Netherlands hardly
seconds national experts to the trade defence unit to promote Dutch policy objectives and
contribute to EC policy.
Finally, there were other, less frequent or one-off interventions. An example is the use of the
Dutch EU presidency in 2016 as a tool to push for further agreement on TDI reform, focusing
on finding a compromise in the Council on the length of the investigation period in an AD
procedure. Whereas it had initially argued in favour of the EC’s proposal to maintain the
investigation period of AD procedures, during the EC presidency the Netherlands accepted
the compromise to shorten the period, on condition that the quality of the investigation
would be maintained and sufficient proof would be provided to substantiate the measure.260

4.2.2

Biodiesel

In addition to modernising the TDI, the Netherlands also actively advocated its policy
position in several specific cases for products deemed of special interest to the Netherlands.
The first one concerns TDI measures for biodiesel imports.
In early 2010, Argentina and Indonesia emerged as the first and second largest foreign
biodiesel suppliers to the EU.261 In 2012, the European Biodiesel Board filed a complaint on
behalf of EU biodiesel producers, accusing Argentinian and Indonesian biodiesel exporters of
dumping. Following investigations and provisional AD duties, the European Commission
imposed definitive AD duties by November 2013. However, the measures were challenged by
the affected Indonesian companies in the EU courts and by the Indonesian and Argentinian
governments in the WTO Dispute Settlement Body (DSB). The rulings from the General Court
of the EU,262 two panel reports of the WTO DSB263 and an Appellate Body report264 found fault
with the EC’s calculations – specifically that there were flaws regarding the calculations of the
cost of production in constructing the normal value, as well as the underlying evidence on
price cutting and the alleged causal link to substantiate the AD measures.265 Following the
court rulings, reinvestigations by the EC concluded that no genuine and substantial causal
relationship between the dumped imports and the material injury to the Union industry

MFA (2016).
USDA Foreign Agricultural Service, 2019: 33, as cited in Ecorys (2021), Chapter 6, p. 126.
262
General Court of the EU (2016). ‘Case T-80/14 ECLI:EU:T:2016:504’, ‘Case T-111/14 ECLI:EU:T:2016:505’,
‘Case T-120/14 ECLI:EU:T:2016:501’, ‘Case T-121/14 ECLI:EU:T:2016:500’ and ‘Case 139/14
ECLI:EU:T:2016:499’.
263
WTO (2016a). ‘European Union – Anti-Dumping Measures on Biodiesel from Argentina’. Panel Report WT/
DS473/R and Add.1, as modified by Appellate Body Report WT/DS473/AB/R; WTO (2018). ‘European Union
– Anti-Dumping Measures on Biodiesel from Indonesia’. Panel Report WT/DS480/R and Add.1.
264
WTO (2016b). European Union – Anti-Dumping Measures on Biodiesel from Argentina, Appellate Body
Report WT/DS473/AB/R and Add.1.
265
Ecorys (2021), Chapter 6, pp. 114-133.
260
261

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Trading interests and values

could be established.266 The AD duties were lifted and proceedings were terminated in the
autumn of 2018.
However, a new round of accusations from the EU industry emerged in October 2018, this
time regarding alleged trade-distorting subsidies. Furthermore, this time the investigation
period covered the period from 1 October 2017 to 30 September 2018 for Indonesia and the
year 2017 for Argentina.267 The EU imposed definitive countervailing duties on biodiesel
imports from Argentina in February 2019 and on Indonesian biodiesel in November 2019.
Additionally, for Argentinian biodiesel, the EC also decided to establish a minimum import
price and impose a limit on volume. Affected Indonesian companies filed complaints against
the EC decision at the EU General Court in 2020. Proceedings are still ongoing.
In the biodiesel case, the Netherlands took a liberal stance and voted against the adoption of
the anti-dumping measures in 2013. This was motivated by the general liberal stance of the
Netherlands and its reluctance to use TDIs driven by protectionist intent. In this case,
it involves, in particular, the need for the EC to present adequate calculations of the AD
margin.268 The negative stance also aimed to protect the balance of interest of different
(Dutch) stakeholders. The Netherlands argued that it considered the interests of consumers
(who would be disadvantaged by rising prices), importers and processors as well as the
interests of related businesses, such as the Port of Rotterdam (which serves as a transhipment
port for much of the biodiesel to the hinterland).269 Moreover, the Netherlands argued that
the measures would negatively affect trade relations, including retaliations (including import
restrictions on other Dutch products on the Indonesian market) and the bilateral DutchIndonesian cooperation on palm oil, where, together with civil society, it was working to
enhance the sustainability of palm oil-based value chains.270 The anticipated negative effect in
terms of losses in the EU market as a result of trade defence measures on the sustainability
efforts in the Indonesian palm oil industry further highlights the incoherence of the TDIs in
the context of Dutch international responsible business conduct policy. Also, following the
court rulings and DSB reports, the Netherlands still did not favour the use of AD measures
and abstained from voting.271
The Dutch position was somewhat different regarding anti-subsidiary measures in 2018.
The Netherlands was willing to accept the AS measure but was highly critical about the
procedures that were followed and the calculations underlying the measure. It demanded
that the EC’s calculations would be clear and transparent.272

Ibid.
Ibid.
268
The EC calculations of the AD measures were based on a comparison of the cost price (rather than the
market price on the Indonesian and Argentinian market, which would have been higher) versus the export
price on the EU market.
269
MFA (2013); MFA (2019).
270
MFA (2019).
271
Verslag TDC 24-04-2018.
272
MFA (2013); MFA (2019); interviews with MFA policy officers held on 16 and 17 April 2020.
266
267

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Trading interests and values

The desk study and interviews reveal the vocal and critical stance taken by the Netherlands in
different EU meetings (e.g. the TDC and the WPTQ). For example, during TDC meetings,
the Netherlands questioned various aspects of the EC’s investigations and calculations,
including the EC’s decision in 2013 to use AD duties rather than AS duties, whether
calculations regarding dumping margins conformed to WTO regulations, and research on
the sales prices of EU producers.273 The Netherlands, as well as several other member states,
also voiced their criticism of the Commission’s lack of transparency in communications.274
Dutch efforts further consisted of bilateral interventions with Argentina and Indonesia.
At various levels, Dutch policy officers and diplomats aimed to maintain bilateral relations
with these countries against the background of the biodiesel case. Documents identify the
strategic diplomatic approach taken, where at times the Netherlands continued to maintain
contact with ambassadors of the respective countries, but also decided specifically not to
discuss the issue to avoid negatively affecting the Netherlands’ bilateral relation or the
ongoing EU process.275
Active collaboration was also observed in internal communication; there was frequent
contact between policy officers at IMH, the Sustainable Economic Development Department
(DDE) and PR EU to keep each other up to date (e.g. on the meetings, the votes and the status
quo at the EU and WTO levels). In addition, these actors interacted to obtain (technical)
knowledge, to fine-tune the Dutch position, to enhance the negotiation capacity and to
represent the different interests of Dutch stakeholders. For example, in TDC meetings,
policy officers engaged with different Dutch stakeholders, including Dutch biodiesel
producers and the knowledge platform ‘CSR Netherlands’.276

4.2.3

E-bikes

Another example in which the Netherlands tried to pursue its policy position in a particularly
active manner is the antidumping measures against electric bicycles (‘e-bikes’). Whereas in
the case of biodiesel, on balance, Dutch interests were clearly against the use of TDIs
(and thus easily aligned with the general Dutch position on TDIs), the e-bikes issue was
characterised by conflicting interests of certain domestic bicycles producers and consumers.
Bicycle imports originating from China have significantly increased over time, and e-bikes are
an increasingly large share of these imports. At its height in 2016, Chinese imports reached
almost one million e-bikes, representing 78% of all e-bikes imported into the EU.277 These
trends have caused repeated political battles at the EU level, when defending the interests of
Ibid.
IRHP 2018-06c TPC Verslag Plv 16-02-2018, Pos. 31-32
275
For example, internal correspondence in September 2017 addressed the advice to the Minister of BHOS to
not (yet) contact the Indonesian ambassador, as voting on the biodiesel case for Indonesia had not yet
occurred at the EU level.
276
Various documents of internal correspondence.
277
Eurostat, undated, as cited by Bike-eu.com (2017). See also Ecorys, 2021, Chapter 6, p. 132, Figure 11 for an
overview of prominent exporters of e-bikes into the EU.
273

274

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Trading interests and values

the different EU stakeholders. On the one hand, there are EU stakeholders that benefit from
Chinese e-bikes (e.g. importers and consumers, who benefit from the competitive price) and,
on the other hand, EU stakeholders harmed by the low-priced Chinese e-bikes, particularly
EU producers of e-bikes.
In 2017, the European Bicycle Manufacturers Association – a representative body of the
European bike industry – filed two complaints, calling for investigation of Chinese imports of
e-bikes.278 The EC conducted an anti-dumping and, subsequently, an anti-subsidy
investigation for the period from 1 October 2016 to 30 September 2017 and concluded that
Chinese e-bike exporters had benefited from Chinese state subsidies. Following temporary
measures, in 2019, the EC imposed both definitive anti-dumping and anti-subsidy duties on
e-bikes imported from China.279
The Netherlands is one of the EU member states with the largest number of e-bike producers
(finished and component producers), but also depends heavily on Asian, and particularly
Chinese imports (full bikes and components for assembly). In line with its general position
on TDIs, the Netherlands advocated against the use of TDIs on imported e-bikes. For example,
on several occasions, the Netherlands addressed the EC’s lack of evidence to substantiate the
claims of unfair dumping practices by Chinese exporters.280 However, acknowledging the
difficult situation (recognising the evidence of overcapacity as a result of state influence in
the Chinese economy that allowed it to sell e-bikes in the EU below cost price, yet also calling
the proposed measures too extensive), in 2018 the Netherlands decided to abstain from
voting on the preliminary measures in the e-bike case.

4.3	Extent of policy success
Overall, this policy domain at the EU level has seen a shift towards more protectionism and
forceful application of trade defence measures. There are several reasons for this trend in the
EU:281 (1) the change in decision-making procedures giving more power to the EC and offering
more openings for complaints by import-competing industries; (2) the growing impact of
Chinese competition and continuing state influence in the Chinese economy, especially in
raw material industries characterised by oversupply; (3) the catching-up response to more
aggressive use of TDIs by trading partners, in particular the US; (4) a revival of industrial
strategies supporting national champions and the reshoring of certain industries. Over the
last decade, the Netherlands as a trading nation has been leaning into a stronger protectionist
headwind within EU policymaking, while the balance between liberal and more protectionist
member states is shifting, especially after Brexit. Nevertheless, we can state that Dutch policy
efforts have contributed to several policy results at the EU level under the existing rules of the
game in this domain.

Ecorys (2021), Chapter 6, pp. 114-133.
Bike-eu.com (2019).
280
Interview with policy officer at MFA, held on 17 April 2020.
281
Aspects also discussed in Chapter 3 of this report, as well as in the report of Ecorys (2021).
278
279

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Trading interests and values

First, an important policy achievement – preserving the spirit of the LDR, albeit with some
adjustments – was the result of the joint efforts of liberal-minded member states with an
active role for the Netherlands. Interviews confirmed that continued Dutch participation in
various EU bodies (individually and as part of the like-minded group) to challenge the
proposed reform of the LDR, and particularly to demand more fact-based evidence, played an
important role in countering the demands of member states in favour of (or even going
beyond) the initial proposal. In the adopted reforms of the EU’s trade defence rules, the
essence of the LDR was maintained and the initially proposed change eventually only
endorsed in certain, limited circumstances.
Also, EC representatives underscore the active and critical approach of the Netherlands in
negotiations, identifying also the general constructive and informed tenor of the Netherlands
in meetings, stating that the interventions of the Netherlands (and other member states as
well) have resulted in fruitful discussions and benefited the outcome of the reform process.282
However, the evidence from interviews and desk research also shows that the path to these
results has not been a straight line. An important lesson here is that taking a firm stance for a
long period of time may not always be fruitful, especially when sudden, unexpected progress
is made.283 Whereas taking a firm initial stance can be used as a negotiation technique, the
firm stance in this case lasted long,284 and carried the risk that the Netherlands would place
itself on the sidelines, because other member states may have taken this stance as a sign that
negotiating was not possible. One interviewee expressed the sentiment that the Netherlands
was always one step behind, unable to respond quickly to the evolving situation within the
EU decision-making process.285 Eventually, the effective communication between The Hague
and the PR EU proved essential, because the PR was able to signal the need for adjustment
when negotiations suddenly gained momentum. Strategically developing and adjusting a
negotiation position, and having effective communication between The Hague and the
permanent representation is key to be able to act in a timely manner. As one policymaker
stated, the strategy behind taking a position should no longer only be defined by the question
‘what do we want to achieve?’, but also by ‘how do we achieve it?’286
As a second policy achievement, policy officers identified the contribution of Dutch
interventions in the implementation of actual trade defence measures to hold the EC
accountable, thereby serving the different (Dutch) interests. The Netherlands demanded
transparency on calculations and requested the EC to present fact-based evidence regarding
its measures. In this respect, Dutch policymakers and diplomats tried to represent the
interests of (Dutch and EU) stakeholders other than only import-competing producers, and
counter over-protectionist demands from the member states in favour of the TDIs. In doing
so, the Netherlands made strategic use of like-minded member states and its network,
and used its internal expertise to counter and uncover unsubstantiated measures. Although
Interview with EC Deputy Director, held on 25 March 2020.
As evident in TPC reports from 2013 to 2016 (see section 4.2.1).
284
Interview held with MFA policy officer on 18 February 2020.
285
Interview held with MFA policy officer on 18 February 2020.
286
Interview with MFA policy officer, held on 8 July 2019.
282
283

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Trading interests and values

sometimes more successful than at other times in terms of getting the requested
transparency and evidence, policymakers stated that their interventions generally benefited
the process, holding the European Commission to account for decisions and actions.287
At the same time, while the Netherlands and other member states advocated for more
transparency on the EC’s calculations to substantiate the use of TDIs (thereby holding the EC
to account), results at a higher level, such as stopping the use of trade defence measures,
have been limited.288
Desk research and interviews present sufficient evidence to suggest that in the biodiesel and
e-bike cases, the Netherlands and its like-minded countries have only had limited success in
countering the strong lobbying forces of the EU biodiesel industry (joined in the European
Biodiesel Board), for example, and other, more defensive member states. Despite the fact that
some of the measures were (already) successfully challenged in the EU Court and in WTO
dispute settlements, trade distortions have existed for many years in the form of various
applied provisional and definitive measures, and they even re-emerged in another guise in
the case of biodiesel, thereby worsening overall EU trade relations with third countries,
especially China. However, without a counterfactual, it is impossible to determine the exact
extent of success, and TDIs might have been even more severe, less substantiated by evidence
and might have resulted in a less level playing field without the efforts of the Netherlands and
like-minded countries.

4.4 Conclusion
The review of the Dutch interventions on TDI policy reveal the active participation of
the Netherlands in various working groups and committees, as well as in bilateral and
multilateral (often like-minded) meetings, especially at the EU level. The Netherlands and
like-minded member states often represented a minority group on a tilted playing field, often
unable to substantially change the direction of trade defence policymaking once the basic
rules of the game had changed. However, the evidence does provide results in line with the
objectives defined in Section 4.2. Desk study and interviews provided evidence of Dutch
efforts, including actions to include the interests of EU stakeholders other than the aggrieved
import-competing producers in decision-making and actions to hold the EC to account and
provide transparency in the measures that it designed and implemented. The Netherlands
used its internal and external network strategically to form coalitions and leverage Dutch
interventions. Consequently, several successes were partly due to Dutch interventions.
The results attained included more transparency on calculations in the case studies discussed
and maintaining the essence of the LDR in the case of the reforms of the EU trade defence
system.

287
288

Interviews with policy officers at MFA, held on 16 and 17 April 2020.
Moreover, attributing the effect that was achieved to the interventions of the Netherlands and other MS
alone is not realistic.

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Trading interests and values

The evidence also provides a lesson about, first, taking a firm and principled position and,
second, the value of effective communication with the permanent representation, using
them as your ‘eyes and ears’ on the ground, to anticipate to sudden and unexpected progress
and changes. Recent developments, including the enhanced importance of geopolitics in
trade policy and the loss of the UK as a partner in the liberal block, will increase the
importance of defining a strategic position early on and effective communication with the
PRs in Brussels and Geneva – to be able to identify not only what the Netherlands wants to
achieve, but also how it aims to achieve this.

4.5 Recommendations
• Identify a negotiation strategy prior to taking a position. Defining such a strategy should
occur in close collaboration with the permanent representations in Brussels and Geneva
and requires input from other departments as well. The IRHP289 or other, similar
collaborations at the national level can provide valuable platforms to obtain input from
stakeholders and discuss the strategies that need to be developed.
• Frequently evaluate current external developments and negotiation dynamics to identify
whether it is necessary to reposition or introduce different types of interventions and to
avoid being placed on the sidelines in negotiations. Closely collaborate with the
permanent representations in Brussels and Geneva, as they are the eyes and ears on the
ground.
• Define the geopolitical context and stakeholders involved to decide which strategy and
tactics and which coalitions will be most successful to achieve Dutch policy goals. This may
require some additional capacity at the MFA in The Hague, but more than that, it may
require making good use of the network and expertise at the permanent representations in
Brussels and Geneva.
• Express a willingness to be open for debate to avoid being placed on the sidelines of
negotiations.

289

See Chapter 2, p. 30.

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5
Trade and sustainable
development chapters

Trading interests and values

5.1 Introduction
In recent years, sustainable development has become an integrated part of bilateral free trade
agreements between the EU and third countries, in the form of so-called trade and
sustainable development (TSD) chapters.290 These chapters include both social and
environmental protection provisions and aim to protect, as well as promote, EU standards and
values. TSD chapters are meant to ensure that economic growth goes hand in hand with
higher labour and environmental standards, and as such to make trade policy ‘not just about
interests but also about values’.291 At the same time, TSD chapters are used to create a level
playing field and prevent a race to the bottom through a deliberate weakening of domestic
labour and environmental protection.
The first TSD chapter dealing with labour and environmental provisions was included in the
EU–South Korea FTA of 2011.292 TSD chapters have been included in all subsequent EU bilateral
trade negotiations and agreements.293
In keeping with the focus of Dutch trade and investment policy beyond economic growth,
the Netherlands strongly supports the inclusion of TSD chapters in FTAs. Over the years,
internal instructions show that Dutch representatives have stressed the importance of
‘ambitious’ and ‘robust’ TSD chapters on numerous occasions in the Trade Policy
Committee.294 Dutch policy aims to enhance broader development, for example by
stimulating responsible business conduct (RBC) and sustainability. Over the years, TSD
chapters have received more and more political attention from the European Parliament,
Dutch parliament and non-state actors (both at the domestic and European levels), for
instance triggered by the Paris Agreement and the momentum concerning climate policy.295
In this respect, the provisions on sustainable development play a key role in the political
viability of EU FTAs and their ratification.
This chapter focuses on the development of Dutch policy goals on different aspects of the TSD
chapters and the extent to which these policy goals were achieved.

When the EU negotiates a new free trade agreement, it also negotiates rules on trade and sustainable
development. These rules are written down in a special TSD chapter. With such a chapter, the EU and its
trade partners must, among others, follow international labour and environmental standards and
agreements, enforce environmental and labour laws, encourage trade that supports tackling climate
change and promote practices such as corporate social responsibility. For more information on the
development of TSD chapters, see Ecorys (2021), Chapter 4, pp. 51-92.
291
EC (2015a), p.5.
292
Sustainability issues are tackled in other parts of EU trade agreements as well, for example in the
procurement chapters (promoting sustainable public procurement) or in relation to the energy trade
(remove barriers to trade and investment in renewable energy). However, this case study specifically
focuses on the TSD chapters.
293
Currently, 12 trade agreements have been concluded containing a TSD chapter (EC (2020b).
294
Coding all TPC instructions and meeting reports in our research period shows that the need for an
‘ambitious’ and ‘robust’ TSD chapter was mentioned at least 30 times .
295
More external factors that explain the increased importance of TSD chapters can be found in Chapter 4
of Ecorys (2021).
290

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5.2 The Dutch position on TSD chapters
5.2.1

Inclusion of TSD chapters in FTAs

When the first TSD chapter was included in the EU–South Korea FTA of 2011 (which came into
force in 2013), the Dutch MFA already had a contact point dealing with TSD chapters in FTAs
(located in The Hague, at IMH).296 The fact that the Netherlands had a policymaker dedicated
to the issue of sustainability in FTAs, who was given the time and space to specialise on this
topic, showed the importance that the Netherlands attached to this issue from the very start.
It made the Netherlands a front runner in this respect, given that in many other EU member
states, TSD chapters were the responsibility of a diplomat dealing with EU trade affairs or the
Ministry of Agriculture, for instance. The main responsibility of the Dutch TSD contact point
has been to facilitate, organise and coordinate the Dutch approach. This has been
operationalised by bringing together different actors, such as policymakers within the MFA,
embassies, other ministries and the permanent representation to the EU in Brussels. This
proved to be quite difficult and time-consuming, also given the fact that the Netherlands was
running various sustainable development projects on the ground, steered by different actors
such as departments of the MFA (e.g. DDE, IGG, DSO) and/or directly from embassies.297
The Dutch approach to TSD chapters focuses on the link between sustainability and trade,
and its practical translation into projects and Dutch sector agreements.298 This approach has
been promoted by policymakers and diplomats in the TPC and EC expert meetings.299
Until 2016, the Netherlands, together with the EC under the leadership of then EU
Commissioner for Trade Cecilia Malmström, was very much setting the agenda in this respect.
Both the EC and the Netherlands were pushing for the inclusion of TSD chapters in FTAs,
while there was relatively little interest from other member states (excluding Sweden, France
and the UK) on the issue.300 Dutch policymakers had three priorities in their interaction with
the Commission and other member states: (1) generate attention for the environment, labour
rights and climate (especially after the Paris Agreement of 2015), (2) compliance with the
OECD Guidelines for Multinational Enterprises,301 and (3) the involvement of non-state actors
The Dutch position on TSD chapters is developed and expressed by policymakers working in The Hague
(who regularly travel to Brussels for meetings), and by diplomats working at the Dutch permanent
representation in Brussels. The department in The Hague is in the lead, however (interview with a
Dutch diplomat, held on 18 February 2020; interviews with policymakers at the MFA, held on 7 and
14 October 2019).
297
Interview with policymaker at the MFA, held on 31 August 2020.
298
The Dutch MFA, together with a wide group of different stakeholders, has thus far concluded 11 different
sector agreements, so called Responsible Business Conduct agreements, in sectors such as gold, garments
and textiles and coal. RBC agreements aim to promote international responsible business conduct
throughout the value chain and improve and environmental conditions. See, for example, IOB (2019)
for more information on the RBC agreements.
299
Interview with policymaker at the MFA, held on 31 August 2020.
300
Ibid.; Talking points for the TPC, such as IHRP 2015-49b TPC Handleiding Plv 9-10-2015; IRHP 2015-52b
TPC Handleiding Leden 14-10-2015.
301
The OECD Guidelines for Multinational Enterprises are recommendations made by governments to
multinationals operating in or from adhering countries. The Guidelines provide non-binding principles and
standards for RBC (OECD (2020)).
296

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when implementing the arrangements made in the TSD chapters in FTAs.302 These three
priorities were constantly stressed, which led to some kind of ‘issue ownership’.303, 304 It took
some time before other member states, such as Finland, Denmark and Italy, jumped on the
bandwagon of the EC and TSD-promoting member states.305 But eventually this process –
further spurred by external events such as the Rana Plaza disaster, malpractices that were
unveiled and the political pressure this created led to – increased EU attention for
sustainability and trade, including in fora such as the TPC.306

5.2.2

Implementation and enforcement of TSD chapters in FTAs

In recent years, political parties in the Dutch parliament and non-state actors have been
pressing the Dutch government and the Minister for BHOS, not on the need of TSD chapters
but on their legal enforcement. This enforceability has also been at the centre of much
academic debate on their use and effectiveness.307 In 2016, during the discussion of the CETA
agreement in the Dutch Parliament, then Minister Ploumen was urged to ‘guarantee’ that the
legal enforcement of the arrangements dealing with sustainability, labour standards and the
environment would have an ‘at least equally binding force’ as the agreements related to
trade, would ‘provide equal sanctions’ and would provide ‘access for third parties, such as
labour unions and NGOs to a dispute mechanism that can also impose effective sanctions’.308
The minister agreed to look into the issue of legal enforcement and the MFA outsourced a
study into this matter to the University of Leuven. In this study, researchers identified and
analysed existing dispute settlement mechanisms that could be applied to TSD chapters in
trade agreements, ranging from an expression of concern when agreements are not upheld
by sanctions, be it with or without the involvement of a third-party complaint mechanism.
The researchers showed that there is no golden standard for the legal enforcement of
international agreements and that it is up to policymakers to weigh the pros and cons of
different models.309
At IMH, the department dealing with trade and investment policy, this led to discussions
about what to advise the Minister for BHOS on this issue. In an appreciation of the study
Interviews with policymakers at the MFA, held on 9 April 2020 and 31 August 2020; talking points for the
TPC, such as IRHP 2017-18b Handleiding Plv 9 June 2017.
303
In political science, (associative) issue ownership refers to the spontaneous association between an issue
and a political party in the minds of voters (Walgrave et al. (2012), pp. 771-782). Here, issue ownership
might be used to refer to the issues the Netherlands is recognised by and known for by other member
states and the EC, for example, such as the involvement of non-state actors.
304
Interview with policymaker at the MFA, held on 9 April 2020.
305
As can be read in internal reports of the TPC meetings in Brussels, for example.
306
The wider support and use of TSD chapters also prompted criticism and debate. It was argued that TSD
chapters do not aim to promote sustainable development through trade, but are mainly used to legitimise
trade liberalisation and promote and protect EU businesses. And the Dutch emphasis on the involvement
of civil society was criticised for being ‘window dressing’ (read, for instance, Orbie et al. (2016), pp.
526-546). More information on these debates can be found in Chapter 4 of Ecorys (2021).
307
E.g. George, C. and S. Yamaguchi (2018), pp. 1-41; Melo-Arauja, B. (2018), pp. 233-253; Orbie, et al. (2016).
See also Chapter 4 of Ecorys (2021).
308
Motie Vos van 13 October 2016 (Kamerstukken 21 501-02, nr. 1677).
309
Marx, A., F. Ebert, N. Hachez and J. Wouters (2017).
302

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Trading interests and values

written to the Dutch Parliament in March 2017, the cabinet stressed the importance of
enforceable sustainability provisions and a bigger role for the International Labour
Organization (ILO) in dispute settlement.310 Moreover, the cabinet promised to consult
interested parties in the BHB and talk to the EC and other member states, to prepare a final
position concerning the dispute settlement of sustainability chapters.311
Non-state actors were consulted, but they did not speak with one voice. On the one hand,
some NGOs, such as a coalition between the Transnational Institute, SOMO, Milieudefensie
and Greenpeace, called for strong sanctions. In their position paper, published as a response
to the civil society consultation initiated by MFA, they argued for an independent panel of
experts to investigate a complaint. They argued that when a party is found to be in breach of
the agreement ‘this should ultimately lead to trade sanctions’.312 On the other hand, the
business community feared that strong enforcement of TSD chapters would limit the
possibilities of concluding an FTA in the first place. For example, the Brussels-based business
association BusinessEurope published a position paper in which it ‘supports the EU’s
approach to use soft pressure, consultation and transparency, as well as publicity’ on TTIP.313
It promoted consultations ‘and the possibility to set up an independent panel of experts and
seek the opinion of international organisations, including ILO’.314 Furthermore, business
organisations feared that dispute settlement would be very difficult, time-consuming and
would only lead to subjectivity and discussions.315, 316
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However, the divisions on dispute settlement did not only run between actor types
(i.e. business versus NGOs) but also within the same type of organisations. Some NGOs
supported business organisations in their critique on strict legal enforcement. They argued
that strong sanctions would be perceived as ‘green imperialism’, thus creating an unlevelled
playing field, while ignoring the underlying problems that explain non-conformity (such as a

Tweede Kamer, vergaderjaar 2016–2017, 31 985, nr. 49.
Ibid, p. 5.
312
Transnational Institute, SOMO, Milieudefensie and Greenpeace (2017), p. 6.
313
BusinessEurope (2015), p.5.
314
Ibid.
315
Interview with (former) representative of amfori, held on 9 April 2020.
316
An example of such a lengthy procedure, mentioned by several respondents, was the first-ever FTA labour
dispute settlement case of the US versus Guatemala (interview with EC trade policy officer, held on
6 March 2020; interview with policymaker at the MFA, held on 31 August 2020; interview with (former)
representative of amfori, held on 9 April 2020). In 2008, the American federation of labour unions
(AFL-CIO) and six Guatemalan labour unions filed a complaint under the FTA alleging that Guatemala failed
to effectively enforce its labour laws with respect to acceptable working conditions, freedom of association
and the right to organise and bargain collectively. The US Trade Representative (USTR) and U.S.
Department of Labor (DOL) joined the complaint in 2010 when they asked for consultations in order to
‘see the Government of Guatemala take specific and effective action – including, if appropriate, legislative
reforms – to improve the systemic failures in enforcement of Guatemalan labor law’ (USTR (2010). In 2011,
USTR and DOL requested the establishment of an arbitral panel, and it took this panel until June 2017 to
issue a decision. The panel found that, while Guatemala failed to enforce certain laws, there was no proof
that this failure was ‘sustained and recurring’ and that it was affecting trade. (Banks, K., T. Posner and
R. Hernández (2017). Therefore, the US lost this case.
310
311

Trading interests and values

lack of administrative capacity to ensure compliance).317 Labour unions did not see eye to eye
on the issue of legal enforcement either. Dutch labour union FNV is in favour of sanctions,
calling the agreements in the sustainability chapter of CETA ‘hollow phrases without legal
weight’.318 Dutch labour union CNV, on the other hand, sees a central role for ILO, which
should get the mandate to sanction. Nevertheless, CNV also warns that such sanctions do not
encourage partners to ‘make changes to the regulations following a breach of the
agreement’.319 Therefore, CNV promotes a combination of sanctioning and ‘positive
stimulation’,320 for example by the use of domestic advisory groups to help the countries
conform.321, 322
In the end, Dutch policymakers decided that there was no political will or capacity to
promote stronger legal enforcement. Instead, the Netherlands relies on ‘pressure’ to ensure
compliance323 and has (successfully) pushed, together with member states such as Finland,
Sweden, Belgium and Luxembourg324 for early evaluation of the TSD chapters. According to
the Dutch cabinet, this makes it possible to monitor initial effects and, if necessary,
encourage the EC to take additional action.325 The Netherlands was also supported by (some)
non-state actors on this issue, for example, Brussels-based foreign trade association amfori,
which pushed for annual monitoring reports along with ex-post impact assessments.
According to amfori, this would ‘incentivise underperforming partners to do more or seek
support, while at the same time provide positive branding for the well-performing
partners’.326
In February 2018, the EC presented a non-paper on the implementation and enforcement of
TSD chapters in EU FTAs. The EC addressed feedback that was received by MEPs, businesses,
international organisations and member states, for example.327 More importantly, the paper
presented ‘15 concrete and practicable actions to be taken to revamp the TSD chapters’.328
The EC proposed strengthening actions on three specific issues: (1) climate change, (2) the
role of civil society including the social partners329 and (3) the implementation of TSD
chapters. Clearly, these three issues are in line with the policy priorities of the Netherlands,
in particular generating attention for climate change and the involvement of non-state actors
when implementing the arrangements. As to the involvement of non-state actors, the action

Interview with policymaker at the MFA, held on 31 August 2020.
FNV (2018), p. 35.
319
CNV (2020).
320
Ibid, p. 4.
321
Interview with policymaker at the MFA, held on 31 August 2020.
322
For example, CNV was involved in the setup of a domestic advisory group in Indonesia (CNV (2020), p. 4).
323
MFA (2016); see also IRHP 2017-13b Handleiding Plv 21 April 2017; IRHP 2017-22b Handleiding Leden 5 July
2017.
324
IHRP 2017-16b Handleiding Plv 19 May 2017.
325
MFA (2016); IRHP 2017-03b TPC Handleiding Leden 27 January 2017.
326
Amfori (2020), p. 3.
327
EC (2018), pp. 1-12.
328
Ibid, p. 5.
329
The social partners are the bodies representing the two sides of industry: the employers
(represented through employer organisations) and the employees (trade unions).
317

318

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plan identified the future inclusion of civil society (in the form of domestic advisory groups)
to be extended to the whole FTA (action point 4). The Netherlands welcomed this decision,
as it aligned with Dutch priorities on the involvement of non-state actors. In addition,
the Dutch priority of compliance with the OECD Guidelines and the importance given to RBC
was also addressed (in the EC’s action point 5). The EC proposed to commit parties to
promoting RBC, using the OECD and ILO as the main implementers of dedicated capacity
building and outreach activities in this field.330 The Netherlands therefore supported the
15 points of improvement of the EC.331
On the issue of dispute settlement and the application of trade sanctions, consultations held
by the EC showed divergent points of view. According to the EC, a majority supported the
current model of enforcing TSD chapters, however.332, 333 The Netherlands also expressed its
support for the current system of dispute settlement. The Dutch representative in the TPC
called it ‘too early’ to link trade sanctions to this system and called on the EC to intensify the
current approach, be more assertive where necessary and improve the cooperation between
the EC and member states on the issue of dispute settlement.334 In November 2018, the EC
showed assertiveness when it proposed to use the current dispute settlement system in the
FTA with South Korea.335 South Korea had failed to implement four out of the eight
fundamental conventions of the ILO (on freedom of association, the right to collective
bargaining and two conventions against forced labour), despite seven years of pressure from
the EU. The EC proposed to start intergovernmental consultations,336 because it feared that
the credibility of the EU and the approach of sustainability in FTAs was at stake.337
The proposal of the EC was supported by most member states. The Netherlands and Denmark
were initially more cautious. For the Netherlands, this was because it wanted to coordinate its
position first, through internal consultations with, among others, the Dutch Ministry of
Social Affairs and Employment and the Dutch embassy in Seoul. Because dispute settlement
under an FTA had not been initiated before, the Netherlands requested more time to
determine its position and a second discussion in TPC.338 Moreover, the Netherlands asked for
close involvement of the ILO in the procedure. On this point, the EC confirmed it was in close
contact with the ILO and pointed out that the FTA allows for the involvement of the labour

EC (2018), Article 5, p. 6.
IRHP 2018-08b Instructie TPC leden 9-03-2018
332
EC (2018), p. 2.
333
The EC believed sanctions would be counterproductive and ‘based on the false assumption that trade can
fix it all’ (interview with EC trade policy officer, held on 6 March 2020). Moreover, the EC warned that
having the possibility of sanctions in an FTA could also lead to cases against EU countries, for example on
human rights or labour issues (ibid.). This reasoning was in line with the Dutch position and was also used
by Dutch policymakers to explain their position on sanctioning (interviews with policymakers at the MFA,
held on 9 April and 31 August 2020).
334
IRHP 2018-08c TPC Verslag Leden 09-03-2018.
335
EU–Korea FTA (2011).
336
Ibid, Article 13.14.
337
For example, the European Parliament could obstruct ratification of the trade agreements with Vietnam
and Japan, on the basis of fear of lack of implementation of the TSD chapters (IRHP 2018-36b TPC
Instructie Plv 30-11-2018).
338
IRHP 2018-34c TPC Verslag Plv 16-11-2018.
330
331

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Trading interests and values

organisation in the consultation procedure if both parties agree.339 After a second discussion
in the TPC, both the Netherlands and Denmark supported the proposal of the EC to start
consultations.340 Unfortunately, these failed to provide a satisfactory solution. In July 2019,
the EC therefore requested a panel of experts to examine the matters that have not been
satisfactorily addressed through the consultations.341 This led to the South Korean
government submitting a proposal in its National Assembly for the ratification of three out of
the four outstanding ILO conventions and of the bills for necessary labour reforms in October
2019.342 The government aimed to have the bill passed by the end of 2020, but the National
Assembly did not take any formal steps to discuss or vote on these bills.343 In January 2021,
a panel of experts confirmed that South Korea was indeed in breach of the labour
commitments under the FTA.344
Meanwhile, the Commission has continued its assertive approach regarding the
implementation, compliance and enforcement of FTAs. In July 2020, the EC appointed its first
Chief Trade Enforcement Officer (CTEO), under direct guidance of the Commissioner for
Trade, ‘to monitor and improve the compliance of our trade agreements’.345 It reflects the
importance placed by the current (Von der Leyen) Commission on implementation and
compliance, also concerning sustainable development commitments.346 The establishment
of a CTEO is supported by the Netherlands, as evident from a joint non-paper by the
Netherlands and France published in May 2020.347 In this non-paper, the Dutch and French
trade ministers even propose to go a step further by introducing staged implementation of
tariff reductions linked to the effective implementation of TSD provisions.348 This would allow
partner countries that live up to TSD commitments to be rewarded, while enforcement would
be strengthened.349 Additionally, the non-paper proposed ‘a more streamlined EU
notification mechanism to respond to possible breaches of TSD-commitments’,350 facilitating
the CTEO’s work on TSD. In line with the proposal, in November 2020, the EC launched a

EU–Korea FTA (2011), Article 13.14; IRHP 2018-34c TPC Verslag Plv 16-11-2018; interview with EC labour
policy officer, held on 6 March 2020.
340
IRHP 2018-36c TPC Verslag Plv 30-11-2018.
341
EC (2019).
342
BusinessKorea (2020).
343
Ibid.
344
EC (2021).
345
Von der Leyen, U. (2019), p. 5.
346
EC (2020c).
347
Kaag, S. and J.-B. Lemoyne (2020), pp. 1-3.
348
Ibid, p. 1.
349
This proposal is criticised by Bronckers and Gruni, who argue that the option to make tariff reductions
dependent on compliance with FTA’s sustainability standards would only exist for a limited period of time.
If a country decides to no longer comply after most tariffs have been eliminated, it would be ‘back to
square one: ordinary trade sanctions’. In addition, these scholars argue that the Dutch-French proposal is
unclear about whether the suspension would be proportional to the seriousness of the infringement and/
or limited to certain tariff lines. Moreover, there is the fear that using one tool (trade measures) to achieve
to different objectives (creating economic growth and encouraging the implementation of sustainability
standards) leads to a loss of focus (Bronckers and Gruni (2021), pp. 1-27, p. 25).
350
Kaag, S. and J.-B. Lemoyne (2020), p. 1.
339

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Trading interests and values

mechanism enabling non-state actors to report non-compliance of sustainable development
commitments.351
As becomes clear from the discussion of Dutch policy positions on TSD chapters, the focus of
the Netherlands has slightly shifted from putting these chapters on the political agenda to
implementing and enforcing the commitments under these chapters. This is in line with the
shifting focus of the EC: from getting TSD chapters into FTAs, to ensuring that such chapters
are implemented.

5.3 Extent of policy success
5.3.1

Inclusion of TSD chapters in FTAs

The Netherlands has been a strong advocate of putting TSD chapters in bilateral trade
agreements and this has been common practice in the EU since 2011. The Netherlands has
consistently promoted the inclusion of sustainability in trade agreements, in formal
meetings and in informal, bilateral contacts. However, several interviewees pointed out that
since the Dutch and EC position were aligned from the beginning, it is impossible to attribute
the inclusion of TSD chapters to the Dutch effort.352
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For example, in September 2017, the Netherlands expressed the wish to include a (robust) TSD
chapter in an FTA with India. At the time, formal negotiations had not begun yet, but India
and the EC were exploring the possibility of coming to an agreement. On the TSD chapter,
the Netherlands was only openly supported by Austria. According to a Dutch policy officer, ‘
[t]he other member states put the importance of a thorough and quickly concluded free trade
agreement above a TSD chapter’.353 However, the EC did bring up a possible TSD chapter in
every talk with Indian representatives, even though these talks were difficult, especially
concerning the role of civil society (which is of course a priority of the Netherlands).354
In the end, the talks of the EC did not lead to a formal opening of FTA negotiations with
India.355 The Netherlands supported the EC in this decision, arguing that the EC should only
invest in talks with India if there is a prospect of constructive negotiations leading to an
ambitious FTA.356
What becomes clear from policy documents and interviews is that the Netherlands and the EC
had a similar policy position on the inclusion of TSD chapters. Of course, the Netherlands and
the EC did not have the same policy position on all issues around TSD chapters. Where they
disagreed, the Netherlands tried to influence the EC, other member states and relevant actors,
EC (2020d).
Interviews with policymakers at the MFA, held on 14 October 2019, 9 April 2020 and 31 August 2020;
interview with EC trade policy officer, held on 6 March 2020.
353
IRHP 2017-28b Handleiding Plaatsvervangers 29 September 2017.
354
IRHP 2018-21b Instructie TPC Leden 21-06-2018.
355
EC (2020e).
356
IHRP 2018-36c TPC Verslag Plv 30-11-2018.
351

352

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and did so with mixed success. Below, we will describe some instances of policy success
concerning the TSD chapters that can be attributed to the Netherlands, sometimes together
with another member state.
In 2015, the Netherlands and the UK started to push the EC to expand the TSD chapter of TTIP
with an article in which both parties (EU and US) would commit to (1) prevent or limit the
negative impact of TTIP on developing countries, (2) cooperate to maximise positive
spill-over effects, and (3) cooperate on harmonising preferential tariff systems for lowincome countries.357 In the initial EU position paper (tabled for discussion with the US in the
negotiating round of 19–23 May 2014), these issues were not mentioned.358 However, in the
textual proposal tabled for discussion with the US in the negotiating round of 19–23 October
2015, some of these issues were included.359 For example, article 19 of the textual proposal
deals with the review of sustainability impacts and states that ‘the Parties commit to, jointly
or independently, reviewing, monitoring and assessing the impact of the implementation of
this Agreement on sustainable development in their territories and globally (…) In this
context, they will pay specific attention to developing countries and in particular LDCs with a
view to maximising the positive spill-over effects of this Agreement’.360 At the same time, the
call for harmonisation of preferential tariff systems for low-income countries was not
included in the EU’s textual proposal. This shows that the Netherlands and the UK had mixed
policy success in setting the negotiating agenda of the EC on TTIP. Besides, given the fact that
TTIP negotiations ended without conclusions in late 2016, it is impossible to determine
whether the policy success of the Netherlands (and the UK) would have moved beyond the
agenda-setting phase, into the policy formulation and policy decision phase. In April 2019,
the Council adopted a decision stating that ‘[t]he negotiating directives for the Transatlantic
Trade and Investment Partnership have become obsolete’.361 If the negotiations are resumed,
it is therefore important for the Netherlands to make sure that new negotiating directives
again deal with the impact of TTIP on developing countries. Given the fact that, with Brexit,
the Netherlands has lost its ally on this issue, Dutch policymakers and diplomats will need to
look for new coalition partners.

5.3.2		Animal welfare in TSD chapters
An example of a TSD chapter in which the Netherlands managed not only to put a new issue
on the agenda but also have it translated into a policy outcome, is the FTA with Japan.
In 2016, the Netherlands asked for animal welfare to be included in the negotiating mandate
of the EC.362 This can be explained by the fact that while most Dutch political parties rarely
spoke on the EU–Japan FTA, the Dutch Animal Party (PvdD) had called on the government to
IHRP 2015-49b TPC Handleiding Plv 9-10-2015, IRHP 2015-52b TPC Handleiding Leden 14-10-2015.
This position paper was made public on 7 January 2015; EC (2015b).
359
Made public on 6 November 2015; EC (2015c).
360
EC (2015c), Article 19.2, p. 15.
361
Council Decision 2019/6052/EU of 15 April 2019, p.3.
362
IRHP 2016-21b TPC Handleiding Plv 03-06-2016. The Dutch request to include animal welfare in the
discussions with Japan was repeated on numerous occasions (at least 30 times in TPC instructions and
meeting reports).
357

358

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Trading interests and values

stop negotiations if Japan did not end the slaughter of whales and dolphins.363
Dutch policymakers argued that an ambitious TSD chapter and agreements about animal
welfare would be a starting point to discuss whaling.364 After advocacy by Dutch policymakers
and diplomats, animal welfare was indeed included in the EC negotiating mandate, meaning
that the Netherlands was successful in putting this issue on the negotiating agenda. And this
policy success went beyond the agenda-setting phase. While Japan was initially very hesitant
to discuss animal welfare, in the end it agreed to include it in the agreement.365 In Article 18.17
on Animal welfare, the EU and Japan agree to ‘cooperate for their mutual benefit on matters
of animal welfare with a focus on farmed animals’ and to ‘establish an Animal Welfare
Technical Working Group to exchange information, expertise and experiences in the field of
animal welfare and to explore the possibility of promoting further cooperation’.366 One could
argue that the Netherlands was successful to some extent in getting its priorities translated
into policy (which is called the policy decision phase). Animal welfare was mentioned and the
possibility to explore further cooperation was also discussed. At the same time, the TSD
chapter talks about ‘a focus on farmed animals’,367 thus avoiding the issue of whaling.
It therefore remains to be seen whether the agreements about animal welfare in this TSD
chapter will indeed open the discussion on whaling with the Japanese government.

5.3.3 Involvement of non-state actors
As mentioned, also in Chapter 2, the involvement of non-state actors has been another
priority for the Netherlands, especially in TSD chapters. This is in line with the Dutch call for
transparency, and helps to enhance knowledge, identify the interests of all stakeholders and
create support for policy decisions. On this issue, the Netherlands again had some policy
success in the agenda-setting, policy formulation and policy decision-making phases of the
FTA with Japan. Japan agreed on stakeholder participation through consultations, even
though it was ‘not used to a structural dialogue with stakeholders via such a platform’.368
In the FTA, both the EU and Japan agreed to ‘convene the Joint Dialogue with civil society
organisations situated in their territories (…) to conduct a dialogue’ on the TSD chapter.369
Given the fact that the EU–Japan FTA only entered into force in the beginning of 2019, it is too
early to examine whether the inclusion of such a dialogue in the TSD chapter has also led to
the closer participation of stakeholders through consultations. And observing positive effects
is made even more complicated by the fact that the involvement of non-state actors through
civil society mechanisms is left up to the discretion of governments (in this case the Japanese
government, without much experience) and that a balanced, representative membership of

IRHP 2016-34b TPC Handleiding Leden 28 October 2016.
Ibid.
365
Ibid; IRHP 2016-21b TPC Handleiding Plv 03-06-2016.
366
EU/JP/en, pp. 482-483.
367
EU/JP/en, p. 482.
368
IRHP 2017-13b Handleiding Plv 21 April 2017.
369
EU/JP/en, Article 16.16, p. 448
363

364

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Trading interests and values

such mechanisms (not only business and labour organisations) requires active promotion by
the governments.370
At the European level, the launch of a ‘Single Entry Point’ in 2020 should lead to closer
involvement of non-state actors. The objective of this single entry point is to streamline
internal processes to tackle non-compliance and better prioritise enforcement action.
All EU-based stakeholders who want to lodge a complaint on non-compliance with TSD
commitments can use this contact point.371 In the BNC fiche of March 2021,372 the Netherlands
welcomed this contact point, which was in line with the Dutch priority of enhancing
involvement of non-state actors. Moreover, the BHOS Minister Kaag promised to organise
round tables (together with the Dutch Social and Economic Council, SER) with
representatives of trade unions, businesses and NGOs, to provide additional input to the
EC.373 Whether the Single Entry Point will truly lead to closer involvement of non-state actors
and more streamlined enforcement actions, remains to be seen.

5.3.4

Inclusion of gender in FTAs

Not surprisingly, not all issues that Dutch representatives have pushed for in TSD chapters
resulted in policy success. Examples of more mixed results are found for the gender-related
interventions. In ‘A world to gain’, the Dutch government already made it clear that it
‘considers gender equality to be a priority in foreign policy’.374 Subsequently, in ‘Investing in
global prospects’, gender equality was presented as a cross-cutting goal of the BHOS
agenda.375 Moreover, the Netherlands addressed the importance of gender equality at the
international level as well, for example by supporting a WTO declaration on women and
trade.376 Given the importance of the issue for Dutch foreign policy, the Netherlands has
supported the EC377 or advocated for gender equality to be included in TSD chapters in trade
agreements.378
However, the TPC members have often been divided on this issue. Sweden was the most vocal
supporter of the Dutch emphasis on gender equality,379 but some Eastern and Southern
European countries were opposed.380 According to a Dutch diplomat, it is important to bear
Ashraf, N. and J. van Seters (2020), pp. 1-26; Harrison, J., M. Barbu, L. Campling, B. Richardson and
A. Smith (2019), pp. 260-277; Orbie et al. (2016); Westlake, M. (2017), pp. 1-31. For more information on
how non-state actors are involved in the TSD chapters, see chapter 4 of Ecorys (2021).
371
EC (2020a).
372
MFA (2021).
373
MFA (2020).
374
MFA (2013), p. 64.
375
MFA (2018), p. 8.
376
WTO (2017).
377
For example, the Netherlands has supported the EC in its plan to include provisions on gender in the
EU–Chile FTA (see e.g. IHRP 2018-16b Instructie TPC Plv 08-05-2018).
378
Interviews with policymakers at the MFA, held on 9 April and 31 August 2020; see, for example, IHRP
2018-16b Instructie TPC Plv 08-05-2018; IHRP 2018-17b Instructie TPC Plv 18-05-2018.
379
See, for example, IRHP 2017-08c TPC Verslag Plv 08-03-2017; IHRP 2018-02c TPC Verslag Plv 19-01-2018.
380
Ibid; interview with (former) representative of amfori, held on 9 April 2020; interview with a Dutch
diplomat, held on 18 February 2020.
370

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Trading interests and values

in mind that the political reality in The Hague, namely consensus on the importance of
gender equality, is sometimes very different from the reality in the ‘Euro bubble’.381
Close contact between the department in The Hague, which is in charge of making the policy
and defining Dutch priorities, and the permanent representation in Brussels, often sent to EU
meetings to advocate these priorities, is therefore essential.
In the end, none of the currently concluded TSD chapters contain specific provisions on
gender equality.382, 383 One could argue that the Netherlands succeeded in setting the gender
agenda, given that the topic was discussed multiple times in fora such as the TPC. However,
this policy success did not spill over to the next stages of the policy cycle, namely policy
formulation, policy decision and policy implementation.384 Besides the fact that the
Netherlands lacked support from other member states, another explanation for this mixed
policy success could be the rather unclear Dutch position on gender equality in TSD chapters.
As a policymaker described it, gender is seen as important, and the reasoning seems to be
‘the more, the better’, but it is unclear what the Netherlands wants to achieve exactly on this
topic, aside from it being mentioned in TSD chapters.385 Of course, this lack of a clear position
makes it almost impossible to gain enough support from member states and the EC for it to
be translated into policy. At the same time, this policymaker also acknowledged that there are
some issues one simply cannot say ‘no’ to, that one cannot ignore, given the pressure from,
for example, the Dutch Parliament.386 Our interviews and an analysis of the policy documents
indicate that the symbolic value (both to the domestic audience, e.g. Dutch Parliament, and
to the European audience, e.g. other member states) of putting and keeping the issue of
gender equality on the policy agenda is considered to be of such high importance, that
whether or not actual policy outcomes are achieved on this issue is of lesser significance.
Nevertheless, some positive results were achieved, albeit mostly after the evaluation period.
For example, in December 2019, in the context of CETA, the EU and Canada issued a statement
on gender and trade. Since then, they have been working on an action plan.387 In addition,
in 2020 the Netherlands, together with nine388 other member states, sent a joint non-paper to
the EU Commissioner for Trade to address gender equality.389

Interview with a Dutch diplomat, held on 18 February 2020.
Note that although all EU trade agreements concluded since the 1990s contain a general human rights
clause, this clause is the basis of the agreement. Moreover, in the TSD chapters, a link is made to standards
on labour rights, some of which are relevant for women, such as the ILO fundamental conventions on
equal remuneration and discrimination (European Parliamentary Research Service (2019), pp. 1-2).
383
However, DGBEB pointed out that in negotiations on the draft EU–Chile FTA, there was agreement on
most of the paragraphs on gender (EC site consulted, update of May 2020, https://trade.ec.europa.eu/
doclib/docs/2021/may/tradoc_159588.pdf).
384
See Chapter 1 and annex 1 for an explanation of the analytical framework used in this study. Only in some
cases did we find and study policy implementation, notably in the case of TDI.
385
Interview with policymaker at the MFA, held on 31 August 2020.
386
Ibid.
387
See: https://trade.ec.europa.eu/doclib/docs/2019/december/tradoc_158536.pdf.
388
Luxembourg, Denmark, Sweden, Italy, Spain, France, Ireland, Finland and Belgium.
389
Asselborn et al. (2020).
381

382

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5.4 Conclusion
Already in 2011, when the EC concluded the first TSD chapter in the FTA with South Korea,
sustainability was an important policy issue for the Netherlands. As a front runner in this
respect, the Dutch MFA and its embassies were running projects around sustainable
development and the MFA had a dedicated contact point dealing with TSD chapters in FTAs.
Over the years, TSD chapters have received more and more political attention, for example
from other EU member states, from civil society and the Dutch and European Parliament.
In this chapter, IOB studied to what extent the Netherlands managed to achieve policy success
concerning the TSD chapters in FTAs.
What became clear is that the policy position of the Commission was (often) in line with the
Netherlands. For both the EC and the Netherlands, it was important to include TSD chapters
in FTAs, thus generating attention for the environment, labour rights and climate change
(especially after the Paris Agreement of 2015). It is therefore impossible to attribute the
inclusion of TSD chapters to the efforts of the Netherlands. However, this study by IOB has
also shown that the Netherlands has successfully put several issues on the agenda of the
European Commission and other member states (such as the involvement of non-state
actors) and that sometimes these issues were also translated into policy outcomes
(for example concerning animal welfare in the FTA with Japan).
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The actions undertaken to influence EU policymaking, and the implementation and
enforcement of TSD chapters, also contributed to achieving Dutch policy goals, especially in
terms of promoting sustainable, inclusive economic growth. The Netherlands constantly tries
to find the right balance between promoting sustainability, on the one hand, and making
sure that developing countries and the weakest groups in society are not negatively impacted
by the FTAs and their implementation, on the other hand.390 This focus on inclusive growth in
developing countries and a level playing field also explains the Dutch focus on including
non-state actors in the implementation of TSD chapters.391
Furthermore, Dutch efforts helped to achieve the specific trade and investment policy goals
of the Netherlands, particularly the conclusion of bilateral FTAs at the EU level. Dutch
interventions also contributed to serving the Netherlands’ cross-cutting priorities, such as
gender and RBC. Finally, the commitment of the EU and its trade partners to social and
environmental standards provided the basic mandate for TSD chapters, implying that Dutch
contributions that influenced policymaking in standard setting have also contributed to
creating a more level playing field.
At the same time, the main focus of Dutch policymakers and diplomats has been at the
European level. While the TSD chapters established a link with multilateral agreements
(such as the ILO core conventions), this did not cause the Netherlands to push for more

Interview with policymakers at the MFA, held on 7 October 2019 and 9 April 2020; interview with a Dutch
diplomat, held on 18 February 2020.
391
Interview with policymaker at the MFA, held on 9 April 2020.
390

Trading interests and values

multilateralism. According to policymakers, this is explained by a lack of support for
enhanced multilateralism.392
Whereas the implementation and legal enforcement of the TSD chapters has also been a
Dutch priority, given the relatively recent date of the measures to ensure implementation of
these chapters, it remains to be seen to what extent the EU can truly be effective here.

5.5 Recommendations
• Having a clear policy position is a precondition for achieving policy success. The example
of gender equality shows that simply arguing that an issue is important does not
necessarily mean it will be translated into policy.
• One should limit the number of policy priorities. The fact that the Netherlands only had
three priorities concerning the TSD chapters contributed to its policy success and to Dutch
‘issue ownership’.
• The reality in The Hague is different from the reality in Brussels. It is important to recognise
this and maintain close contact between the department, the permanent representation in
Brussels and contact points at embassies in The Hague, including through informal
meetings.
• It is important to continuously seek new coalition partners, e.g. in light of Brexit and other
international developments. France might prove a valuable new coalition partner, as an
important advocate and front runner in themes such as RBC and climate change.

392

Ibid; interview with policymaker at the MFA, held on 14 October 2019.

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6
Trade in Services Agreement

Trading interests and values

6.1 Introduction
The Trade in Services Agreement (TiSA) is a proposed international agreement that was under
negotiation between 2013 and 2016 among a select group of WTO Members. The agreement
promoted the further liberalisation in service provision. Negotiations for a TiSA were
launched after the negotiations for services among all WTO members (as part of the Doha
Round) stalled. The draft TiSA was negotiated among 23 WTO members,393 who considered
themselves the ‘Really Good Friends of Services’ and cover about 70% of the global services
economy, with the EU and its member states counting as one. The aim was that this
‘economic integration agreement’ could eventually be brought back into the WTO
(multilateralisation) and would allow other WTO members to join at a later stage.394
However, these TiSA negotiations came to a halt as well, in late 2016, largely due to
differences among participants on both the liberalisation approach to be taken and
substantial issues (coverage of sensitive sectors and related issues, such as privacy and data
protection). Positions taken by the US under the Trump administration and public
opposition to the negotiations had exacerbated these difficulties.
This chapter addresses important aspects of TiSA, the positions and the extent of success of
the policies and efforts of the Netherlands.395 It focuses on issues where the Netherlands tried
to influence EU positions and includes considerations on the international context.
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The Netherlands tried to influence EU and WTO agenda-setting as well as the formulation of
positions in TiSA negotiations. Since policy objectives were often not formally identified, we
have been unable to assess the precise results of Dutch interventions against such objectives.
In this chapter, we will focus on Dutch positions on a number of important TiSA topics and
compare them to the respective EU positions.
Because agreement was never reached on the draft TiSA, the extent of policy success was
particularly difficult to determine in this case, and the question of the results of Dutch
interventions beyond agenda-setting and the formulation of EU positions is virtually
impossible to answer. Actually, the EU and the group of countries negotiating TiSA as a whole
have not achieved their ultimate objectives – further liberalisation of trade in services –
because TiSA negotiations stalled.

US and Australia started the initiative to these plurilateral negotiations. The original participants were
Australia, Canada, Colombia, Chinese Taipei, Costa Rica, the EU, Hong Kong, Israel, Japan, Mexico,
New Zealand, Norway, Pakistan, Peru, the Republic of Korea, Switzerland, Turkey and the US. Later, other
countries also joined: Chile, Iceland, Liechtenstein, Mauritius and Panama. While Paraguay and Uruguay
also joined the group, they decided to step out of the negotiations in 2015 (Ecorys (2021), pp. 38-50).
394
When a WTO member enters into a regional integration arrangement through which it grants more
favourable conditions to its trade with other parties to that arrangement than to other WTO members’
trade, it departs from the guiding principle of non-discrimination. WTO members, however, are permitted
to enter into such arrangements under specific conditions. Members need to seek a waiver from WTO
rules. Such waivers require the approval of three quarters of WTO Members. Source: WTO (2021d).
395
We refer to Chapter 3 on TiSA in Ecorys (2021) for further explanation. Where we say the Netherlands in
this chapter, we usually mean the Dutch cabinet.
393

Trading interests and values

6.1.1

Why is TiSA important for the Netherlands?

Dutch policy goals in the context of TiSA were not specified in detail, but broadly speaking
they aimed to further open up the service sector markets in third countries for Dutch service
providers (called an offensive interest), while protecting some domestic interests such as
public services sectors and public and social goods.
The Netherlands derives almost 70% of its GDP and more than 80% of its employment from
the service sector.396 When TiSA negotiations started, the Netherlands expected to profit
greatly from a services agreement, due to its highly developed service sectors and advanced
digital infrastructure. Whereas trade in services in a broad sense is already covered and
guaranteed in the EU internal market, the cabinet felt that the Dutch economy would benefit
from more liberalisation and larger coverage of service sector markets in regions where the
EU does not have free (services) trade agreements yet: South America, Asia and the Middle
East.397 At the same time, the Netherlands expected to be able to protect or exclude certain
public service sectors, such as education, health, social security and culture.

6.1.2

Stakeholders in TiSA

The liberalisation of services (such as railway services, education, health and energy) to
foreign service providers is a complicated and highly political topic, because most service
sectors are strictly regulated via standard requirements398 of service providers and supervisory
authorities, and because domestic service sectors often have well-organised and politically
connected lobbies. Some service sectors are either partially or fully public sectors.
To create public support for TiSA and to be able to take the concerns of non-state actors into
account, the Netherlands consulted with a wide variety of stakeholders on a regular basis.
In this case, it used the inclusive group of the Breed Handelsberaad (i.e. broad trade council,
BHB, see Chapter 2). In addition, an academic expert was consulted, parliament was informed
several times and parliamentarians were invited to view negotiating texts.399 Furthermore,
the Netherlands often urged the Commission to be transparent and engage civil society on a
regular basis. Consultations with civil society at the EU level were indeed held on a regular
basis, albeit seemingly mostly after the negotiating mandate had been made public in March

Around 70% of the value added of Dutch export came from services in 2016, according to the World Bank’s
World Development Indicators, and trade in services accounted for 39% of Dutch GDP that year. Services
made up around 19% of Dutch exports in 2016, of which 12% in telecom and computer services, 6% in
maritime services and 1% in construction services according to the Statistics Netherlands. Ecorys, using
World Bank data, note in their background report to this study that ‘in the EU, the services sector
accounted for 65.6% of GDP and 71% of total employment in 2019; in the Netherlands these shares are
69.8% and 82% respectively’. Retrieved by Ecorys from https://data.worldbank.org/indicator/NV.SRV.TOTL.
ZS?locations=NL and https://data.worldbank.org/indicator/SL.SRV.EMPL.ZS.
397
Interview with former MFA policymaker, held on 22 March 2021.
398
For instance, by quality standards of services, caps on the number and origins of providers and
professional requirements of service providers.
399
Interview with former MFA BEB official.
396

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Trading interests and values

2015. Some sources seem to suggest that better engagement of civil society from the start
could have allayed unfounded fears about TiSA.400
However, the consultations and engagement could not prevent that opposition to the TiSA
negotiations – by civil society organisations (CSOs), trade unions, opinion makers and
parliaments – grew around the same time the Transatlantic Trade and Investment Partnership
(TTIP) negotiations with the US were highly criticised.401 Around 2016, opponents started
various petitions and distributed information and concerns to mobilise public opinion.
The concerns expressed about TiSA were partly similar to the ones regarding TTIP, CETA and
other trade and investment agreements. Critics of TiSA, such as the Dutch trade union FNV,
were afraid that public sectors and national standards would be eroded and that more
competition could depress fees and wages of certain service providers and workers. Civil
society’s greatest concerns were that more competition could lead to full privatisation of
public sectors and that TiSA obligations would prevent the introduction (or reintroduction)
of more protective regulation for domestic service providers. Furthermore, opponents were
worried that states’ right to regulate and to protect people, workers and the environment
would be undermined if direct investments of multinational enterprises (MNEs) would also
benefit from having direct access to international dispute settlement (ISDS) under parallel
investment protection agreements, to the detriment of domestic and public interests of the
host state. A lack of transparency in the negotiations may have fed the concerns of these
CSOs.
The Dutch minister and other European policymakers rejected all of these claims and
underlined that public and social interests would be duly protected. The EU and the Dutch
government claimed that public sector services in the EU and member states would remain
adequately protected under TiSA. These sectors were excepted from the EU market access
offer, in order to keep serving the public interest and secure universal access (in certain
sectors). However, both the EU and the Netherlands did not fully succeed in refuting the
claims of critics – and the opposition continued, until negotiations seemed to be definitely
put on hold around 2017.

6.1.3

Draft substance and structure of TiSA and relations to GATS

The EU intended TiSA to be an ambitious precursor of a multilateral agreement on services
that could be incorporated into the WTO, once a critical mass of WTO members representing
global trade would be reached. Negotiations of a plurilateral agreement in the WTO ran into
several legal complications. Adding TiSA as a plurilateral agreement covered under the WTO
and its dispute settlement system would, for instance, require consensus at a Ministerial
Conference, effectively giving non-parties a veto right.402 Moreover, there were complications
Interview with former MFA policymaker, held on 22 March; Ecorys (2021); and Delimatsis (2016).
The Ecorys report describes stakeholders and opposition to TiSA in more detail. Additional sources used
for this chapter include FNV (2016); Greenpeace (2016a); Greenpeace (2016b); international CSOs, including
EPSU (EPSU (2016) and EPSU (2021)); and some media articles. See also WikiLeaks (2016b).
402
In accordance with Article X:9 of the WTO Agreement.
400
401

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Trading interests and values

on how to negotiate new market access, how to deal with concerns about free-riding
non-participants in TiSA and whether to use a positive or negative list to sector coverage.403
Under normal circumstances, WTO members that did not participate in the TiSA negotiations
would have the right to most-favoured nation (MFN) treatment.404 However, concerned about
‘undeserved’ MFN benefits for such ‘free riders’,405 the EU and other TiSA participants opted
for the form of an economic integration agreement under GATS Article V, as a legitimate
exception to MFN. This implies that the preferential treatment and new market access under
TiSA do not automatically need to be extended to non-parties to the agreement. Conditions
in GATS Article V are such that an agreement cannot raise the overall level of barriers to trade
in services in the covered sectors for non-parties, compared to the level prior to such an
agreement, and that it has to cover substantially all service sectors and modes of delivery.
The draft TiSA document406 consisted of three parts407 when negotiations stalled in 2016.
The first part outlined the general rules, building on GATS, including the core provisions of
the GATS and TiSA-specific scheduling requirements. The second part included market access
and national treatment commitments by each TiSA party in national schedules: this part also
includes exceptions (e.g. public services) and reservations on full national treatment.
The third part contained common rules and standards that apply horizontally408 as well as
rules for specific sectors in 17 annexes. These 17 negotiating texts contained regulatory
disciplines409 and were considered an integral part of the agreement. Some annexes applied
horizontally to trade in all services (such as transparency, domestic regulation and
e-commerce), while others addressed rules in specific sectors (such as financial services and
maritime transport). Some of the topics covered by annexes are discussed below, because
they were important to the Netherlands.

Concerning the latter, countries can decide which national sectors and modes of supply are covered in their
national GATS schedule – by compiling a positive list. The modes of supply are: (1) cross-border supply of
services, (2) consumption abroad, (3) commercial presence, and (4) presence of natural person
(see Chapter 3 of Ecorys (2021) for more information). Countries can also decide which of the six (carefully
defined) restrictions or reservations on the national treatment of foreign service providers listed in GATS
Article XVI, in the four modes of supply, are to be maintained (in a negative list). A negative list approach
implies that unless exceptions are listed, full national treatment applies.
404
Most favoured-nation treatment under GATS Article II: ‘With respect to any measure covered by this
Agreement, each member shall accord immediately and unconditionally to services and service suppliers
of any other member treatment no less favourable than that it accords to like services and service
suppliers of any other country’. Source: WTO (2021b).
405
Scholars have argued that freeriding was not a real problem: ‘TISA is being pursued as a non-MFN FTA,
although services disciplines are in most cases applied on an MFN basis within each jurisdiction. The issue
of free riders is in many cases nothing more than a mere conceptual concern’. Nakatomi and Michitaka
(2015).
406
WikiLeaks (2016b).
407
EC (2016). Since negotiations were not finalised, it is unsure which of the annexes would have been part of
the final text.
408
Horizontal clauses – also called disciplines – apply all trade in services, e.g. rules on transparency and
domestic regulation.
409
‘Disciplines’ in the context of WTO refers to rules for the trading system, in particular rules that prohibit
governments to take measures that prevent, hinder and prohibit free trade and investment.
403

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Trading interests and values

6.2 The Dutch position on TiSA
In letters to parliament and instructions for TPC meetings in Brussels, the Netherlands
advocated progress in the TiSA negotiations to open up the service sector markets in third
countries and give an impetus to global trade in services. It also professed it wanted to
promote the interests of the least-developed countries.410 In an instruction in 2013,
the following additional objectives for TiSA were listed, albeit at a rather abstract level:
• No sector should be excluded from the negotiations in advance (a priori);
• The agreement should include provisions on dispute settlement; and
• Development considerations should be taken into account (with a focus on leastdeveloped countries).
In a letter to parliament from January 2016 on TiSA,411 the only specific Dutch efforts
mentioned were the promotion of making TiSA a covered WTO agreement and the promotion
of granting unilateral offers to the least-developed countries, in addition to a desire for
transparency ‘at the European level’. In TPC meetings, the Netherlands does not seem to have
intervened much on TiSA. Note that during its presidency in the first half of 2016 the
Netherlands did not normally have an active representative in the national seat.412 During its
presidency, it did organise an informal EU meeting on TiSA. In 2015–2016, the main Dutch
positions were still: ‘TiSA should make provisions for multilateralisation; the agreement is of
great importance to the Netherlands; and we want to extend the advantages to leastdeveloped countries’.
Note that during the reporting period, normally only one policy officer was working on trade
in services in The Hague, except for during the presidency, when one extra person was
appointed.413

Development interests were to be integrated into TiSA, in the Dutch view. While this notion was not well
explained in the 2013 instruction, in the WTO and FTA context it is usually understood to mean taking the
interests of developing countries into account and granting them market access unilaterally, in particular
least-developed countries. One interviewee affirmed this was a genuine desire of several actors in the EU,
including the Netherlands and the EC (interview held with former MFA policymaker, 22 March 2021).
See also Tweede Kamer, vergaderjaar 2015–2016, 25 074, nr. 189. One could also think of capacity building
and technical assistance for developing economies as well as exceptions on disputes (Nakatomi and
Michitaka (2015)). Later sources make it clear that the Netherlands wanted to extend an Everything But
Arms-type preferential treatment to service providers from least-developed countries in the covered
sectors. However, market opening under mode 4 for temporary guest workers, an issue of major interest
for most developing countries, was never really part of the TiSA negotiations because it was considered to
be too sensitive politically and conflated with fears over permanent migration. The EU limited this mode in
its offer to intra-corporate transferees and highly skilled professionals, who did not compete with local
labour.
411
Tweede Kamer, vergaderjaar 2015–2016, 25 074, nr. 189
412
Interview with former MFA policymaker, held on 22 March 2021
413
Interview with former MFA policymaker, held on 22 March 2021. During the presidency, one extra person
was available for services (as well as one for investments), the TPC SI team consisting of four people for
that period only.
410

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Trading interests and values

This chapter analyses nine priorities in the Dutch position on TiSA. The Dutch objectives
around these topics were not always explicit in public communications, so our findings on
the Dutch policy objectives have been partly deduced from TPC instructions and reports.

6.2.1

Liberalisation approach

The Netherlands favoured an ambitious liberalisation of certain sectors in a plurilateral
setting, with like-minded states, such as TiSA would promote. The Dutch cabinet explained
that trade agreements can lock in regulatory reforms, making the playing field more
predictable for business. The Netherlands and the EU aimed for an ambitious agreement –
increasing market access for European service providers as much as possible – that could be
multilateralised at a later stage.414 This meant that a plurilateral agreement also had to
include a simple mechanism for accession.415
The Dutch wish for an ambitious agreement also became clear in the discussions of so-called
standstill and ratchet clauses in the context of ‘national treatment’ (i.e. non-discrimination
of foreign companies). The standstill clause means that once a country has unilaterally removed
discriminatory measures to national treatment above and beyond to what it had agreed to in
the GATS schedule, it cannot reintroduce such measures for negotiating leverage at the
moment new legal commitments in a request-and-offer approach are made. The ratchet clause
refers to a state not being allowed to reintroduce a discriminatory measure once it is removed
and once the agreement has entered into force.416
The Netherlands was in favour of both clauses, to lock in already existing unilateral
liberalisation and promote further liberalisation in mutually beneficial negotiations among
TiSA participants. It also took this position when the EU negotiating mandate was drafted in
2016. At that time, the EU mandate did not contain such a standstill clause, while this was
already included in many EU free trade agreements and would benefit further liberalisation.
A third expression of the Dutch ambition was the desire to have comprehensive sector
coverage and fewer restrictions on national treatment. Dutch instructions for TPC suggest
that market access on the basis of a negative list, which the US preferred (just like in NAFTA),
would discourage other WTO members from joining a plurilateral agreement. It could also
become an obstacle to aligning TiSA with the GATS (while at the start of TiSA negotiations the

Note that negotiating partners including the EU did not put forward their most ambitious offers. Benefits
– market openings – would automatically apply to all TiSA participants, without the possibility of
exchanging favourable offers from the non-party (as is the case in bilateral negotiations).
415
Several sources, among others Rijksoverheid (2021) as well as an internal MFA dossier published by
bigwobber.nl, issued in late 2017 but possibly dating from 2016 https://bigwobber.nl/wp-content/uploads/
osd/20171221/2399.pdf. See also chapter 3 of Ecorys (2021) for more information on multilateralisation and
the EU position on that matter.
416
A simple explanations of the standstill and ratchet clauses can also be found in the EC fact sheet on TiSA
(2016): https://trade.ec.europa.eu/doclib/docs/2016/september/tradoc_154971.doc.pdf
414

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Trading interests and values

Netherlands did not have a position concerning negative listing yet).417 Developing countries,
in particular, would not be able to accept a negative list – or for some, even to come up with
such a list for their own economies. To avoid this issue, the EU and other TiSA participants
eventually opted for the route of an economic integration agreement, leaving the accession
mechanism ambiguous, since there is no obligation on parties to allow the entry of other
WTO members into such an agreement.
Services that were of particular importance to the Netherlands, due to its offensive economic
interests,418 were financial services, the maritime sector, as well as telecommunications and
delivery services. To promote these interests, the Netherlands cooperated with like-minded
countries. With regard to the maritime sector, the Netherlands had a special interest in
dredging. In late 2015, the Netherlands sent a letter to the EC with Belgium and Luxembourg
with a view to their offensive interests in the TiSA negotiations, advocating the opening up of
the dredging sector.419 The Netherlands also set up a like-minded group called the ‘Friends of
Maritime’ after its presidency in 2016 that advocated for an ambitious TiSA with regard to the
maritime sector. Other coalitions the Netherlands participated in included a group of around
14 like-minded, liberal member states who consulted on a regular basis on the eve of TPC
meetings where services were discussed (TPC SI). It was one of the leaders of that group with
Denmark, Poland and Sweden. A similar group of like-minded EU members, including the
Netherlands, was set up a bit later to promote offensive interests in digital trade and data
flows.
As a liberal-minded country, the Netherlands had fewer defensive interests to shield. As a
result, in terms of national interests the Netherlands had few reservations about full market
access in addition to the general EU reservations. Examples of such Dutch reservations were
related to maintaining qualification and licensing requirements for lawyers, vital gas and
electricity networks, and foreign ownership restrictions of maritime vessels flying the Dutch
flag. Other exceptions listed by the Netherlands concerned reservations in the ‘professional
services’ category (mostly in health-related professions), and transport (maritime) and related
logistics. The Netherlands advocated fewer specific restrictions than almost any other EU
member state.420, 421

While the internal document published by bigwobber.nl (Bigwobber (2017) mentioned the US preference
for a negative list unfavourably, as a risk for multilateralisation, another internal document with general
instructions – which was also published through the Dutch Public Access to Government Information Act
(WOB), probably dating from 2013 – noted that the Netherlands had not yet expressed its own preference.
418
‘Offensive interest’ is understood to mean the interest you may have in gaining access to the market of
your negotiating partner. Offensive in this case means for the purpose of offense rather than defence.
419
Former FMA policymaker interviewed. The letter was at the level of Director-General.
420
One interviewee suggested that the Netherlands, together with UK and Denmark, was very liberal minded,
having many offensive interests in TiSA, while Southern European countries were less so.
421
It is important to acknowledge that one country’s offensive interest in a sector, e.g. the Dutch interest in
dredging services, could be another country’s defensive interest which wants the sector to remain closed
to foreign competition. For instance, the US has kept the dredging sector closed for decades on the basis
of the Jones Act. An extensive exclusion of sectors by defining them as a public service and sectors of
general interest would severely restrict the number of sectors where market openings could be negotiated.
417

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Overall, the Netherlands was a proactive advocate of ambitious liberalisation in TiSA.
According to an official interviewed, once the EU mandate had been negotiated, the difficulty
lay mostly in getting the EC to share information on its exchanges and ideas around
negotiation positions with member states in a timely manner. The offers for market access
that the EC made in specific sectors were said to be shared only very late by the EC.422

6.2.2

Public sector services

Like all TiSA parties, the EU excluded all ‘services provided in the exercise of governmental
authority’, which are services exclusively provided by governments on a non-commercial
basis, such as justice, police and the military.423 In addition, the EU offer excluded public and
strategic sectors from sector coverage in TiSA: film, television and other audio-visual services,
most air transport services, publicly funded health and social services, publicly funded
education, water collection, purification, distribution and management. The EU also
emphasised the right to regulate services. Moreover, it made the general reservation that TiSA
signatories (including EU member states) can keep public monopolies and decide how they
want to regulate public services.
The Netherlands did not except public sub-sectors in addition to the ones already excepted
for the EU as a whole. Actually, the Netherlands expressed concerns, in 2016, that the EU offer
contained too many exceptions, which could negatively affect the requests for market
opening that the EU could put to other TiSA participants.424
When civil society and parliamentarians claimed that public sectors would be insufficiently
protected from foreign competition by the draft TiSA, also around 2016, Minister Ploumen
argued that these sectors would be adequately protected from enforced privatisation, since
EU Free Trade Agreements in general ‘do not impose privatisation’.425 The government web
page on TiSA notes that the protection of public services is a precondition for Dutch support
to TiSA and that the Netherlands itself determines which sectors it considers public sectors.426
Critics from civil society claimed that these exceptions were not enough to fully protect
public and social interests. They called for a full exclusion of services of general interest from
the TiSA agreement, without defining what that actually means.

Interview held with a policy officer formerly working at the MFA, held on 22 March 2021.
Note that the definition of public sectors differs between the TiSA and GATS, on the one hand – which is
more limited – and the EU, on the other hand. Public sectors can mean government sectors such as justice,
which the EU refrains from opening up. It can also mean services such as education services that receive
public funding and state support, which can be subject to protection. Public sector services can also denote
services that are in the public interest but which can be privatised, e.g. in the Netherlands some medical
services and educational services. The Netherlands is more liberal than some other member states in the
latter category.
424
IRHP 2016-34b TPC Handleiding Leden 28 October 2016 (the same source was used for the rest of this
section).
425
MFA (2016).
426
Rijksoverheid (2021).
422
423

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6.2.3 Temporary labour movement, temporary entry of highly skilled
professionals
This topic concerns services under GATS ‘mode 4’, the temporary entry of persons who
provide services. In practice, the scope of negotiations under this mode was quite limited.
Mode 4 covers natural persons who are either service suppliers (such as independent
professionals) or workers under contract of a national company who are temporarily present
in another country to supply a service.427
Market opening under mode 4 for temporary guest workers is an issue of major interest for
most developing countries, but it was never really part of the TiSA negotiations because it was
politically too sensitive and conflated with fears about migration.
The EU and the Netherlands have an offensive interest in attracting highly skilled
professionals in certain sectors and also in getting access to third countries for their own
professionals and intra-corporate transferees in their MNEs. Companies want to attract highly
skilled foreign workers and also move intra-corporate transferees with third-country
nationalities from one country to another. The EU’s conditions for entry are that people
should stay only for a specified period and under precise conditions stipulated by a contract.
In this context, the Netherlands prioritises getting highly skilled niche workers for certain
service and academic sectors: temporary workers for skilled work, research and study.428
On the other hand, the EU and the Netherlands have defensive (economic and political)
interests in limiting free competition from foreign workers in most segments of the local
labour markets. They therefore restrict most other types of temporary workers, especially
low- to medium-skilled workers. Following the public and political debates on immigration
since the early 2000s and the increase in asylum seekers around 2015, there has been a strong
sense of self-interest to prevent the influx of migrants to Europe. Dutch cabinets have been
hesitant to allow the entry of low- and medium-skilled workers from outside the EU, even on
a temporary basis.
Some TiSA parties objected to the idea of accepting temporary workers on a reciprocal basis.
The EU’s position was complicated by the fact that its trade and migration policies are quite
distinct: a GATS opening in a certain sector does not guarantee actual physical entry if there
are visa requirements for certain nationalities. Basically, the EU did not want to make any
promises about extending GATS visas to temporary guest workers.
The Netherlands was not always among the most vocal members about limiting demanddriven temporary labour movement, but the documentation available does suggest a concern
about visa requirements, which could undermine commitments to market entry. In the
context of TiSA, the Netherlands proposed for the EU to integrate a ‘protocol’ on the

Mode 4 does not concern migration on a permanent basis, nor does it assume free entry into the EU
labour market to compete for EU jobs and still requires a visa for entry if there are visa requirements.
428
A law on modern migration was adopted on 1 June 2013 – see Lodder (2019).
427

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movement of natural persons into its negotiating offer, so that countries benefiting from
TiSA would be required to facilitate the return and readmission of temporary workers:429
the ‘complementary protocol on movement of natural persons for business purposes’.
This was taken up by the EU, to the satisfaction of the Netherlands.

6.2.4

New (future) services and digital services

New services, e-services and environmental services were to a large extent excluded from TiSA
negotiations. There is a gap in international regulation for new services, in particular outside
of the EU. Regulatory issues around digital services were meant to be dealt with in a dedicated
annex to the TiSA. Discussions focused on e-commerce: issues such as spam, data flows,
localisation of computing facilities, source code, access and use of the internet, consumer
protection and international cooperation. Negotiations on data flows and localisation of
computing facilities remained unsolved by the end of 2016.
The Netherlands agreed to exclude ‘new’ services – i.e. services that are yet unknown, yet to
be created – from the TiSA agreement, like the rest of the EU, but unlike the US. Critics of the
TiSA negotiations supported such an exclusion, afraid that future sectors would automatically
be subject to mechanisms to open up the market. New services remained controversial until
the negotiations were put on hold.
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6.2.5

Cross-border data flows and privacy protection

Within the EU, the Netherlands initially promoted the free flow of data, including personal
data of services consumers, from a liberal point of view. Some other actors, notably the EC
and France, were more protective of data, especially personal data, with a view to protecting
citizens’ and consumers’ privacy. In 2016, the EU adopted its General Data Protection
Regulation (2016), determining the balance between the different interests in the EU.
Subsequently, in its negotiating offer in 2016, the EU required substantial provisions for the
general protection of data (to be incorporated into the annex to the TiSA on e-commerce),
including but not specifying the protection of personal data. The EU made use of provisions
in the existing GATS annex on financial services and proposed that restrictions on the free
flow of data could be based on grounds of protecting data security and privacy, while
protectionist grounds for restrictions would be rejected.430 The EU position was said to be too
restrictive for some of the more liberal negotiating partners in TiSA, such as the US, who
considered this issue a major obstacle. The final draft TiSA text also contains a general
exception to protect the privacy of personal data.

EC (2015). The Netherlands proposed and the EU included in its offer the condition that this protocol would
apply to TiSA, with countries hosting temporary workers committing to procedures and countries sending
workers agreeing to cooperate on the return and readmission of such migrants. Further sources inter alia
interview with former MFA official and dossier issued by bigwobber.nl.
430
The clause proposed by the EU on data protection was based on an earlier agreement on such a provision
in the GATS Understanding on Financial Services. Source: report on technical EU meeting, February 2017.
429

Trading interests and values

A group of like-minded EU members including the Netherlands (a spin-off of the group of
14 liberal members) focused on data flows: they sent a letter in May 2017 urging the EC to
present an EU text proposal for trade agreements on the free flow of data, because of their
offensive interests in this area. They advocated an ambitious EU proposal on data flows and
data localisation431 and regretted that there had not been an EU offer on the matter yet,
forcing the EU in a defensive position.432, 433
In 2016, the treatment of cross-border flow of data and transparency were indeed two of the
major unsolved issues in the TiSA negotiations. The EU position in TiSA negotiations was held
up by internal processes. The EU had to resolve differences among the Commission and
member states. It managed to do so with the conclusion of the General Data Protection
Regulation of 2016, introducing high privacy standards, albeit only for the EU market. By the
time the EU managed to conclude these, TiSA negotiations had already reached an impasse.

6.2.6

Least-developed countries

The Netherlands wanted TiSA to include development considerations, with a view to assisting
developing countries’ economies. It wanted in particular to offer the advantages of the draft
TiSA agreement to all least-developed countries (LDCs) (offering market access to service
sectors, without asking reciprocal access commitments),434 extending the treatment of the
GATS waiver for commitments under the current GATS schedules to TiSA schedules. The EU
offer, however, does not contain provisions on this topic, which may be understandable
given its limited nature and purpose – and no LDCs participated in TiSA negotiations.
The draft TISA text itself did not contain provisions on special treatment of developing
countries either. Minister Ploumen explained to Parliament435 that the Netherlands was
planning to take an initiative in the WTO to grant preferential treatment to the LDCs after
TiSA would have been concluded and ratified. This seems rather an empty gesture, because
there were very few market openings for temporary workers offered under mode 4, LDCs have
few highly skilled professionals (and may even risk a brain drain in critical sectors if they
One important policy issue is the localisation of data in the country where the consumer resides. If privacy
protection and consumer rights cannot be guaranteed in the country where the supplier of e-services
resides, forced data localisation can become a trade problem, to be addressed in agreements such as TiSA.
432
Source for this paragraph: interview with former MFA policymaker, held March 2021, and Government of
the Netherlands (2017).
433
The letter advocates ambitious rules to allow for the participation of businesses and citizens in global
value chains as well as a level playing field. Signed by Bulgaria, Croatia, Czech Republic, Denmark, Finland,
Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, the Slovak Republic,
Spain and Sweden. Government of the Netherlands (2017).
434
IRHP 2013-28b TPC Handleiding Plv 21 June 2013. The WTO has allowed preferential treatment for service
providers from least-developed countries. At the WTO’s 2011 Ministerial Conference, members adopted
the waiver which allows WTO members to deviate from their most-favoured nation obligation in order to
provide preferential treatment to services and service suppliers from LDCs. The waiver was extended until
2030 by the Tenth Ministerial Conference in Nairobi in 2015. Sources: WTO (2021c); WTO (2021e);
WTO (2011). Offering LDCs MFN status and extra market access would be superfluous in light of existing EU
commitments in WTO context and in EPAs.
435
Tweede Kamer, vergaderjaar 2016–2017, nr. 1075. Liliane Ploumen was Minister for Foreign Trade and
Development Cooperation in the previous cabinet, until 2018, when Sigrid Kaag took over.
431

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leave) and, finally, few of their service companies are able to compete in the EU market. At the
same time, according to one official involved as well as internal documents, the Netherlands
and the EU were committed to extending TiSA market access to least-developed countries
once the agreement would have been concluded, and their desire for multilateralisation is
related to that.436

6.2.7

ILO conventions and labour standards

The EU, including the Netherlands, initially wanted parties to TiSA to respect the ILO core
conventions on labour standards. However, the EC immediately warned members – and
Dutch TPC instructions in late October 2016 mentioned this – that setting a precondition for
parties to ratify and implement ILO core conventions would prevent the TiSA agreement from
becoming a covered agreement under WTO at a later stage, given the general resistance by
developing countries to make ratification of these conventions a condition to WTO
membership. It would also have been a problem for the US, which still has not ratified all ILO
conventions. Interestingly, the Dutch BHOS Minister noted in a letter to parliament in
November 2016 (in answer to the question why she accepted human rights and labour
standards being left out of the TiSA) that she was disappointed that there were no concrete
references to the ILO conventions in the draft TiSA text yet and that the Netherlands would
continue to ask for attention for the topic.437 The minister stated, in the same letter, that TiSA
would contain provisions on the protection of labour rights. In late 2016, the draft text on
TiSA did not contain references to labour standards, except very general exceptions to protect
health and safety, similar to the general exceptions under GATS Article XIV and GATT Article
XX.

6.2.8

Dispute settlement

On the issue of dispute settlement in TiSA, only the outlines of its envisaged dispute
settlement mechanism had emerged in the negotiations by the time they had stalled: TiSA
was likely to include only quite traditional state-to-state dispute settlement procedures.
While at the outset the Netherlands stated that it wanted to include a special inter-state
dispute settlement mechanism in TiSA, in 2017438 it preferred using the WTO (state-to-state)
dispute settlement mechanism. However, at a TPC meeting in mid-2016, the EC clarified that
the WTO could not take on this task, since TiSA would not, at least initially, be a covered
agreement under the WTO and TiSA would thus not yet be subject to the jurisdiction of the
Appellate Body. The Commission did not want to delay the overall negotiations on TiSA for
this issue. While the EU had initially wanted to set up an appellate body for disputes in
addition to arbitration panels, it dropped this position with a view to completing
negotiations by the end of 2016.

In official communications such as EC (2021); indeed facilitating participation of developing countries to
plurilateral agreements is highlighted in instructions as well.
437
Tweede Kamer, vergaderjaar 2016–2017, nr. 1075
438
Bigwobber (2017).
436

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In the end, TiSA was likely to include only state-to-state dispute settlement with provisions
largely mirroring those of the WTO Dispute Settlement Understanding (in light of the desire
to make it a covered agreement under WTO). It would not include ISDS-type provisions giving
foreign investors direct access to international arbitration panels.
Critics from Dutch civil society (including trade union FNV439 in 2016) feared that
multinational enterprises could still make use of bilateral investment treaties containing
provisions on investor-to- state dispute settlement to bring claims to host countries about
TiSA provisions, especially under mode 3 obligations, limiting states’ right to regulate.
This fear was similar to concerns expressed around other mega-regional FTA negotiations,
but in the case of TiSA it seems far-fetched because the draft TiSA texts do not confer direct
rights to multinational investors that could be enforced in ISDS panels.

6.2.9

Transparency and consultations

The draft TiSA text contains an annex dealing with participation by stakeholders and
transparency in laws and regulations.440 In addition, the EU and the Netherlands expressed a
commitment to be transparent about the negotiations and to organise public consultations
on goals for and progress made during negotiations, meeting with business, civil society
organisations, trade unions and consumer organisations on a regular basis. The EC also
published the EU offer on market access commitments in 2014 and the revised offer in 2016.
Critics from civil society pointed out, however, that the EC published the offer only in July
2014, while TiSA discussions started in 2012–2013 and WikiLeaks had already made some
documents public. In early 2016, Minister Ploumen informed Dutch Parliament441 that
negotiating mandates would henceforth be published at an early stage, adding, however,
that the Netherlands favoured a case-by-case approach to publish negotiating documents to
balance the need for transparency and the need to protect the EU’s negotiation position
vis-à-vis negotiating partners.
While the Netherlands and the EC pointed out that the draft TiSA text included consultations
as a bonus, critics such as Dutch labour union FNV442 and Greenpeace443 stressed that such
consultations would mostly benefit the interests of businesses, which would be consulted
first and foremost. Indeed, some internal documents show the ministry attached great
importance to consulting with the Dutch business sector and suggest that Dutch companies

FNV is the largest Dutch trade union, with more than a million members, and a social democratic
background. They published a folder on TiSA in September 2016 advocating against the proposed TiSA.
See FNV (2016).
440
The draft TiSA text also covers transparency, stating that states shall publish measures of application after
it enters into force.
441
MFA (2016).
442
FNV issued a folder on TiSA in 2016. See FNV (2016).
443
In November 2016, Greenpeace deplored that ‘influential lobby groups such as the European Services
Forum are officially consulted before and during rounds of negotiation’. Greenpeace (2016c).
439

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have substantial influence in identifying negotiating positions.444 At the same time, the BHB
consultations with civil society and regular contacts that policy officers are said to have had,
show that the MFA took civil society engagement seriously.

6.3 Extent of policy success
6.3.1		Dutch positions compared to the positions of the EU
The Netherlands does not seem to have taken an extreme position on any of the issues
described above, but it started from a neoliberal desire to open up foreign services markets in
an ambitious manner (in line with the already built-in GATS liberalisation agenda) by
securing non-discrimination or national treatment of its service providers in third markets as
much as possible. This is not surprising: first of all, Dutch government coalitions were
predominantly neoliberal, and the Netherlands as a services-oriented trading nation has
traditionally adopted liberal trade policies. Second, it is not surprising since these positions
are in line with the general Dutch desire to complete the internal market by fully integrating
the EU services market.
At the same time, in TiSA the EC and Dutch positions took into account special sensitivities in
the EU, such as enshrining the right of states to regulate, and protecting public services, social
security and the audio-visual sectors. Whereas the Netherlands sometimes started by voicing
liberal positions in EU deliberations – often keeping instructions the same for months or
even years – in the end it usually acted pragmatically, adjusting its positions (seemingly quite
suddenly)445 and aligning with the European Commission’s positions.
Annex 5 compares the Dutch positions on selected themes, which were introduced above,
to the EU positions, insofar as information was available. The Dutch positions and efforts on
some main topics can be summed up as follows.
• The Netherlands consulted with a group of around 14 like-minded, liberal member states
on a regular basis and was among the leaders of that group.
• This group had mixed success in achieving a liberal position on the TiSA negotiations,
though. On opening up European public service sectors, the Netherlands would have
preferred a more liberal position that better defined public services and opened them up
somewhat further than the one in the EC proposal.
• On professional services workers under mode 4, the EC integrated a Dutch idea to include
an EU protocol to ensure cooperation on the return of temporary workers to their home
states after completion of their contracts.

A general note on free trade agreements from 2013 (made public under the WOB law) explicitly noted that
the Ministry of Foreign Affairs wanted to represent the interests of Dutch businesses as well as possible
and that it asked for their input.
445
This statement is based on the written instructions and reports of the TPC and TPCSI meetings, as well as
interviews with policymakers and diplomats. IMH indicates that when necessary (because of
developments) positions are adjusted and updated for informal talks with other members.
444

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• On data flows, the Netherlands advocated for an ambitious EU common position to
promote its offensive interests. In the TiSA negations, the EU indeed promoted general
protection of data, including personal data, using arguments of preventing protectionism
and promoting data security rather than privacy arguments. In April 2016, the EU agreed
internally on the above-mentioned regulation for the flow of data in the EU (in GDPR).
For TiSA, the EC proposed existing texts from the GATS Understanding on Financial
Services.
• While the Netherlands unilaterally advocated for preferential market access of leastdeveloped countries, this was never achieved, because TiSA negotiations stalled.
• As to a reference to the ILO conventions on labour rights, the Netherlands – following the
EC – dropped its desire for a reference, because it would hinder multilateralisation of TiSA,
although this change was not made public.

6.3.2

Overall results

If success is defined as concluding a TiSA agreement, the EU and the Netherlands obviously
did not achieve that goal, but that was in great part due to the difficult atmosphere in
international trade relations, in particular with the US. In fact, even negotiating TiSA as an
economic integration agreement among a selective ‘Group of Real Friends’ did not result in
their ultimate objective of opening up global trade in services.
In interviews at the start of this study, representatives of the Dutch Ministry of Foreign Affairs
suggested that much effort had been put into TiSA negotiations. From our sources, it is not
very clear that this was a priority topic and/or that specific initiatives or campaigns were
undertaken to promote Dutch positions or TiSA as such in bilateral contacts, beyond the
normal expression of Dutch positions in the EU Trade Policy Committee on services.
Although TPCSI reports did not always highlight Dutch interventions, the Netherlands did
play a visible part in the context of the EU, during its presidency and beyond, helping to
support the ambitious position of the European Commission in the TiSA negotiations.
Because the Netherlands held the presidency at an important time during TiSA negotiations,
it was not in a position at the time to push its own agenda, according to a Dutch official
interviewed. At the same time, it did engage actively in groups of like-minded member states.
The Netherlands did not have a dedicated representative for the TPC working group on
Services and Investment, but it was active in several groups of member states, including
like-minded liberal countries and thematic groups on data flows.
Actually, it is difficult to say to what extent the Dutch efforts to influence the EU offer and
positions in TiSA have been effective, partly because most Dutch positions were aligned with
EC positions and those of other delegations, in particular liberal countries such as Denmark
and the UK. It is clear that the Netherlands took an active interest and let itself be heard.
According to an interview with an EC representative, the Netherlands was often able to nudge
internal EU negotiations in a certain direction, challenging the Commission if needed,
thanks to its skilled representatives at the technical level. At least two non-Dutch experts,

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who were positive about the quality of Dutch interventions at the technical level on trade
and investment in general when asked, did not mention specific TiSA-related Dutch inputs.
The Netherlands is best known for its generally liberal stance on trade policy and, to a lesser
extent, its consideration of the interests of developing countries.
Dutch minister Ploumen’s promotion of goals such as sustainable trade, responsible business
conduct, gender and special treatment of developing countries, which were raised in some
communications with Parliament, does not seem to have resulted in concrete text proposals
in the EU positions on TiSA. For the most part, these Dutch priorities did not materialise in
instructions, reports and other documents on EU discussions on TiSA that IOB found.446
On the issue of developing countries this may not be surprising, given the limited
participation of developing countries and the fact that issues of interest to developing
countries were virtually absent in the TiSA negotiations, as well as the limited influence of
civil society.

6.4 Conclusion
6.4.1

International context and the way forward

The legal issues around the form best suited for TiSA – a plurilateral agreement with an
accession mechanism or an economic integration agreement – created problems from the
start. Besides, China – the world’s second-largest economy – was excluded by some TiSA
participants for geopolitical reasons. Moreover, developed countries had fundamental
economic disagreements regarding to what extent they would exclude public services;
about how they would take on legally binding obligations; and how they could open up their
markets to foreign service providers in a mutually beneficial manner – especially in new
sensitive areas such as data flows, privacy protection, e-commerce and dispute settlement.
These problems proved insurmountable, and discussions around TiSA have gotten nowhere
since 2016.
When TiSA negotiations came to a halt, official communications did not immediately
recognise that the pause would be semi-permanent. At the moment of writing, in early 2021,
the Trump administration has been replaced by Biden’s, but economic policymakers in the
Netherlands and the EU do not expect TiSA negotiations to resume where participants left
them in 2016, because geopolitics and international relations have not fundamentally
changed.
Meanwhile, at the WTO, discussions on the service sector have lacked any real progress since
2015, or even since 2005 for that matter.447 Public protests against FTAs seem to have calmed
down somewhat. But the public distrust in Europe of big, mostly American, tech companies
Priorities as evidenced by Minister Ploumen’s policy notes and letters to parliament as well as statements
and articles on a ‘reset of trade policies’. See also IOB’s upcoming policy assessment of BHOS budget
article 1 on trade and development cooperation and the final chapter of this report on such topics.
447
WTO (2021a).
446

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seems to have exacerbated over the past few years, and that is likely to make future
negotiations on trade in services even more difficult. The absence of an agreement on
liberalisation of the service sector has not hindered the trends of globalisation, digitalisation
and the proliferation of new services, although regulatory conflicts are looming on the
horizon. Meanwhile, separately from TiSA, a group of WTO members is negotiating on
domestic service regulation,448 following a joint declaration at the WTO Ministerial
Conference in 2017.
The EC in its Trade Policy Review (February 2021) indicates that digital trade is a top priority
and that trade in services is becoming increasingly important.449 In this communication, the
Commission prioritises the WTO negotiations on domestic service regulation. They only
want to advance the liberalisation of services, such as in the context of TiSA, afterwards.
Furthermore, the Commission acknowledges that plurilateral agreements in the context of
WTO are the only way forward for further liberalisation (rather than self-standing economic
integration agreements): covered agreements under Annex IV of the WTO agreement.
Since multilateralisation requires consensus from the entire WTO membership, any such
plurilateral agreement will need to address the interests of a wide range of members in a
balanced manner.
A lesson for WTO members wishing to go further in trade liberalisation and negotiate a
plurilateral agreement in a certain area is to ensure that a critical mass of WTO members is
involved and allow some degree of free-riding to ensure multilateralisation.450
The Information Technology Agreement451 on full liberalisation of the trade in IT products
could offer a good template to build on.
Negotiations on horizontal disciplines for standards, regulations and subsidies in services
that affect all WTO members should preferably take place in open-ended working groups at
the WTO, not in closed meetings among a selective group of countries.452 Whether it will even
be wise – or practicable – to advocate a resumption of the plurilateral TiSA negotiations is, in
sum, questionable.

See wto.org on the discussions on domestic service regulations: https://www.wto.org/english/tratop_e/
serv_e/dom_reg_negs_e.htm
449
EC (2021).
450
If the critical mass of countries making up the majority of the relevant sector participate in the
negotiations and if a high number of countries have to ratify an agreement before it can enter into force,
the minority group (of free riders) will not really affect the balance in reciprocal market openings and
global trade much – and in the case of poorer developing countries their profiting could even be
welcomed.
451
See https://www.wto.org/english/res_e/publications_e/ita20years2017_e.htm.
452
‘Since FTAs are fundamentally structured around discrimination between participants and nonparticipants, they are not conducive to being integral to global rulemaking. […] The fact that TISA is an FTA
makes its path towards global rules a non-transparent process’, as stated in Natakomi and Michitaka
(2015).
448

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6.4.2

Dutch positions and influence

Although there is not much robust information on the formal Dutch position expressed in
the EU on TiSA and on the Dutch influence on the EU offer of 2016, this study has shown that
the Netherlands was engaged in the topic and took an active interest in promoting market
access for its service providers in third markets. In line with the comparative advantages of
the Netherlands in services and the general desire to achieve an ambitious outcome,
it prioritised the promotion of market openings for Dutch companies abroad, including for
its digital service providers. The protection of its own public sector and safeguarding the right
to regulate domestically (which were arguably not at risk under TiSA anyway) were not
priorities in TiSA – and understandably so.
Overall, the Netherlands seems to have aligned itself with EU positions, even though it
sometimes started from a more ambitious or more liberal position. Dutch interventions do
not seem to have resulted in outstanding achievements, except perhaps when it comes to
including an EU protocol on the return of temporary workers into the EU offer. This is
significant because as negotiations on TiSA were stalled, we are unable to tell whether Dutch
priority positions would have achieved success beyond the phase of agenda-setting,
influencing the EU position and being integrated into the EC’s negotiation mandate.
However, it is safe to say that the Dutch position probably allowed the Commission to arrive
at a more balanced position where offensive interests outweigh defensive interests, which fits
with the desire of the Netherlands and the EU to have an ambitious TiSA negotiated between
like-minded WTO members.

6.5 Recommendations
• Often, Dutch policy objectives and positions were not spelled out in instructions or other
communications. For reasons of clarity, consistency and policy coherence it would be
preferable to formulate Dutch positions on (a future) TiSA more explicitly and update them
when circumstances change. For future negotiations on trade and investment agreements,
it would be good to draft clear policy objectives and/or systematically record the Dutch
position.
• Make the Dutch position public wherever strategic interests allow it, in order to live up to
the political commitment of transparency. Consult all stakeholders, including civil society,
on a regular basis – not just the business sector.
• For the sake of policy coherence, integrate relevant priority policy goals and commitments
more systematically into Dutch positions, including in negotiations on the services sector.
For instance, if the interests of least-developed countries, gender and labour rights are top
priorities for trade agreements, come up with proposals for texts or other ways to promote
these issues. In the same vein, ensure (or continue to ensure) that cabinet positions on
trade and development are aligned and harmonised. It would help to establish an
up-to-date assessment framework to identify and manage trade-offs and to foster
synergies.

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7
Investment protection and
investor duties

Trading interests and values

7.1 Introduction
Almost every country welcomes foreign direct investment (FDI) and deploys financial and tax
incentives to attract it. Few governments, however, accept legal commitments to open their
market and few offer legal protection to foreign investors beyond their treatment of domestic
investors. Most capital exporting (home) countries therefore seek additional legal protection
for their own direct investors in third countries through investment agreements, especially if
the rule of law in the host country is considered deficient and is not compensated by market
advantages.
In the past, investment protection was dealt with primarily in bilateral investment
agreements or treaties (BITS), mostly between Northern (OECD) and Southern countries.
OECD countries usually did not conclude BITs among themselves, because they trusted each
other’s rule of law and followed OECD guidance.453, 454 In bilateral investment agreements,
governments agreed on rules on how to treat direct investors and created direct access for
those investors to international arbitration in case of disputes.
However, from 1996 onwards, OECD countries attempted to negotiate multilateral
investment disciplines – on both protection and new market access – in the WTO. Until now,
these multilateral negotiations have not been successful, primarily due to a resistance of
developing countries to negotiate and accept binding disciplines in this area.455 This lack of
success is due to several issues, such as the lack of balance between foreign investors’ rights
and duties, the ‘intrusive’ nature of FDI and tensions regarding the right to regulate by
governments, as well as the opaque nature of investor-state dispute settlement (ISDS)
arbitration panels. Some countries, led by the EU, have sought to improve ISDS by setting up
a more permanent and transparent international investment court system (ICS), as part of
comprehensive free trade agreements (FTAs) and investment agreements. In the longer term,
the EU aims to set up a multilateral investment court (MIC), which would replace all
Investment Court Systems.

An effort in the Organisation for Economic Co-operation and Development (OECD) in the 1990s to
negotiate a comprehensive multilateral agreement on investment (MAI) foundered primarily on
disagreements about enlarging market access in sensitive sectors.
454
The OECD used to have around 30 mostly Western members, nowadays there are 38. There is no uniform
mechanism for investor to state dispute settlement (ISDS); there are over 3,000 bilateral investment
agreements and they each have their own provisions. These usually guarantee that a foreign investor can
start international arbitral proceedings (ISDS) against the host state’s legislative, executive or judicial
measures if the investor considers they are incompatible with the agreement. An ad hoc tribunal, usually
under the ICSID Convention, can then be requested by the complaining investor. Now that Southern
economies have grown and become more assertive, and now that investment treaties have been
negotiated between OECD countries, either as part of comprehensive FTAs or the Energy Charter Treaty,
ISDS has become more important and more controversial.
455
OECD countries are also getting cold feet because of societal pressure and security concerns, while some
are now also facing legal challenges from foreign investors in sensitive policy domains.
453

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Box 7.1 Main aspects ICS and MIC456

What is an investment court system, such as the EU envisages456 (and how does it
differ from traditional ISDS)?
It is a permanent court (instead of the temporary, ad hoc tribunals that are used
under ISDS), established under the jurisdiction of the covered BITs that provide the
ICS with this legal authority.
It is accessible to foreign investors. An ICS is made up of a Tribunal of First Instance
and an Appeal Tribunal (in contrast to ISDS where there is no possibility for appeal).
The ICS Tribunal of First Instance is endowed with professional and independent
adjudicators.
It will work transparently by opening up hearings, publishing documents and
allowing interested third parties to intervene.
A multilateral investment court would be a permanent body, established by a
multilateral treaty with a dedicated secretariat, open to foreign investors of participating countries where interested countries can join at a later stage.

Throughout the reporting period, the Netherlands tried to influence EU positions on
investment in negotiations on comprehensive EU FTAs and free-standing investment
agreements as well as in UNCITRAL457 discussions on ISDS reform. Broadly speaking, the
overall policy objectives in the field of investment protection were, first, to set up an
investment court system that is fair, transparent, independent and offers the possibility of
appeal. Second, to provide a modernised blueprint for bilateral investment agreements –
the Model BIT – that also refers to the set-up of such a modern ICS system and contains
provisions on the promotion of responsible business conduct, human rights and sustainable
development.
This chapter deals with the Dutch position on the treatment of FDI in intergovernmental
negotiations and its influence on the EU position on these matters, given that almost all

456
457

Source inter alia: EC (2019); EC (2021b).
United Nations Commission on International Trade Law. The Netherlands actively supported the EC in the
multilateral negotiations in the UNCITRAL working group III on Investor State Dispute Settlement Reform,
which exists since around 2017. The EU is not a formal member of UNCITRAL (a UN body), but does
negotiate in this setting on behalf of the EU and the member states. For more information see: https://
uncitral.un.org/en/working_groups/3/investor-state; Source: European Parliamentary Research Service
(2020b).

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Trading interests and values

aspects of investment protection were conferred to the EU under the Lisbon Treaty.458, 459
This chapter and its annex will also discuss how some agreements attempt to enhance the
contribution of FDI to sustainable development in host countries, which the Dutch cabinet
aimed to promote, as part of a coherent trade and investment policy.
In this chapter, we will sketch the economic and legal context of investment agreements and
explain why this topic is relevant to the overall Dutch strategy on trade and investment.
Second, we will address the priorities of the Netherlands in the research period, including the
promotion of responsible business conduct. More specifically, we will focus on the Dutch
position on (1) the change towards a reformed international system for dispute settlement
and the plan to set up a multilateral investment court, and (2) the new Dutch Model Bilateral
Investment Treaty (BIT), introduced in 2018, which can be seen as the clearest expression of
changed Dutch priorities. Third, we will try and analyse the extent to which the Netherlands
was successful in putting those issues on the policy agenda and in achieving its preferred
policy outcomes.
Legal treatment of investment in international agreements
Investment protection agreements, such as the bilateral investment treaties, intend to
protect international investors against the risk of expropriation or nationalisation by the host
country, as well as guarantee free transfer of capital and a ‘fair and equitable treatment’ of
investors. Nowadays, investment agreements are not only negotiated between developed and
developing countries, but also among developed regions and OECD countries.
Investor State Dispute Settlement panels have, over time, come up with extensive
interpretations of the concept of ‘fair and equitable treatment’ in BITs. These interpretations
went beyond the national treatment of domestic investors and resulted in some controversial
rulings and huge financial settlements in favour of investors. OECD countries tried to
negotiate investment protection and market access in the WTO as one of the so-called
Singapore issues.460 While this attempt was initially successful, these issues were later

This chapter builds on the investment case study in the background report by Ecorys (2021).
The Court of Justice of the EU ruled in Opinion 2/15 that almost all aspects of investment protection except
for non-direct investment and investor-state dispute settlement are conferred to the EU under the Treaty
of Lisbon. EU member states are allowed to continue negotiating and concluding new BITs, or
renegotiating and amending existing ones, only with explicit consent of the Commission under Regulation
1219/2012, i.e. the EC consents if there are no agreements or negotiations ongoing by the EU itself.
460
The ‘Singapore issues’ refers to the WTO Singapore Ministerial Conference in 1996 that set up three new
working groups, on trade and investment, on competition policy and on transparency in government
procurement. The fourth issue concerns ways of simplifying trade procedures, or ‘trade facilitation’.
The issues were initially part of the negotiations on the Doha Development Agenda of 2001.
458
459

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Trading interests and values

dropped at the insistence of developing countries.461 In this context, it is good to note that
developing countries prefer traditional state-to-state dispute settlement: they seem to accept
ISDS and ICS only when they do not have enough political clout and economic leverage
(resulting in negotiating power) to stick to intergovernmental settlement of disputes.
The stalemate in the WTO led to investment issues being increasingly covered in negotiations
on comprehensive free trade agreements, including in those by the EU. Main motives in the
EU to improve the existing system, both in substance and in arbitration procedures, included
the desire to enhance its legitimacy and stability and to safeguard the right of states to
regulate – and thus perhaps improve the chance of approval of investment agreements by
critical national parliaments. However, several infamous arbitration rulings under existing
BITs and NAFTA,462 as well as public pressure (especially against ISDS in the context of the
failed TTIP463 negotiations) led an increasing number of OECD countries to consider ways of
recalibrating the international investment regime.464
Relevance of ISDS and ICS to the overall Dutch strategy on trade and investment
The topic of investment protection is of particular interest to the Netherlands, first because of
its role as home state of many MNEs and its responsibility for its extensive network of BITs.
The Netherlands has around 90465 bilateral investment protection agreements. As a result,
a considerable part of all arbitral procedures were litigated under Dutch BITs.466, 467 Possible
reasons are the important position of the Netherlands as a provider and recipient of FDI and
the fact that the Netherlands is the seat of a disproportionate number of MNEs and special
interest vehicles (so-called letterbox companies or special purpose entities). Dutch BITs used
Treatment of FDI and market access is partly covered for service sectors under mode 3 of the GATS
agreement for services, but few countries have made significant market opening commitments. Dispute
settlement under GATS is only intergovernmental and not accessible for investors. Though negotiations on
investment were originally part of the 2001 Doha agenda, this ‘Singapore’ issue was later removed from
the negotiating agenda at the 2003 WTO Ministerial Conference in Cancun. Negotiations on a Multilateral
Investment Agreement seem to have failed around 1997-1999 due to lack of political leadership, lack of
support from the business community and opposition by NGOs (source: Institute for International
Economics (2000)).
462
North American Free Trade Agreement (1994) between Canada, Mexico and the United States.
463
The proposed Transatlantic Trade and Investment Partnership between the US and the EU.
464
Concerns by parties in the UNCITRAL Working Group III on ISDS reform were: a) consistency, coherence,
predictability and correctness of arbitral decisions; b) integrity of arbitrators and decision-makers; and
c) cost and duration of ISDS disputes.
465
The UNCTAD international investment agreements navigator mentions, in January 2021, 107 bilateral
agreements, of which 15 were terminated and 5 signed but not enforced – so 87 are active (UNCTAD
(2021a)); various sources including MFA letters to parliament mention that the Netherlands has around
90 bilateral agreements. The government’s website mentions 95 current agreements, but it includes
9 which are no longer in force and one which is not yet in force; their list is dated 15 October 2020.
(Rijksoverheid (2020)).
466
A study by UNCTAD in 2015 found that the Netherlands was involved in 11% of all ISDS procedures.
The study was not really made public (although Parliament was free to read it) but the report was briefly
summarised in letter to parliament nr. 2313 of 20 May 2015. It found that 61 of a total of 552 cases until
2013 stated the Netherlands as home state of the investor/company concerned. In mid-December 2020,
the UNCTAD website listed 114 cases since 1996 (again, almost 11% of 1061 cases) (UNCTAD (2021b)).
467
Adviesraad Internationale Vraagstukken (2015).
461

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to be known for their investor friendliness. At the same time, the Netherlands was also
attractive as a conduit country for fiscal planning reasons.468 In addition, Dutch BITs
(like other countries’ BITs, for that matter) are not required to exhaust domestic legal
remedies before submitting an ISDS claim, and still have easy substance requirements for
establishment in the Netherlands, thus providing legal protection under the BIT.469
This situation raises questions around policy coherence and the balance between rights and
duties of investors (which we will revert to in an annex to this chapter). BITs typically do not
set out the duties of international investors beyond the requirement that they shall comply
with domestic laws and regulations of the host state, including laws and regulations on
human rights, environmental protection and labour laws. As enforcing such laws
domestically is often a problem in developing countries, OECD countries started spelling out
expectations of behaviour for their investors, based on international guidelines, standards
and principles of duty of care and due diligence470 around responsible business conduct,
sustainable development and human rights. With some notable exceptions,471 such
expectations of behaviour have not yet been integrated into regulations for the MNEs by the
home state of the direct investors.472

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Arcuri and Verbeek (2019) pointed out that the Netherlands was the top investor in 2018 and the second
largest recipient of FDI in 2018, and that it is also ‘the world’s biggest conduit country, used for channelling
funds to… tax havens’, citing research by the University of Amsterdam. ‘The country offers an attractive
fiscal climate by offering low withholding taxes on dividends, royalties, interest and capital gains income.
The relatively weak substance requirements under Dutch law enable multinational corporations to set up
holding companies, including letterbox companies and Special Purpose Entities’. Other sources including
the Dutch government, OECD and media confirm the investor friendliness of Dutch BITs. They confirm that
fiscal policies were designed to attract foreign companies, in particular MNEs and that the Netherlands is
more accommodating than other (European/Western) host states. ‘Their [i.e. Dutch BITs] investor-friendly
nature stems from their typically broad scope of application, general lack of balance and unrestricted
access to ISDS’, according to Arcuri and Verbeek (2019).
469
More than three quarters of claims submitted under Dutch BITs were actually brought by non-Dutch firms
with little or no substantial economic activities in the Netherlands, so-called ‘letterbox companies’.
Dutch BITs may have enabled some foreign investors to circumvent their own national legal systems by
allowing them to submit investment disputes with their own government directly to international arbitral
tribunals. For an overview of cases brought under Dutch BITs, see https://investmentpolicy.unctad.org/
publications/135/treaty-based-isds-cases-brought-under-dutch-iias-an-overview. Arcuri and Verbeek
(2019) state that of the investors submitting claims, only 13% are in fact Dutch. They give several examples
of claims where Dutch BITs have been used to promote a company’s narrow self-interest to challenge host
states’ policies and legislation.
470
In the context of responsible business conduct, due diligence is ‘the process enterprises should carry out to
identify, prevent, mitigate and account for how they address … adverse impacts in their own operations,
their supply chain and other business relationships. The purpose of due diligence is first and foremost to
avoid causing or contributing to adverse impacts on people, the environment and society, and to seek to
prevent adverse impacts directly linked to operations, products or services through business relationships’.
Source: OECD (undated). https://www.oecdguidelines.nl/oecd-guidelines/due-diligence-guidances
471
Nowadays, there exists EU regulations on conflict minerals, non-financial reporting, corruption and fraud.
472
This chapter will not be dealing with the negotiations on the UN Binding Treaty on Transnational
Corporations with respect to Human Rights. For more information see https://bindingtreaty.org/.
468

Trading interests and values

Starting around 2013, the Netherlands raised its profile as an advocate for such standards and
principles in the enhanced OECD Guidelines on RBC for MNEs,473 motivated by a desire to
promote global public goods, but also to create a global level playing field among
multilateral companies. In 2018, the Netherlands adopted a Model BIT, meant to serve as the
basis for updating Dutch bilateral investment agreements, but also as an example for other
countries. This Dutch Model, which is described below in some detail, went beyond the
positions and ambitions of the EU on modernising the ISDS and advancing the promotion of
RBC, human rights and sustainable development by foreign investors.

7.2 The Dutch position on investor-state dispute settlement
7.2.1

Investment court system

The Netherlands, the EC and other member states such as France and Germany tried to
improve the ISDS both in substantial provisions and process, by defining more clearly
(1) when a host state acts illegally or discriminates against foreign investors by not extending
‘fair and equitable treatment’ to them; (2) defining more clearly when a host country
government exercises its right to regulate in its own jurisdiction legitimately, for instance
when protecting the public interest, public health or the environment; and (3) limiting the
eligibility of foreign investors and investment categories to protection to prevent treaty
abuse.
In terms of process, the Netherlands and the EU also tried to improve the procedures of the
current arbitration system based on ad hoc panels established under the ICSID474 Convention:
by improving the quality and independence of arbiters, improving consistency in the
interpretation of provisions in investment agreements, increasing the transparency around
settlements and procedures, and promoting the establishment of a standing investment
court system. Finally, the Netherlands also attempted to promote a more level playing field
for developing countries by, first, funding technical assistance by UNCTAD for governments
negotiating contracts with MNEs and, second, by taking the lead in initiatives to establish a
legal support facility for developing countries challenged by investors under the international
system.475
Moving from ISDS to ICS
Following public and political criticism around the TTIP negotiations, in 2014 Minister
Ploumen commissioned research to assess ‘the impact of investor-state-dispute settlement in

For more information see https://www.oecd.org/corporate/mne/responsible-business-conduct-matters.
htm
474
The ICSID Convention deals with the settlement of investment disputes between states and nationals of
other states.
475
For instance, the Netherlands supported the establishment of an advisory centre on international
investment law (ACIIL), inspired by the Advisory Centre on WTO Law (ACWL), which has been operating
since 2001 in WTO dispute settlement.
473

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Trading interests and values

the TTIP’.476 She noted the following priority areas for improving the system, which were
similar to the priorities for change that the European Commission had identified:
• Adding filters to limit the accessibility of ISDS and avoid frivolous claims by foreign
investors (in response to the fear that such investors unduly get direct access to
international arbitration, while domestic actors do not);
• Guaranteeing policy and regulatory space for the government parties involved (in response
to the fear that states would be limited to draft new policies and legislation);
• Limiting and clarifying the scope of covered investments to avoid abuse, excluding
letterbox companies lacking an economic relationship with the Netherlands (setting
substantive requirements), formulating clear standards and inserting a ‘limited umbrella’
clause477 to ensure that not all policies and legislation could be contested;
• Improving the procedures for arbitration: increased transparency and avoiding conflicts of
interest of appointed arbiters (in response to the criticism that information about claims
and settlements was not complete, and that arbiters could be double-hatted, were not
diverse enough and had too much power to interpret investment agreements);
• The possibility to appeal panel rulings, to receive proper legal protection for both states
and investors and to have more consistency in rulings.
From 2015, the Netherlands promoted the change from ISDS to ICS, including the possibility
of appeal and independent, well-qualified arbiters.478 Minister Ploumen stated that legal
security for international investors was an essential precondition for a reliable international
trade and investment regime. The motivation for the establishment of an ICS was the desire
to modernise the current system and make it more transparent, as well as to improve the
consistency, legitimacy and independence of arbitration.
The minister, together with the ministers for Trade of Germany, France and some other EU
member states played an active part on this issue. They tabled a paper in May 2015 on
references to ISDS in the CETA negotiations with Canada, which informed the position EU
Commission and other member states.479 In addition to the points above, the paper
highlighted the need to maintain states’ rights to protect core European values, ‘such as
respect for human dignity, liberty, democracy, equality, the rule of law and respect for human
rights, protection of health, safety and the environment, as well as cultural and linguistic

Letter of 25 June 2014 by Minister Ploumen explaining the study and Dutch positions (Tweede Kamer,
vergaderjaar 2013–2014, 21501 02 nr. 1397). The researchers were from Halle and Leiden universities as well
as Ecorys.
477
The ‘limited umbrella clause’ means that not all provisions of a bilateral investment treaty should
automatically apply to all policies and commitments by the state party. An umbrella clause is a provision in
a BIT by which a state agrees to comply with all of its obligations owed to foreign investors. An umbrella
clause can be highly advantageous as it may allow the investor to argue that issues ordinarily governed by
local law and jurisdiction can also be characterised as a breach of an investment treaty obligation.
Therefore, the investor may be able to elevate all of its disputes with the state to the international forum
under the protective umbrella of the BIT. Source: LexisNexis (2020).
Substantive requirements were promised after international discussions on investment protection,
alongside responsible business conduct requirements for investors.
478
The introduction of an ICS still allows investors to have direct access to the international judicial system,
albeit a better system with more guarantees for quality, independence and transparency.
479
EU Member States’ non-paper (2015).
476

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Trading interests and values

diversity, media freedom and media pluralism’.480 The Netherlands and the EC also promoted
improvements to ISDS and references to an ICS in cooperation with like-minded stakeholders
outside of the EU, including with Canada around the time of the CETA negotiations, and
including during the Dutch presidency.481 In sum, the Netherlands showed a serious effort to
reform the investment dispute settlement system.
Dutch input and consistency in technical EU meetings; a case-by-case approach
The EU positions on trade and investment matters are prepared at a technical level, in the
Trade Policy Committee. In those meetings, the Netherlands often retained the same position
over long periods of time, without adjusting it to changing circumstances in FTA
negotiations. The position most commonly expressed in instructions – 46 times over less
than two years in 2015–2017 – was that the Netherlands insisted on texts on a modernised
system (ICS). The Netherlands was also part of a group of around 14 like-minded, liberal
member states who consulted on a regular basis on the eve of TPC meetings that dealt with
services and investment. Note, however, that capacity for this issue was limited, with basically
only one person in The Hague dealing with investments, apart from the period during which
the Netherlands held the presidency. 482
The Netherlands only considers it necessary to move towards ICS, as an improved dispute
settlement system for foreign investors, when justice is less secure than in the Netherlands or
the EU, basically in countries outside the group of traditional OECD members. Meeting
reports and interviews indicated that this position was shared by the rest of the EU. This
position was expressed in the case of Australia and New Zealand, for example.483 Access to the
national courts is seen to offer adequate legal protection for the direct investors of the
partner country. This Dutch position was explained in a TPC meeting group in 2018,484 for
example, and it was also confirmed in an interview by IOB in 2021.485 The Netherlands – like
Germany – effectively had a pragmatic approach to investment protection, deciding whether
to insist on ICS on a case-by-case basis. However, in some cases a reference to ICS was part of
the EC’s negotiation mandate and in the case of CETA, while the rule of law in Canada was
adequate, a reference to ICS was still included. In any case, the Netherlands made it clear that
it could not accept references to the outdated ISDS – only to ICS.

Ibid.
Berichtenverkeer (2016a); Berichtenverkeer (2016b); Berichtenverkeer (2016c); Europa - EU Raadswerkgroep - Handel - Verslag TPC SI 25 January 2017.
482
Interview with policymaker at the MFA and e-mail message (2021). During the presidency, one extra person
was available for investments (as well as one for services); the TPC SI team only consisted of four people in
that period.
483
Several instructions for the TPC contain such texts; more specifically: IRHP 2017-36b Handleiding TPC
plaatsvervangers 7-12-2017; IRHP 2018-02b Instructie TPC plaatsvervangers 19-01-2018; IRHP 2018-06b
Instructie TPC plaatsvervangers 16-02-2018; Handleiding voor TPC leden Plv, Australie en Nw-Zeeland
7-12-2020.
484
Germany explained in April 2018 in an internal EU meeting that the EU needs to consider whether
addressing investment protection is necessary, and if so, whether it should be in a separate agreement or
not. The Netherlands supported Germany. (IRHP 2018-11c TPC Verslag Attaches 4 April 2018).
485
Interview with policymakers at the MFA, held on 6 January 2021 and 22 March 2021.
480
481

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Trading interests and values

In 2017 and 2018, the Netherlands stated486 about EU Free Trade Agreements with third
countries in general that it would be unable to accept the old system for investment
protection (i.e. ISDS) in the context of the FTAs that the EU negotiated at the time (i.e. with
Mexico and Vietnam).487 Throughout 2017, Dutch instructions at the working level confirmed
that a compromise on ISDS – i.e. mentioning ISDS instead of ICS – would not be
acceptable:488 no mention of ICS in an agreement was better than a mention of the outdated
ISDS.489
In 2015, an earlier Dutch instruction to the TPC working group stated that CETA and TTIP
negotiations were too important to be held up by disagreement on improving the ISDS
system. In the same vein, in 2017 the Minister for Economic Affairs told Parliament that he
would rather have an agreement on a comprehensive FTA with Japan without reference to ICS
than not have an agreement at all.490 Instructions to TPC give the impression that the
minister’s statements necessitated a change of the formal Dutch position in TPC.491
The fact that the Netherlands and the EU did not insist on introducing investment protection
chapters and in particular the investment court system in comprehensive free trade
agreements, raises the question whether the desire to reform the investment protection
system is essential or not. One can also ask to what extent economic self-interest is a reason
to drop references to ICS, when ICS is part of the EC’s negotiating mandate but negotiating
partners reject it.492 Perhaps the emphasis on the inclusion of an investment protection
chapter including ICS depends not only on the quality of the rule of law in the countries
concerned (as was said to be the case with Australia and New Zealand), but also on whether
economic interests outweigh the desire to include ICS.493
Two negotiating processes which were concluded after the reporting period also lack a
substantial reference to an ICS (reaffirming IOB’s doubts about how essential the issue is):
the draft EU–China Comprehensive Agreement on Investment (CAI), agreed in principle on
Based on analyses of the TPC meetings of 2017 and the annexes to Tweede Kamer, vergaderjaar 2017-2018,
33 625, nr. 265.
487
See BDI (2020) and its map with EU FTAs.
488
TPC instructions for 2017 in general, and more specifically: IRHP 2017-04b Handleiding Plv 3 February 2017;
IRHP 2017-13c TPC Verslag Plv 21-04-2017; IRHP 2017-32b Handleiding TPC Leden 27 October 2017;
IRHP 2017-35b Handleiding TPC plaatsvervangers 1-12-2017.
489
Source: interview and reference group, BEB.
490
This was one of the instances where political statements suggested more ambition than was expressed at
the technical level – here, the political level (the Minister of Economic Affairs) indicated a willingness to
drop ICS before instructions reflected that.
491
Tweede Kamer (2017); various instructions for the TPC in 2017, i.e. IRHP 2017-22b Handleiding Leden
5 July 2017.
492
Such an approach can be seen as pragmatic. Evidence for a pragmatic EU position was also found in the
context of a TiSA, in technical meeting reports of 2016, when it was suggested that the EU was hesitant to
push for a modern investment dispute settlement mechanism and an appellate body because it might
delay or stall negotiations.
493
Although it happened beyond the reporting period, we note that also in the draft EU FTA with the UK,
in December 2020, no specific provision was made for the resolution of disputes between investors and a
party by an international arbitral tribunal. (Source: Fiettalaw (2020)).
486

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30 December 2020, as well as the EU free trade agreement with Japan and discussions on
an investment protection agreement with Japan. In the case of China, a placeholder, or
rendezvous clause, on addressing ISDS was inserted for negotiations in two years’ time.494, 495
Support to developing countries and SMEs
The Netherlands – the relevant minister as well as Parliament – attached importance to
extending support to developing countries to be able to participate in ISDS and in a future
dispute settlement regime. In addition, it wanted to assist small and medium-sized
enterprises (SMEs) to access the court, by reducing costs and providing information. To this
end, the MFA initiated and funded a scoping study in 2019 on securing adequate legal defence
for developing countries in proceedings under international investment agreements as well
as on an Advisory Centre on Investment.496

7.2.2

A multilateral investment court

From an ICS to a MIC
A disadvantage of establishing an investment court system under the joint umbrella of
different comprehensive FTAs or bilateral investment agreements is that a whole set of
different investment courts will have to be established (one for each EU FTA, as long as there
is no multilateral court) and judges will have to be retained (paid, while there often is little
actual work). With different substantial provisions on investment protection in the
underlying bilateral agreements, having a set of unconnected ICS courts retains the risk of
inconsistent rulings and no finality on similar disputed matters, in the absence of an overall
appellate body.497 It can also be quite expensive for governments to retain and pay judges on a
full-time basis in order to safeguard their independence. Setting up a permanent multilateral
court in the context of a multilateral investment treaty could solve these problems.
A permanent court accessible to private investors could apply to multiple investment
agreements and between different investment partners, if parties chose to do so.
On 30 December 2020, the EU and China concluded in principle a Comprehensive Agreement on
Investment (CAI). The text includes a ‘commitment by both sides to try to complete negotiations on
investment protection and investment dispute settlement within two years of the signature of the CAI.
The common objective is to work towards modernised protection standards and a dispute settlement that
takes into account the work […] in the context of UNCITRAL on a Multilateral Investment Court, according
to the Commission. The EU’s objective remains to modernise and replace the existing member states’
Bilateral Investment Treaties with China’. Source: EC (2020a).
China has emphasised the right of the parties to appoint arbitrators, while the EU favours full-time
appointed arbiters. Source: European Parliamentary Research Service (2020a).
495
‘The EU–Japan EPA was implemented on 1 February 2019. Negotiations continue separately for an IPA with
Japan. While the substantive provisions have been agreed, the procedural ones (ICS) are still not accepted
by Japan. The last discussions on the IPA took place on 20-22 March 2019 […]. For the time being,
no further discussions are foreseen’. Source: EC (2020b). In July 2018, Minister Ploumen in a letter on policy
coherence wrote to parliament that ‘The Netherlands cannot assent to any agreement that includes the
old system of investment protection’ and that no agreement was reached with Japan due to the
differences on ICS (Government of the Netherlands (2018)).
496
Columbia Centre for Sustainable Investment (2019).
497
Because of a lack of clear jurisprudence, a lack of quality assurance in particular regarding consistency and
the absence of the possibility of redress. A multilateral court with an appellate body could prevent that.
494

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The Netherlands officially sees the investment court system as a transition phase in the
process of eventually setting up a MIC. The same position is held by the EU as a whole. The EC
declared that a permanent international investment court would lead to a ‘modern, efficient,
transparent and impartial system for international investment dispute resolution’. A MIC
could be set up either (1) as a self-standing international body in the context of a multilateral
investment treaty that also covers substantial provisions on investment protection, or (2) by
embedding it into an existing multilateral institution. Inserting it into the WTO is not likely,
though, given the resistance of developing countries to cover investment in a WTO
agreement, as well as the reluctance of almost all WTO members to adapt the current
intergovernmental character of dispute settlement in the WTO and allow access to private
investors.
Dutch input in meetings: political support and pragmatism
On the proposal to set up a multilateral investment court, the official position was that the
Netherlands strongly supported it. This was in line with the EU’s position and remained the
same over several years. At the same time, the Netherlands did, again, show pragmatism in its
position.498
The Netherlands participated in discussions in the context of G20 and OECD on a MIC.
In 2017, Minister Ploumen reaffirmed the need for consistency, independence and legitimacy
of a MIC, the importance of access for non-state actors other than investors, as well as the
need for a pool of diverse, highly qualified judges. By 2018, the Commission had been given a
mandate for the negotiations on a MIC.499 In 2019,500 Minister Kaag, Ploumen’s successor,
reiterated that the Netherlands is very much in favour of a MIC, as part of a functioning
multilateral trade and investment system.
On the other hand, interestingly, IOB learned that policymakers are expressing doubt about
the feasibility of a MIC and favour pragmatic solutions. First and foremost, because it seems
unlikely that the UNCITRAL negotiations will produce a text for a multilateral treaty in the
near future that could be ratified by a substantial number of countries, including the major
home and host countries of FDI. In addition, a permanent multilateral court would be very
expensive to set up and maintain. The current effort to promote a MIC will probably remain
an aspirational objective only.501 Perhaps it could, in the medium term, trigger a push towards
a reformed and modernised ISDS system under the ICSID convention, as a second-best
option. Although this might not be the ideal outcome for the Netherlands, it could be an
acceptable solution, given that the ultimate objective of the European (and Dutch) position

In late 2017, Dutch instructions were to ‘remain flexible’ in the mandate to be given to the Commission on
this topic, but this allegedly meant to give the EC room for manoeuvre. Source: 20171122 Verslag TPC SI 22
November 2017 and comment by BEB/reference group.
499
Negotiating directives for a convention establishing a multilateral court for the settlement of investment
disputes. Source: Council of the European Union (2018).
500
In a debate in Parliament of 19 March 2019. Tweede Kamer, vergaderjaar 2018-2019, 34 952, n. 58.
501
Interview with policymaker from the MFA.
498

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to change the form and procedures of the system was, of course, to improve the substance
and quality of ISDS.502

7.2.3

Bilateral investment treaties

As mentioned in the introduction, the Netherlands has an extensive network of BITs,
which foreign investors established in the Netherlands have gladly made use of to access
the international system for dispute settlement.
With the adoption of the Lisbon Treaty, negotiations with third countries on substantive
standards of investment protection became the exclusive competence of the EU with the
Commission as its negotiator; however, ISDS procedures and the treatment of non-direct
(portfolio) investments remain a shared competence, as determined by the European Court
of Justice, requiring ratification of investment agreements that contain such aspects by
member states’ parliaments.503 If member states want to update or modernise their own
bilateral investment protection agreements with third countries, they need to obtain
permission from the EC to start negotiations and to conclude an agreement. Such permission
is granted only if the EU is not negotiating its own agreement with the countries concerned
and is not planning to do so.
Updating agreements in line with the Dutch Model BIT
In practice, member states align the text of any new draft agreements with the text of EU-led
investment agreements, although they can be more progressive in areas such as sustainable
development or due diligence obligations of investors, as the Netherlands has shown.
Based on the EU position on an ICS in 2015, the Netherlands decided to renegotiate some of
its 90 BITs.504, 505 In 2017, bilateral discussions started with Ecuador, Argentina and Burkina
Faso.
In May 2019, the Netherlands was authorised by the EC to negotiate updated agreements with

This was confirmed by an interview with a policymaker. Whether the European Parliament and national
parliaments will accept any ‘second-best’ improvements in ISDS or accept maintaining the current ISDS in
new EU investment agreements, remains to be seen, however.
503
The Netherlands was initially among the member states that argued that bilateral trade agreements
should remain a national competence, even after the Lisbon Treaty. However, the ECJ ruled differently.
Opinion 2/15 of the ECJ concludes that in addition to the European Parliament, each member state
(27 parliaments in total) needs to ratify every FTA that involves portfolio investment and ISDS procedures.
In practice, the requirement for national parliaments to co-ratify investment agreements has caused much
delay and even seems an obstruction; for instance, the Dutch Senate still has not ratified the CETA
agreement with Canada. See also European Commission (2017b).
504
Some, though not all, because member states are only allowed to renegotiate with countries that the EU
does not have an agreement with. Also, for practical reasons and capacity constraints, the Netherlands had
to limit its efforts to important partners. The number of Dutch BITs differs a bit depending on the source
you consult: AIV (2015) mentioned ‘around 90’ and the government’s website in 2021 mentions 95 bilateral
agreements (of which 10 are not in force). The UNCTAD website gives an overview of current and expired
BITs of the Netherlands, listing 107 BITs in 2020, of which 15 had terminated and 5 were signed though not
yet in force.
505
AIV (2015).
502

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10 countries. The list includes Iraq, Nigeria, Qatar, Tanzania, Turkey, Uganda and the United
Arab Emirates.
The Dutch Model Bilateral Investment Treaty (2018) serves as a basis for the negotiations with
these countries. This model text was drafted in line with the ambition of Minister Ploumen to
play a leadership role in the field of sustainable investment policy and to achieve a better
balance between the rights and duties of investors and states.506 The text was the result of
intensive public consultations, with civil society organisations, business and arbiters,
as well as other ministries. Comments from the wider public were also encouraged in a
comprehensive and transparent process. This included an internet consultation, where 1,657
reactions were received.507 Parliament was engaged as well. In October 2018, the Netherlands
adopted the new model text.508
The text aims to make direct investments more sustainable and to depoliticise potential
conflicts.509 Moreover, it introduces new definitions of investor and covered investments,
more comprehensive provisions on fair and equitable treatment of foreign investors as well
as changes to the traditional ISDS system. It introduces principles of investor behaviour and
expectations regarding sustainable development510 and responsible business conduct,511
aligned with the OECD Guidelines for MNEs on responsible business conduct.512 According to
UNCTAD, innovative elements in the model text are flexibility for policy to prevent anticompetitive practice, a provision to promote the rule of law, including the protection of
human rights, as well as clauses establishing investor liability in the home state.513
More critical voices point to several flaws in the Dutch Model BIT. Scholars Arcuri and
Verbeek, for instance, point out that there are no rules ‘to grant investment-affected
communities the right to initiate a dispute to hold the investor or the contracting party
accountable to their obligations’.514 While this is valid, one should note that citizens normally
never have access to international tribunals for appeal. Critics also state that the new model

Tweede Kamer, vergaderjaar 2018–2019, 34 952, nr. 32. The previous Model BIT was considered outdated
and did not incorporate any provisions on corporate social responsibility.
507
Overheid.nl (2018).
508
UNCTAD (2019a).
509
Tweede Kamer, vergaderjaar 2017–2018, 33 625, nr. 265
510
The model text strengthens the focus on sustainable development, inter alia in a separate section. It refers
to obligations under the multilateral agreements in the areas of environmental protection, climate, labour
standards and the protection of human rights. These obligations relate to multilateral agreements to
which the contracting parties are party, such as the Paris Agreement, the fundamental ILO Conventions
and the Universal Declaration of Human Rights.
511
Article 7 on Corporate Social Responsibility establishes obligations for direct investors to ‘comply with
domestic laws and regulations of the host state, including laws and regulations on human rights,
environmental protection and labour laws’. It affirms the importance of states to encourage investors
operating within their territory or subject to its jurisdiction to incorporate the OECD Guidelines into their
internal policies.
512
MFA (2018).
513
UNCTAD (2019b).
514
Arcuri and Verbeek (2019).
506

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‘reproduces some of the most criticised substantive provisions in Investment Agreements,
such as umbrella clauses’.515
The box below includes the most important provisions that the Dutch government has
highlighted in its communication about the model text,516 including some of the critique.
Box 7.2 Priority elements of the Model BIT, including critique517, 518

The Model BIT is fully in line with Dutch policy priorities and reflects these priorities.
1) The new model text prevents frivolous claims and excludes letterbox companies
from protection.
Critics point out that the text fails to clarify requirements of substantial economic
activities. They note that speculative flows (vulture investors profiting from debts) are not
excluded from protection in this model BIT text.
2) The model encourages due diligence to consider environmental and social
impacts. The text preserves the right of governments to regulate for the public
good, for the protection of health, security, the environment, labour rights,
animal welfare and consumer protection.
Critics point out that communities affected by investments (‘victims’) are excluded from
access to international justice, while investors get direct access. (It should be noted,
however, that citizens normally do have access to national courts, and do not have access
to international appeal systems in other areas either.)
3) Agreements around sustainability and responsible business conduct are made
explicit. Reference is made to human rights, labour rights and ILO conventions.
4) When deciding on compensation, the tribunal can consider non-adherence by the
investor to agreements on the UN Guiding Principles on Business and Human
Rights and to the OECD guidelines for Multi-National Enterprises on RBC. The
arbitral tribunal in determining compensation may take into account the
non-compliance of the investor with these principles and guidelines.
Critics point out that this provision is not enough of a deterrent for bad corporate
behaviour and that umbrella clauses protect investor rights against host state policies, to
the detriment of human rights. Affected communities and states cannot effectively hold
investors to account for human rights abuses and non-compliance with international and
domestic law. Civil society cannot start a procedure either (as with bilateral investment
Ibid.
Sources are inter alia Tweede Kamer, vergaderjaar 2018–2019, 34 952, nr. 32; Rijksoverheid (2018).
In this trade agenda, the MFA highlighted three of these issues: excluding letterbox companies, the right
to regulate and responsible business conduct (numbers 1, 2 and 3-4 in the box here).
517
Main source for these points of criticism: Arcuri and Verbeek (2019).
518
Several parties in Dutch Parliament had advocated for a stronger role for civil society, for instance during a
parliamentary debate in March 2019, see Tweede Kamer, vergaderjaar 2018–2019, 34 952, nr. 58.
515

516

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Trading interests and values

treaties). Stakeholders can only try and influence proceedings as an amicus curiae –
friend of the court.518
5) Investment protection is clarified, including agreements on the principle of
non-discrimination and rules for expropriation.
Critics point out that the mention of ‘legitimate expectation’ of protection leaves room for
undue claims which go against the interests of public health, socio-economic rights and
environmental sustainability.
6) The model text modernises the investment protection system, guaranteeing
independent tribunals appointed by the Permanent Court of Arbitration or the
International Centre for Settlement of Investment Disputes. The model text also
sets ethical and quality standards for arbiters. It introduces the multilateral
investment court and states that the existing ISDS arrangement shall cease to
apply to new cases once a multilateral investment court has been officially set up.
7) Procedures for dispute settlement are more efficient (shorter) and take into
account the needs of small and medium-sized enterprises, keeping costs down.

Obstacles in the negotiations to update the ten BITs519 are as follows, according to a
policymaker involved. First, partners were reluctant to include provisions on sustainability,
the SDGs and gender. This is a serious obstacle given the importance that the Dutch minister
and the Model BIT attach to these topics. Second, it is difficult to define the right to regulate.
In addition, partners are reluctant to improve texts on dispute settlement procedures for
investors, and notably they object to the Dutch proposals for dispute settlement to be fully
transparent. A related obstacle was the difficulty to agree on the appointment of arbiters,
where some partners have a problem with accepting fully independent arbiters. Finally,
defining how to exclude ‘vulture investors’ from claiming full legal protection under the BIT
– in case of a multilateral public debt restructuring – has also been difficult.520 These issues
are key elements of the Dutch position and of the Model BIT.
Issues around enforcement, policy coherence and COVID-19
The model BIT does not contain or ensure enforcement of clauses on sustainability and
human rights (the investors’ duties), nor does it provide recourse or standing for affected
communities and local authorities in case of disputes with a foreign investor: they can only
go through the national system (and eventually state-to-state dispute settlement). This means
that the success of the model in promoting sustainable FDI and enforcing RBC will probably
be limited. The text does not delineate the limits of investor protection (investors’ rights)

The ten BITs are mentioned above, in the first paragraph of this section. Source on the obstacles:
interviewee at MFA, January 2021.
520
A vulture investor seeks to extract value from companies in decline. The goal is to swoop in when
sentiment is low – at a rock bottom price – and take whatever action is necessary to revive the company
and boost profits, usually via hefty cost-cutting exercises such as job layoffs, to sell it for a profit.
519

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Trading interests and values

clearly enough either, because the investors’ ‘legitimate expectations’ can still be interpreted
quite broadly by arbitration tribunals and possibly infringe on domains of public interest.
In the end, policy coherence still risks being an issue. On the one hand, the Netherlands
promotes sustainable development and investors’ due diligence to prevent human rights
violations and abuse through its policies on responsible business conduct. On the other
hand, large MNEs with headquarters in the Netherlands keep enjoying substantial benefits
through the extensive network of Dutch bilateral tax treaties. As an additional benefit, these
companies get direct access to international arbitration when they invest in another country,
if there is a BIT with that country.521 This means that MNEs enjoy benefits in the form of
international legal protection while not contributing much through public tax revenues.
Competing domestic companies, affected communities and NGOs in the host state do not get
such privileges, as explained above. On the other hand, foreign investors cannot be forced to
invest in third countries with an unreliable investment climate. They may require additional
protection, such as offered by BITs, to be persuaded to do so. Host countries that welcome
FDI will have to consider the trade-offs, because attracting no FDI at all is not an option.
We will revisit issues around policy coherence in Annex 6.
In 2020–2021, bilateral negotiations on Dutch BITs came to a halt due to the COVID-19
pandemic. Negotiating partners, especially from developing countries, seemed unwilling or
unable to continue these confidential talks without the possibility of meeting face-to-face.
In light of the issues listed above, the opportunities for actually using the Model BIT as a
blueprint seem rather limited anyway at the moment.

7.3 Extent of policy success
7.3.1

Investment court system and multilateral investment court

The EU has bilateral free trade agreements in various forms with 37 countries, some of which
contain investment protection chapters or provisions. In September 2015, the European
Commission released a proposal522 to reform the dispute settlement system on investment
issues in those agreements. The priorities of the EC in this proposal were very much in line
with the ones of the Netherlands and its like-minded partners as expressed in, among other
things, their joint letter:523 the right to regulate, the possibility of appeal, independent judges
and a modern arbitral procedure. Also, the EC paper clarified the relationship between
national legal procedures and ISDS to prevent investors from going forum shopping and
starting domestic and international procedures at the same time, looking for the most
favourable legal system. Similarly, the negotiating mandate of the EU for a multilateral
investment court – which built on earlier positions regarding an ICS – was also fully in line
with the Dutch position.
The Dutch Model BIT text contains substantive requirements so that not just any company (letterbox
company) gets access to international arbitration, but updated BITs have not yet been concluded.
522
European Commission (2015).
523
EU member states non-paper (2015).
521

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The Netherlands and France were the countries that put forward their ideas on the reform of
the dispute settlement system most proactively, before the Commission formalised its own
position. Given that these ideas were in line with the policy position of the Commission, it is
not surprising that the EC integrated all of them into the formal EU positions and negotiating
mandates. These mandates were used in the comprehensive FTA negotiations with Canada,
Singapore and Vietnam. By early 2018, Mexico had also agreed to include the ICS in their
updated trade agreement with the EU. The proposal of the EU on ICS was fully included in the
final texts of these FTAs.
In FTAs with other countries, ICS was not included. TTIP negotiations with the US came to a
halt in 2016, in part due to disagreement on the chapter on investment protection, where the
US objected to the ICS. Around the same time, Japan refused to accept a draft text on the new
ICS as well. In 2020, the FTA with Japan had been limited to trade, while the topic of
investment protection had been deleted except for a rendezvous clause. The draft agreement
with Mercosur was concluded in principle in 2019 (although the final text has not been
finished): the original mandate of the EC, dating from 20 years ago, did not include ISDS.
While several member states asked the EC to broaden the mandate by including ICS, the EC
indicated that Mercosur does not apply ISDS, and so it would only complicate the
negotiations to include ICS.524 No agreements with Australia or New Zealand have been
concluded yet: both are still being negotiated in 2021, but the EU, including the Netherlands,
is not insisting on ICS and so far it has not been included in draft negotiating texts.
The Netherlands was an influential actor during its EU presidency in the first half of 2016 and
promoted the reform of ISDS to ICS. However, its achievements on this file are difficult to
single out, because the EU – the Commission and member states – seems to have been
unified, or almost completely so, throughout the EU’s internal talks and negotiations with
trade and investment partners. The EU, including the Netherlands, generally felt that ICS was
not necessary in agreements with states where the rule of law was secure. And when the
negotiation position on ICS was adapted (or abolished because the negotiating partner
rejected it) for the higher objective of achieving an agreement or enhanced market access for
EU investors, the Netherlands fully supported such pragmatic decisions. However, even where
it was agreed, establishing and staffing an ICS has not been easy and it will take time. It was
only in January 2021 that the Commission launched a public call525 to recruit suitable
candidates to become permanent adjudicators for EU trade and investment agreements.
The establishment of a multilateral investment court is likely to remain merely a political
aspiration for the near and medium-term future. Success for the Netherlands and the EU will
possibly only be achieved in the sense that discussions around the MIC may inspire reform of
the current ISDS system.

524
525

Source: TPC instructions, IRHP 2017-08b Handleiding, Plv 8 March 2017.
European Commission (2021a).

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7.4 Conclusions
Shift towards attention to investor duties
Minister Ploumen advocated a ‘reset of trade and investment policies’ already in 2015,
supporting fair trade and investment policies, which are transparent and rules-based, while
addressing inequalities, as well as taking into account the effects of trade on the environment
and climate.526
Indeed, over the years, the debate around investment agreements seems to have shifted
somewhat from the protection and promotion of foreign investment by host states towards
better regulation of such foreign investment, with attention to environmental sustainability
and the private sector contribution to the Sustainable Development Goals in general.
Also, the relationships between investors, often large companies from the Global North,
and the host states, often in the Global South, are moving slowly in the direction of
becoming a bit more balanced, in part because middle- and high-income countries now
receive considerable amounts of FDI. Host states expect foreign investors to abide by national
legislation and respect and promote the public interest. At the same time, those foreign
investors require their investments to be protected in host countries by good governance,
an effective rule of law, as well as principles of non-discrimination.
As a study of Columbia University stated in December 2020, ‘[c]ountries appear to begin to
focus not only on providing investment protection standards and measures to stimulate
investment flows, but increasingly on addressing the conditions for the entry of investment
into their territories, the obligations of investors and their investments once established,
as well as the regulatory powers of governments over such investments. The new generation
of treaties with investment protection (…) are beginning timidly to address environmental
protection, corporate social responsibility and accountability for foreign investors’, showing
encouraging signs of coherence across policy domains.527, 528 The shift of focus from
investment protection towards investment regulation for sustainable development is also
visible in Dutch policy during the review period, including draft legislation on due diligence
(see Annex 6).
On a sobering note, the desire to move to an investment court system and a multilateral
investment court (ICS) is still driven by Northern countries only. In investment treaties
MFA (2013).
Columbia Centre for Sustainable Investment (2020).
528
For instance, France adopted legislation on due diligence in March 2017. Germany (2016) and the UK also
introduced legislation on due diligence (UK Modern Slavery Act in 2015). In May 2020, the Commission
announced it would also introduce legislation in 2021 to enforce due diligence in the field of human rights
for EU companies. And the Netherlands continues to be a thought leader when it comes to promoting
responsible business conduct, at least when it comes to standard-setting. In 2019, on an initiative by
Parliament, the government adopted legislation to ensure companies conduct due diligence to prevent
child labour and other harmful practices in their value chains, beyond its national borders. It now has the
difficult task of drafting regulations and ensuring implementation and enforcement of the legislation.
In 2019, the Dutch government also a presented a new policy framework on responsible business conduct,
including an intention to regulate broader due diligence obligations for Dutch MNEs. MFA (2020).
526
527

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between and among OECD countries, there seems to be little appetite to replace ISDS
systematically by a reformed system, because negotiating partners have enough faith in the
rule of law in these countries. Second, establishing an ICS and ultimately a multilateral court
would require a lot of time, capacity and funding. In addition, developing countries seem to
prefer traditional state-to-state dispute settlement.
Findings and conclusions on the Dutch positions
1. The Netherlands has been committed to improving the international system for investorstate dispute settlement towards setting up a more permanent investment settlement
court, or a Multilateral Investment Court, at least since 2015. However, in the end, the EU
and the Netherlands have remained pragmatic: in countries where the rule of law is
adequate, they do not require (an investment protection chapter including) references to
an investment court system; and where partners refuse to mention ICS, references to
(traditional) ISDS are omitted.
2.

The Netherlands helped in the preparation of EU positions in negotiations for a trade
and investment agreement and its positions on certain issues around dispute settlement
were taken up by the Commission. The Netherlands took part in like-minded meetings
and on some occasions partnered with like-minded countries to influence the EC and EU
positions. While it is highly likely that the Netherlands had an influence, others, notably
France, Germany and the Commission itself, held similar positions and all of them
cooperated, so that achievements cannot be attributed to one actor in particular.

3.

The Netherlands was consistent in promoting sustainability and responsible business
conduct in its own bilateral investment agreements. In that context, the government
drafted a Model Bilateral Investment Treaty, through a thorough multi-stakeholder
consultation process. The text shows how bilateral agreements could promote
international standards. It includes references to human rights and ILO conventions on
labour rights. However, its ultimate success is not guaranteed: the Model BIT does not
guarantee improvements in business practice and it has not resulted in updated bilateral
agreements yet. So far, negotiating partners have been reluctant to accept provisions on
sustainability and RBC. In any case, negotiations on bilateral investment agreements
have come to a halt due to the COVID-19 pandemic.
The Model BIT is still an interesting initiative, reflecting best practice at this moment in
time. The challenge remains to put it to the test: will elements of this text be accepted in
BITs with partner countries; will these BITs be ratified as is by both parties, applied in
practice and result in changes in behaviour by MNEs?

4.

Over the past decade, the Netherlands shifted its overall policy priorities somewhat.
Before, it focused on attracting as much foreign investment as possible. Over the last few
years, the Netherlands started to focus on the quality of investments. Under the last two
ministers for Foreign Trade and Development Cooperation, Dutch representatives have
prioritised promoting responsible business conduct and sustainable investments in the
EU, OECD and WTO. However, policy coherence in these areas is not a given.

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7.5 Recommendations
• Publicly explain the reasoning behind the EU’s decisions to sometimes include (investment
protection chapters including) ICS in the negotiating mandate for comprehensive trade
and investment agreements and sometimes not. Become more consistent in promoting a
modernised and fairer international investment dispute settlement system and court; and/
or be more transparent when you accept the absence of references to ICS in agreements.
• Second, continue to align positions at the national, political level and the EU technical
working level. Adapt instructions to changed circumstances in EU negotiations with third
parties more often. Acknowledging the limits of high-level policy intentions, be open
about changing the national position when negotiating realities require this.
• Continue to work with the Commission and like-minded countries inside and outside of
the EU (e.g. Canada) to form coalitions to promote the establishment of a permanent
investment court system, while working in parallel on modernising the current system as a
policy of no regret.
• Given the many obstacles, focus on a thorough reform of the current ISDS system in the
short and medium term instead of the establishment of a multilateral investment court.
• Promote stronger links between international standards for responsible business conduct
to provisions in investment agreements or investment chapters in comprehensive FTAs,
paying attention to implementation and enforcement. Try and strengthen provisions on
sustainability and human rights, if these continue to be policy priorities.

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8
Economic partnership agreements
with Africa

Trading interests and values

8.1 Introduction
The EU has always kept a special relationship with EU member states’ former colonies, which
are referred to as African, Caribbean and Pacific (ACP) countries. Concerning trade relations,
the EU granted non-reciprocal market access to the ACP countries under the 1975 Lomé
Convention. However, as this preferential access was not compatible with WTO rules, the EU
started negotiations on WTO-compatible economic partnership agreements (EPAs) in the
early 2000s. The negotiations took place at the regional level, i.e. between the EU and
groupings of African countries as well as Caribbean and Pacific states,529 and were meant to
build on and foster regional integration processes in the ACP.530 The negotiations had mixed
success. The EPA between the EU and the Caribbean Forum (CARIFORUM) was negotiated
reasonably in time, within the original deadline of end of 2007, and resulted in the entering
into force of the EPA in 2008. However, several other EPA negotiations were only partially
successful,531 or have thus far failed to result in the signing of the EPA.532, 533
This case study explores the reasons for the mixed success of the EPA negotiations between
2013 and 2019.534 It reviews the obstacles and differences in the regional groups, and among
the countries in the regions. In addition, the case study reviews Dutch interventions and the
extent of policy success.
The case study focuses on the regional groupings in Africa. This provides the opportunity to
review particularly the Dutch role of ‘honest broker’. In 2013, the Netherlands assigned itself
the role as honest broker to help progress the stalled EPA negotiations with the Southern
African Development Community (SADC), West Africa and the East African Community (EAC).
Taking on this role was identified as a means to give substance to the newly introduced Dutch
policy, to combine aid and trade.535

Negotiations have taken place with seven regional groups of countries: 1. the Southern African
Development Community (SADC); 2. Eastern and Southern Africa (ESA); 3. The East African Community
(EAC); 4. West Africa; 5. Central Africa; 6. The Caribbean; and 7. The Pacific. After EPAs are negotiated and
signed at the regional level, they need to be ratified and implemented at country level.
530
ECDPM (undated). https://ecdpm.org/dossiers/dossier-economic-partnership-agreements/.
531
For example, the EPA with ESA has thus far resulted in an interim EPA, which is provisionally applied.
In October 2019, the EU started negotiations with the five ESA countries to deepen the existing interim
EPA. EPA deepening negotiations are ongoing.
532
For example, in 2014, the EU and the Economic Community of West African States (ECOWAS) agreed on an
interim EPA after 13 years of negotiations. However, the interim EPA is currently ‘on hold’, given that
15 of the 16 West African countries have signed the agreement, while Nigeria is refusing to sign it
(see CADTM (2018)).
533
Table A7.1 in Annex 7 presents an overview of the countries involved and the current status of the EPAs
per region. A more detailed overview can be found in Chapter 2 of the study about external developments
in trade and investment policy, conducted on behalf of IOB by Ecorys (Ecorys (2021), pp. 25-37.).
534
It should be noted that key developments in the negotiations took place before 2015. This posed a
challenge for the interviews, as stakeholders were retired, had changed positions or had only a limited
recollection of events.
535
In 2013, Minister Ploumen stated that ‘[b]ecause aid and trade are combined in my portfolio,
the Netherlands is able to take on the role of honest broker’ (Government of the Netherlands (2013)).
529

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In studying Dutch interventions, the review will answer questions such as: ‘What were the
policy positions of the Netherlands on the EPAs?’ ‘Which actions did Dutch policymakers and
diplomats undertake to achieve EPAs in line with these positions?’ And ‘what has been
achieved in the EPA negotiations that can be attributed to Dutch interventions?’
The case study provides lessons learned that are relevant input for the EU–Africa development
strategy, a follow-up Agreement to Cotonou, further development of the EPAs, and possible
bilateral FTAs between the EU and Africa at the continent-wide level.536

8.2 Obstacles in the EPA negotiations with Africa
From the outset in 2001, EPA negotiations between the EU and ACP countries were
characterised by asymmetry; in terms of liberalisation, coverage of goods, delays, available
resources and (often temporary) solutions that aimed for interim EPAs focusing on
liberalisation of trade in goods only.537, 538 Many of the EPAs have stranded at certain points in
the negotiation cycle, either because parties were unwilling to conclude the negotiations for
an EPA or even an interim EPA within the foreseen deadlines, or because parties were
unwilling or unable to sign, ratify or implement an EPA at the regional level once negotiated.
For the EPA negotiations with Africa specifically, there were various obstacles.539
These obstacles are primarily related to the trade schemes already in place and the differences
that exist across and within the countries of the respective African regions.540
First and foremost, the added value of the EPAs for most African countries is limited as far as
new market access to goods is concerned. Consequently, in African countries where the added
value of an EPA would be limited, the priority to negotiate one was low. The lack of added
value for most African countries can be explained by the benefits from the (different types) of
existing trade schemes in place.541 Most African countries are least-developed countries
(LDCs). These countries benefit from preferential market access under the EU’s Everything but
Arms (EBA) scheme, which provides quota and duty-free access to all imports of goods (except
arms and ammunition) coming from LDCs. Furthermore, most of the other, non-LDC African
countries have market access under the Market Access Regulation (MAR), which provides
EPA negotiations cover negotiations on the tariff liberalisation of goods, whereas the continent-wide FTA
negotiations put more focus on services and investments. However, as will become evident from this
evaluation, key lessons learned, such as setting realistic goals and acknowledging the (effect of) different
interests of different parties in negotiations, will be valuable for future negotiations, other than
negotiations on the tariff liberalisation of goods, as well.
537
See, for example, Heron (2011), pp. 328-357; Ilorah and Ngwakwe (2015), pp. 322-338; and Kohnert (2015),
pp. 141-147.
538
See also Ecorys (2021), Chapter 2 for other asymmetries in negotiations.
539
For a more elaborate overview of the obstacles in the EPA negotiations with Africa, see Ecorys (2021),
Chapter 2.
540
Interview with EC trade policy officer, held on 4 March 2020.
541
For an overview of the different types of market access schemes in place for non-LDC African countries
(those not enjoying market access under the EBA scheme), see Ecorys (2021), Chapter 2, p. 31, Table 1
Market access of African countries.
536

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temporary unilateral free access to the EU market for non-LDCs that have made meaningful
progress in the negotiations,542 under an (interim) EPA, or have an export basket that faces no
significant tariff barriers in the EU.
Second, and this point was specifically identified by critics, the EPAs were perceived as a
possible threat to development in African countries. Critics have pointed to the reduced tariff
revenues that result from the implementation of an EPA, whereas this has been an important
source of tax income in most African countries. With ACP countries ‘depending on tariff
revenues to fund social programmes […], the sudden loss of this revenue is likely to create
much hardship and possibly lead to social dislocation as the burden will fall
disproportionately on the poor’.543 Moreover, critics have argued that opening up markets to
EU imports threatens domestic industries, especially those industries that are still in their
infancy. The fear of negative and especially disproportionate effects has led to active
campaigns against the EPAs, both by NGOs and domestic industries in Africa.544 At the same
time, there was limited counterweight in the form of support for the EPAs by other
stakeholders, as the agreements were considered to provide opportunities only for a small
part of the business community.545 However, the criticism has also been disputed. For
instance, to account for the negative effects of the EPAs, the EU provides budget support,
if needed, to absorb a drop in tax revenues. Moreover, countries can design their tariff
liberalisation schemes to protect the interests of their own industry and take measures
against market disruptions.
Third, the content of the EPAs complicated the negotiations. To comply with WTO
requirements, agreements would need to cover market access issues such as tariffs and
quotas. However, the EU’s initial ambition was to conclude modern comprehensive
agreements, agreements with deeper integration, which would also cover trade in services
and trade-related issues, such as intellectual property rights and competition.546 This has
proven to be difficult, as there was limited interest and capacity547 from the African
counterparts.548

Market access regulation 1528/2007 provided preferential market access to those countries that had made
meaningful progress and had signed the EPA but had no other preferential market access, for example
through the EBA scheme. Regulation (EU) No 527/2013 withdrew the Market Access Regulation’s benefits
to those countries that had not taken the necessary steps towards ratifying the EPAs concluded with the
EU.
543
https://www.europarl.europa.eu/intcoop/acp/60_11/pdf/speeches/miller.pdf; as cited in Ecorys (2021),
Chapter 2, p. 30.
544
See, for example, Ecorys (2021), p. 34; Moerland and Weinhardt (2020), pp. 266-276; Africa Renewal (2007).
545
Ecorys (2021).
546
Zamfir (2018), pp. 1-11.
547
With most African trade existing of goods, including trade in services and IPRs, EPAs did not provide a
favourable road to development for African countries. Inclusion of these topics requires careful
management and sufficient infrastructure (regional institutions) and capacity to negotiate on these topics,
which did not exist.
548
Ecorys (2021), p. 34.
542

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Fourth, negotiations were complicated by regional integration in Africa. Each of the existing
main ACP regional groupings entered into bilateral negotiations with the EU. Therefore,
negotiations in Africa were conducted with the five African regional groupings.
However, the regional negotiation groups do not always coincide with the groups of the
regional economic communities (RECs) that the African countries belong to.549 For example,
member states of the SADC region were split into four different EPA groups.550 But even when
the EPA groups are congruent with the membership of the respective REC, as is the case for
the EAC and the ECOWAS-EPA groups, individual countries within these groups have different
national interests,551 which were sometimes placed above the interests of the REC as a group,
thereby creating fractions within the REC, rather than fostering regional integration within
the REC. Besides weakening regional ties, these actions have also weakened the group’s
negotiation power to act as one block in EPA negotiations.552, 553
These fractions also stem from the fact that regional integration is not yet fully advanced.
For example, an inclusive customs union is lacking, so that member states can still uphold
different external trade regimes, weakening their desire to take a unified stance in EPA
negotiations.554 Finally, the capacity of regional organisations is limited too (limited
availability of technical expertise and resources),555 reducing the ability to unify interests and
take a strong negotiation position. It should be noted that capacity constraints have not only
been an issue for regional organisations, but also for other stakeholders in Africa, including
national governments. This has made it difficult for African counterparts to fully assess and
go along with the deep integration aspects of the EPAs.556

8.3 The Dutch position on the EPAs with Africa
8.3.1

Overview of Dutch standpoints regarding the EPA negotiations

Since the Cotonou Agreement was signed in June 2000, the Netherlands has always taken a
critical but constructive position regarding the EPA negotiations with ACP countries.557
During the negotiations, the Netherlands was concerned about the feasibility of the EPAs
with the poorest regions of Africa within the foreseen time frame. These included concerns
about the impact of the EPAs on the development of individual African countries and on
African regional integration.558 Economic development and negotiation capacity were
See Ecorys (2021), p. 30 for an overview of the African country groups that negotiated with the EU.
Krapohl and van Huut (2020), pp. 565-582.
551
For example, in the ECOWAS REC, Nigeria is the dominant regional power. Other ECOWAS countries,
many of which are LDCs, have different interests in trade liberalisation.
552
Ecorys (2021), p. 32; see also Krapohl and van Huut (2020), pp. 565-582.
553
This was also acknowledged in the TPC; see, for example, IRHP 2014-07b TPC Handleiding 05-02-2014.
554
Krapohl and van Huut (2020), pp. 565-582.
555
UNECA (2020), p. 11.
556
Ecorys (2021), pp. 34-35.
557
Tweede Kamer, vergaderjaar 2010–2011, 32 883-3
558
Ibid.
549
550

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Trading interests and values

limited, and regional cooperation was often still in its infancy.559 Furthermore, the
Netherlands continuously pushed to prioritise the development relevance of the agreements,
within the boundaries of the WTO legal framework for economic integration agreements.560
The main Dutch standpoints regarding the EPA negotiations were as follows:
• Full market access to the EU for all ACP products; 561
• Sufficient room for ACP regions to exempt certain products from liberalisation (i.e. the
issue of liberalisation coverage) or to apply longer transition periods for these products.
In particular, this would apply to products that are important for food security, rural
development or the subsistence of large groups of people within the ACP regions;562
• The ability of ACP regions to protect themselves against subsidised or abundant imports
from the EU.563 Building on the safeguard clauses included in the ‘stepping stone EPA’
between the EU and Ghana that was agreed in 2007, the Netherlands advocated similar
safeguard clauses for the final EPAs for goods. With these clauses, EPA countries could
temporarily protect their local economies from imports from EU countries in case these
would disturb local production and threaten food security, for instance with temporary
import tariffs or tariff quotas;564
• Restrictive rules of origin, especially on cumulation of origin for raw materials and
intermediate products which under the Cotonou regime were experienced as a barrier to
trade for some products (including textiles and clothing, and fishery products); and
• Only including services and so-called Singapore issues (public procurement, trade
facilitation, investment and competition) in the EPA negotiations if respective ACP
countries are open to that. According to the Netherlands, balanced provisions on services
and the Singapore issues could contribute positively to the development of ACP countries,
but ACP countries should not be forced to include these themes in the negotiations.565

8.3.2

Dutch positioning in practice

The EC, and DG Trade specifically, conducts the EPA negotiations with ACP countries on
behalf of the EU member states. This does not mean, though, that member states were
inactive on the issue of the EPAs and did not take a public stance. France, the UK, Germany
and the Netherlands were particularly vocal in the debates, both within and outside the
TPC.566
The Netherlands often expressed support for the actions taken by the European Commission
and acknowledgement of the results achieved so far.567 Dutch representatives reminded other
Ibid.
Based on instructions for the TPC meetings and subsequent TPC meeting reports; Tweede Kamer,
vergaderjaar 2010–2011, 32 883-3
561
Tweede Kamer, vergaderjaar 2010–2011, 32 883-3.
562
Ibid.
563
Ibid.
564
MFA (2012).
565
Tweede Kamer, vergaderjaar 2010–2011, 32 883-3.
566
For instance, noted in an interview with an expert, held on 16 June 2020, and in an interview with a
Dutch diplomat, held on 14 October 2020.
567
Evident, for example, from TPC instructions from 2013 and subsequent TPC meeting reports.
559

560

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member states of the development aspects of the EPAs (e.g. asymmetry of obligations by the
EU and ACP regions) on several occasions, and supported the Commission at times when
other member states protected their own (often agricultural) interests.568 In addition, the
Netherlands continuously sought to garner attention for the impact on individual African
countries, regarding their risk of losing preferential access to the EU due to delays in in the
negotiation process (caused by internal discrepancies of the countries in the EPA group).569
However, with negotiations advancing slowly, the Netherlands pressed for further progress
and, later on, requested the European Commission and member states to swiftly sign, ratify
and implement all EPAs as soon as negotiations were finalised.570
Furthermore, as discussed in Section 8.1, in 2013, Minister Ploumen offered to take on a role
as honest broker in the EPA negotiations with the SADC, West Africa and ESA group. As part of
the honest broker initiative, the Netherlands commissioned the international think tank
ICTSD571 to execute regional analyses and to organise three regional dialogues to bring
together a variety of stakeholders in different EPA regions.572 The efforts aimed to identify the
effects of the EPAs and settle final outstanding issues in the different regions.573 The role as
honest broker also increased Dutch visibility on the issue of the EPAs. For example, on 10 June
2016, the Netherlands, as President of the European Council (2016), spoke at the signing
ceremony of the EU–SADC EPA in Kasane (Botswana), which highlighted the personal
engagement of Minister Ploumen, in her effort to advance negotiations in the years before
the conclusion of the EPA.

8.4	The Netherlands in its role as honest broker and the
extent of policy success
8.4.1

Reasons behind this role and choice of countries

As previously described, negotiations with the ACP countries had in most cases not
progressed in line with the expectations after the Cotonou Agreement was signed.

Interview with policymaker at the MFA, held on 7 October 2020.
Ibid.
570
MFA (2014c); IRHP 2014-049b TPC Handleiding PLV 30-10-2014. This was done by ICTSD, which was
perceived by all parties as an independent organisation.
571
The International Centre for Trade and Sustainable Development (ICTSD) was established in 1996.
The Geneva-based organisation assisted NGOs, governments and other stakeholders to acquire the
necessary knowledge for trade policymaking and effective participation in negotiations and to create
dialogue and connections between stakeholders, and within and across ministries (IOB (2017), Annex 1).
After 22 years, ICTSD ceased its operations in 2018.
572
Whereas the Netherlands was visible as a funder and supporter of the organised interventions, it did not
lead to action. This was done by ICTSD, which was perceived by the EU and African countries as being
neutral and independent (MFA (undated). Beoordelingsmemorandum DDE–ICTSD sustainable
development in trade.
573
MFA (2016); MFA (undated). Beoordelingsmemorandum DDE–ICTSD sustainable development in trade
(internal document).
568
569

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Nevertheless, from 2008 onwards, ACP countries could still benefit from the Market Access
Regulation regime that was introduced, which temporarily continued duty-free and quotafree access to the EU market. Due to the lack of progress and results, in 2011 the European
Commission announced that countries not having ratified at least interim EPAs for goods
were to be removed from the MAR regime starting 1 October 2014. While LDCs in the ACP
regions could continue to benefit from the EBA regime in such a situation, other non-LDCs
such as Namibia, Kenya and Botswana would lose significant market access to the EU.574
Their existing tariff-free access would be replaced by less preferential access under the EU’s
Generalised System of Preferences (GSP). This implied higher tariffs and tariff rate quota for
certain agricultural and manufacturing products. Furthermore, if products or the countries
graduated from the GSP, they would fall under the MFN regime.575
As this self-imposed deadline of 1 October 2014 for the ratification of EPAs was rapidly
approaching, the Dutch Minister of BHOS decided to put herself forward as an honest broker
and attempt to break the deadlock with some of the regions in 2013. The aim was to bring the
EU and ACP countries closer together by entering into dialogue and explore the extent to
which WTO rules provided room for manoeuvre, to be able to address the concerns of the
ACP countries without putting other countries at a disadvantage.576, 577 The honest broker role
was an independent initiative; other member states and the EC were not consulted on this.578
The motivation of the Dutch minister to take up the role as honest broker was that her
combined responsibility for both the Dutch international trade and development
cooperation portfolios put her in a good position. According to the minister, economic
development, which was expected to be promoted by the EPAs, increases the possibility of
phasing out development cooperation with these countries and establishing mutually
beneficial trade relations.579 Furthermore, the expectation was that it could help eradicate
extreme poverty, stimulate sustainable and inclusive growth, as well as regional
integration.580
The Netherlands selected SADC, West Africa and EAC as focus regions in which to play a role as
honest broker. These regions were selected based on the following criteria and
circumstances:
• Feasibility to close a full EPA for goods;
• Development perspective (regions with the largest potential losers as well as the number of
LDCs in the regions);

MFA (2015e).
MFA (2018).
576
MFA (2013a).
577
MFA (2018).
578
Interview with an expert, held on 16 June 2020.
579
Tweede Kamer, vergaderjaar 2010–2011, 32 883-3
580
MFA (2015e).
574
575

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Trading interests and values

• Possibilities within the regions to create a good interplay between the Dutch minister’s
trade and development cooperation portfolios. The presence of Dutch businesses could
positively contribute to the economic development of the countries.581
The reasons for choosing each of these specific regions, as indicated in a letter to parliament,
are presented in the table below. These reasons also reflect the assumptions underlying
Dutch policy on aid, trade and investment, i.e. the assumed positive effects of trade
liberalisation and promoting direct investment in the development of and regional
integration among ACP regions.
Table 8.1 Reasons for selecting specific regions for honest broker role
Region

Arguments for honest broker role

EAC

It seemed realistic that an EPA with this region could be concluded. Furthermore,
a number of (locally based) Dutch companies could benefit from an EPA.
The conclusion of this EPA could lead to a good interplay between development
cooperation and trade, while the presence of the Dutch private sector could help
to further develop the region.

SADC

It seemed realistic that a full EPA could be concluded with this region.
The Dutch Minister of BHOS particularly valued the completion of this EPA, because
this region includes two of the largest potential losers – namely, Namibia and
Botswana. These are upper middle-income countries, which would graduate from
the EU’s GSP and would therefore fall back on MFN tariffs by 1 October 2014.

West Africa

The negotiations with this region were very difficult. However, the region consists
of many LDCs, with limited intra-regional trade. The potential gains of this EPA could
be the largest because of the development perspective and potential for further
regional integration.

Source: MFA (2013b).

It should be noted that the unsolicited decision of the Dutch minister to take up a more
constructive role, as an honest broker, raised some eyebrows in several quarters. It was seen
as ‘remarkable’, according to one interviewee, and ‘suspicious’ by some EU stakeholders and
several African delegations, especially because her predecessors were more critical of the
EPAs.582, 583
It is also clear that there is some inherent tension regarding the role of the Netherlands as an
honest broker, given that indirectly, as one of the EU member states, it is also one of the
negotiating partners. The Dutch minister was aware of this tension. Therefore, it was decided
to commission an independent organisation for the implementation of most of the activities
(see below). This organisation was the think tank ICTSD, which worked on the EPAs in terms
of research and dialogue. ICTSD had a network and expertise, and it was known for its
impartiality and good reputation on both sides.584 Moreover, the Dutch minister tried to
MFA (2013b).
Interview with EC trade policy officer, held on 6 March 2020.
583
For example, it was mentioned that Minister Koenders had generally taken a more critical approach.
584
MFA (2014d).
581

582

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Trading interests and values

remove the possible tension between trade and development cooperation by explicitly
indicating that flanking support to the ACP countries would not be a condition for signing
the EPA.585

8.4.2

Actions undertaken in the capacity of honest broker

The following concrete actions were planned to be undertaken as honest broker and
presented to Dutch Parliament in 2013:586
• Organisation of stakeholder meetings in the three proposed EPA regions, to better
understand the positions of different stakeholders and to get insight in opportunities for a
way forward;
• Organisation of a stakeholder meeting in the Netherlands with both NGOs and companies
with stakes in the region;
• Region-specific analyses (among others, based on the above-mentioned stakeholder
meetings), as a result of which the minister could enter into discussions with the European
Commission, on the one hand, and the main stakeholders in the regions, on the other;
and
• Examine options for flanking policies.
Concerning the second point of action, a meeting in the Netherlands with non-state actors
did not take place.587 In addition, the stakeholder meeting in West Africa (which was supposed
to be combined with a Dutch trade mission to Senegal588) was cancelled. By the time the event
was supposed to be organised, negotiations between the EU and West Africa had significantly
progressed and were successfully concluded at the technical level.589 Therefore, a stakeholder
event was not deemed useful anymore.590 The cancellation also seems to be related to delays
on the part of ICTSD in organising the seminar in Dakar in February 2014; Senegalese
counterparts of ICTSD doubted the feasibility of the event on the set date.591 Furthermore,
something that did take place, although initially unplanned, was a final stakeholder
dialogue, organised by ICTSD in Brussels.592
Three regional stakeholder meetings, in the context of the EU–EAC and EU–SADC EPA
negotiations, were organised with representatives from governments, the private sector and
civil society. These meetings took place in Kenya (Nairobi) in October 2013, South Africa
(Cape Town) in January 2014 and Tanzania (Dar es Salaam) in February 2014.593 The meetings
MFA (2013b).
MFA (2013b).
587
Why the meeting in the Netherlands did not take place remains unclear from policy documents and
interviews. A potential explanation may be the general lack of awareness and interest of Dutch
stakeholders, as mentioned in an interview (interview with former IMH policy officer at the MFA,
held on 26 October 2020).
588
MFA (2013c).
589
MFA (2014d).
590
Ibid.
591
MFA (2014b).
592
IOB (2016).
593
MFA (2015e).
585

586

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Trading interests and values

were organised and moderated by the ICTSD594 and organised with the help of local
organisations (TMEA,595 Tralac,596 TRAPCA597 and SAIIA598).599
Participants in the meetings identified the most important stumbling blocks, concerns and
policy options.600 On the basis of the findings of the stakeholder meetings, ICTSD wrote a
report with outstanding issues in the negotiations, the concerns of the partners and the
potential way forward. Moreover, the report provided an overview of the possibilities to
address the concerns of the ACP countries, within WTO rules, taking into account sensitive
issues of the stakeholders.601 The results of the meetings were shared with the EU
Commissioner for Trade, the African negotiation teams as well as other EU member states.
These findings were also presented during the meeting with the EU negotiators in March
2014.602
Although the organisation and facilitation of the stakeholder events were outsourced to
ICTSD, the Dutch minister played a small role herself during the meeting in Nairobi by
providing the opening speech and closing remarks. During the other two events, Dutch
representatives were present. While some opening remarks were made, the delegation of the
Netherlands had an observing role, and limited its participation to asking questions for
clarification if needed. The EC was never invited to these events. However, in all of the
meetings, the Dutch delegation emphasised that the key messages would be conveyed to the
minister and the Commission.603
In addition to the organisation of these meetings, the Netherlands participated and initiated
several initiatives around the EPAs with Africa. First, together with France, the UK, Ireland and
Denmark, the Netherlands sent a letter to the High Representative of the Union for Foreign
Affairs and Security Policy/Vice President of the European Commission and the European
Commissioners for Development and Trade in December 2013. In this letter, the ‘Friends of
the EPA’ requested extra flexibility in the negotiations on several points, including the
ICTSD received a budget of EUR 271,384 for its role as ‘unbiased facilitator’. Source: IOB (2017).
TradeMark East Africa (TMEA) was established in 2010 and funded by, among others, the UK, Sweden, the
Netherlands, Canada and the US. TMEA supports the growth of trade – both regional and international – in
East Africa, by unlocking economic potential through reducing barriers to trade and increased business
competitiveness (TradeMark East Africa (2021)).
596
The Trade Law Centre for Southern Africa (Tralac) was founded in 2002 to build technical expertise and
capacity in trade governance across Africa (Tralac, 2021).
597
The Trade Policy Training Centre in Africa (TRAPCA) was established in 2006 to provide training and
technical expertise on trade issues to professionals in LDCs and low-income sub-Saharan African countries
(trapca.org (2017)).
598
The South African Institute of International Affairs (SAIIA) is a think tank, established in 1934, facilitating
dialogue and executing research, to enhance awareness on the importance of international affairs
(Africaportal.org (undated). https://www.africaportal.org/content-partners/
south-african-institute-of-international-affairs-saiia/).
599
MFA (2014d).
600
MFA (2018).
601
ICTSD (2014).
602
MFA (2014d).
603
ICTSD (2014).
594
595

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Trading interests and values

coverage of products for which trade in ACP regions needs to be liberalised, the length of the
transition periods, the elimination of export subsidies by the EU and the deployment of
measures in support of the EPA.604 It should be noted that while the Netherlands signed this
letter, it is not considered the main initiator of the letter.605 It was particularly the UK that led
the initiative.606
Second, the Netherlands had conversations with regional organisations, including ECOWAS,
Hub Rural607 and the Central African organisation Enda CACID,608 to discuss support to
programmes focused on regional integration in West Africa, in line with the intended EPA.609
Third, on several occasions, both in the European context as well as during the ninth WTO
Ministerial Conference in 2013, Minister Ploumen raised the EPA negotiations to stimulate
political dialogue.610 For instance, during the meeting of the Foreign Affairs Council on Trade
on 28 May 2013, Ploumen held a discussion with EU Commissioner of Trade Karel de Gucht on
the issues of the EPA negotiations.611 Moreover, in the margins of the informal FAC meeting of
EU trade ministers that took place on 27 January 2014 in Athens, Minister Ploumen organised
an informal ministerial gathering on the status of the EPA negotiations with trade ministers
from Germany, Denmark, France and the UK. Together, the assembled ministers concluded
that the European Commission has shown the required flexibility to achieve a breakthrough
in the negotiations with West Africa, which created hope that this momentum would also
lead to positive results in the other regions.612
The Dutch minister not only raised the issue of the EPAs within the EU but also in contacts
with African counterparts. The EPAs and their finalisation were put on the agenda of meetings
of the minister with her counterparts during several trade missions, for instance in the case of
Ghana.613 The EPAs were also raised during the EU–Africa Summit and the African Union
Summit in 2014.614 In this period, the pressure of the imposed deadline of 1 October 2014
caused frustrations on both the EU and African side.615
Finally, (internal) documents of the Dutch MFA refer to the execution of a light assessment of
the lessons learned of the EPA negotiations (in terms of process and content).616 Whereas it

MFA (2015e); Denmark, France, Ireland, the Netherlands and the UK (2013).
Interview with former IMH policy officer at the MFA, held on 26 October 2020.
606
Ibid.
607
A West and Central Africa-oriented organisation focused on rural development.
608
Centre Africain pour le Commerce, l’Intégration et le Développement – African centre for trade, integration and
development – is a platform of civil society organisations.
609
MFA (2014a).
610
MFA (2015e).
611
MFA (2013b).
612
MFA (2014d).
613
MFA (2014a).
614
MFA (2014e).
615
E.g. IRHP 2014-016b TPC Handleiding Plv 19-03-20144; IRHP 2014-021b TPC Handleiding Leden 25-042014; and IRHP 2014-042b TPC Handleiding Plv. 5-09-2014 (internal document).
616
MFA (2015b).
604
605

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Trading interests and values

seems likely that this assessment was completed and results shared with parliament
(because commitments were made by the minister of BHOS to research lessons learned617 and
the executed research is referred to in internal documents618), the actual assessment could not
been found, neither in public nor internal documentation, making analysis of the lessons
learned impossible.

8.5 Extent of policy success
Various positive effects have been reported regarding the honest broker role of the
Netherlands. They were often reported by the Netherlands itself, for example in letters to
parliament but also independent reviews, and other stakeholders have also noted the positive
effects of Dutch interventions.
The three stakeholder meetings in Cape Town, Nairobi and Dar es Salaam were appreciated by
the different parties. In an independent evaluation of ICTSD, conducted by Saana Consulting,
the joint meetings were mentioned as a positive experience to the stakeholders that rendered
some valuable policy options to move the EPA process forward.619 It is important to note that
in several African countries, civil society and the private sector were only consulted by their
respective governments to a limited extent. Because of that, many relevant actors had
insufficient information about the exact scope of the EPA, the timeline of the negotiations,
the way concerns could be dealt with and the potential consequences for the populations of
the various African countries. Therefore, the stakeholder meetings had an important bridging
function by providing information and raising awareness – namely, actors could be informed,
misperceptions and prejudices could be addressed, and the knowledge and expertise of
different stakeholders could be exchanged. At the same time, the meetings provided more
insight into the concerns and interests of the stakeholders.
As previously mentioned, the results of the stakeholder meetings were shared with the EU
Commissioner for Trade, the African negotiation teams as well as other EU member states.
The EC confirmed receipt and took notice of the report, though this may be a diplomatic
response as it is unclear to what extent the findings were taken into account.620 According to
the Dutch minister, however, the stakeholder meetings played an important role in the final
phase of the negotiations to achieve a more positive view on the outstanding issues and to
address these issues with new insights.621 In addition, the minister considered that discussion
among African countries had been promoted, and the positive results of these discussions on
the anti-EPA lobby, for example, were relevant for future negotiations.622

Tweede Kamer, vergaderjaar 2014–2015, 21 501-04, nr. 167.
MFA (2018).
619
Sanaa Consulting (2014).
620
Interview with former IMH policy officer at the MFA, held on 26 October 2020.
621
MFA (2015e).
622
Ibid.
617

618

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In addition to the results of the three stakeholder meetings, Dutch participation and the
organisation of several initiatives around the EPAs with Africa resulted in the following
reported results.
First, as part of the reporting on the progress on the EPAs, in a letter to the Dutch parliament
in 2013, Minister Ploumen outlined the success achieved by the joint letter sent to the High
Representative of the Union for Foreign Affairs and Security Policy/Vice President of the
European Commission and the European Commissioners for Development and Trade. It was
argued that the joint letter had generated positive results on both the European and the
African sides.623 She stated that the letter was seen by the African negotiating parties as an
important political signal that the EU was actually prepared to come to a solution that was in
the interest of both negotiating parties.624 Some third parties underscored the minister’s
conclusion. For example, several Senegalese media actually referred to this letter as a positive
signal from the EU.625
In the case of West Africa, Minister Ploumen also argued that the letter had in all likelihood
helped to break the deadlock and reach a final agreement. The most important elements of
the compromise were the liberalisation percentage of 75% of covered tariff lines over a
transition period of 20 years, with exceptions for some (sensitive) products and sectors.626, 627
The positive effect of the letter was underscored by the report of Coherentiemonitor (2015):
almost all of the recommendations from the letter appear to be included in the final
agreement.628
Despite these stated positive outcomes from the letter, an unintended negative effect also
occurred, creating some internal friction as the letter was less appreciated by the EC. The EC
regretted the fact that some of the member states (including the Netherlands) seemed to
question the efforts of EU Trade Commissioner de Gucht629 and thus undermined the
Commission’s negotiation stance. In a TPC meeting shortly after the publication, the EC
argued that member states needed to support the Commission unconditionally in the last
phase of these negotiations, because agreements on (some of ) the EPAs were within reach,
but only if member states and EC held the same position. Moreover, the European
Commission mentioned that the letter was factually incorrect: the call for more flexibility was
inappropriate and not based on the state of play of the negotiations at the time, given that
the Commission had already proposed transition periods of 25 years on several policy
dossiers.630

MFA (2015e).
Ibid.
625
MFA (2014b).
626
MFA (2015d).
627
MFA (2014d).
628
Coherentiemonitor (2015).
629
Karel de Gucht served as the European Commissioner for Trade from February 2010 to November 2014.
630
IRHP 2014-02c TPC Verslag Plv 17-01-2014.
623

624

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Second, as regards the conversations with regional organisations to discuss Dutch support to
programmes focused on regional integration in West Africa, no evidence was found in policy
documents or from interviews that actual support initiatives have been implemented based
on those conversations. Policy documents and interviews with policy officers of the MFA did
not identify who took the initiative to organise the meetings either.
Third, the various dialogues conducted by the Dutch minister at the multilateral level (in EU
and WTO context) as well as in (bilateral) contacts with African counterparts reinforced the
importance of reaching a compromise on the EPAs and was likely to have contributed to the
progress made in EPA negotiations. During EU meetings, the Netherlands, together with
France, the UK, Germany and Denmark, went a little further, claiming to have played a key
role in breaking the deadlock of the negotiations. For example, according to the minister,
Dutch efforts contributed to a development whereby key players from the African countries,
NGOs, companies and think thanks (such as Tralac, TRAPCA and SAIIA) started to share new
insights, knowledge and expertise and were better informed about each respective position.
This was assumed to have helped break through old ways of thinking and pave the way for
new paths.631 The independent evaluation by Saana Consulting underscored the positive
findings, stating, ‘the meetings produced fruitful dialogue, encouraged participation from a
wide-range of stakeholders and rendered some valuable policy options to move the EPA
process forward’.632 However, Saana Consulting also noted that claims that the dialogues had
a positive impact on loosening the deadlock should be taken with caution. The evaluation
stated that quantifying the magnitude of the dialogues’ contribution was difficult given the
highly political and sensitive nature of EPA negotiations.633
While the above findings indicate a generally positive effect of the Netherlands in the role as
honest broker, particularly at the intermediate outcome level (enhanced awareness and
renewed collaboration and policy options),634 there are also more critical voices. For example,
an interviewee representing the EC noted that the Netherlands claimed the success of the
honest broker role, also in the press, but that the actual impact of this role was more
limited.635 For example, the Netherlands had indeed organised stakeholder events, but these
events in the African regions were only a fraction of the activities that took place. ICTSD
organised many other stakeholder consultations on the EPAs on its own, and other
organisations were active as well (e.g. ECDPM).636 Moreover, other member states played a
(more prominent) role in initiatives undertaken by the ‘Friends of EPA’ as well. As mentioned,
in the letter sent to the High Representative of the Union for Foreign Affairs and Security

MFA (2015e).
Saana Consulting (2014), p. 9.
633
Saana Consulting (2014), p. 39
634
E.g. MFA (2015e). The document identifies which results have been booked as result of the Dutch
interventions.
635
Interview with EC trade policy officer, held on 6 March 2020.
636
Although it should be noted that some of the organisations/activities have also been (partially) funded by
the Netherlands, but not as part of the honest broker role.
631

632

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Policy/Vice President of the European Commission and the European Commissioners for
Development and Trade, it was the UK that took the lead role.637
Another interviewee mentioned that while the honest broker role of the Netherlands was
well intended, it was not strategically targeted to get the negotiations back on track.638
The Netherlands engaged in awareness-raising workshops and events at the African level,
but failed to involve stakeholders at higher political levels and encourage discussion at this
level. It did not involve the European Commission, nor did it invite ACP ministers to its
events.639
Moreover, while EPA negotiations were ultimately concluded in all three regions and more
flexibility was granted in the period from concluding the EPAs and their ratification, it is
difficult to attribute these results to the Dutch efforts. From the documentation and
interviews, it is unclear how, and to what extent, the specific interventions affected the
evolving negotiating position of the EC and the African parties. The high turnover of staff
responsible for the EPA dossier, as revealed in interviews with the MFA, made it even more
difficult to identify whether and how Dutch interventions affected the negotiations.
Overall, the effect seems to be limited. This can be partly explained by the fact that, from the
outset, it was difficult for the Netherlands to take on a full-fledged role as honest broker
while being involved in the negotiations as an EU member state (with the Commission
negotiating on behalf of the member states). Considering the efforts of other relevant
stakeholders (e.g. other EU member states and think tanks), Dutch activities were only part of
a larger sum of interventions, and should be reviewed in this context. In addition, the fact
that the Netherlands took up this role without prior consultation seems to have an
unintended effect in the sense of causing friction between the Netherlands and the EC.
According to a representative of DG Trade, the European Commission was sometimes more
busy negotiating with member states than with the African countries.640 At the same time,
this friction seems to be only temporary, without any clear lasting effects. A representative of
DG Trade even pointed out that the EC could make clever use of the member states,
for instance by using the ties that the member states already have in countries that the
Commission is negotiating the EPA with (e.g. through development programmes) to increase
awareness.641
After some of the EPAs were concluded, the Dutch BHOS Minister indicated she was
committed to supporting their swift finalisation and implementation. Minister Ploumen also
wanted to stay informed about the sentiments around the EPAs in the relevant countries, and
where necessary, take action and communicate their sentiments to the EC. The Dutch MFA
and embassies have, at least once, conducted a stocktaking of sentiments and opinions,642
Interview with former policy officer at the MFA, held on 26 October 2020.
Interview with an expert, held on 16 June 2020.
639
Ibid.
640
Interview with EC trade policy officer, held on 6 March 2020.
641
Interview with EC trade policy officer, held on 4 March 2020.
642
MFA (2015a).
637

638

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though the results of the stocktaking and what kind of follow-up was provided remain
unclear. Moreover, according to one interviewee, currently most EU member states, including
the Netherlands, no longer play a proactive role in the EPA negotiations – and they are for the
most part still at an impasse.643, 644 Nevertheless, the Netherlands has funded general technical
assistance to the countries to enhance their negotiation capacity and trade competitiveness
in the areas of trade policy and negotiation capacity, trade facilitation and standards.645
These long-running initiatives are relevant for African countries to be able to benefit from
trade liberalisation and integration in global supply chains, though not directly linked to the
EPAs.

8.6 Conclusion
While some negotiations with the African regions have ultimately resulted in an EPA, such as
the EU–SADC or EU–ESA EPA, other EPA negotiations in the African region have largely failed
or only led to interim EPA agreements with individual countries or continued access under
the market access regulation.646 They also created issues for regional integration, and to some
extent antagonistic political relations between the EU and Africa.
In terms of Dutch interventions leading to the final outcomes of the negotiations with
African regions, the effect seems to be limited. Nevertheless, several conclusions can be
drawn on the effect of Dutch interventions, particularly in its role as honest broker.
Positive effects include the effects from the stakeholder meetings, which were appreciated by
the beneficiaries and found to be of added value in terms of bringing a wide range of
stakeholders together, creating fruitful dialogue and enhancing awareness; a better
understanding of the sensitivities in the countries; and new insights on how to move
forward. At the same time, the fact that the Dutch minister herself took on the role as honest
broker without consultation caused a negative effect as well, leading to friction with the
European Commission, as the Commission felt undermined by this action.
What is evident from this case study and the EPA negotiations in general is how difficult it is
to conclude negotiations between the EC, representing all EU member states on one side,
and African groups, representing various diverse African countries on the other side.
Furthermore, these difficulties do not disappear once negotiations have been concluded but
continue in the ratification and implementation phases.
For a more elaborate overview of the current state of EPA negotiations with Africa, see the EPA case study
in Ecorys (2021), Chapter 2.
644
In terms of the implementation of the EPAs that have been ratified, Germany is the only country
mentioned as an active player in this area, in terms of monitoring and support (interview with an expert,
held on 16 June 2020).
645
This has happened through several multilateral initiatives, for instance through support to ACWL, Codex
Alimentarius Trust Fund, the WTO Standards and Trade Development Facility and TradeMark East Africa,
and similar trade facilitation efforts in West Africa in cooperation with ECDPM and the World Bank (MFA
(2015c)).
646
See Ecorys (2021), Chapter 2.
643

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8.7 Recommendations
Building on the review and above conclusions, the following lessons learned have been
formulated, with respect to the EPA negotiations in general (lessons 1 to 5) and the Dutch role
as honest broker (lesson 6). The overarching lesson learned with respect to the EPA
negotiations in general (lessons 1-5), which should be taken into account in future
negotiations, is to be realistic about what the agreements can achieve given (i) the diversity
in interests among negotiation parties, as well as individual countries and different
stakeholders; (ii) the current level of development of certain economies and specific
industries; and (iii) the negotiation capacity available on the African side.
• In future negotiations, be realistic about the different (sometimes conflicting) interests,
both within the African groups and between the EU and the African partners.
A key lesson expressed by a representative of DG Trade, is ‘not to fall in the CARIFORUM trap’
and thus not to be overly ambitious in future agreements.647 This is something the EU and its
member states, including the Netherlands, should remember when talking about further
developing the EPAs and a follow-up agreement of Cotonou and a possible bilateral FTA
between the EU and Africa at the continental level. Be willing to innovate to ensure that the
agreements have added value and serve the interests of the parties involved.
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• Be realistic about the limited interest shown on the side of African counterparts due to
negotiation capacity constraints.
Ensuring that there is interest on the African side regarding the inclusion of topics beyond
the trade in goods (in light of future agreements on trade in services, for example) will
require careful management, sufficient institutional infrastructure and negotiation capacity
among the African countries. The EU and individual member states could play an important
role, providing (and continuing to provide) technical assistance. Yet the challenge is to
maintain a balance between being a (negotiation) party with its own interests and objectives,
and an uninvolved and dispassionate provider of technical assistance.648 The Aid for Trade
initiatives, such as trade facilitation initiatives, legal shops and advisory centres to enhance
negotiation and implementation capacity, could serve as models.649
• Provide support and scope in the design of EPAs to facilitate exports, but be realistic about
the effects that EPAs can have on exports.
Even the most far-reaching and innovative trade agreement can only do so much to promote
exports. This also depends on the ability to carry EPA’s forward into national industrial
policies. National policies pursued by different African governments have shown varying
Here, the EC has negotiated an ambitious and comprehensive agreement with Caribbean countries,
but this agreement has hardly been implemented, due to insufficient capacity and interest on the side of
the ACP countries (interview with EC trade policy officer, held on 4 March 2020).
648
Ecorys (2021), Chapter 2, p. 35.
649
Ecorys (2021), Chapter 2.
647

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degrees of success. For EPA negotiations to facilitate national industrial development, it is
important for governments to develop and implement well-designed national industrial
policies, within the space created in the EPAs. To do so may require additional institutional
capacity building to design and implement targeted support and policies.
• Explore alternatives to (the current form of ) the EPA and EPA negotiations.
A possible consideration is also to eschew EPAs with those regions and countries unwilling to
ratify and apply an EPA. Instead, the EU could expand market access under GSP, available to
all developing countries. Although this would not offer the same level of market access as an
EPA for African countries, it would not require them to open their markets to EU imports,
thus taking away some of their current concerns around EPAs.
• Ensure continuous and inclusive dialogue between the EU and African countries,
where interests of different stakeholders are well presented.
Results from the dialogues organised by ICTSD have been valuable, providing scope for
different groups of stakeholders, including civil society and the business community, to share
their views and express their interests. Inclusive and frequent dialogue between the EU and
African countries similar to dialogues organised by ICTSD allow for enhanced awareness and
continued collaboration. The African countries may not always prefer the inclusion of a wide
base of stakeholders, but this varies per country. It is important for the EU to be aware of
these country-specific preferences and to structure the dialogue accordingly. Furthermore,
support to regional organisations and think tanks that provide useful input (e.g. expertise,
research and their local networks) can enhance the quality of these dialogues.
• Identify and recognise the challenges that come with taking on a dual role as an honest
broker and an EU member, and learn from the unintended effects.
It is difficult to play the honest broker in the context of the negotiations, given that the
Netherlands is also involved as a member of the EU. It is important not only to think carefully
about what can be done (can the obstacles be addressed, and if so, how?), but also consider
what parties and stakeholders must be involved or informed – as well as what potential
counter effects or unintended effects may occur, and how these can be mitigated.
For instance, consult relevant stakeholders and enhance communication with the EC.
nvolve the EC to reduce friction and better integrate the Dutch position at the stage of EC
policymaking.

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9
Overarching observations,
general conclusions and
recommendations

Trading interests and values

This evaluation has presented a review of Dutch trade and investment policy, covering the
period 2013 to 2019, complemented with some important, more recent developments.
It identified which trade and investment policy issues were prioritised by the Netherlands,
and why, and how the Netherlands subsequently established its position. Moreover, we
examined to what extent the policy goals on these issues were achieved and whether there
was policy success, notably in influencing EU positions, but also in terms of setting the
agenda and achieving results in trade negotiations more widely.
The purpose of this chapter is to provide observations, general conclusions (leaving the
specific conclusions of the case studies to the previous chapters), and recommendations
around three topics: policy priorities and coherence, Dutch policy success in the EU and
capacity. These observations are shown in boxes with examples from Dutch practice.
The three topics recurred throughout the policy reconstruction, the case studies and during
interviews, and are highlighted in this final chapter to suggest how to enhance the
policymaking process.
Grounded in evidence from the five specific case studies, the observations, general
conclusions and recommendations are valid at a higher level and go beyond the case studies.
They provide guidance and food for thought and will hopefully inspire policymakers, in
particular at the DGBEB, to advocate Dutch priorities more effectively, to enhance policy
coherence, acknowledge trade-offs, and reduce gaps between the policy goals and results.
Case studies as a basis
In the case studies, we examined Dutch policy success at different stages of policymaking,
from agenda-setting, to adoption of policy proposals, and in some cases policy
implementation.650 Determining whether efforts to influence policy were successful was
often challenging, so that these cases mainly identified the most conspicuous Dutch efforts
and signs of policy success or lack thereof. In particular, we could not identify with certainty
whether Dutch interventions at the level of the EU were decisive and to what extent results in
Dutch priority issues could be attributed to the Netherlands, because, on most topics, similar
positions were taken by the European Commission and other member states from an early
stage.
Overall conclusions from the five case studies regarding the success of Dutch interventions in
contributing to the EU agenda, EU positions and international negotiations are reflected in
the executive summary and will not be reiterated here. The complete findings on these case
studies are presented in Chapters 4-8.
The five case studies were: trade and sustainable development chapters in free trade
agreements, trade defence instruments, investor protection and investment dispute
settlement, the trade in services agreement and the economic partnership agreements with
African regions.
650

For a detailed description of the methodology, see annex 1 to this report. The stage of policy
implementation was found to be of limited relevance only in some of the five case studies, notably TDI.

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Policy priorities and coherence, Dutch policy success in the EU and capacity
The observations, conclusions and recommendations in this chapter reflect recurring and/or
overarching issues. The first set of recommendations concerns policy priorities and policy
coherence. Policy coherence was a recurring theme throughout the case studies, because
non-trade priority concerns,651 such as sustainability and the interests of developing
countries, may conflict with – and have to be weighed against – (national economic) trade
interests. Moreover, policy coherence is at the heart of the combined policy agenda for aid,
trade and investment of the Netherlands. It is also at the heart of the IOB policy review of the
BHOS budget article 1, which this study feeds into. This confirms its relevance. In fact, the
issues of policy coherence and conflicting interests were already noted in Chapter 2.
The second set of topics concerns Dutch policy success in EU trade and investment policies,
which was the starting point and main initial question of this evaluation. The third topic
concerns capacity. Staff capacity appears to be crucial, and a lack thereof is an obstacle for
effective interventions. We will finish this chapter by looking ahead, presenting overall
considerations on the future of trade negotiations against the background of current
geopolitical developments.

9.1 Policy priorities and policy coherence
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9.1.1

Operationalising the trade and investment policy

The three overarching aims of the Dutch BHOS policy were: (1) eradication of extreme poverty
in a single generation; (2) sustainable, inclusive growth all over the world; and (3) success for
Dutch companies abroad. More specifically on trade and investment, the Netherlands wanted
to play its part in concluding bilateral (EU) free trade agreements, internationalising the
Dutch private sector, attracting foreign direct investment and protecting Dutch investments
abroad.652
Policy goals at a lower level, as relevant to the five specific case studies, tended to be
formulated rather broadly and without a strategy or intervention logic on how to achieve
these goals. There was little indication as to how the Netherlands planned to achieve the
policy goals, underlying objectives and targets. Nor was it specified what the desired results
and common threads and bottom line were for current priority issues in these five specific
policy areas. Consequently, overarching policy goals and priorities have not been
systematically translated into actual policy positions. For instance, while the Netherlands
promoted gender equality and the interests of developing countries in general, IOB did not
find evidence of Dutch interventions at the working level reflecting specific proposals on
these two topics.

‘Non-trade concerns’ here means that these issues are not classic economic, national interests or classic
business interests in trading.
652
See Chapter 2 for a more detailed review of Dutch international trade and investment policy.
651

Trading interests and values

Recommendations
1. Operationalise the policy priorities in a consistent manner: trade and investment policy
can be elaborated in a more systematic manner. This is especially relevant for priority
themes and important negotiation processes, and can be executed by formulating
overarching goals, objectives and concrete targets, strategies to achieve these, and
timelines. Drafting framework instructions will support this approach.
2. Maintain a limited number of policy priorities, to make it possible to formulate clear
messages, and promote issue ownership and a visible profile within the EU (as is already
the case with sustainability chapters). A limited number of priorities, and the
operationalisation of these priorities into objectives and positions for specific files,
could also enable a focused implementation of policy.
Box 9.1 Good practices and lessons learned

Good practices
• Sustainability is a clear policy priority and has been well integrated into trade policy,
specifically in EU FTAs, by introducing trade and sustainable development (TSD)
chapters. The Netherlands started its agenda-setting by supporting the EC on the
inclusion of TSD chapters into bilateral FTAs (see Chapter 5). TSD chapters are now
proposed in all FTAs that the EU negotiates. It is likely that Dutch emphasis on such
chapters, from an early stage, contributed to this success. Over the years, Dutch
efforts have shifted from inclusion in treaties to implementation and enforcement.
Whether the Netherlands and the EU will be as successful in implementing these
chapters remains to be seen. Recent Commission efforts to strengthen the
enforceability of TSD chapters are a positive development in that respect.
• The Netherlands integrated comprehensive sustainability and RBC provisions in its
Model Bilateral Investment Treaty, developed in 2017–2018. These texts are
innovative and ambitious – although they lack real possibilities for enforcement
(see Chapter 7).
Lesson learned
In the TSD chapters, the Netherlands pushed hard for the inclusion of gender
equality, but it remained unclear what exactly it wanted to achieve in trade
disciplines for governments – other than raising awareness (one policymaker stated:
‘the more [references], the better’) and giving priority to women’s empowerment.
In the end, none of the TSD chapters in the EU FTAs concluded up and until 2019
contain any specific provisions on gender equality (see Chapter 5). In its BNC fiche on
the EU Trade Policy Review of February 2021, the Dutch cabinet mentions that the
mainstreaming of gender into EU trade policy is an important objective.*
This mainstreaming has not fully been operationalised yet, although after the
reporting period, the Netherlands did issue a non-paper, promoting gender equality
through trade policy (2020), and the EU set up an Action Plan on empowering
women and girls (2020).
* MFA (2021).

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9.1.2

Balancing conflicting interests

Policy coherence has been a long-standing objective of the Netherlands. Making policy
priorities operational requires elaborating a strategy on how to deal with potentially arising
conflicting interests or trade-offs between policy goals. National economic interests can
clash, for instance, with the interests of developing countries (as explained in the text box on
advocating their interests below), and the interests of companies can clash with some public
interests that are defended by civil society. Our findings show that trade-offs or synergies in
decision-making do not appear to have been made explicit or calibrated in a systematic
manner.
The Dutch Trade and Investment Board (DTIB) and the Broad Trade Council (BHB) do offer
non-state actors, including civil society, a chance to meet with policymakers on a regular
basis, to discuss trade policy or raise issues such as non-trade concerns (see Chapter 2).
However, there is no up-to-date assessment framework to weigh trade and investment
priorities against development and foreign policy, or to promote the overall coherence of
Dutch trade and investment policy with development policy and foreign policy. Using such a
framework would help decision-making.
For instance, when non-trade concerns, such as sustainable and inclusive development,
gender and RBC, conflict with trade concerns, an up-to-date assessment framework could
help to enhance coherence between policy priorities. In interviews for this evaluation, no
evidence was found that the assessment framework on trade and non-trade concerns from
2009 is currently actively used.653 This is remarkable given the fact that these issues are
cross-cutting priorities for the Netherlands, which would benefit from the active use of such a
framework. In 2018, development-friendly trade agreements, including non-trade concerns,
were identified as one of the priorities for policy coherence.654 However, when negotiating
partners refused to integrate specific, concrete sustainability commitments, the EC and
member states failed to insist on their inclusion and instead prioritised the need to reach an
agreement.

In 2009, the Dutch cabinet presented a policy position regarding non-trade concerns (NTCs) and trade
(Tweede Kamer, vergaderjaar 2008–2009, 26 485, nr. 68), arguing that these concerns deserved attention
because of their intrinsic value and because too little attention for NTCs could eventually undermine the
societal support for the multilateral trading system. For unilateral trade measures, an actual assessment
framework was presented. However, since the introduction in 2009, no updated assessment framework
has been introduced and some interviews with policymakers working at the MFA have confirmed that the
framework is no longer being used (interviews with Dutch policymakers working at the MFA, held 7 and 14
October 2019. One employee at DGBEB did say that the framework was still valid (June 2021).
654
Government of the Netherlands (2018). The 2016 Action Plan on policy coherence already identified areas
where conflicts might arise.
653

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Trading interests and values

Trade-offs and clashing interests may also occur (see Chapter 2)655 in terms of policy
coherence between the three policy fields of aid, trade and investment policy. However,
an up-to-date assessment framework (or Theory of Change) to identify, reduce and weigh
possible trade-offs and incoherencies between Dutch development policy and trade and
investment policy does not exist, even though defending the interests of developing
countries in international trade is an explicit policy priority (see also the text box below).656
Box 9.2 Advocating the interests of developing countries

Advocating the interests of developing countries
Because ‘the Netherlands will continue to stand by the poorest people’ and fight for
an equitable world, with sustainable and inclusive growth,* it has often advocated
the interests of developing countries, as evident in the five case studies. For example,
the Netherlands tried to prevent negative impacts of FTAs for developing countries
– in particular, least-developed countries – and marginalised groups in society.**
In this vein, the Netherlands supported developing countries’ negotiation capacity in
the WTO and their ability to play their role in international discussions on investment
dispute settlement. The Netherlands financed Aid for Trade interventions on
technical assistance for negotiation capacity, to strengthen the capacity of
developing countries in negotiations on trade and investment, for instance through
the Advisory Centre on WTO Law (ACWL). It took the lead in proposing a similar
centre in the area of investment dispute settlement (ACIIL). And in the case of EPAs,
for instance, Minister Ploumen offered to be an honest broker in the negotiations
(see Chapter 8).
*MFA, 2013, p. 6.
**In addition to considerations of solidarity and strengthening a multilateral, rules-based and equitable
trade system, the MFA feels that the EU also has a strategic interest in supporting the integration of vulnerable
countries into the global economy. Source: MFA (2021).

Potentially conflicting interests were a recurring issue in the five case studies. Inconsistencies
among the different areas were not clearly solved in operational policy guidance, as just
explained in 9.1.1. For instance, in the case study on investment protection and investor duties
(Chapter 7), it was evident that steps have been taken in the right direction, but policy
coherence remains a challenge. When trying to update bilateral investment treaties,
Dutch representatives have to weigh the aspiration to insert non-trade concerns against the
risk of not getting any agreement, because such proposals have often encountered opposition
from negotiating partners. Another challenge in coherence is illustrated by the EPAs.
This was also concluded in the IOB study: ‘Coherence or co-existence? A study on the implementation of
the aid, trade and investment agenda in three transition partner countries: Bangladesh, Ethiopia and
Kenya’, which identified the difficulties experienced to serve aid objectives and trade and investment
objectives concomitantly (see: IOB, 2021). https://www.tweedekamer.nl/kamerstukken/brieven_regering/
detail?id=2021Z06438&did=2021D14248
656
MFA (2018).
655

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Minister Ploumen offered to act as an honest broker, to advance the interests of developing
countries, while those interests may clash with the EU’s economic interests – and the
Netherlands itself was, of course, also part of the EU party in the negotiations.
Because there is currently no up-to-date assessment framework to help prioritise objectives in
the face of trade-offs, not all non-trade concerns can be effectively integrated into trade and
investment agreements in practice, let alone translated into trade disciplines that are
implemented and enforced. This is especially problematic when the obligations and rights of
the countries concerned are at odds according to different agreements, and when negotiating
partners strongly object.
Close collaboration between the Directorate-General for International Cooperation (DGIS)
and the Directorate-General for Foreign Economic Relations (DGBEB) is recommended to
identify potential trade-offs and address policy incoherence. When the BEB moved to the
Ministry of Foreign Affairs (MFA) in 2012, the main responsibility for raising specific interests
of developing countries was given to BEB/IMH, which also has the responsibility for policies
promoting commercial interests. This puts the responsibility for the assessment of diverging
policy objectives mainly in one hand: which has the potential to enhance coordination and
coherence and create synergy, but also comes with the risk that development cooperation
objectives are not represented to the extent they were before, even though policy notes on
trade and development highlight these topics. Policymakers need to be acutely aware of the
possibility of conflicts and trade-offs between policy goals when policy positions are
formulated and expressed at negotiating tables. They must take into account issues related to
sustainable development and the interests of developing countries. This requires identifying,
and avoiding as much as possible, any potential conflicts and trade-offs, for instance in an
up-to-date assessment framework. Similarly, given the importance of geopolitical
developments on trade and investment policy (see Chapter 3), these developments must be
taken into account as well.
Recommendations
3. Integrate goals and commitments, such as those expressed in policy notes, more
systematically into trade and investment policy, including sustainability, climate change,
gender, labour rights, human rights, responsible business conduct and due diligence.
• Identify potential synergies and trade-offs between Dutch policy goals in a systematic
manner. When and where trade-offs exist, they should be identified early on and
weighed in a transparent and systematic manner. Deal more explicitly with trade-offs
and synergies among the interests of business, citizens, consumers, government
authorities and the environment. Address possible inconsistencies between
obligations in various international agreements and ambitions on non-trade
concerns, on the one hand, and measures to support Dutch companies and to attract
foreign investors, on the other hand.
• Update or redesign the existing assessment framework (2009) on how to deal with
trade-offs between trade and non-trade concerns and/or between the different policy
objectives of Dutch aid, trade and investment policy and among trade policy,
development policy and foreign policy.

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4.

• Acknowledge the limits of the influence of trade agreements – and trade policy in
general – on other policy areas. Non-trade concerns cannot always be translated into
disciplines in trade agreements or in unilateral trade sanctions.
Ensure that development issues are taken into account for a balanced and coherent
position on trade files in the EU, as well as foreign policy (Directorate-General for
Political Affairs, DGPZ) issues. Close collaboration and consultation on a regular basis
between DGBEB and DGIS and DGPZ is key to promoting the integration and coherence
of all MFA policies.

Box 9.3 Weighing various and conflicting interests

Weighing various and conflicting interests
The MFA advocated for stakeholder involvement in discussions at the national
(Parliament) and the EU level. The MFA also invited various stakeholders to advocate
non-trade concerns and public interests on a regular basis: for instance, concerns
related to labour rights and environmental sustainability. A positive example of
transparent, multi-stakeholder consultations were the extensive discussions that the
Netherlands organised concerning the Model Bilateral Investment Treaty
(Chapter 7).*
In the case of TiSA (Chapter 6), there were tensions between trade policy and
development policy. However, it did not have an up-to-date framework to weigh
different policy objectives nor did it systematically take into account the interests of
developing countries in instructions – and they were not even participating in these
negotiations. Finally, Dutch business seems to have had a major effect on negotiating
positions, profiting from close ties with policymakers and politicians.
*The Netherlands also organised other consultations with non-state actors on a regular basis, including a
recent series on TSD commitments (for more information
see: https://www.rijksoverheid.nl/documenten/kamerstukken/2020/11/16/kamerbrief-aan-de-eerste-kamerinzake-klachtenmechanisme-over-duurzaamheidsbepalingen-in-handelsakkoorden).

9.1.3

Adjusting formal positions to changing circumstances

This evaluation has shown that Dutch positions, once formulated in instructions for the
Trade Policy Committee and/or so-called BNC fiches, were often maintained for months, or
even years. This led to a repetition of the same positions, with the same phrasing, dozens of
times in EU meetings such as the TPC. Whereas taking a firm stance early on in negotiations
can be a good tactic, continuing to hold on to this firm stance, also in the later stages of
negotiations, not taking changing contexts and proposals into account, can create undesired
effects – such as being much less involved in ongoing negotiations. Most conspicuously, this
was discussed in the case of trade defence policy negotiations in Chapter 4 (particularly in the
proposed non-application of the lesser duty rule), and in Chapter 7, related to the investment
court system. At the same time, in several case studies we noted that instructions changed

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overnight, often at the later stages of negotiations. In those instances (notably ICS and TiSA),
the Netherlands went along with compromise proposals and/or EC proposals, seemingly in
silent agreement. In response to IOB’s findings, BEB suggests that in the run-up to such
compromises there usually was a period of informal contact where solutions were drafted
without formally changing instructions.657
Negotiations require some room for manoeuvre, adjustments to changing contexts and
possible trade-offs between policy issues. Multilateral trade and investment negotiations are
complex and can last many years. Changes in circumstances require careful alterations in
standpoints and they may require adjusting ambitions and directions, for instance setting
intermediate objectives along the way towards the ultimate goal. This was illustrated by the
case of investment dispute settlement and the proposal for a multilateral investment court
(Chapter 7).
Recommendations
5. Draft general guidance and framework instructions for a number of priority issues and
negotiations, delineating the bottom line, thus allowing Dutch representatives in EU
negotiations to compromise on those issues without having to consult senior
management. Consider setting less ambitious, interim objectives towards achieving
ultimate goals.
6. Review policy positions regularly and tailor them to circumstances when and where
needed. When taking a pragmatic approach in the end, leaving references to non-trade
concerns out or having a change of heart due to changed circumstances, be transparent
about your decisions and underlying motives.
Box 9.4 Pragmatic practice and lessons learned

Pragmatic practice
• Often, negotiating partners of comprehensive free trade agreements objected to
sustainability and human rights commitments that the EU proposed (e.g. related to
the FTA with Japan) as well as proposals to include references to an investment
court system. Sometimes, the EU introduced sustainability and human rights
commitments in other international agreements, for example by including
references to the ILO core conventions. Occasionally, the EU considered the
possibility of trade measures (sanctions) to enforce such commitments.
When negotiating partners rejected such texts and the EU’s proposals would have
prevented the conclusion of any agreement, pragmatism ultimately prevailed:
the EU’s proposals were dropped. In the case of investment dispute settlement,
references were left out of the agreement with Japan only when it could accept the
old system (ISDS).
• The Netherlands adopted a case-by-case approach to references to investor-state

657

According to a comment by BEB, formally changing instructions is too burdensome an administrative
process. IOB could not verify to what extent informal contacts and undocumented changes in position
took place.

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dispute settlement in EU trade and investment agreements, similar to the rest of
the EU (Chapter 7). The EU dropped its desire for introducing an investment court
system whenever the rule of law was deemed adequate in the negotiating partner’s
country (for example, Australia and New Zealand, but not Canada). More generally,
when negotiating partners objected to a mention of ICS, investment (investorstate) dispute settlement was left out of the draft agreements. The Dutch cabinet
explained its pragmatic stance to the Dutch Parliament, but could perhaps have
done so sooner and better in the case of the EPA with Japan (2019).
Lessons learned
• The Netherlands did not always respond quickly in negotiations, to adjust to
sudden, unexpected progress in negotiations. For example, in the case of the
reform of the EU trade defence system (Chapter 4), as regards the non-application
of the LDR, the Netherlands held on to its initial stance for a long time, while some
other member states were already (more) flexible earlier on. While taking a firm
initial stance can prove to be a valuable negotiation tactic, in this case it seems to
have created a risk of being placed on the sidelines in discussions. The Netherlands
was eventually able to adjust its position, showing a willingness to compromise.
However being more open to exploring compromises and considering trade-offs
sooner can be beneficial to influencing negotiations.
• Policies and strategies need to be adapted when circumstances change. One major
change is the rapid rise of China and the associated opportunities and challenges
(see Ecorys (2021)). For a long time, the Netherlands, as an open economy, kept
defending the spirit of free trade. This was also evident in the case of trade defence
instruments (TDIs), where the Netherlands took a liberal approach and objected to
using TDIs. Over the past few years, several developments added to the impression
that the spirit of free trade had become unsustainable. It was only relatively
recently that the Netherlands started to act on the fact that large players, such as
the US and China, do not always adhere to international rules and instead adopt
power-based policies. The Netherlands has now acknowledged that expectations in
the WTO 2001 Accession Protocol about a decreasing role of the state in the
Chinese economy have not been met. The cabinet also changed its position on TDI
reform and Chinese FDI, and drafted a more assertive China Strategy (2019).
Furthermore, the rise of China led to a sense that Europe should become ‘strategically autonomous’, in the context of a tougher, more assertive discourse by
EU policymakers in general. This more assertive EU stance was reflected in,
for instance, the draft EU China Agreement on Investment of December 2020, and
the proposed EU Trade Policy Review of February 2021.

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9.2 Dutch policy success in the EU
9.2.1

Promoting priority interests

As explained in Chapter 2, the European Commission speaks and acts on behalf of the EU and
its member states on trade and investment matters, especially in the WTO, including on
bilateral free trade agreements. The Netherlands mainly operates in the context of the
Council of the European Union and its policymaking bodies.658 Dutch efforts therefore focus
on promoting the Netherlands’ policy views in the mandate of the EC for negotiations with
third countries. Coalition-building with other member states is important in this context,
since the EU Council has the ultimate decision-making power to approve the agreements
once they are negotiated (alongside the European Parliament).659 Member states have the
greatest influence when they start advocacy at an early stage in the policy cycle. Once there is
a proposal by the Commission, it is difficult to completely change it.660, 661
A vocal stance on some priority topics gave the Netherlands visibility and influence on the
EU’s agenda. However, a considerable part of the Dutch instructions and reports that IOB
studied showed a rather reactive approach of the Netherlands to EC proposals, rather than it
proactively setting the agenda and advocating from the start. Even when clear priority topics
were identified (sustainable development, gender, modernising ISDS), there did not seem to
be a clearly articulated Dutch vision on the desired direction and strategy of the EU on these
priority topics. Although there might be strategic thinking at a higher, managerial and
political level, such thinking was not explicit in the documents analysed for this study.662
This could be partly attributable to the high turnover of some policy officers, as for instance
identified in the EPA case study, which consequently resulted in a lack of institutional
memory.
The observation that a strategy was largely lacking is relevant, since strategic thinking is a
precondition for anticipating developments and formulating Dutch positions in a timely
manner. An important issue requiring such strategic thinking is how to deal with Brexit:663
the Netherlands has lost an important liberal ally in the EU, but at the same time, Brexit can
provide an opportunity for the Netherlands to become a more prominent player, for instance
if it wants to be a leader of the liberal contingent in the EU.664
MFA (2013), p. 16.
The Council applies qualified majority voting in most areas to mandate the Commission to start
negotiations and adopt negotiating results, in conjunction with the EP, and national parliaments in case of
ratification of mixed competence agreements – which in essence introduces a veto possibility. Note that
the Council has to approve negotiating mandates and that the European Parliament (and in some cases
national parliaments) only has (have) to approve agreements after their conclusion.
660
See, for example, Baumgartner and Jones (1993); Baumgartner and Jones (2002); Baumgartner et al.
(2009); and Kingdon (1995).
661
König et al. (2006), p. 553-574.
662
Including all TPC instructions and meeting reports since 2013.
663
A Brexit task force and network of focal points was set up in the MFA, but institutionally it did not fall
under DGBEB.
664
Europa Nu (2020); Clingendael Spectator (2021).
658
659

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In the case studies, we did not come across systematic strategic reflection on lessons learned,
which could help to increase Dutch influence and impact. This could be partly attributable to
the fact that there is a high turnover rate among policy officers, whereas networks and
coalition-building (including at the political level) are key to success,665 and they require
time.666 Formulating a clear strategy on how to engage with like-minded and non-likeminded countries could help increase Dutch influence.667
A more proactive stance
On some priority topics, the Netherlands did take a more proactive stance, for example by
writing letters to the European Commission and writing position papers (sometimes together
with other member states), or by responding more extensively to policies and initiatives in
support of the proposal by the EC (trying to convince other member states, for example).
In specific instances where an extra effort was made, the Dutch influence was notable.
On those occasions, the Netherlands did set the agenda and helped prepare EU positions
on its topics of interest or managed to move the EC position closer to the Dutch position.
For instance, the Netherlands helped kick-start the debate on moving towards an ICS system
within the EU around 2015 (Chapter 7) and was a leading member of the group of like-minded
countries that pushed for the liberalisation of services around the time of the TiSA
negotiations (2016) (Chapter 6). Furthermore, Dutch efforts to improve sustainability
provisions and include effective TSD chapters in comprehensive bilateral trade agreements
are well known and were quite successful (Chapter 5). Also, the Netherlands contributed to
putting gender and responsible business conduct on the international trade agenda.
Moreover, the five case studies have shown that the Netherlands advocated enhancing
transparency, and quite successfully so, not only in the implementation of disciplines,
but also during the phases of internal EU policy development (the negotiating mandate),
the actual negotiations (e.g. negotiations on EPAs, TiSA and trade defence instruments) and
sometimes the implementation of policy (e.g. trade defence).
While the EU highlights the importance of transparency, the EC tends to keep draft policies,
positions and conditional offers close to its chest, especially when trade-offs have to be made
between divergent offensive and defensive interests. This creates issues with transparency
and accountability to the public. And it makes it difficult for member states, civil society and
parliaments to hold the EC to account. In several case studies, the Netherlands insisted on
more transparency in the Commission’s way of working: publishing the negotiating mandate
and sharing draft proposals or treaty texts in a timely manner. This concurred with the EC’s
own desire to become more transparent, but Dutch influence probably helped them do so.

Jenkins-Smith et al. (1991), p. 851-880; Junk (2019), pp. 660-764; Sabatier (1988), p. 129-168.
Weible et al. (2012).
667
See also: Häge (2013), pp. 481-504.
665

666

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Recommendations
7. The following matters could be taken into account better and more systematically, when
drafting policies and strategies to enhance the MFA’s strategy and influence, especially
on priority topics in trade and investment.
• Carry out a stakeholder and context analysis at the outset of each process, before
negotiations start, and update it on a regular basis (for instance, taking into account
the changed positions of major economies such as the US and China).
• Set up a strategy and a tactical plan for priority negotiations, within the limits of your
staff capacity. Align the timing of your interventions in the EU and WTO with key
events or opportunities, such as ministerial meetings. Adjust the strategy to changing
circumstances.
• Build relations, embrace cooperation and set up coalitions, within and outside of the
EU. Draft a strategy on how to engage with like-minded and less compatible countries.
- Consider setting up a group of member states to get a blocking minority in the EU,
if you are willing to accept the consequences and if no outcome would be preferable
to a bad outcome.
- Inside the EU, also work with less compatible countries to get information on their
positions and build a relationship, explore deals in other dossiers and perhaps
increase your leverage.
- Decide which issues, and how and when, you will engage on issues politically, at the
ministerial level, which is often the appropriate place to make deals.
• Start lobbying efforts from the beginning for optimum effect and dedicate sufficient
staff resources to priority topics and campaigns.
• Be strategic in all of your efforts, making smart choices and selecting which events are
important to attend, given that staff capacity on trade issues is limited.
- Distinguish between formal and informal discussions, important and nonimportant meetings. Carefully select which policy meetings to attend from
The Hague and at a higher level, instead of only the Permanent Representation
to the EU and to the WTO, and engage Dutch embassies in EU capitals more.
8.

Engage actively with the Commission on priority topics to have an influence on trade
and investment policy.
• Hold the EC to account: demand transparency and the sharing of draft proposals and
information on progress on a continuous basis, in particular on priority topics.
More detailed and more frequent updates to the public on Dutch and EU negotiating
positions would increase transparency.
• Engage systematically in discussions with various parts of the Commission on priority
issues, providing feedback on substance.

Box 9.5 Good practice

The case studies contained some examples of working together well at the
ministerial level with France and Germany, e.g. on the investment court system in
2015 (Chapter 7), and on trade, social-economic effects and sustainable development
in 2020 (but that was after the reporting period; Chapter 5).

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The TDI case study identified the Netherlands’ value in being critical and holding the
EC to account, for instance by demanding the EC to ensure the proper use of and
provide sufficient evidence for the application of TDIs. For instance, the Netherlands
asked the EC to provide more information on the extent of the use of
non-application of the ‘lesser duty rule’ (as part of the TDI reforms), and provide a
cost-benefit assessment of the effects. Furthermore, the Netherlands was critical and
demanded more transparency during the implementation phase of TDI policy. It
requested more evidence to substantiate the claims for trade defence measures in
response to Chinese dumping practices for e-bikes.

9.3 Capacity
9.3.1

Capacity and staff turnover

The issue of capacity directly affects the quality and effectiveness of Dutch policies and
interventions. The number of dedicated staff for trade and investment policy in the MFA and
the permanent representation to the EU is relatively small and turnover in The Hague is high.
For the period under evaluation, BEB/IMH has had an increasingly diminishing number of
dedicated staff for trade and investment files such as the ones related to the WTO, and the PR
EU only has one full-time staff member working on trade, while other member states usually
have significantly more.668 Limited staff capacity may be one of the reasons that instructions
on the topics of the case studies were not always up to date.669
One of the advantages of the close proximity of The Hague to Brussels is that IMH policy
officers can often directly participate in deliberations, for example in the TPC or in working
groups. Of course, this helps them a great deal to build experience and to network and allows
IMH officers to support their colleagues at the PR EU. At the same time, several interviewees
mentioned that many of the important discussions take place outside of the formal meetings.
To truly stay on top of things, policy officers should continue to invest in informal contact
with other member states, the European Commission, and with their colleagues at the PR EU,
when travelling to Brussels. It is worthwhile to devote considerable time to informal
meetings – time which representatives from The Hague (according to interviews) may not
have.
In addition, we note that the DGBEB’s move to the MFA in late 2012 may have increased the
turnover rate of trade and investment experts.670 Policy offers at the MFA do not usually get
DGBEB staff comments that WTO capacity decreased because little happened in the WTO over the past
few years, while they say that the overall number of staff at the relevant unit has probably slightly
increased, and that Dutch representatives often travel to Brussels, thus compensating for the difference in
capacity with other member states.
669
Another reason that BEB brought up (in response to a draft version of this report) is that it is their
conscious choice not to update formal positions while informal negotiations are ongoing.
670
MFA staff turnover is usually every three to five years (seven at most).
668

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much training in trade and investment policy, nor are they able to build up much experience
in these complicated dossiers over the different postings during their career. By contrast,
the Commission’s Directorate-General for Trade often has career staff with a much longer
tenure, who have particular areas of expertise, and decades of experience in different trade
negotiations and policy areas.
Some external interviewees mentioned that Dutch representatives were generally very
capable and skilled and were able to provide valuable input for Commission proposals and
provide counterweight to more defensive member states. This is an achievement, given the
limited capacity and staff turnover. The Netherlands needs to invest in its institutional
memory and maintain a critical mass of qualified, experienced staff, if it wants to maintain
substantial influence in the EU, among like-minded and in the liberal block of member
states, if it wants to help keep the EU on track and in line with Dutch priorities, and if it wants
to balance different interests carefully and promote a sustainable global trading regime.

9.3.2

Policy reality versus actual reality

In trade matters, the political reality in The Hague is often quite different from the complex
and changing reality in Brussels and Geneva, where compromises are needed to make any
progress. It is therefore wise for the DGBEB to maintain close contacts with the Dutch
permanent representations – as they say they do – and (Dutch) staff at the EU and the WTO
and other international organisations, as well as delegates from third countries. Geneva
offers good opportunities for direct contact with non-EU delegations, meaning that Dutch
representatives working there can help gather information. Close cooperation and a solid
exchange of information with the permanent representations is of the utmost importance,
as is frequent informal contact with other delegates and experts, especially to help draft
compromises. While BEB officers do their best, the capacity to do so is limited.
Recommendations
If the Netherlands wants to achieve its ambition and take up the role of the leader of the
liberal contingent in the EU, for example, then it needs to increase its capacity for
policymaking, position-taking and representation. The MFA needs to ensure that sufficient
staff and expertise are available to formulate and adapt policies and instructions, especially
by increasing the number and continuity of staff at DGBEB/IMH for trade and investment
policy and WTO files.
• Ensure institutional memory, consistency and continuation of Dutch position-taking.
Ensure systematic information-sharing and a thorough handing over of files.
• Promote specialised knowledge and career paths, letting officers build a relevant network.
Offer specific training on trade and investment dossiers.
• Work with Dutch staff at the EU and international organisations, especially the WTO,
to gather information, get their expert insight and promote Dutch interests.
• Support strategic secondments of national experts at DG Trade to build up experience and
networks, with a view to promoting Dutch interests.

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• Make optimal use of staff and expertise at the PRs to the EU and WTO. Remain in close
contact, (continue to) consult them frequently and provide them with clear and up-to-date
guidelines.

9.4

Geopolitics, multilateralism and open plurilateral agreements

Given the importance of the geopolitical context, this final section offers some reflections by
the evaluation team on the changing circumstances in the international trading system,
agreements and relations, with an eye to the future of trade negotiations.
In a changing world, with major economies that do not always play by the rules, such as the
US and China, and cross-cutting, existential issues such as digitalisation and climate change
that must be taken into account, a renewed effort is needed to update the multilateral
rulebook on trade policies and level the playing field for trade measures. The most important
organisation in that respect remains the World Trade Organization, keeping in mind that
preferential trade agreements (outside of the WTO) cannot fully address the negative effects
of international policies – and that they could even reinforce the formation of regional
blocks.
Now that the US (Biden) administration has started to embrace multilateralism again and a
new Director-General of the WTO has been appointed, the first priority for the European
Commission is to revitalise and modernise the WTO. This is especially important since there
is currently no functioning Appellate Body, making it difficult to resolve bilateral trade
disputes. Another priority of the EC is to stimulate multilateral rule-making and governance
on services, digital trade and investment facilitation.671
In this context, the EU Trade Policy Review of 2021,672 with an annex on reforming the WTO,673
provides a clear roadmap for the years ahead. The Commission feels that negotiations in the
WTO should first modernise the rules on e-commerce, investment facilitation, services
domestic regulation, as well as rules on the role of the state in the economy (i.e. subsidies).
After that, the focus could shift to advancing liberalisation on goods and services.674
The Commission believes that ‘progress can be best achieved through different processes,
in particular open, plurilateral agreements’.675 Note that the EC continues to emphasise
plurilateral agreements within the context of the modernised WTO (both in rules and
measures of enforcement), signifying that multilateralism will remain key.676 As observed in
the BNC fiche, this EC roadmap is in line with Dutch policy priorities and is fully supported by
the Netherlands.677
EC (2021b).
Ibid.
673
EC (2021a)
674
This approach thus breaks with the idea of a ‘single undertaking’, which according to the EC ‘has failed to
deliver’.
675
EC (2021a), p. 8
676
EC (2021a); EUI Global Governance Programme (2021).
677
MFA (2021).
671

672

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However, progress in WTO negotiations – with consensus based decision-making – has
proven to be extremely difficult. Coalitions of the willing have therefore started to debate
issues in smaller groups and in plurilateral negotiations on a sector- or issue-specific basis.
As EC DG Trade Acting Director Ignacio Garcia Bercero mentioned during a webinar on the
Trade Policy Review, ‘flexible multilateralism’, led by like-minded front runners, offers many
advantages, and progress in small groups of countries is bound to be much quicker than in
the WTO membership as a whole; but it also raises concerns about non-participants being
negatively affected.678 The concept that ‘nothing is agreed, until everything is agreed’, which
is the leading principle in the WTO Doha Development Agenda, does offer some protection
for developing countries’ interests.679 However, it comes at the price of a very slow pace: the
convoy moves at the speed of the slowest ship, or does not move at all.
The case study on TiSA (Chapter 6) has shown that negotiations on horizontal disciplines
affecting all WTO members should best take place in open-ended working groups at the WTO
– and not in closed meetings among a selective group of countries – to allow for widespread
support and truly global agreements. In addition, when plurilateral agreements are
negotiated, participants need not be overly concerned about ‘free riders’ – countries that may
profit even if they do not offer market openings themselves, as long as a substantial part of
the global market in a sector is covered. If free-riding countries cover only a small share of the
market concerned and if they are poorer developing countries, they should arguably be
allowed to benefit from the application of MFN and national treatment. The Netherlands,
with trade and development policy combined under one minister, could play an important
part in reminding the European Commission, other member states and third countries of the
interests of developing countries.
New coalitions and new ways of working
While multilateralism remains an important policy priority of the Netherlands and the EC,
and there is an increased focus on plurilateral agreements, economies today seem to be
operating more and more in competing regional blocks, with the US, EU and China operating
as the dominant centres of these blocks (see Chapter 3). Increasingly, the markets of these
regional blocks are being integrated, while regions have started to regard other regions with
suspicion.
A shift towards plurilateral discussions and negotiations on the governance of specific sectors
or issues could offer a more attractive alternative to comprehensive FTAs. The practice of
so-called Joint Statement Initiatives (JSIs)680 could ultimately provide a basis for formal open
plurilateral agreements (OPAs) in the WTO. Open plurilateral agreements could provide an
institutional framework for collaboration among national authorities, for transparency,
mutual review and learning – while not subject to dispute settlement. In parallel,
EUI Global Governance Programme (2021).
One example concerns proposals by developing countries to negotiate disciplines on the protection of
traditional knowledge and biodiversity in intellectual property rules: they were never taken up.
680
Different groups of WTO members launched joint initiatives on three issues – electronic commerce,
investment facilitation and MSMEs as well as services domestic regulation – kick-started by the 2017
Ministerial Conference, adding to an earlier JSI on gender (WTO (2017)).
678
679

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WTO members could agree on enforceable multilateral principles to ensure that OPAs are
compatible with an open global trade regime. Such an OPA mechanism could also be a
constructive way forward to defuse the controversial use of trade policy instruments for
climate change initiatives (such as carbon taxing).681
However, if geopolitical trust among economic regions does not increase, global agreement,
increased multilateralism and even OPAs are unlikely to emerge.682 The EU and the
Netherlands will have to identify how they can best advance their policy priorities in trade and
investment governance, including the pursuit of non-trade concerns such as sustainability,
responsible business conduct and gender, against this background of various and overlapping
free trade zones, overlapping and potentially conflicting international obligations, shifting
alliances and geopolitical tensions.
In conclusion, the new leadership at the WTO, the recommitment by the Biden
administration and the EC’s recent Trade Review are reason for cautious optimism.
They provide opportunities for the Netherlands to continue to play its role in strengthening
global economic governance.

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Alliances of countries that jointly pursue their nationally determined contributions in the Paris Agreement
could make explicit in an OPA how trade sanctions will be applied among the members of the OPA to reach
the agreed decarbonisation targets. See for more information: Hoekman and Sabel (2021).
682
Remarks by Martin Sundbu, of the Financial Times, at the EU Trade policy day (EC (2021c)).
681

Annex 1
Applied methodology

Trading interests and values

Desk research
Desk research was conducted by reviewing different kinds of policy documents to contribute
to the findings for all sub-questions. A broad range of policy documents was studied,
from letters to parliament, answers to questions by parliament, policy notes, speaking points
and minutes of different committees (at the national, EU and WTO levels), and internal
communications. To analyse these documents in a structured way, IOB used the coding
software MaxQDA. The output of these analyses were used for the policy reconstruction and
the overview of the actors involved (Chapter 2) as well as the five case studies (Chapters 4–9).
Except for the speaking points and minutes of committees at the EU and WTO levels and the
internal communications, these documents were publicly available. Instructions and
speaking points (to the extent available) for the Dutch delegation in EU meetings and the
minutes from these meetings were compared and analysed for the overview of and
motivation behind specific policy issues and for the case studies. These documents were
mainly collected from the MFA archives. Additionally, a review of trade and investment
literature683 was fed into the analysis of the policy issues, as well as into the analysis of policy
coherence and external developments (Chapters 2 and 3).
The consultancy firm Ecorys was commissioned to conduct a background study684 informing
IOB about external developments influencing Dutch policymaking on trade and investment.
Stakeholder mapping
A stakeholder analysis was used to identify all relevant actors involved in the policy process in
the Netherlands and in the EU, but also to gain insight into their policy goals and mutual
relationships. The stakeholder mapping consisted of two categories: stakeholders within the
governmental sphere and stakeholders in the private sector and civil society. Stakeholders
within the governmental sphere include policymakers at the relevant departments within
MFA and other ministries, members of the different councils involved in policymaking at the
national level (i.e. the Interdepartmental Council for Trade Policy and the EU Coordination
Committee), at the EU level (such as the European Commission, TPC (SI), FAC Trade, other
member states, the European Parliament) and at the WTO level (e.g. the WTO Secretariat).
Stakeholders in the private sector and civil society are actors who, by means of lobbying,
try to influence Dutch policymaking. Examples are the Dutch employers’ federation VNONCW, the Brussels-based business association BusinessEUROPE, NGOs such as Greenpeace,
the Dutch employees’ federation FNV, and think tanks such as the Geneva-based International
Centre for Trade and Sustainable Development (ICTSD).685
An exploratory overview of policy issues
As preparation for the Terms of Reference, IOB held exploratory talks with policymakers who
work at or used to work at the Department of International Trade Policy and Economic
Governance (IMH) of the DG for Foreign Economic Relations (BEB). The purpose was to create
an overview of trade and investment policy issues that Dutch policymakers focused on in the
Regarding the specific policy issues the Dutch government focuses on.
Ecorys (2021).
685
In November 2018, ICTSD shut its doors. However, its former employees could still provide us with
valuable insights on the Dutch and European role a WTO negotiations.
683

684

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research period. On the basis of these talks, several issues were identified, including
sustainable development,686 gender, investor protection and duties,687 trade in services,
public support for trade and investment agreements, the implementation of trade
agreements, transparency and accountability, Trade-Related Aspects of Intellectual Property
Rights (TRIPS), economic partnership agreements (EPAs), e-commerce, trade facilitation and
the coherence between trade and investment policy and the interests of developing
countries.
Case studies
Out of all the trade and investment policy issues identified by the policymakers in question,
five issues were selected for in-depth analysis. The analysis was done in the form of case
studies. For the selection of these cases, the following aspects were taken into account:
(1) extent of active work by policymakers on these issues in the period 2013up and until 2019;
(2) coverage of both trade and investment issues; (3) coverage of issues at both the EU and
WTO levels; and (4) coverage of issues where the final outcome appears to be in line with the
Dutch position and issues where this does not appear to be the case (whether at the agendasetting, policy formulation, policy outcome or implementation level). Where relevant,
we looked beyond 2019 to take other important developments into account.
Of course, as discussed under the limitations in Section 1.5, possible bias in the selection of
cases could occur, given that the selection was based on the identification of issues by
policymakers. At the same time, if this evaluation did not observe effects of Dutch efforts on
issues that policymakers have been actively working on, it is highly unlikely that such effects
would have been observed on issues they have not been actively working on.
For each of the case studies, a detailed overview of the policy issue and of the Dutch position
is provided in the respective chapters. In addition, an analysis is provided of how the Dutch
government tried to influence the agenda-setting, policy proposal stage, policymaking stage,
or implementation stage at the national, the EU or WTO level. Which strategies were used?
Second, we analysed the extent to which the Dutch government succeeded in influencing
these stages. Which strategies proved to be successful? What was achieved in the negotiations
that can be attributed to Dutch interventions? Why were some policy outcomes not in line
with the initial Dutch position?
Since some of these policy issues were very broad, we have further narrowed down the case
studies. The first case study, on sustainable development, focused on the introduction of
sustainable development chapters in FTAs between the EU and third countries, and to a small
extent on some environmental issues that are usually not part of FTAs but relegated to the
WTO – such as fisheries subsidies – in view of the global nature of the problems. The second
This includes, among others, the sustainable development chapters in FTAs (dealt with at the EU level) and
the enforcement of specific provisions, subsidies for fisheries (dealt with at the WTO level), or production
method requirements concerning animal welfare.
687
This concerns the change from investor–to-state dispute settlement to the investment court system in
new FTAs, the new template for Bilateral Investment Treaties (BITs), investment facilitation, and the
potential for a multilateral investment court (MIC).
686

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Trading interests and values

case study, on investment protection, focused on the change from investor-to-state dispute
settlement (ISDS) to the investment court system (ICS) in new FTAs, the new template for
Bilateral Investment Treaties (BITs) and investor duties. The third case study, on the Trade in
Services Agreement (TiSA), focused on the plurilateral talks by a group of WTO members on
this topic. The fourth case study, on trade defence instruments, includes two specific
instances where such instruments have been used by the EU (and promoted by the Dutch
government), namely e-bicycles and biodiesel. The fifth case study focused on the EPAs with
Africa. It explores the reasons for the mixed success of the EPA negotiations with various
regional groups between 2013 and 2019 and, more specifically, it sheds light on the role of
honest broker that the Dutch Minister for Foreign Trade and Development played.
Research questions for the EPA case study
The EPA case study was added to this evaluation of Dutch trade and investment policy at a
later stage. An evaluation of the effects of the EPAs had been on IOB’s evaluation agenda since
2017. Due to personnel changes, among other things, in 2020 this evaluation was yet to be
conducted. However, given that the EPAs had not been high on the trade policy agenda
during the last years, IOB decided not to conduct a separate evaluation of this policy issue.
Instead, the issue was included as a case study in the current evaluation. In consultation with
the responsible policymaking department of the Ministry of Foreign Affairs (IMH), IOB has
identified four additional research questions (in addition to the research questions that were
already presented in Section 1.4):
1. What were the obstacles in the EPA negotiations with Africa, especially during the period
2013–2019 and what explains the differences in progress between regions and countries?
2. How did the Netherlands position itself in the EPA negotiations with all (seven) African
regions and how successful was it in influencing the EU position?
3. Why did the Netherlands decide to play a role as honest broker in three African EPAs
(SADC, West Africa and EAC), which actions were undertaken in this capacity and to what
extent were these actions successful in influencing the EPA negotiations?
4. Which broader lessons on EU–Africa trade relations can the Netherlands and the EU
learn from trying to conclude and implement EPAs during the period 2013–2019 that are
relevant for the EU–Africa development strategy, for a follow-up Agreement of Cotonou,
for further development of the EPAs and also for a possible bilateral FTA between the EU
and Africa at the continental level?
Interviews
In addition to desk research, this study also relied heavily on semi-structured interviews.
IOB conducted interviews with policymakers at the MFA, EC officials, and the Dutch
permanent representations in Brussels (EU) and Geneva (WTO), as well as with non-state
actors, who in turn tried to influence policymakers. Moreover, interviews with trade and
investment experts were held to discuss the external factors and global trends that influenced
policymakers’ efforts to promote the Dutch position on trade and investment policy issues.

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Annex 2
Dutch position on other
trade issues

Trading interests and values

While international trade and investment policy is only one of the many areas the MFA
covers, this policy area is very extensive. In addition, other policy fields and issues that used
to be perceived as irrelevant for trade or national matters (such as labour rights,
environmental issues and animal welfare) have now been integrated into trade and
investment policy – albeit not always operationalised into concrete positions, as our study
has shown.
As with every policy area, not all aspects are equally important. At the start of this study,
IOB asked Dutch policymakers to identify the topics within trade and investment policy that
were (most) important for the Netherlands between 2013 and 2019, to obtain the overarching
Dutch policy aims as discussed in Chapter 2. This resulted in a list of ten topics. Five of these
topics were identified as the most important and were reviewed in detail in the case studies of
Chapters 4 to 8. The five remaining topics are discussed in this annex. They are (1) gender;
(2) trade facilitation; (3) implementation and use of trade agreements; (4) transparency,
accountability and public support for trade and investment agreements; and (5) TRIPS and
medicines.688 These topics are presented with a brief discussion on the Dutch positions,
interventions and signs of policy success.689

1 – Gender
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Recognising that trade has an impact on gender equality, policymakers have increasingly
focused on the role of women in trade and the impact of trade liberalisation on women.690
Consequently, various attempts have been made to mainstream gender equality into trade
policy or include it in trade agreements.691 Previously, gender equality was included mostly as
a fundamental principle, but over time, more emphasis was given to the integration of
gender equality as an objective of trade policy.692
The Dutch position
Women’s rights have had a prominent place on the Dutch international agenda for decades.693
In ‘A world to gain’, the Dutch government stated that it ‘considers gender equality to be a
priority in foreign policy’.694 It was recognised that women in developing countries have
profited little from macroeconomic growth, and remained vulnerable because of their often
informal employment and the dismal labour conditions that come with it.695

TRIPS refers to (the agreement on) Trade-Related Aspects of Intellectual Property Rights.
In the five case studies of this report, IOB has studied the extent of policy success by desk research and
multiple interviews with actors involved. However, in this chapter, the five remaining topics are discussed
mainly based on limited desk research. Therefore, IOB talks about signs of policy success here.
690
UNCTAD, 2009 as cited in Ecorys (2021); OECD (undated). ‘Trade and Gender’.
691
Ecorys (2021).
692
Ibid.
693
IOB (2015).
694
MFA (2013), p. 64.
695
IOB (2015), p. 48.
688
689

Trading interests and values

In 2018, in ‘Investing in global prospects’, gender equality was presented as a cross-cutting
goal of the BHOS agenda.696
The Netherlands has aimed to strengthen the role of Dutch women in international trade as
well, acknowledging that ‘female entrepreneurs represent the untapped earning potential for
the Netherlands, but doing business abroad is not yet a matter of course’.697
In line with the general position of the Netherlands in trade and investment policy, it has
taken a more liberal position on gender equality than many other EU and WTO member
states, the EC (also at the WTO level) and the WTO itself.698 Important like-minded countries
include Sweden and Canada, which often take the lead on the topic in international meetings
and conferences. By contrast, various eastern and southern EU member states, such as
Poland, have been more reluctant to include gender equality in trade policy.699
Whereas the EC addresses gender equality in its new Trade Policy Review700 (February 2021),
for example, the Netherlands believes there needs to be a more ambitious attempt to take
action to improve gender awareness in trade policy. In the BNC fiche of March 2021, the
Netherlands states that the Trade Policy Review could have shown more ambition and that
the Dutch government will continue to ensure that gender equality and the economic
empowerment of women are an integral part of EU trade policy.701
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Interventions and signs of policy success
Various trade instruments and tools have been used to strengthen the role of women in
Dutch trade, including trade missions, which now target a minimum of 25% of female
participants and address female needs better (e.g. shorter missions to enhance female
participation).702
Furthermore, at the EU level, the topic of gender was addressed as well, for example in the
context of TSD chapters (see Section 5.3.4). The Netherlands expressed its support for EC
proposals and actions of other (like-minded) member states. TPC reports identify, for
instance, Dutch support for the EC’s ambition to include a strong position on gender and
trade in discussions on the modernised EU–Chile Association Agreement.703

MFA (2018a), p. 8.
MFA (2019), pp. 1-2.
698
As revealed in interviews and policy documents (e.g. TPC reports). For instance, one interviewee stated
that in EU meetings, the Netherlands used stronger language than the EU on the gender issue in trade
(interview held on 4 September 2020).
699
Evident in TPC reports, for example, as well as discussions on the inclusion of gender in the modernisation
of the association agreement with Chili, where Sweden and Poland took strongly opposing stances on the
inclusion of gender in the mandate. See, for example: IRHP 2017-18c TPC Verslag Plv 09-06-2017.
700
EC (2021c).
701
MFA (2021).
702
MFA (2018a); EC (2021b). Currently, in the draft EU agreement with Chile, there is consensus on most of the
paragraphs on gender.
703
For example: IRHP 2018-17b Instructie TPC Plv 18-05-2018
696
697

Trading interests and values

Dutch support for the inclusion of gender in trade also occurred in cooperation with
like-minded member states, as illustrated in TPC meetings by the support for the Canadian
proposal on gender equality within domestic regulation on services, together with Sweden.704
The Netherlands and Sweden addressed the need for full EU support to this proposal at the
WTO level.
Joint efforts are also illustrated by a non-paper on gender, although it was finalised after the
evaluation period. In 2020, the Netherlands, together with nine705 other member states, sent
this joint non-paper to the Commissioner for Trade, to address gender equality.706
The Netherlands promoted its position on gender equality also at the WTO level, primarily
supporting the interventions of other like-minded countries. For instance, in 2017, prior to
the 11th Ministerial Conference of the WTO in Buenos Aires, several WTO members including
Canada, Sweden and Finland expressed their intention to address the role of women in trade
policy through a joint declaration. Dutch policy documents confirm that the Netherlands
supported the initiative, whether it would be a multilateral or plurilateral statement, as it
underscored the economic and moral value of women in trade.707 The initiative eventually led
to 119 WTO members backing the joint declaration708 on trade and women’s economic
empowerment and agreeing to work together to enhance the position of women in trade.
Dutch TPC reports noted that the joint declaration has served as a first step towards the wider
recognition of gender in the domain of trade policy.709
As for policy success, our review identified the Dutch influence in maintaining attention for
the topic in high-level meetings (as well as in other meetings, including informal bilateral
meetings). However, the evidence also shows that during the evaluation period, despite the
importance of gender in Dutch policy, the Netherlands more often supported interventions
by more proactive member states than taking the lead itself.
In terms of policy success in the context of the TSD chapters,710 none of the currently
concluded TSD chapters contain specific provisions on gender equality.711 One could argue
that while the Netherlands succeeded in influencing the agenda and leveraging its efforts by
supporting efforts of other like-minded members, for the period under evaluation, policy
success had not (yet) spilled over to the next stages of the policy cycle, namely policy
formulation, policy decision and policy implementation.712
For example: IRHP 2017-18b Handleiding Plv 9 June 2017. The joint call for support was reported in
15 different TPC reports. The Canadian proposal related to the negotiation agenda of the WTO MC11.
705
Luxembourg, Denmark, Sweden, Italy, Spain, France, Ireland, Finland and Belgium.
706
Asselborn et al. (2020).
707
Instructie WTO conferentie Buenos Aires December 2017.
708
See: https://www.wto.org/english/thewto_e/minist_e/mc11_e/genderdeclarationmc11_e.pdf for the joint
declaration.
709
For instance, stated in IRHP 2018-09b Instructie TPC Plv 16-03-2018.
710
As discussed in more detail in Chapter 5.
711
Although in negotiations on the draft EU-Chile FTA there was agreement on most of the paragraphs on
gender, this could change in the future.
712
See Chapter 1 and Annex 1 for an explanation of the analytical framework used in this study.
704

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Trading interests and values

2 – Trade facilitation
Trade facilitation concerns ‘the simplification, modernisation, and harmonisation of export
and import processes’ by means of reducing red tape and bureaucratic delays.713 Making trade
more predictable, easier and cheaper is important for reaping the benefits of trade
agreements.714 An important development in trade policy at the international level has been
the WTO Trade Facilitation Agreement715 (TFA), which is a binding initiative with enhanced
global coverage. TFA negotiations started in 2004 and were concluded in 2013. On 22 February
2017, a sufficient number of WTO members (two-thirds) had signed and ratified the
agreement for it to enter into force.716 Implementation of the TFA was anticipated to lower
the transaction costs of trade substantially, particularly benefitting developing countries and
SMEs,717 which are subject to inefficiencies and other trade barriers.718
The TFA and its negotiation processes represent a terrain where the Netherlands could bring
together aid policy with trade and investment policy, and therefore, where the MFA
departments could work together, and where the Netherlands could present itself as one
coherent actor within the EU, as indicated by an interviewee.
Dutch position
In line with its general liberal position on trade and investment, the Netherlands supported
trade facilitation policy, given its contribution to Dutch policy goals, such as facilitating a
more level playing field, success for Dutch businesses abroad and the enhanced
competitiveness of developing countries, stimulating inclusive growth all over the world.
For example, in ‘A world to gain’, Minister Ploumen identified the Dutch commitment to
concluding the Doha Round’s partial agreement on trade facilitation,719 with expected
benefits for Dutch businesses. Furthermore, recognising the limited implementation capacity
and limited competitiveness of developing countries, the Netherlands advocated a flexible
approach towards LDCs,720 with comprehensive provisions on special and differential
treatment and technical assistance to support LDCs in the implementation process. ‘Investing
in global prospects’ also addressed Dutch priorities of trade facilitation, identifying as Dutch

See: https://www.wto.org/english/tratop_e/tradfa_e/tradfa_e.htm
IOB (2017).
715
The TFA contains provisions to reduce transaction costs of trade and sets measures for cooperation
between customs and other authorities. Furthermore, agreements have been made on the provision of
technical assistance and capacity building to developing countries. Although the negotiation process for
the TFA took place mainly in the period prior to this evaluation, an analysis of the related interventions is
included here as it provides insight on the success of interventions after 2013, mostly related to the
implementation process.
See https://www.tfafacility.org/trade-facilitation-agreement-facility for more information on the TFA.
716
To date, 153 WTO members have ratified the TFA.
717
KST 25074-186, 2013. Ministeriële Conferentie van de Wereldhandelsorganisatie (WTO). 18 December 2013.
718
Benefits of the TFA were estimated at EUR 50-400 billion per year by the OECD (OECD, 2003).
719
MFA (2013).
720
Ibid.
713

714

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Trading interests and values

aims ‘[investing] in infrastructure, building institutional capacity and trade facilitation in
developing countries’ to stimulate a favourable business climate.721
More recently, after the evaluation period, trade facilitation was identified as a Dutch priority.
The BNC fiche (March 2021), assessing the new EC’s Trade Policy Review (February 2021),
referred to Dutch trade facilitation objectives, in line with the EC’s objectives for more
effective implementation and enforcement of trade agreements, to reduce trade barriers.
It welcomed the input of the EC in this respect.722
Interventions and signs of policy success
The Netherlands has been an important bilateral donor of funding and technical assistance
to various multi-donor trade facilitation programmes, including TradeMark East Africa,
the World Customs Organization, World Bank programmes such as the Trade Facilitation
Agreement Facility (TFAF) and the Multi-Donor Trust Fund for Trade and Development II,
as well as the Advisory Centre on WTO Law. The contribution of these organisations to trade
facilitation is illustrated, for example, by Dutch funding to ACWL, which provided legal
support to LDCs during the TFA negotiations.
Furthermore, to support the interests of developing countries in the TFA, the Netherlands
argued, in TPC meetings, that technical assistance and capacity building should be an integral
part of the mandate of the TFA negotiations.723 It also recommended a more active role of the
EU in technical assistance in trade facilitation for developing countries.724 However, it also
urged the EC to provide assistance (only) on the basis of needs assessments (demand-driven),
and to ensure that it was only related to ‘soft infrastructure’.725, 726
In terms of success, while it is difficult to identify whether it can be attributed to Dutch
interventions, several results indicate that these interventions are likely to have contributed
to results and thus to policy success. First, the conclusion and ratification of the TFA
contributed to the credibility of the Doha Round and the WTO system as a whole. While
acknowledging the limited role of the Netherlands as one member among the many WTO
members that signed the TFA, Dutch efforts and actions seem to have contributed to the EU’s
position and conclusion of the TFA.
Second, the value added of the Netherlands mostly lay in serving developing countries’
interests. Policy documents frequently identified an active role for the Netherlands in
promoting developing countries’ (and specifically LDCs’) interests, and the need for technical
assistance as an integral part of an agreement. At the level of results, with the inclusion of
special and differential treatment for developing countries and LDCs in the TFA, inequalities
MFA (2018b), p. 57.
MFA (2021).
723
For example, IRHP 2013-07b Handleiding Plv 15-02-2013.
724
IRHP 2013-06b Handleiding Plv 1-02-2013.
725
‘Soft infrastructure’ capacity encompasses service infrastructure, such as IT, finance and customs systems.
By contrast, ‘hard infrastructure’ capacity encompasses physical networks, such as roads and ports.
726
For example IRHP 2013-06b Handleiding Plv 1-02-2013.
721

722

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Trading interests and values

in capacity are taken into account: more flexible periods of implementation and provisions
for technical assistance for capacity building to implement it. This serves the Dutch objective
of a more equal trade system – and thus points to Dutch policy success.

3 – Implementation and use of trade agreements
The current bilateral and multilateral trade agreements in place cover the majority of
countries with whom Dutch businesses trade. Together, these trade agreements have reduced
over 90% of tariffs as well as a large share of non-tariff barriers, thus significantly reducing
trade costs and increasing trade volumes.727 Despite these positive developments, studies
have also shown that, with some variance by trading partner, product and member state,
Dutch and other EU exporters have made sub-optimal use of these tariff reductions.728 A study
by the EC conducted in 2018 found that in 2016, EUR 3.5 billion could have been saved by EU
exporters if the EU’s FTAs had been fully used that year.729 There are different reasons for the
sub-optimal use730 of tariff provisions. They include (1) the lack of familiarity with the FTAs
and their preferential provisions; (2) the existence of marginal differences between MFN
tariffs and the preferential tariff of the FTAs; (3) the complexity of the provisions and rules of
the FTAs (e.g. rules of origin); and (4) limited implementation of the agreement and its
provision in the FTA partner countries.731
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In the EC Trade Policy Review ‘Trade for All’ of 2015, the EC emphasised the importance of
implementing and enforcing FTAs effectively, and committed itself to implementing and
enforcing FTAs more effectively.732 At the end of 2016, the EC announced that it would take
action to improve the communication on these agreements to European businesses and to
link technical assistance better to developing countries party to the FTAs.733, 734
Dutch position
The Netherlands was aligned with the EC’s ambitions, and welcomed collaboration with the
EC on the matter of implementation. In addition, the Netherlands additionally emphasised
the inclusion of the Dutch private sector in addressing trade obstacles under FTAs. It was
committed to gaining a better understanding of why the FTAs were under-used and what

Nilsson, L., Preillon, N. (2018), p. 14; Ecorys (2018).
Ibid.
729
Nilsson, L., Preillon, N. (2018), p. 14.
730
Utilisation is measured by so-called utilisation rates: the percentage of export value that has occurred
under the trade agreement’s lower import provisions (Tweede Kamer, vergaderjaar 2017-2018, 31 985,
nr. 54).
731
Tweede Kamer, vergaderjaar 2017-2018, 31 985, nr. 54; Ecorys (2018); IRHP 2017-03c TPC Verslag Leden
27-01-2017.
732
EC (2015).
733
For example, by providing TA for building the partner country’s implementation capacity. The EC started to
put more emphasis on capacity building for implementation of FTAs in its Aid for Trade programme
(Tweede Kamer, vergaderjaar 2017-2018, 31 985, nr. 54).
734
Tweede Kamer, vergaderjaar 2017-2018, 31 985, nr. 54.
727

728

Trading interests and values

bottlenecks were faced by Dutch companies.735 This was meant to benefit the Netherlands in
EU meetings and to ensure that future FTAs would better meet Dutch needs, especially of
SMEs.736 Additionally, the Netherlands aimed to enhance communication to Dutch businesses
on the benefits of EU FTAs and the use of the benefits at the business level. It also aimed to
use relevant network partners, such as embassies, the Dutch Chamber of Commerce, VNO–
NCW and Dutch customs.737 In addition, the Netherlands would continue its technical
assistance for capacity building for the implementation of FTAs,738 with the objective of a
more open trade system and a more level playing field.
In the EC’s new Trade Policy Review (February 2021), strengthening the EU’s focus on
implementation and enforcement of trade agreements is one of the six core areas for
achieving EU objectives.739 The Netherlands agrees with the importance attached to
implementation and enforcement, as was underscored in the BNC fiche (March 2021),
which in this context refers specifically to ambitious sustainability commitments, for
instance in TSD chapters, and guidance for the new Chief Trade Enforcement Officer.
Interventions and signs of policy success
Various interventions tried to enhance the awareness and knowledge of the Dutch business
sector. After research concluded that seminars on specific trade agreements would enhance
the quality and use of information on specific trade agreements,740 such seminars were
organised in 2019. For instance, a seminar on the EU–Japan trade agreement741 took place,
together with business association VNO–NCW and the EC, to inform the business community,
involved parties and civil society on the implementation of FTAs.742 The Netherlands also
enhanced online communications on FTAs on the website of the Netherlands Enterprise
Agency (RVO), and drafted a brochure on rules of origin.743 The Dutch business community
responded positively to these interventions.744
Second, efforts were also made to obtain data for insight into the existing bottlenecks among
Dutch businesses. RVO opened a contact point to administer business complaints on market

See for instance: Tweede Kamer, vergaderjaar 2017-2018, 31 985, nr. 54.
Ibid.
737
IRHP 2017-14b Handleiding Ldn 28 April 2017
738
For example, the Dutch aid for trade policy covered aid for trade policy and regulations for many years,
including support to build capacity for trade policy and regulations and trade facilitation (including
improving ‘soft’ infrastructure and enhanced implementation of FTAs), such as support to ACWL, ICTSD,
TMEA and the WCO.
739
EC (2021a). P. 11.
740
Tweede Kamer, vergaderjaar 2019-2020, 34 952, nr. 86.
741
Tweede Kamer, vergaderjaar 2019-2020, 34 952, nr. 86.
742
Tweede Kamer, vergaderjaar 2017-2018, 31 985, nr. 54.
743
IRHP 2017-14b Handleiding Ldn 28 April 2017.
744
Tweede Kamer, vergaderjaar 2017-2018, 31 985, nr. 54.
735

736

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Trading interests and values

access issues and remaining trade obstacles. It is unclear if and how this registration system
complemented already existing databases, such as RVO’s Achilles registration system.745
The interventions seem, in general, to be relevant to the ambitions of the Netherlands, in
terms of including the private sector, giving them access to knowledge and insight on the
issues at hand, and helping to serve their needs at the EU level. The interventions were
welcomed by the Dutch private sector.
At the higher results level (serving policy goals), however, it is unknown whether Dutch
interventions have had an effect, for instance whether enhanced awareness and knowledge
among Dutch businesses was achieved, or enhanced utilisation of FTA provisions or more
effective implementation in partner countries. Because these interventions took place in
recent years, the effects, especially at the higher (final outcome or impact) level, are likely to
require more time. Monitoring and evaluating results is essential to determine whether
results at the higher level have been (or will be) achieved. Quantitative data, such as RVO’s
Achilles registration system can provide valuable input.

4 – Transparency, accountability and public support for
trade and investment agreements
Trade and investment agreements are negotiated behind closed doors. During negotiations,
only the European Parliament (EP) and EU member states receive updates on progress.
Informing other stakeholders and the general public during ongoing negotiations occurs less
often and less comprehensively, via a few short news items, e.g. on the EC website. Other EU
processes occur behind closed doors, too, such as the design of new regulations or
investigations on trade defence measures. Because trade and investment agreements and
trade and investment policies746 affect member states, including their producers and
consumers, there is a strong demand for transparency in and access to information on
negotiations, decisions and processes to enhance the legitimacy and accountability.747, 748
Not only will this bring citizens closer to the EU, it also enhances the legitimacy,
accountability and effectiveness of EU institutions.749 Furthermore, transparency can raise
awareness of the existence of new regulations or agreements, thus contributing to the
effectiveness of implementation.750

The Achilles registration system was launched in 2019. The system documents economic diplomacy
activities, including answering trade questions on doing business abroad and dealing with trade barriers.
It is used by the Dutch global economic network, which includes embassies, other commercial offices
abroad and various departments of RVO.
746
This also involved EU actions and decisions in the implementation of EU policy, e.g. in the context of trade
defence, ISDS, e-commerce, etc.
747
Marx, A and Van der Loo, G (2021).
748
For example, in TiSA negotiations, lack of transparency caused widespread discontent (see Chapter 6).
749
As stated, for example, in: IRHP 2018-11b Instructie TPC attaches 4 April; Belgium et al. (2020).
750
See also section 3 of this Annex.
745

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Trading interests and values

Requests for more transparency in ongoing EU negotiations and processes have increased
over time. For instance, different parties (the EP, member states, non-state actors and the
public) started to demand more insight into interim results in the ongoing negotiations on
TTIP751 (2013–2016752), CETA753 (2009–2017) and TiSA (2013–2016). Particularly the TTIP
negotiations between the EU and the US led to an unprecedented level of dispute across
different sections of society (from CSOs to the EP), in terms of the negative impact754 of the
agreement. Concerns were also raised in the Netherlands. The demand for more openness on
these negotiations can be seen as a tipping point triggering more transparency.755 By the end
of 2016, because national governments were asking for more transparency on the TTIP, the EC
introduced ‘reading rooms’ in individual member states. The reading rooms were open to the
general public and national parliaments to access some documents on the TTIP
negotiations.756 Reading rooms were also opened at US embassies in European capitals.
These rooms demonstrate the EC’s willingness to enhance transparency. Also under the Von
der Leyen Commission, the EC aims to enhance transparency in the EU’s trade policy. In her
mission letter757 to the Trade Commissioner, she addressed the need to ‘ensure the highest
level of transparency and communication with the [EP], the Council and civil society’.758
Dutch position
The Netherlands has recognised that negotiation processes and policy development require
some confidentiality to preserve the effectiveness of negotiations and leave space to reflect.759
The Netherlands has, however, also advocated for more transparency and communication at
the international level, for instance in position papers and consolidated negotiation texts.
Transparency allows for informing parliament, ministries, businesses and other stakeholders
already from the start of a process and for constructive discussions on the Dutch position.760
In the early years, the Netherlands was somewhat more reluctant to allow more openness
regarding negotiation mandates, because of the risks involved. TPC reports in the earlier
years of evaluation, for example, identify Dutch concerns for setting undesired precedents or
compromising the EU’s negotiation position.761 The Netherlands argued for transparency on
mandates on a case-by-case basis, and only after negotiations had concluded. For each
negotiating document, a separate assessment would be needed so as not to damage the EU’s

Transatlantic Trade and Investment Agreement.
The Transatlantic Trade and Investment Partnership (TTIP) negotiations ended in 2016, without reaching
a successful conclusion to the agreement.
753
Comprehensive Economic and Trade Agreement.
754
Impact concerns related primarily to the government’s right to regulate and the environmental, consumer
and food safety standards.
755
Interview with MFA policy officer, held on 8 July 2019.
756
EP (2016).
757
In publically available EC mission letters, sent to all Commissioners, EC President Ursula von der Leyen set
out the mission of the EC for the years to come.
758
Von der Leyen (2019).
759
IRHP 2015-44b TPC Handleiding Plv 04-09-2015; Belgium et al. (2020).
760
Belgium et al. (2020).
761
IRHP 2015-09b TPC Handleiding Leden 20-02-2015.
751

752

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Trading interests and values

negotiating position.762 Since 2016, however, the Netherlands has been more in favour of
openness regarding negotiation mandates.
The Netherlands has aimed to improve transparency at the national level as well, to promote
wider support for new policies and regulations, and to use the input from stakeholders in
drafting its positions at the EU level.
Interventions and signs of policy success
In EU meetings, the Netherlands voiced appreciation for the EC’s activities to enhance
transparency, including, for instance, in the TTIP negotiations. The Netherlands stated that it
welcomed the general trend of increasing transparency, such as the brochure developed with
several chapters of TTIP, and the transparency-related initiatives763 to enhance public
awareness of the benefits of TTIP.764
Although the progress that was achieved was welcome, Dutch interventions also pressed for
more transparency and held the EC accountable for its commitments to providing
information and openness. For example, in the context of TTIP, the Netherlands pleaded for
access to consolidated negotiation texts in reading rooms. And it asked for an update on the
status of the confidential annex the EC promised to make available to member states.765
Transparency on TTIP documents was also addressed in bilateral informal meetings at the DG
level of the EC.766 In addition, the Netherlands demanded transparency in other EU
procedures, such as on TDI calculations to motivate trade defence measures. 767
The Netherlands also promoted transparency in the investment dispute settlement system.
It actively supported the possibility for third parties, including civil society and academia,
to influence proceedings. On various occasions when informing Parliament in 2015 and 2016,
the ministry stressed that – according to the EU position on ICS – third parties would be
granted access to all relevant documents, could send an amicus curiae letter to support one of
the parties, and would get standing and be able to intervene if they had a substantial interest.
Furthermore, the Netherlands pleaded for an enhanced focus on transparency more
generally, as a part of trade and investment agreements, for instance, for the legitimacy of
ISDS procedures,768 for transparency on regulations, procedures and authorities in investment
agreements769 and to involve stakeholders in the TSD chapters of FTAs.770

IRHP 2015-64b TPC Handleiding Leden 04-12-2015.
E.g. the publication of ‘ten myths of TTIP’.
764
E.g. documented in IRHP 2015-41b TPC Handleiding Plv 24-07-2015; IRHP 2015-48b TPC Handleiding
Plv 2-10-2015.
765
Annotated agenda FAC on Trade, February 2016; IRHP 2015-49b TPC Handleiding Plv 9-10-2015;
IRHP 2015-56b TPC Handleiding Plv 30-10-2015.
766
IRHP 2015-44b TPC Handleiding Plv 04-09-2015.
767
See Chapter 4 of this report.
768
E.g. in 20190327 concept-instructie TPCSI 27 March 2019.
769
20181207 Conceptinstructie TPCSI 07 12 2018.
770
IRHP 2015-05b TPC Handleiding Plv 30-01-2015
762
763

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Trading interests and values

Demands for more transparency also occurred in joint efforts. For example, in a non-paper
released in early January 2020, the Netherlands and various northern EU member states,
including Belgium, Denmark and Sweden addressed the need for more openness and
information-sharing to ‘bring citizens close to the EU and enable the [EU] institutions to
enjoy greater legitimacy, accountability and effectiveness’.771
As for results, transparency at the EU level increased over time. In particular, the opening of
reading rooms was a step forward. Other steps, such as engaging civil society on TSD
chapters, for instance, were also positive. It is difficult to determine to what extent this
success can be contributed to Dutch interventions, yet given its active role it is likely that the
Netherlands contributed to these changes, individually and jointly with other member states.
As for results at the national level, an important step was the establishment of the Breed
Handelsberaad (broad trade council – BHB), in 2017. The BHB is a multi-stakeholder national
forum in which policymakers and non-state actors meet four times a year (prior to Foreign
Affairs Council on Trade meetings).772 Additionally, twice a year, special thematic meetings are
organised, for instance on the TSD chapters in the FTAs and the new model text for
investment agreements.773 In addition to providing transparency, allowing concerns to be
raised and enhancing support, BHB meetings also generate valuable input to determine the
Dutch position. The Netherlands organises other meetings and online consultations as well:
at least once a year, the MFA organises a dialogue with Dutch civil society and companies,
addressing the Dutch position and (EU) negotiation texts. In addition, information was
frequently shared with the Dutch Parliament and published on a public website.774 Finally,
the Dutch government intensified its communication and information on the agreements
already in place, including on how to make use of them, and how they can be of benefit.775
Results at the national level can be attributed to Dutch interventions more easily.
The introduction of the BHB, in particular, enhanced transparency. Participants acknowledge
this, experiencing a feeling of inclusion on EU matters, having input about the formulation
of the Dutch position and enhancing stakeholders’ awareness and knowledge of EU trade and
investment agreements (including businesses).776 Over time, stakeholders have become more
active and the level of discussion has improved.777 The European Council on Foreign Relations
acknowledged the many Dutch efforts: in 2016, the Netherlands ranked amongst a group of
six ‘leader’ countries on the 2016 European Foreign Policy Scorecard, in the context of TTIP
negotiations.778

Belgium et al. (2020), p. 1.
See Section 2.3.1 for more information.
773
See Chapter 2 of this report for more information on the BHB.
774
MFA (2016).
775
Tweede Kamer, vergaderjaar 2017-2018, 31 985, nr. 54
776
Interview with an MFA policy officer, held on 21 October 2019.
777
Ibid.
778
Other winners were Austria, France, Germany, Spain and the UK. These six countries were said to have
worked especially hard to communicate the advantages of TTIP to a sceptical public. ECFR (2016).
771

772

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Trading interests and values

5 –TRIPS and medicines
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement has been in place
since 1995 and is a multilateral (WTO) agreement on intellectual property. It is an attempt to
reduce the differences in national protection and enforcement, and to create international
laws. The agreement covers intellectual property in the form of copyrights, trademarks,
geographical indications, designs, patents, and undisclosed information. It sets minimum
standards of protection, rules of enforcement and rules for dispute settlement. At the same
time, there is still a degree of flexibility, since countries can tailor their approach to the
protection and enforcement of intellectual property rights. In addition, developing countries
are granted transitional periods to phase in new legislation.779, 780 Least-developed countries
receive a temporarily exemption for pharmaceutical obligations under the TRIPS agreement.
Dutch position
In 2016, TRIPS and access to medicine was among five priority topics that the Minister for
Foreign Trade and Development identified around policy coherence for development.
This topic was reiterated in July 2018, albeit as a sub-target of five other policy objectives.781
The Dutch policy objective was to guarantee affordable medicine for developing countries,
especially for the least-developed countries, and for the Netherlands itself. This objective is
in line with the more general policy priorities as expressed in ‘A world to gain’ (2013) and
explained in Chapters 2 and 5, such as poverty reduction and prioritising the needs of the
most vulnerable countries and people.
Interventions and extent of policy success
At the international level, Dutch interventions consisted of advocating Dutch priorities,
particularly addressing developing countries’ interests and development needs. Within the
EU, and together with the EC in the WTO, the Netherlands lobbied for an indefinite
exemption for LDCs in the area of TRIPs. The Netherlands also advocated against the
inclusion of TRIPS+ provisions in any negotiations of new trade agreements between the EU
and developing countries, because such provisions could lead to an extension of patent
rights, for example, which in turn could delay the date when generic medicine enters the
market and maintain the high prices of medicines, making it more difficult for developing
countries to access such medicines.782
In 2016, the Netherlands actively embarked on an international discussion on the high prices
of medicine and the lack of innovation in that area. It contributed to the UN SecretaryGeneral’s High-Level Panel on Access to Medicines, calling for a broad range of solutions.
At the 69th World Health Assembly in May 2016, the Netherlands advocated a globally
coordinated approach for research and affordable medicine.783
WTO (undated-a). ‘Overview: the TRIPS agreement’.
WTO (undated-b). ‘Intellectual property: protection and enforcement’.
781
Tweede Kamer, vergaderjaar 2015–2016, 33 625, nr. 219
782
Tweede Kamer, vergaderjaar 2015–2016, 33 625, nr. 219; Tweede Kamer, vergaderjaar 2017–2018, 33 625,
nr. 250; Tweede Kamer, vergaderjaar 2017-2018, 33 625, nr.265.
783
Tweede Kamer vergaderjaar 2015–2016, 33 625, nr. 219 as well as the updated action plan of July 2018.
779

780

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Trading interests and values

As for results, no member states objected to including TRIPS+ provisions in any negotiations
on trade agreements, and thus TRIPS+ provisions have been included or are likely to be
included in many comprehensive free trade agreements with developing countries
(e.g. with Vietnam, Indonesia, the Philippines, Mexico and Mercosur).
Because of resistance from, among others, Japan and the USA, an indefinite exemption
for LDCs is currently not possible. However, in the WTO TRIPS council in 2015, the exemption
for LDCs was extended until 2033, providing them with access to generic medicine.784
It is plausible that the Netherlands managed to draw attention to this issue for developing
countries, which may have helped to extend the exemption to the TRIPs rules for LDCs.

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784

Tweede Kamer, vergaderjaar 2015–2016, 33 625, nr. 219; Tweede Kamer, vergaderjaar 2017–2018, 33 625, nr.
250; Tweede Kamer, vergaderjaar 2017-2018, 33 625, nr. 265; MFA (2016).

Annex 3
Developments in the WTO

Trading interests and values

In 1947, 23 countries agreed to establish the General Agreement on Tariffs and Trade (GATT)
in order to reduce trade barriers as an alternative to the intended International Trade
Organisation (ITO). It marked the “completion of the most comprehensive, the most
significant and the most far reaching negotiations ever undertaken in the history of world
trade”.785 The GATT came into force in 1948 and provided the rules for much of world trade
until 1994. All those years, it seemed well established, but remained a provisional agreement
without a firm legal foundation.
In 1994, 123 nations agreed on the creation of the WTO as an international organisation under
the Marrakesh Agreement and binding dispute settlement. Among members, there was a big
push for launching a new round of negotiations. In 1996, developed countries such as the EU,
US and Japan pushed for negotiations on what became known as the ‘Singapore-issues’.
These issues are investment, competition policy, transparency in government procurement
and trade facilitation. After five years of discussions, there was still no consensus reached on
these issues, when in 2001 the Doha Round started. At the same conference, China was
admitted as member.
The Doha Round aimed to achieve a major reform of the international trading system by
introducing lower trade barriers and revised trade rules and thus improving the trade
prospects of developing countries. The Round, known as the Doha Development Agenda
(DDA), covers a very broad range of policy issues such as agriculture, services, trade
facilitation and dispute settlement. The DDA was supposed to be concluded by the end of
2002, beginning of 2003. However, negotiations proved to be very difficult, particularly on
the Singapore issues. At the MC in Cancun in 2003, countries agreed that a decision on the
‘modalities of negotiations’ on the Singapore issues had to be taken “by explicit consensus”.
Whilst the WTO normally takes decisions by consensus (but where consensus is reached when
no WTO member explicitly opposes a decision), this meant that any of the WTO members
could veto the inclusion of Singapore issues in the DDA. Together with the unwillingness of
the US to address farm subsidies, the differences over inclusion led to the collapse of the MC
in Cancun.786
The aftermath of Cancun was one of standstill, until the negotiations were resumed in March
2004 due to a concerted effort of the EU and the US.787 WTO members agreed to abandon all
the Singapore issues but trade facilitation from the Doha round. Only then, negotiations
could move forward in the face of resistance by developing countries. These countries,
especially India and Brazil, were also actively involved in the negotiations with developed
countries. With the so-called ‘July package’, WTO members reached a Framework Agreement
that provided guidelines for completing the Doha negotiations. The agreement covered
agriculture, non-agricultural market access, services, and trade facilitation. Moreover, the
agreement set December 2005, the Hong Kong MC, as a new deadline for negotiations on
these issues.

European Office of the United Nations (1947).
Woolcock, S. (2003). pp. 249-255, p. 249.
787
Fergusson et.al. (2005). pp. 1-27, pp. 2-3.
785

786

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Trading interests and values

This meeting could have been an important step within the Doha round, but did not resolve
many issues, with the exception of a commitment to phase out export support in agriculture
and an Aid-for-Trade package. In the Hong Kong Ministerial Declaration, the WTO members
did reaffirm their full commitment to the Doha round and set 2006 as the new deadline for
resolving the complete Doha Work Programme.788
After the MC, talks in Geneva failed to reach an agreement on the reduction of domestic farm
subsidies and lowering import duties on agriculture and manufactures. Moreover, in June
2007, a major impasse occurred between the US, EU, India and Brazil on the opening up of
agricultural and industrial markets and the reduction of domestic subsidies.789 In addition,
negotiations over a special safeguard mechanism790 for developing countries broke down in
July 2008.791 After several countries urged to renew the negotiations and a mini-ministerial
conference was held in India in September 2008, countries pledged to complete the Doha
round by the end of 2010. At the G20 summit in London in 2009, countries again pledged to
complete the round. However, the deadline of 2010 was not met.
In 2013, the Bali Package was produced at the 9th MC. In the Ministerial Declaration,
WTO members reaffirmed their “full commitment” to give effect to the Declarations and
Decisions adopted at Doha, and the subsequent MCs.792 The Bali Package included provisions
for lowering import tariff and agricultural subsidies. Moreover, the Trade Facilitation
Agreement (TFA), that aims to reduce red tape and streamline customs, was adopted.
At the MC in Nairobi in December 2015, developed countries again agreed to end all export
subsidies on agricultural products immediately, while developing countries agreed to phase
out their own use of export subsidies by the end of 2018.793 However, in the Nairobi
Ministerial Declaration WTO members also agreed on an ambiguous statement regarding the
Doha Round: “[w]e recognise that many members affirm the Doha Development Agenda,
and the Declarations and Decisions adopted at Doha and at the Ministerial Conference held
since then, and reaffirm their full commitment to conclude the DDA on that basis.
Other members do not reaffirm the Doha mandates, as they believe new approaches are
necessary to achieve meaningful outcomes in multilateral negotiations. Members have
different views on how to address the negotiations”.794 At the same time, all members
confirmed their strong commitment on advancing the negotiations on the remaining issues,
be it within or outside of the Doha Round.

WTO (2005).
Reuters (2007).
790
This mechanism is developed to protect poor farmers by allowing countries to impose special tariffs on
certain agricultural goods in the event of an import surge or price fall (WTO (2020a).
791
Financial Times (2008).
792
WTO (2013).
793
Several exceptions were made. Developed countries have until 2020 to allow export subsidies for dairy
products, swine meat, and processed products. Developing countries have five years extra for certain
export subsidies covering transport and marketing costs (https://www.ictsd.org/bridges-news/bridgesafrica/news/evaluating-agriculture-in-the-nairobi-package, last visited 6 December 2019).
794
WTO (2015).
788
789

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Trading interests and values

After Nairobi, negotiations continued to be very difficult, especially on whether ‘new issues’,
such as e-commerce, trade facilitation in services and investment facilitation, should be
included in the ongoing Doha negotiations. In the lead-up to the 11th MC, though, countries
were positive that an agreement on the elimination of ‘harmful’ fisheries subsidies was
within reach.795, 796 However, no agreement was reached at the MC in Buenos Aires in 2018 and
members agreed, “to continue to engage constructively in the fisheries subsidies
negotiations, with a view to adopting, by the Ministerial Conference in 2019”.797 In the end,
no MC was scheduled for 2019 and the MC in Kazakhstan scheduled for June 2020 was
postponed due to COVID-19. In November 2019, DG WTO Azevêdo warned the WTO members
that failing to successfully conclude the fisheries subsidies negotiations “will not just be bad
for marine fish stocks: it will damage the credibility of the WTO and discredit the feasibility of
multilateral rule-making”.798
The stagnation of the Doha Round is not the only problem the WTO is dealing with.
The recent trade war(s) between the US, China and the EU put the multilateral trade system
and the WTO under further pressure. Moreover, the dispute settlement mechanism of the
WTO is in crisis.799 Within the WTO, ad hoc panels issue rulings on disputes between litigant
members over compliance with WTO rights and obligations, subject to review by a standing
Appellate Body (AB) composed of seven ‘judges’. Those ‘judges’ are appointed by consensus
of all WTO members for four-year terms (renewable once). Decisions by the AB are final and
binding. However, given that WTO members have failed to negotiate updates to the rulebook,
including rules on dispute settlement, the AB has increasingly reviewed decisions made on
ambiguous or incomplete WTO rules with ample room for interpretation.800 Those have led
to charges of bias by the United States.
Consequently, since the summer of 2017, US officials have blocked appointments of
AB-members to force WTO members to negotiate new rules that address the US concerns and
limit – in their view- the scope of judicial overreach. According to the US Senate’s Committee
on Finance, the AB “has long strayed off course from its original form and function”.
These concerns have been addressed under President Trump, but also already under President
Obama. According to the US Senate’s Committee on Finance “US presidents on both sides of
the aisle have taken issue with Appellate Body members addressing issues that were not
raised by the parties involved in the dispute, taking longer than 90 days to decide appeals,
and creating new rights and obligations for WTO members”.801 Due to the US blocking new
The issue of fisheries subsidies was particularly pushed by African, Pacific and Caribbean (ACP) countries.
Since the launch of the talks, negotiations have been characterised by the need to balance sustainability
and development considerations (WTO (2020b). In 2016, EC Commissioner for Trade Cecilia Malmström
gave a speech on ‘The WTO after Nairobi’ called the fisheries subsidies an important outstanding Doha
issue, although “smaller in terms of impact” and “commercial profile” than issues such as domestic
support for agriculture, digital trade and investment (EC (2016).
796
The Hindu (2017).
797
WTO (2017).
798
WTO (2019).
799
Giuliani, C. (2019). pp. 1-4.
800
Payosova, T., G. Hufbauer and J. Schott (2018). pp. 1-14.
801
US Mission to Geneva (2019).
795

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Trading interests and values

appointments of AB-judges, as of 11 December 2020, the AB was effectively shut down.802
Consequently, WTO members will be able to avoid binding rulings and thus escape their
international obligations by appealing panel reports.803 The EC responded with a proposal to
put an interim arrangement in place through arbitration under the WTO Dispute Settlement
Understanding.804 In March 2020, the EU and 15 other WTO members agreed to establish such
a contingency appeal arrangement.805
While some had hoped for the AB to move forward after Biden’s inauguration as US
president, this is not the case. Following the line of his predecessors, Biden continues to
block the appointment of new AB-judges. The Biden administration made a statement saying
that it could not agree to the appointment of new members, given that the US “continues to
have systemic concerns” with the functioning of the AB.806 However, Biden did lift Trump’s
block on the appointment of Ngozi Okonjo-Iweala as new Director-General of the WTO.807
Okonjo-Ikweala is the first woman and the first African to serve in this position. Her term of
office will expire in August 2025.

| 196 |

Payosova, T., G. Hufbauer and J. Schott (2018). p. 2.
EC 2019/0273 (COD). p. 1.
804
Ibid. p. 2.
805
EC (2020).
806
Bloomberg (2021).
807
BBC (2021).
802
803

Annex 4
Annex to Trade Defence
Instruments case study

Trading interests and values

Institutional setting
The WTO framework permits its members to apply trade defence instruments (TDIs) to
protect domestic industries from trade distorting effects. The key rules in question on the use
of TDIs are: Articles VI and XIX of the GATT; the Agreement on Implementation of Article VI of
the GATT; the Agreement on Subsidies and Countervailing Measures; and the Agreement on
Safeguards.
Several measures can be taken to protect domestic industries from different types of events or
practices. Anti-dumping measures, the most frequently used TDIs, are applied to individual
exporters to correct for dumping practices; the selling of a product below sales price in the
domestic market or at a price below cost price. Measures typically exist of duties on imports.
Anti-subsidy or countervailing measures aim to counter the unfair subsidisation of third
countries to their companies to produce or export goods.
Unlike anti-dumping and anti-subsidy measures, safeguards do not address unfair trade
practices. Instead, these measures aim to (temporarily) regulate imports from third countries,
giving the domestic industry relief and time to adapt to the surge of imports. Safeguards
typically exist of quantitative import restrictions or duty increases on all imports. The
invocation of an anti-dumping or anti-subsidiary measure as safeguard measure is allowed,
if the WTO-rules on substance and procedure in the respective agreements are followed
correctly.
The absolute majority of measures adopted are to counter dumping practices or unfair
subsidies; safeguard measures are comparatively rare.808 Complaints against application are
subject to scrutiny of the EU Court of First Instance for affected exporters and for
governments in WTO dispute settlement. The use of a safeguard measure for a maximum of
four years requires, in addition, a non-discriminatory approach (to all foreign products),
a restructuring of the affected industry sector, trade compensation to affected WTO members
elsewhere and may trigger retaliatory measures.
EU trade defence policy is based on the WTO framework of related articles and agreements,
as discussed above. The EU’s legal framework consists of four Regulations809 that codify

This can be explained by the fact that the conditions to impose safeguards are more stringent and the
WTO member generally must pay a compensation to the affected WTO members (Ecorys (2021), Ch. 6,
p. 116).
809
Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection
against dumped imports from countries not members of the European Union (Basic Anti-Dumping
Regulation), OJ L 176 of 30.6.2016; Regulation (EU) 2016/1037 of the European Parliament and of the
Council of 8 June 2016 on protection against subsidised imports from countries not members of the
European Union (Basic Anti-Subsidy Regulation), OJ L 176 of 30.6.2016; Regulation (EU) 2015/478 of the
European Parliament and of the Council of 11 March 2015 on common rules for imports, OJ L 83 of
27.3.2015; and Regulation (EU) 2015/755 of the European Parliament and of the Council of 29 April 2015
on common rules for imports from certain third countries, OJ L 123 of 19.5.2015.
808

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Trading interests and values

general rules on the different types of measures. The EU Enforcement Regulation810 ensures
that the EU is able to exercise and enforce its rights under international trade agreements by
adopting various trade policy measures. Furthermore, EU trade defence policy is applied
through the Implementing Regulations. Implementing Regulations contain decisions on the
initiation of investigations, introduction, modification and termination of specific TDI in
relation to individual trade defence cases. Below we provide an overview of the principles,
procedures and actors involved in the implementation of EU trade defence policy.

Implementation of EU trade defence policy
In line with the EU’s exclusive competence of trade policy, trade defence measures are
developed and implemented at EU level. TDI is an EC policy area, applied specifically by DG
TRADE.
To understand the dynamics of trade defence policy, and how and where Dutch interventions
can affect EU policy, this annex presents a descriptive overview of the principles, process and
key actors involved. Given the more dominant use of measures adopted to counter dumping
practices or unfair subsidies, this annex will focus exclusively on anti-dumping (AD) and
anti-subsidy (AS) measures.
| 199 |

Important steps in the process
The process of dumping or subsidisation has the potential to cause declined production and
sales, reduced market shares and profits, decreased productivity and/or capacity (utilisation).
The (claimed existence of these effects provide reason to investigate the use of trade defence
measures. Typical anti-dumping and anti-subsidy procedures follow a very similar path.811
Figure A4.1 below presents the main steps of the process.

Regulation (EU) No 654/2014 of the European Parliament and of the Council of 15 May 2014 concerning
the exercise of the Union’s rights for the application and enforcement of international trade rules and
amending Council Regulation (EC) No 3286/94 laying down Community procedures in the field of the
common commercial policy in order to ensure the exercise of the Community’s rights under international
trade rules, in particular those established under the auspices of the World Trade Organization, OJ L 189 of
27.6.2014.
811
Ecorys (2021). Chapter 6, pp. 114-133.
810

Trading interests and values

Figure A4.1 The EU trade defence process
Pre-initiation

Investigation

EU industry
lodges
complaint to
EC

• Evidence collected from
affected industry and
exporting country
• (inter-service) consultations
• Union’s interest test

EC decides:
sufficient
evidence to
open
investigation

Ex officio
investigation:
EC decides to
investigate
without
complaint
received

EU decides complaint presents
sufficient prima facie evidence
to open official investigation

Investigation confirms
complaint and taking
measures is decided in the
Union’s interest

• Pre-disclosure to interested
parties
• EU consults with TDC

Provisional measures

Anti-dumping
• Typically fixed, variable or ad
volarem taxes
• Duties imposed ≤ 6 months
Anti-subsidy
• Typically fixed, variable or ad
volarem taxes
• Duties imposed ≤ 4 months

Proces is
terminated

Process for
definitive
measures
instigated

Definitive measures

Duties usually in force for 5 yrs

Possible reviews prior to
expiration of measure
• Interim review to assess if
measure is still sufficient
• New exporter review to
assess individual exporter’s
duty
• Anti-circumvention review
suspicion of exporters
circumventing measure
• Reopening of investigation
to assess if exporters are
further reducing prices

| 200 |
• EC informs TDC
• EC announces investigation
via Official Journal
publications

• EU decides on provisional
measures

• EU suggests definitive
measures to TDC
• Approval of measures
(sometimes with alterations)

Definitive
measure
expires

Expiry review
assessing
measure’s
continuation

• Measure removed; or
• Measure continuation (to be
approved by TDC)

Procedures commonly start with a demand-driven complaint, whereby the affected EU
industry lodges the complaint to the Office of Complaints at DG TRADE.812 Alternatively,
in less than one percent of the cases, the EC initiates a procedure ex officio.813 When the EC
decided there is sufficient prima facie to support the complaint, the process enters the phase of
investigation.
During investigation, the EC collects data and information from various sources to identify
the injury and causality of effects. Information is obtained directly, from the affected industry

The complaint must be supported by a major proportion of the EU industry (the requirement of
“standing”).
813
Ex officio means that the EC can start a trade defence investigation on its own initiative without an official
complaint by the EU industry.
812

Trading interests and values

and the third country’s respective exporters (e.g. through questionnaires and on-site visits814),
and consultations with EC directorates and specialised authorities. Additionally, the EC
determines whether trade defence measures are at the interest of the Union as a whole.
By means of a Union’s interest test the total European Union’s interest is calculated. The total
appreciation includes different and (sometimes countering) interests, considering social,
environmental and economic interests and different EU stakeholders (EU industry, users and
consumer interests). Following pre-disclosure of provisional findings and consultations with
the Trade Defence Instruments Committee (TDC), provisional measures are decided upon.
Provisional measures remain in force up to 6 months in anti-dumping cases and up to
4 months in anti-subsidy cases. Upon expiration, the trade defence procedure may be
terminated or followed by definitive measures. In the latter case, the EC proposes definite
measures for approval to the TDC.
Definitive measures are usually put in place for a period of five years, unless they are subject
to change or removal, following from the different pre-expiration reviews discussed in the
figure. Without the change or removal of the measures, measures can be prolonged following
an expiry review.
Transparency is an important principle of the functioning of the EU. The EC is required to
disclose to the parties the essential elements on which it bases its decisions, so that affected
parties (those that have a specific stake in the affected interest and can prove it) are presented
the evidence, and provided the opportunity at various moments to respond. Additionally,
since 2007, a ‘Hearing Officer’ has been put in place as independent mediator, to facilitate
communication between the relevant parties and the EC.815
All EU trade defence measures are up to verification and validation; for instance being placed
under scrutiny of the CJEU (for EU law compliance), and open to be challenged in domestic
courts (for incorrect implementation). Additionally, EU measures must be notified to the
WTO and measures can be challenged in WTO dispute settlement (for WTO law compliance).

Key players: the role of DG Trade and cooperation with other stakeholders
Concerning development and enforcement of trade defence, DG TRADE takes the main role.
Furthermore, throughout the process, from investigation, to consultations for technical
knowledge, to the collection of TDI duties, DG TRADE cooperates closely with several other

The EC sends out questionnaires to the EU industry (i.e. producers, importers and the users of the products
concerned). Should the number of producers/ importers for the product in question be too high, the EC will
analyse the data provided by a sample of such companies. To supplement and verify the data provided by
the industry, the EC may carry out on-site visits. Additionally, the EC approaches the government of the
third country, from where the allegedly dumped/ subsidised imports originated, to send questionnaires to
the respective exporters.
815
European Court of Auditors (2019).
814

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Trading interests and values

stakeholders. Important partners in this process include other DGs and services, such as DG
ENER816, DG TAXUD817, DG BUDG818, and OLAF819.
Member states are involved at several phases of the process. Additional to the cooperation
with member states via the TDC, including to inform, consult and obtain approval of member
states, authorities of the member states are involved in the enforcement of measures,
holding responsibility for collecting TDI duties.

Reform of the EU trade defence mechanism
Several changes have occurred in EU trade policy during the time under study, with some of
these changes being the outcome of long-lasting processes. Important developments in EU
trade defence policy, regarding anti-dumping and anti-subsidy regulations, have occurred
under the so-called modernisation of TDIs, along with a new anti-dumping methodology.
The EU trade defence system had not been updated since 1995, and required modernisation to
deal with the challenges of the modern global economy.820 Modernisation aimed specifically
to enhance the transparency and predictability of investigations, increase the effectiveness
and enforcement of AD/AS measures and tackle the risk of retaliation.821
In April 2013, the EC adopted a proposal to modernise the EU’s AD and AS Regulation.
An important element to the proposal was the reform of the LDR,822 which would allow
higher tariffs to be imposed on dumped products.
The EC proposal only slowly progressed through the legislative process. Following the EC’s
proposal, the EP adopted its position in April 2014, but the Council was divided on key aspects
of the reforms, especially on the LDR reform.823 Member states fearing possible retaliation
and more free trade-oriented member states, including the Netherlands preferred keeping
the LDR in its current form.

Directorate-General for Energy, consulted for example in the biodiesel case.
Directorate-General for Taxation and Customs Union, tasked with, e.g. administering that member states
apply the Common Customs Tariff (European Court of Auditors (2019), p.11, Table 2.).
818
Directorate-General for Budget, tasked with, e.g. calculation of TDI-related inspections and the verification
of collections of import duties by national customs (European Court of Auditors (2019). p.11, Table 2).
819
European Anti-Fraud Office, tasked with, e.g. coordinating the investigation of circumvention of AD or AS
duties (European Court of Auditors (2019). p. 11, Table 2).
820
EC (2018).
821
EPRS (2018).
822
WTO law states that anti-dumping measures may at most be equal to the dumping margin (price in
country of origin compared to (lower) export price), but may also be restricted to the actual damage caused
(to local producers). The LDR thereby describes to compare the dumping and injury margin, using the
lower of the two to define the AD tax. Whereas the LDR is not an obligatory WTO rule, the EU applied it
systematically.
823
Ecorys (2021). Chapter 6: Trade Defence Instruments, pp. 114-133.
816
817

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Trading interests and values

The question of reform became more pressing in 2015, especially due to global overcapacities
in several raw material industries (e.g. aluminium, cement and steel), which accumulated
particularly in China. Additionally, in 2016, the question of how to deal with the Chinese
market economy status (expiring December 2016) and (potentially) unfair competition of
state companies propelled the trade defence reform to the top of the political agenda.824
Consequently, adjustments to the calculations of the anti-dumping margins entered into
force in December 2017,825 and the TDI modernisation regulation entered into force June
2018.826
The reforms of the EU trade defence mechanism included various changes.
Important modifications are discussed in the study of Ecorys827 and included:
• Elimination of the distinction between market economies and non-market economies
• No application of the LDR in case of: systemic raw materials distortions in the exporting
country and/or distorted trade due to countervailing subsidies granted by third countries.
• Shortened time frames for the introduction of EC provisional trade defence measures
• Increased transparency and predictability of procedures by means of a pre-warning system
for all interested parties and publication by the EC of its own assessments
• Measures to facilitate SMEs’ access to TDI
• Environmental and social interests anchored into trade defence procedures.
Furthermore, to ensure EU interests are protected even if the WTO system and the DSM in
particular are paralysed, three distinct actions were taken:828
• The EC has proposed amendments to the EC Enforcement Regulations, to extend the scope
to allow for action if dispute settlement procedures are blocked
• The effectuation of a temporary trade dispute appeal system, together with several WTO
members, in 2020.
• The EC appointed a Chief Trade Enforcement Officer (CTEO), tasked to ensure better
monitoring and enforcement of the implementation of EU trade agreements focusing on
the trade partners’ commitments to climate, environmental and labour standards.

China joined the WTO in 2001, under a 15-year transition period, to obtain a market economy status (MES).
For the time not yet having transitioned to a MES, other WTO members were allowed to impose AD tariffs
(to compensate for state capital subsidised Chinese exports (priced unfairly low). On 11 December 2016,
the deadline expired and the EU could no longer apply AD measures under the non-MES method.
825
Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 amending
Regulation (EU) 2016/1036 on protection against dumped imports from countries not members of the
European Union and Regulation (EU) 2016/1037 on protection against subsidised imports from countries
not members of the European Union, OJ L 143, 7 June 2018, p. 1
826
Regulation (EU) No 2017/2321 amending Regulation (EU) 2016/1036 on protection against dumped imports
from countries not members of the European Union and Regulation (EU) 2016/1037 on protection against
subsidised imports from countries not members of the European Union [2017] OJ L 338 of 19.12.2017.
827
Ibid.
828
Ibid.
824

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Annex 5
Annex to TiSA case study

Trading interests and values

Dutch positions compared to the EU position
Liberalisation
• The Netherlands thought that no sector should be excluded a priori and advocated opening
markets as much as possible.
• The Dutch position evolved somewhat. While in 2013, the Netherlands did not have a
position on using a negative list yet, in 2016 it felt that a negative list was undesirable
because it would prevent multilateralisation of TiSA.
• The EU position was that a hybrid approach to listing sectors and market access would be
best (see Section 6.1.) – like most negotiating Parties.
• The Netherlands hardly added any national topics, professions or sectors to the list of
exceptions to MFN status that the EU offer contained, less so than other member states.
Public sectors
• The Dutch position seems to have been nuanced. While the minister(s) informed
parliament more than once that the public sector would be fully protected, an internal
document from fall 2016 shows the Netherlands thought the EU offer contained too
general an exception for the public sector.
• Indeed, the EU claimed general exceptions for public sectors and public utilities.
Its 2016 offer excluded services ‘supplied in the exercise of government authority’,
as well as publicly funded education, health and social services and water distribution.
Temporary labour migration and entry of highly skilled professionals
• The Netherlands did not always intervene along with other members that spoke out against
provisions on visa for temporary migrants, even though in the domestic political debate
some political parties rallied against immigration in general.
• The Netherlands proposed to apply ’the Complementary protocol on movement of natural
persons for business purposes’ to promote the return of temporary migrants. The EU
integrated this in their offer.
New services and digital services
• This sector was important to the Netherlands. It wanted to get an ambitious agreement
with wide definitions on telephone and roaming services.
• In 2016, the Netherlands did not yet seem to have a clear position on the exclusion of new
services; at the same time, the Commission proposed such an exclusion in their offer,
limiting new market access.
Cross-border data flows
• The Netherlands stressed the importance of agreement on data flows. It favoured the free
flow of data including personal data, because it did not want to water down provisions on
this ‘offensive’ area for the EU. As a member of a likeminded group, it co-signed a letter to
the EC advocating an ambitious EU offer on data flows. At the same time, the Netherlands
wanted TiSA to meet EU standards for protection of data.
• In TiSA, the EU promoted general protection of data, including personal data, using
arguments of preventing protectionism and promoting data security rather than

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Trading interests and values

arguments of privacy. In April 2016, the EU agreed internally on the regulation for the flow
of data in the EU (in GDPR). For TiSA, the EU proposed existing texts from the GATS
Understanding on Financial Services.
Least Developed Countries
• The Netherlands was in favour of mainstreaming development concerns; and in favour of
extending possible advantages of TiSA to LDCs unilaterally. The minister explained to
parliament829 that this could be initiated (in the WTO) after the agreement had been agreed
and ratified.
• A Sustainability Impact Assessment on TiSA for the EU (July 2017) concluded that no
significant impact was expected on developing countries and LDCs. IOB found no other
references to LDCs: they were not mentioned in the EU offer nor in the draft TiSA text.
ILO conventions and labour standards
• The Dutch position was not fully coherent. In 2016, the Dutch cabinet informed parliament
it was disappointed that no concrete texts on ILO conventions had been inserted, but an
internal instruction said that obliging partners to ratify and implement these conventions
would undesirably prevent multilateralisation – and this stance was confirmed in an
interview.
• The Netherlands did not want to delay negotiations and aligned with the EU position. The
EU offer did not contain specific texts on ILO conventions and labour standards.
Maritime sector
• The Netherlands had an offensive interest in the maritime sector – especially dredging –
and was a founding member of a group of Friends of Maritime. In late 2015, it sent a letter
to the EC, together with the Benelux, about its importance, and was disappointed in many
negotiating partners’ offers in the maritime sector.
• The EU acknowledged this sector’s importance and said in a DG Trade factsheet830 that it
was ambitious in opening up maritime sector services (along with air and road transport)
given its competitive domestic industry there.

829
830

Tweede Kamer, vergaderjaar 2016–2017, 1075.
EC (2016).

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Annex 6
Annex to Investment case study

Trading interests and values

Dilemma’s in investment protection: balancing rights and
duties of investors
The right to regulate
This topic is of interest because of a concern that the State’s right to regulate could be harmed
by the protection of foreign investors, who could contest the State’s policies and regulations
through international arbitration panels. Around the time of the TTIP negotiations, civil
society and politicians started to feel that there was a lack of balance between rights and
obligations of multinational companies in trade and investment agreements. This concern
was heightened by fears that the international tax regime (and gaps within that system)
facilitated aggressive tax planning, benefitting only multinational companies and tilting the
tax burden towards citizens and domestic companies. Stakeholders feared that potential and
huge financial claims by foreign investors (facilitated by ISDS) could affect the host states’
right to regulate. And that these potential claims could have a negative effect on their policy
space and future policy making in sensitive areas such as sustainable development,
environment and human rights. This fear was fed by the concern that non-transparent and
unaccountable ISDS panels of arbiters, without an appeal option, could further expand on
earlier interpretations of investors’ ‘legitimate expectations’ of protection of their
investments, especially if this would cover future profits allegedly affected by new legislation.
Policy coherence: balancing interests
In investment protection, the challenge is to balance the rights of foreign investors with the
rights of the host states to regulate all companies in their jurisdiction in a non-discriminatory
manner. OECD countries, as host states of FDI and MNEs, feel the need to promote public
goods such as public health, climate and the environment in the interest of their population,
while they also need to provide security of justice, the rule of law and good governance.
International investors established in OECD countries are also understood to have duties or
responsibilities, in terms of responsible business conduct and due diligence of their
international supply chains in other jurisdictions. These duties are slowly being aligned with
or referenced in some investment agreements, although many provisions are not mandatory
and enforceable.
Appropriate foreign direct investment can greatly contribute to sustainable social and
economic development and FDI is mostly welcomed by all countries, including developing
countries. Until a dozen years ago, developing countries simply agreed to the standard
Bilateral Investment Agreements that the Netherlands proposed, but this situation is
changing. One reason this changed is that several developing countries – such as China,
Brazil, India –have become emerging economies with a market size attractive enough for FDI,
so that they can pose limits on the legal protection offered, but also have their own
international investors (MNEs) seeking protection elsewhere. Another reason is that some
developed countries, EU countries in particular, have now experienced the bilateral nature of
BITs for the first time and have received claims against them under the ISDS system.
The Netherlands itself is now confronted by a possible ISDS challenge by the energy company
RDW under the same treaty. RDW considers the proposed Dutch ban on using coal in power

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Trading interests and values

plants by 2030 to affect its future profits negatively and feels it is insufficiently compensated
by damage payments.
Regulating due diligence
The Netherlands continues to be a thought leader when it comes to promoting responsible
business conduct, at least as regards standard setting. In 2019, upon an initiative by
parliament, the government adopted legislation to ensure companies conduct due diligence
to prevent child labour and other harmful practices in their value chains, beyond its national
borders. It now has the difficult task of drafting regulations and ensuring implementation
and enforcement of the legislation. In 2019, the Dutch government also a presented a new
policy framework on responsible business conduct, including an intention to regulate
broader due diligence obligations for Dutch MNEs.
The EU Commission, in the meantime, aims to table a draft Directive on mandatory human
rights and environmental due diligence (mHREDD) requirements for businesses in 2021.
The Commission started preparing a public consultation about such legislation in 2020.
In addition, the European Parliament’s Committee on Legal Affairs published a draft report831
with recommendations to the Commission for new EU-wide legislation mandating such
mHREDD requirements.
Business and human rights
Another relevant process in this context is the negotiations around a UN Human Rights and
Business Treaty. An open-ended intergovernmental working group on transnational
corporations and other business enterprises concerning human rights (under UNHCR),
established in 2014, is negotiating an international legally binding instrument to regulate the
activities of transnational corporations and other business enterprises. However, the
negotiations do not progress well. The EC has no mandate from the Council to conduct
negotiations on behalf of the EU. Other UN member states are even absent from negotiations,
effectively boycotting them, including the US.832
Finally, the 50 OECD National Contact Points provide a non-judicial grievance mechanism for
MNE behaviour, allowing NGO’s and citizens to bring complaints if companies do not observe
the OECD Guidelines for MNEs on responsible business conduct. The contact points can
mediate and contribute to the resolution of issues, including human rights issues.833
The Dutch National Contact Point is among the most active ones in the OECD.

European Parliament (2020).
Source i.a. EESC: https://www.eesc.europa.eu/en/agenda/our-events/events/binding-un-treaty-businessand-human-rights and Just Security: https://www.justsecurity.org/61936/
self-defeating-absence-u-s-u-n-business-human-rights-forum/
833
Source i.a. https://mneguidelines.oecd.org/ncps/
831

832

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Annex 7
A brief historical perspective
on the EPAs

Trading interests and values

From Lomé and Cotonou to a new WTO-compatible trade regime
With the signing of the Cotonou Partnership Agreement in June 2000 as the successor to the
Lomé-IV Agreement, the EU and 67 ACP countries also agreed to redefine their existing
bilateral trade regime. The Cotonou trade regime consisted of unilateral, preferential access
for ACP exporters to the EU and Most Favoured Nation (MFN) treatment for EU products.
ACP exporters enjoyed zero duties for all manufactured goods and tariff rate quota for many
agricultural goods at zero or reduced duties for specified volumes. Moreover, ACP suppliers of
sugar, beef, bananas and rum (though not from all ACP countries) received limited access to
the EU market at high, internal EU prices.834
After several negative WTO rulings that determined that the Lomé trade regime discriminated
other developing countries, the Cotonou Agreement defined the following basic goals:
developing a new WTO-compatible trade regime, promoting growth, sustainable
development, poverty alleviation and enhancing the integration of ACP economies into the
world economy. However, the Agreement only contained basic principles and objectives for
this new economic and trade cooperation. What the future EU–ACP relations and the EPAs
should look like required further negotiations.
Everything but Arms, the Generalized System of Preferences, and challenging negotiations
In 2001, the EU granted duty-free and quota-free access for Least Developed Countries (LDCs)
on all products (except arms and armaments) through the Everything but Arms (EBA)
initiative, which is part of the Generalized System of Preferences (GSP) for all developing
countries.835 There were transitional regimes for bananas (until January 2006), sugar (July
2009) and rice (September 2009) due to the sensitivity of those primary commodities.
The EBA-initiative was legally covered in the WTO by the waiver that the EU obtained in the
2001 WTO Ministerial Conference, as part of the multilateral, political deal to launch the
Doha development round.
Only a year after the EBA-initiative, the EU and ACP countries started negotiating a WTOcompatible trade regime. The intention was to conclude the EPAs in 2007. After a first
ACP-wide phase to address issues of interest to all ACP-countries, the negotiations were taken
to the regional level (in six regional configurations). In the figure below, the EPA
configurations and associated regional organisations are presented.

834
835

Euractive (2018).
EC (undated). ‘Tradehelp Everything but Arms’. https://trade.ec.europa.eu/access-to-markets/en/content/
everything-arms-eba.

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Trading interests and values

Figure A7.1 Economic Partnership Agreements configurations836, 837

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*Tanzania no longer belongs to the COMESA region.
Source: Figure constructed on various sources, including ECDPM (2010) and Parliament UK (2005),
updated with recent developments.

From the outset, negotiations proved to be difficult, both in terms of process and substance.
Negotiations became even more challenging when, after 2005, the Commission considerably
narrowed the substance options for the future EU–ACP trade regime. ACP countries were
more or less forced by the EU to negotiate enhanced regional EPAs, despite the fact that their
regional integration was often at an infancy stage. Moreover, the EU Commission pushed for
deeper and broader EPAs that were also supposed to cover trade in services, intellectual
property and so-called Singapore issues such as investment, competition and government
procurement that had been dropped from the Doha round in the WTO in 2003.
EPA negotiations with individual ACP countries that are not covered by a regional EPA, such as with the
Pacific small islands, are still ongoing. As regards the least developed countries from Central and East
Africa, which enjoy duty and quota free access to EU markets under EBA, negotiations are not advanced.
837
ECOWAS: Economic Community of West African States; WEAMU: West African Economic and Monetary
Union; CEMAC: Central African Economic and Monetary Community; ECCAS: Economic Community of
Central African States; COMESA: Common Market for Eastern and Southern Africa; EAC: East African
Community; IGAD: Intergovernmental Authority on Development; IOC: Intergovernmental Oceanographic
Commission; SACU: Southern African Customs Union; SADC: Southern African Development Community.
836

Trading interests and values

By October-November 2007, none of the African or Pacific regions were in a position to
conclude a full EPA. However, the EU insisted on abiding by the WTO rules and in the absence
of any alternative trade regime, those ACP countries not signing an EPA would have had the
GSP or EBA for LDCs to fall back on.838 The EU refused to provide an alternative to EPAs to
safeguard the ACP’s market access after 2007, but it did agree to limit the scope of ‘interim
agreements’, that provided a legal basis for continuing (and improving) ACP preferences into
2008. The December 2007 ACP Council of Ministers “deplore[d] the enormous pressure that
has been brought to bear on the ACP States by the European Commission to initial the
interim trade arrangements, contrary to the spirit of the ACP-EU partnership”.839
Even Trade Commissioner Mandelson acknowledged that “the last months of 2007 were
difficult” and that “some good relationships (…) have been strained”.840
At the end of 2007, 15 countries in the Caribbean region, 2 Pacific countries and 18 African
countries concluded an (interim) EPA. And at the same time, the second WTO waiver expired,
ending the unilateral preferences for ACP countries of the Cotonou Agreement.
Developments after 2007
In 2008, countries that had concluded an (interim) EPA were entitled to make use of the trade
benefits under Market Access Regulation No. 1528/2007. This regulation was a transitory
arrangement that offered continued market access preferences to ACP partners in
anticipation of their EPA ratification.841 The seventeen ACP countries that had failed to take
steps towards ratification of the full or interim EPAs, initialled in 2007, were bound to lose
free access to EU markets and had to fall back on either GSP or EBA.
While the Market Access Regulation was intended as an incentive to sign an EPA, it delayed
the signing and ratification of these initialled agreements. There was no incentive for
ACP-countries to ratify an EPA while the Market Access Regulation provided them with duty
and quota free access to the EU for an open-ended interim period between the initialling of
the agreements (and expiry of the WTO waiver) and their signature and ratification.
The years after 2008 are characterised by many countries signing an EPA, but with only one
ratification (of the CARIFORUM EPA). This meant that all these countries did enjoy the
unilateral benefits of the Market Access Regulation, not leading to the reciprocity the EU had
aimed for through the EPAs. In 2013, the European Commission therefore announced that

Overseas Development Institute (2007).
Peter Mandelson speaking to the European Parliament Development Committee, 28 January 2008, as cited
in: ECDPM and ODI (2009). Ch. 3, p.48.
840
Ibid.
841
The Council allowed the EC to propose ACP countries – as a delegated act – to be included in the Annex to
the Regulation and thus let them benefit from continued preferential market access. Following the
amendment of the MAR No. 1528/2007 in 2014, ACP countries were conditionally included into the Annex
to the Regulation. The explanatory memorandum to the delegated act of the EC clarified that, as from 1
October 2016, ACP states which do not have an EPA in place will be removed from the Annex and thus will
not anymore benefit from the preferential market access.
838
839

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Trading interests and values

countries not having ratified at least interim EPAs for goods were to be removed from the
Market Access Regulation regime as from the 1st of October 2014.842
These developments were followed by a number of EPAs being concluded and being ratified
(by some countries). For example, regional EPAs with ECOWAS and SADC were concluded, and
Cameroon and Fiji ratified the regional EPAs they were part of. Countries that had concluded
regional EPAs or started the ratification of interim EPAs were reintegrated in the Market
Access Regulation. This meant that these countries were allowed the benefits again.
Box A7.1 Regional EPA with East Africa (EAC)843

The negotiations for the regional EPA with East Africa illustrate the challenging
nature of the wider EPA negotiations. EAC is a customs union in Eastern Africa
between Kenya, Tanzania, Uganda, Rwanda, Burundi and South Sudan with one
external tariff regime.
Already in October 2014, an (interim) EPA on goods was concluded between the EU
and EAC, but the ratification proofed to be difficult. However, after several non-LDC
ACP countries faced a possible loss of market access in the EU if they did not ratify by
1 October 2016, the EPAs were back on the agenda. To complicate matters, Brexit
introduced an element of uncertainty in 2016. Some ACP countries such as Tanzania
used the possible future lack of coverage of the UK as an argument to reconsider
their decision to ratify their EPA with the EU.
After preparing and agreeing on the legal text, signing by the EU and all six EAC
members was finally foreseen on 19 July 2016 in Nairobi. Due to last-minute
objections expressed by Tanzania and Uganda, though, signing was postponed.
On 1 September 2016, with the deadline of 1 October looming only two of the five
countries (Kenya and Rwanda) went ahead and signed the EPA with the EU. Kenya
also ratified the agreement.
However, this meant that not all EAC members signed and ratified the EPA.
As a result, Kenya, being the bloc’s only non-LDC, was to lose its free market access
to the EU and fall back to the GSP treatment. This would have affected, amongst
others, its cut flower exports to the EU. The rest of the EAC members, however,
continued to have free access to EU under EBA. To reward Kenya for signing and
ratifying the EPA, the EU has allowed the country temporary access to the European
market under a special arrangement.
Since 2016, little progress has been made. Currently, Kenya is asking the other EAC
partner states to adopt the Principle of Variable Geometry, allowing member

Regulation (EU) No. 527/2013. See: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ
.L_.2013.165.01.0059.01.ENG.
843
The East African (2019).
842

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Trading interests and values

countries to enforce trade agreements with the EU individually rather than en bloc.
This would allow Kenya to start accessing the EU market under an EPA.
No agreement has been reached yet with EAC, though.

Currently, only one full regional EPA with CARIFORUM and three interim EPAs (Central Africa,
West Africa – only Ivory Coast/Ghana – and Eastern and Southern Africa) have been
implemented. However, legally all four EPAs are still provisionally applied. For all the other
EPAs, the negotiations are in progress (for the Pacific) or on hold (West Africa and the East
African Community).
In the table below, the current state of play of the EPAs, as presented by the European
Commission, is shown.844 It is important to note, though, that what the European
Commission refers to as ‘EPA implemented’, actually refers to provisionally application and
only with a limited number of countries of that region. For example, the EPA with Central
Africa is marked as implemented, but Cameroon is the only country in that region that has
actually concluded the negotiations and has signed, ratified and provisionally implemented
the EPA.845

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844
845

EC (2020a).
EC (2020b).

Trading interests and values

Table A7.1 State of play of the EPAs
West Africa

EPA implemented

Cote d’Ivoire
Ghana

Central Africa

Cameroon

East and Southern Africa
(ESA)

Mauritius
Madagascar
Seychelles

Africa

Zimbabwe
Southern African
Development Community
(SADC) EPA group

Botswana
Lesotho
Namibia
South Africa
Swaziland

Caribbean

Antigua and Barbuda

Jamaica

Bahamas

St Lucia

Barbados

St Vincent

Belize

St Kitts and Nevis

Dominica

Suriname

Dominican Republic

Trinidad and Tobago

Grenada
Guyana
Fiji

Pacific
EPA concluded,
adoption ongoing
Africa

Caribbean

Papua New Guinea
West Africa

16 countries

East African Community
(EAC)

5 countries

Southern African
Development Community
(SADC) EPA group

Mozambique

Haiti

Source: EC (2020a).

While the EPA negotiations have been difficult, both in terms of process and content,
two recent developments require increased focus on these agreements. The Cotonou
Agreement is due to expire in December 2020, which means that the EU is now negotiating
the future of the ACP-EU partnership. Moreover, the European Commission launched a new
development strategy for Africa by the end of 2018. In this strategy, the EPAs were presented
as building blocks towards the African Continental Free Trade Area (AfCFTA).

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Annex 8
List of interviewees

Trading interests and values

Policy officers of the Dutch government
Name

Function (at the time
of the interview)

Department

Interview related to

Ms

Cècile Kleve

Advisor Europe

MGA

EPA case study

Mr

Dirk Klaassen

Deputy head of the
Section

PR EU, Brussels

Trade and investment policy

Ms

Elke Koning

Coordinating policy
officer

PR EU, Brussels

EPA case study

Ms

Elsbeth Akkerman

Former Deputy PR NL to
the WTO, currently
Ambassador in Vietnam

Embassy
Trade and investment policy
Hanoi, Vietnam

Mr

Gé Kuijpers

Policy officer

IMH, MFA

Trade and investment policy

Mr

Henk Eggink

Senior policy officer

PR UN, Geneva

Trade and investment policy

Mr

Jochem Sprenger

Former policy officer

I&W

Investment case study, TiSA
case study

Ms

Manon Post

Senior policy officer

PR UN, Geneva

Trade and investment policy

Mr

Marcel Vernooij

Deputry PR NL to WTO

PR UN, Geneva

Trade and investment policy

Ms

Margreet
Groenenboom

Policy officer

LNV

Trade and investment policy

Ms

Marijn Noordam

Policy coordinating officer

IMH, MFA

Trade defence case study

Ms

Marjolein Sliep

Policy officer

Formerly IMH

EPA case study

Mr

Matthijs van
Eeuwen

Policy officer

Formerly IMH

EPA case study

Ms

Maya Taselaar

Policy officer

IMH, MFA

TSD case study

Mr

Olaf Terlouw

Senior policy officer

EZK

Trade and investment policy

Mr

Ralf van de Beek

Senior policy officer

IMH, MFA

Trade and investment
policy, investment case
study

Ms

Rozemarijn
Vermeulen

Senior policy officer

IMH, MFA

TSD case study

Ms

Tess van der Zee

Policy officer

PR UN, Geneva

Trade and investment policy

Mr

Thomas Nauta

Senior policy officer

PR UN, Geneva

Trade and investment policy

Mr

Tjalling Dijkstra

Strategic policy officer

IMH, MFA

Trade and investment
policy, trade defence case
study

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Trading interests and values

Other stakeholders
Name

Function (at the time
of the interview)

Department

Interview related to

Ms

Alette van Leur

Director of Sectoral
Policies

ILO

Trade and investment policy

Mr

Anders Aeroe

Director

International
Trade Centre

Trade and investment policy

Mr

Bernard Kuiten

Head of External
Relations

WTO

Trade and investment policy

Ms

Cecile Billaux

Head of ACP Unit

DG TRADE, EC

EPA case study

Ms

Elisabeth Tuerk

Director

UNCTAD

Trade and investment policy

Mr

Hiddo Houben

Deputry PR of the EU to
the WTO

EU permanent
mission the
WTO, Geneva

Trade and investment policy

Mr

Leo Palma

Deputy director

ACWL

Trade and investment policy

Mr

Leopoldo Rubinacci

Deputy director, DGA2H

DG TRADE, EC

Trade defence case study

Mr

Louis Prats

Head of unit

DG EMPL, EC

TSD case study

Ms

Madelaine Tuininga

Head of unit

DG TRADE, EC

TSD case study

Mr

Manfred Elsig

Professor International
Relations

World Trade
Institute

Trade and investment policy

Mr

Mark Koulen

Counsellor

WTO

Trade and investment policy

Mr

Milan Pajić

Trade Policy Advisor

(formerly)
amfori

TSD case study

Mr

Nicolas Imboden

President

IDEAS centre

Trade and investment policy

Mr

Paolo Garzotti

Deputy PR of the EU to
the WTO

EU permanent
mission the
WTO, Geneva

Trade and investment policy

Mr

Ravi Kanth

Journalist

The Wire; The
Hindu

Trade and investment policy

Mr

Remco Vahl

Senior policy officer

DG TRADE, EC

EPA case study

Mr

Ricardo MelendezOrtiz

Former director

ICTSD

Trade and investment policy

Mr

Richard Bolwijn

Head of investment
research

UNCTAD

Trade and investment policy

Mr

San Bilal

Head of the Economic
Transformation and Trade
Programme

ECDPM

EPA case study

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Annex 9
Bibliography

Trading interests and values

Executive Summary
Policy documents
European Union
• EC (2020). ‘Report on the 10th round of negotiations between the EU and Chile for the
modernisation of the trade part of the EU Chile association agreement’. https://trade.ec.
europa.eu/doclib/docs/2021/may/tradoc_159588.pdf
Netherlands
• Ministery of Economic Affairs (2007). ‘Beleidsdoorlichting Handelspolitiek’
• Ministry of Foreign Affairs (2013). ‘A world to gain: A New Agenda for Aid, Trade and
Investment’.

Literature
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.

Other documents
| 221 |

• CBS (2020). ‘Nederland handelsland – Export, investeringen & werkgelegenheid 2020’. CBS:
The Hague, The Netherlands. https://longreads.cbs.nl/nederland-handelsland-2020/
nederland-handelsland-2020-export-investeringen-en-werkgelegenheid-een-introductie/

1 – Introduction
Policy documents
Netherlands
• Ministery of Economic Affairs (2007). ‘Beleidsdoorlichting Handelspolitiek’.
• Ministry of Foreign Affairs (2013). Rijksbegroting 2014 XVII Buitenlandse Handel en
Ontwikkelingssamenwerking.
• Ministry of Foreign Affairs (2019). ‘Verslag consultaties gender en handel’. https://www.
rijksoverheid.nl/documenten/vergaderstukken/2019/06/05/
verslag-consultaties-gender-en-handel

Literature
• Baumgartner, F.R., J.M. Berry, M. Hojnacki, D.C. Kimball and B.L. Leech (2009). ‘Lobbying
and policy change: who wins, who loses, and why’. Chicago: The University of Chicago
Press

Trading interests and values

• Bunea, A. (2013). ‘Issues, preferences and ties: determinants of interest groups’ preference
attainment in the EU environmental policy’. Journal of European Public Policy, 20(4):
552-570
• Carpenter, R. (2007). ‘Setting the advocacy agenda: theorizing issue emergence and
non-emergence in transnational advocacy networks’. International Studies Quarterly, 51(1):
99-120
• Carpenter, R. (2011). ‘Vetting the advocacy agenda: network centrality and the paradox of
weapon norms’. International Organization, 65(1): 69-102
• De Bièvre, D., Gstöhl, S., and E. Van Ommeren (2018). ‘Overcoming ‘Frankenfoods’ and
‘secret courts’: the resilience of EU trade policy’. CEPON, no. 9, pp. 1-6.
• Dür, A., P. Bernhagen and D. Marshall (2015). ‘Interest group success in the European
Union: when (and why) does business lose?’. Comparative Political Studies, 48(8): 951-983.
• Khor, M. (2001). ‘The proposed new issues in the WTO and the interests of developing
countries’. Third World Network, 14, pp. 1-34.
• Murdie, A. and S. Webeck (2015). ‘Responding to the call: human security INGOs and
countries with a history of civil war’. International Political Science Review, 36(1): 3-19
• Pralle, S. (2006). ‘Timing and sequence in agenda-setting and policy change: a comparative
study of lawn care pesticide politics in Canada and the US’. Journal of European Public
Policy, 13(7): 987-1005
• South Centre (2015). ‘WTO’s MC10: the call for ‘new issues’ at the WTO and implications for
developing countries’. December 2015, pp. 1-27.

Websites
• European Parliament (2019). ‘Multilateral and plurilateral trade agreements within and
outside the WTO framework’. http://www.europarl.europa.eu/legislative-train/theme-abalanced-and-progressive-trade-policy-to-harness-globalisation/package-multilateral-andplurilateral-trade-agreements (Last visited 20 August 2019)
• Forbes (2018). ‘Trump effect of long-term trend: a more politicized trade and investment
climate is here to stay’, https://www.forbes.com/sites/riskmap/2018/05/10/trump-effect-orlong-term-trend-a-more-politicized-trade-and-investment-climate-is-here-tostay/#993b45475945 (Last visited 21 August 2019).
• OECD (2019). ‘Levelling the playing field’. https://www.oecd.org/trade/topics/levelling-theplaying-field/ (Last visited 21 August 2019)
• Rijksoverheid (2019). Investeren in het buiteland’. https://www.rijksoverheid.nl/
onderwerpen/internationaal-ondernemen/investeringsbeschermingsovereenkomsten
(Last visited 20 August 2019)
• SDIP (2019). http://sdiponline.org/ (Last visited 6 August 2019)
• Thym, D. (2017). ‘Mixity after Opinion 2/15: judicial confusion over shared competences’.
Verfassungsblog, https://verfassungsblog.de/mixity-after-opinion-215-judicial-confusionover-shared-competences/ (Last visited 21 August 2018)
• World Bank (2019). ‘Trade and gender’. https://www.worldbank.org/en/topic/trade/brief/
trade-and-gender (Last visited 6 August 2019)
• WTO (2019a). ‘How the negotiations are organized’. https://www.wto.org/english/tratop_e/
dda_e/work_organi_e.htm (Last visited 23 August 2019)

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Trading interests and values

• WTO (2019b). ‘Trade and climate change’. https://www.wto.org/english/res_e/
publications_e/trade_climate_change_e.htm (Last visited 6 August 2019)

2 – Dutch international trade and investment policy and
multilevel governance
Policy documents
European Union
• Consolidated Version of the Treaty on the Functioning of the European Union art. 3(1),
2009. O.J. C 326/49.
• European Commission (2015). ‘ Trade for All: towards a more responsible trade and
investment policy’.
• European Commission (2017). ‘Report on the implementation of the trade policy strategy
Trade for All’. 13 September 2017, COM (2017) 491 final, https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52017DC0491&from=EN (last visited 27 October 2020).
• European Commission (2019a). ‘REGULATION OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL amending Regulation (EU) No 654/2014 of the European Parliament and of
the Council concerning the exercise of the Union’s rights for the application and
enforcement of international trade rules’. 12 December 2019, EC 2019/0273 (COD), https://
ec.europa.eu/transparency/regdoc/rep/1/2019/EN/COM-2019-623-F1-EN-MAIN-PART-1.PDF
• European Court of Justice (2015). Opinion 2/15.
Netherlands
• IRHP instructions and reports 2013–2019 in general (internal documents), and more
specific:
- IHRP 2016-10b TPC Handleiding Plv 11-03-2016. (Internal document)
- IHRP 2016-28b TPC Handleiding Plv 22-07-2016. (Internal document)
- IHRP 2017-18b Handleiding Plv 9 juni 2017. (Internal document)
• Memorie van Toelichting (2019).
• Ministry of Foreign Affairs (2013). ‘A world to gain: A New Agenda for Aid, Trade and
Investment’.
• Ministry of Foreign Affairs (2014). ‘Instellingsbesluit Interdepartementale Raad voor de
Handelspolitiek. https://wetten.overheid.nl/BWBR0035784/2014-11-26 (last visited 9
December 2019).
• Ministry of Foreign Affairs (2018a). ‘Investing in global prospects: for the world, for the
Netherlands’.
• Ministry of Foreign Affairs (2018b). ‘Trade agenda to the policy document investing in
global perspectives’.
• Ministry of Foreign Affairs (2018c). ‘Verslag online consultatie nota Buitenlandse Handel en
Ontwikkelingssamenwerking’.
• Ministry of Foreign Affairs (2018d). ‘Herzien Actieplan en Jaarrapportage beleidscoherentie
voor ontwikkeling’.

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Trading interests and values

• Ministry of Foreign Affairs (2019). ‘Handelsagenda: één jaar onderweg’.
• Ministry of Foreign Affairs (2020a). ‘Jaarrapportage beleidscoherentie voor ontwikkeling
2019-2020’.
• Ministry of Foreign Affairs (2021). ‘Verslag videoconferentie RBZ Handel d.d. 2 maart 2021’.
• Minutes of the DTIB and ISB-NL/ISO-NL
• Tweede Kamer, vergaderjaar 2008-2009, 26 485, nr. 68
• Tweede Kamer, vergaderjaar 2013–2014, 25 074, nr. 186
• Tweede Kamer, vergaderjaar 2015–2016, 33 625, nr. 219
• Tweede Kamer, vergaderjaar 2018–2019, 33 625, nr. 285.
International
• WTO (2005). ‘Doha Work Programme – Ministerial Declaration’. adopted on 18 December
2005.
• WTO (2013). ‘Bali Declaration’. https://www.wto.org/english/thewto_e/minist_e/mc9_e/
balideclaration, (last visited 29 November 2019).
• WTO (2015). ‘Nairobi Ministerial Declaration’. https://www.wto.org/english/thewto_e/
minist_e/mc10_e/mindecision_e.htm, (last visited 6 December 2019).

Interviews
• Interview with a Dutch diplomat, held 16 October 2019
• Interview with a Dutch diplomat, held 21 October 2019
• Interview with a Dutch diplomat, held 31 October 2019
• Interview with a Dutch diplomat, held 1 November 2019
• Interview with a Dutch diplomat, held 18 February 2020
• Interview with EC trade policy officer, held 6 March 2020
• Interview with policy maker at the MFA, held 14 October 2019
• Interview with policy maker at the MFA, held 21 October 2019
• Interview with policy maker at the MFA, held 9 April 2020
• Interview with policy maker at the MFA, held 16 April 2020
• Interview with policy maker at the MFA, held 31 August 2020

Literature
• Beyers, J. (2002). ‘Gaining and seeking access: The European adaptation of domestic
interest associations’. European Journal of Political Research, 41(5), pp. 585-612.
• Beyers, J. (2004). ‘Voice and access: Political practices of European interest associations’.
European Union Politics 5(2), pp. 211-40.
• De Bruycker (2015). ‘Pressure and expertise: Explaining information supply in EU legislative
lobbying’. JCMS: Journal of Common Market Studies, 54(3), pp. 599–616.
• De Bruycker, I. and J. Beyers (2015). ‘Balanced or biased? Interest groups and legislative
lobbying in the European news media’. Political Communication, 32 (3), pp. 453-474.
• De Bruycker, I. and J. Beyers (2019). ‘Lobbying strategies and success: Inside and outside
lobbying in EU legislative politics’. European Political Science Review, 11(1), pp. 57-74.

| 224 |

Trading interests and values

• Dür, A. and D. de Bièvre (2007). ‘Inclusion without influence? NGOs in European Trade
Policy’. Journal of Public Policy, 27(1), pp. 79-101.
• Fergusson, I., C. Hanrahan, W. Cooper and D. Langton (2005). ‘The Doha Development
Agenda: the WTO Framework Agreement’. CRS Report for Congress, pp. 1-27.
• Gheyle, N. and F. De Ville (2017) ‘How much is enough? Explaining the continuous
transparency conflict in TTIP’, Politics and Governance, vol. 5(3).
• Giuliani, C. (2019). ‘Multilateral Trade in Crisis: the WTO’s Appellate Body and the risk of
paralysis’. Instituto Affari Internazionali, no. 19(49), pp. 1-4.
• Hooghe, L. and G. Marks (2001). Multi-level governance and European integration, Lanham:
Rowman & Littlefield Publishers.
• Payosova, T., G. Hufbauer and J. Schott (2018). ‘The Dispute Settlement crisis in the World
Trade Organization: causes and cures’. Peterson Institute for International Economics,
Policy Brief no. 18(5), pp. 1-14.
• Quittkat, C. (2011). ‘The European Commission’s Online Consultations: A Success Story?’.
Journal of Common Market Studies, 49(3), pp. 653-674.
• Woolcock, S. (2003). ‘The Singapore issues in Cancun: a failed negotiation ploy or a litmus
test for global governance?’. Intereconomics: Review of European Economic Policy, 38(5),
pp. 249-255.

Other documents
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• ActionAid (2013). ‘FGG-alliantie: Ploumen, stop kaalslag ontwikkelingssamenwerking en
waarborg sociale winst’. 21 mei 2013
• AD (2018). ‘Eigenbelang voorop bij ontwikkelingshulp’. 18 May 2018.
• European Commission (2016). ‘The WTO after Nairobi – what’s the way ahead?’. 26 April
2016, https://trade.ec.europa.eu/doclib/press/index.cfm?id=1486&title=Speech-The-WTOafter-Nairobi-%E2%80%93-whats-the-way-ahead, (last visited 28 October 2020).
• European Commission (2020a). ‘EU and 15 World Trade Organization members establish
contingency appeal arrangement for trade disputes’. 27 March 2020, https://ec.europa.eu/
commission/presscorner/detail/en/IP_20_538 (last visited 27 October 2020).
• EUR-Lex (2016). ‘Consolidated version of the Treaty on the Functioning of the European
Union’. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016E208, (last
visited 26 October 2020).
• European Office of the United Nations, Press release no. 469, 27 October 1947.
• Evofenedex (2018). ‘Tweede Kamer kritisch op handelsagenda minister Kaag’. 16 November
2018.
• Evofenedex (2019). ‘Steun voor proactieve handelsagenda’. 15 January 2019.
• FGG Alliance (2013). ‘Visie Fair, Green & Global Alliance op “Wat de wereld verdient”. april
2013, https://www.bothends.org/uploaded_files/document/Visie_Fair_Green_Global_
Alliance_op_Wat_de_wereld_v.pdf (last visited 15 October 2020).
• Financial Times (2008). ‘Doha trade talks collapse’. https://www.ft.com/content/0638a3205d8a-11dd-8129-000077b07658, (last visited 27 November 2019).
• FME (2019). ‘Brief proactieve handelsagenda’. 11 June 2019.

Trading interests and values

• FTM (2018). ‘Deze club heeft als dertien jaar invloed op ons economisch beleid (en toch
kent niemand hem)’. https://www.ftm.nl/artikelen/dtib-lobby-economischbeleid?share=1, (last visited 13 August 2019).
• Hirsch, D. (2018). ‘Nota Kaag loopt met een boog om grondoorzaken heen’. Vice Versa, 22
May 2018
• Hoebink, P. (2018). ‘Losgezongen perspectieven’. CIDIN, pp. 1-14.
• ONL voor Ondernemers (2018). ‘Consultatie vernieuwd beleid Buitenlandse Handel en
Ontwikkelingssamenwerking’. https://onl.nl/wp-content/uploads/2018-03-20-ONL-voorOndernemers-reactie-consultatie-beleid-buitenlandse-handel.pdf (last visited 14 October
2020)
• OxfamNovib (2016). ‘Zaken eerst: BV Nederland in ontwikkelingssamenwerking’. https://
www.oxfamnovib.nl/files/rapporten/ZakenEerst-BVNederlandInOntwikkelingssamenwerki
ng.pdf (last visited 15 October 2020)
• Paassen, Barbara van (2018). ‘Verdienen aan de SDGs staat centraal in nota Kaag’. Vice
Versa, 23 May 2018.
• Reuters (2007). ‘G4 talks collapse, throw trade round into doubt’. https://www.reuters.
com/article/us-trade-wto/g4-talks-collapse-throw-trade-round-into-doubtidUSL2179513320070621, (last visited 4 December 2019).
• SOMO, TNI, Women, BothENDS and ActionAid (2018). ‘Begrotingsbehandeling BuHaOS’. 8
November 2018.
• The Hindu (2017). ‘Decision on fishing subsidies certain in WTO’s Dec. meet’. 28 October
2017, https://www.thehindu.com/business/decision-on-fishing-subsidies-certain-in-wtosdec-meet/article19934131.ece, (last visited 9 December 2019).
• Thym, D. (2017). ‘Mixity after Opinion 2/15: judicial confusion over shared competences’.
Verfassungsblog, https://verfassungsblog.de/mixity-after-opinion-215-judicial-confusionover-shared-competences/, accessed on 21 August 2019).
• TNI (2019). ‘The quiet power of the Dutch trade and investment board’. https://www.tni.
org/en/article/the-quiet-power-of-the-dutch-trade-and-investment-board, (last visited 13
August 2019).
• US Mission to Geneva (2019). https://geneva.usmission.gov/2019/10/14/statement-byambassador-dennis-shea-heads-of-delegation-meeting-geneva-october-14-2019/?_
ga=2.69002709.578160319.1574340619-414101566.1574340619 (last visited 4 December
2019).
• VNO NCW and MKB Nederland (2018). ‘Reactie op consultatie vernieuwd beleid
buitenlandse handel en ontwikkeling van minister Kaag’. https://www.vno-ncw.nl/
brieven-en-commentaren/consultatie-vernieuwd-beleid-buitenlandse-handel-enontwikkelingssamenwerking (last visited 14 October 2020).

Websites
• BUSINESSEUROPE (2020). https://www.businesseurope.eu/, (last visited 28 October 2020).
• Corporate Europe Observatory (2015). ‘TTIP talks: despite the PR, still under a cloak of
secrecy’. 5 May 2015, https://corporateeurope.org/en/international-trade/2015/05/
ttip-talks-despite-pr-still-under-cloak-secrecy (last visited 13 April 2021).

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• ETUC (2016). ‘US and EU trade union leaders: TTIP negotiations ‘on the wrong course’. 10
March 2016, https://www.etuc.org/en/pressrelease/us-and-eu-trade-union-leaders-ttipnegotiations-wrong-course (last visited 13 April 2021).
• European Commission (2019a). ‘Generalised scheme of preferences’. http://ec.europa.eu/
trade/policy/countries-and-regions/development/generalised-scheme-of-preferences/,
(last visited 20 August 2019).
• European Commission (2019b). ‘EU and WTO’. https://ec.europa.eu/trade/policy/eu-andwto/ (last visited 15 October 2020).
• European Commission (2020b). ‘European Commission kicks off major EU trade policy
review’. 16 June 2020, https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1058
(last visited 27 October 2020).
• European Commission (2020c). ‘Resignation statement by Commissioner Phil Hogan’. 26
August 2020, https://ec.europa.eu/commission/commissioners/2019-2024/hogan/
announcements/resignation-statement-commissioner-phil-hogan_en (last visited 27
October 2020).
• European Commission (2021). ‘Commission sets course for an open, sustainable and
assertive EU trade policy’. https://ec.europa.eu/commission/presscorner/detail/en/
ip_21_644 (last visited 15 March 2021)
• EUR-Lex (2019). ‘Right of initiative’. https://eur-lex.europa.eu/summary/glossary/
initiative_right.html, (last visited 20 August 2019).
• European Ombudsman (2014). ‘Report on the European Ombudsman’s public consultation
in relation to the transparency of the Transatlantic Trade and Investment Partnership (TTIP)
negotiations’. 6 January 2015, https://www.ombudsman.europa.eu/en/correspondence/
en/58643 (last visited 13 April 2021).
• European Parliament (2019). ‘Multilateral and plurilateral trade agreements within and
outside the WTO framework’. http://www.europarl.europa.eu/legislative-train/theme-abalanced-and-progressive-trade-policy-to-harness-globalisation/package-multilateral-andplurilateral-trade-agreements, (last visited 20 August 2019).
• Greenpeace (2016) ‘Leaked TTIP documents released’, 2 May 2016, https://www.greenpeace.
org/eu-unit/issues/democracy-europe/865/leaked-ttip-documents-released/ (last visited 13
April 2021).
• Ministry of Foreign Affairs (2014). ‘Instellingsbesluit Interdepartementale Raad voor de
Handelspolitiek’. https://wetten.overheid.nl/BWBR0035784/ 2014-11-26 (last visited 9
December 2019)
• Ministry of Foreign Affairs (2018e). ‘Vernieuwd beleid buitenlandse handel en
ontwikkelingssamenwerking’. https://www.internetconsultatie.nl/bhos (last visited 14
October 2020).
• Ministry of Foreign Affairs (2018f ). ‘Questions for consultation’. https://www.
internetconsultatie.nl/bhos (last visited 14 October 2020).
• Ministry of Foreign Affairs (2020b). ‘Directorates-General’. https://www.government.nl/
ministries/ministry-of-foreign-affairs/organisational-structure/directorates-general (last
visited 22 October 2020).
• OECD (2019). ‘Levelling the playing field’. https://www.oecd.org/trade/topics/levelling-theplaying-field/ (last visited 21 August 2019).

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Trading interests and values

• Politico (2020). ‘Valdis Dombrovskis named new EU trade commissioner’. 8 September
2020, https://www.politico.eu/article/valdis-dombrovskis-named-new-eu-tradecommissioner-2/ (last visited 27 October 2020).
• Rijksoverheid (2019). ‘Investeren in het buitenland’. https://www.rijksoverheid.nl/
onderwerpen/internationaal-ondernemen/investeringsbeschermingsovereenkomsten,
(last visited 20 August 2019).
• UN (2015). ‘The 17 goals, sustainable development’. https://sdgs.un.org/goals, (last visited
14 October 2020)
• WTO (2017). ‘Eleventh WTO Ministerial Conference’. https://www.wto.org/english/
thewto_e/minist_e/mc11_e/mc11_e.htm, (last visited 5 December 2019).
• WTO (2019b). ‘Azevedo urges ministers to step up work on the road to MC 12’. https://www.
wto.org/english/news_e/news19_e/infac_05nov19_e.htm, (last visited 6 December 2019).
• WTO (2019c). ‘Public Forum’. https://www.wto.org/english/forums_e/public_forum_e/
public_forum_e.htm, (last visited 10 December 2019).
• WTO (2020a). ‘An unofficial guide to agricultural safeguards’. https://www.wto.org/english/
tratop_e/agric_e/guide_agric_safeg_e.htm, (last visited 28 October 2020).
• WTO (2020b). ‘Introduction to fisheries subsidies in the WTO’. https://www.wto.org/
english/tratop_e/rulesneg_e/fish_e/fish_intro_e.htm, (last visited 28 October 2020).

3 – Key external trends and factors in trade and investment
politics
Policy documents
European Union
• European Commission (2019). ‘EU-China – A strategic outlook’. 12 March 2019. https://ec.
europa.eu/info/sites/info/files/communication-eu-china-a-strategic-outlook.pdf
• European Commission (2021). ‘Trade Policy Review: An Open, Sustainable and Assertive
Trade Policy’. Communication to the European Parliament, the Council, the European
Economic and Social Committee, and the Committee of the Regions. COM (2021) 66. 18
February 2021. Brussels, Belgium: European Commission. Available via: https://trade.ec.
europa.eu/doclib/docs/2021/february/tradoc_159438.pdf
• European Commission & High Representative of the Union for Foreign Affairs and Security
Policy (2020). ‘A new EU-US agenda for global change’. Joint communication to the
European Parliament, the European Council and the Council. JOIN(2020) 22. 2 December
2020. Available via: https://ec.europa.eu/info/sites/info/files/
joint-communication-eu-us-agenda_en.pdf.
• EUR-Lex (2020). ‘A Union of Equality: Gender Equality Strategy 2020–2025’. COM/2020/152.
5 March 2020. https://eur-lex.europa.eu/legal-content/EN/
TXT/?uri=CELEX%3A52020DC0152
• Eurobarometer (2019). ‘Europeans’ attitudes on Trade and EU trade policy – Factsheet:
Netherlands’. November 2019. https://europa.eu/eurobarometer/surveys/detail/2246

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Trading interests and values

Netherlands
• Ministry of Foreign Affairs (2019). ‘Digital Agenda for Foreign Trade and Development
Cooperation’. 3 June 2019.
• Ministry of Foreign Affairs (2021). ‘Fiche 5: Mededeling Evaluatie handelsbeleid – Een open,
duurzaam en assertief handelsbeleid’. 2 April 2021, https://www.rijksoverheid.nl/
ministeries/ministerie-van-buitenlandse-zaken/documenten/publicaties/2021/02/18/
fiche-5-mededeling-evaluatie-handelsbeleid-een-open-duurzaam-en-assertiefhandelsbeleid
International
• Dellink, R. et al. (2017). ‘International trade consequences of climate change’. OECD Trade
and Environment Working Papers, 2017/01, OECD Publishing, Paris. http://dx.doi.
org/10.1787/9f446180-en

Literature
• Demertzis, M. and Frederiksson, G (2018). ‘The EU Response to US Trade Tariffs’. In:
Intereconomics 2018. DOI: 10.1007/s10272-018-0763-2.
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
| 229 |

Other documents
• Chen, D. (2014). ‘The World Needs China’s Leadership’. In: The Diplomat, 21 March 2014.
Available via: https://thediplomat.com/2014/03/the-world-needs-chinas-leadership/.
• Kuom, L. and Kommenda, N. (2018). ‘What is China’s Belt and Road Initiative?’. Cities, The
Guardian. 30 July 2018. Available via: https://www.theguardian.com/cities/
ng-interactive/2018/jul/30/what-china-belt-road-initiative-silk-road-explainer
• Mandel, L. (2020). ‘The Trump Administration’s Impact on US Investment Policy’. In: ICSID
Review, 04 November 2020. https://doi.org/10.1093/icsidreview/siaa023.
• Purdie, E (2019). ‘Tracking GDP in PPP terms shows rapid rise of China and India’. In: World
Bank Blogs. 16 October 2019. Available via: https://blogs.worldbank.org/opendata/
tracking-gdp-ppp-terms-shows-rapid-rise-china-and-india.

Websites
• BDI (2020). How did Donald Trump Change U.S. Trade Policy and What Can We Expect from
Joe Biden?. Available via: https://english.bdi.eu/
• European Commission (2018a). ‘European Commission reacts to the US restrictions on
steel and aluminium affecting the EU’. European Commission reacts to the US restrictions
on steel and aluminium affecting the EU (europa.eu)
• European Commission (2018b). ‘EU adopts rebalancing measures in reaction to US steel
and aluminium tariffs’. European Commission reacts to the US restrictions on steel and
aluminium affecting the EU (europa.eu)

Trading interests and values

• European Commission (2020). ‘Interim appeal arrangement for WTO disputes becomes
effective’. News archive. 30 April 2020. Interim appeal arrangement for WTO disputes
becomes effective - Trade - European Commission (europa.eu)
• ITC Trade Map, undated. European Union (EU 28)’s exports to China.
• Statista.com (2021). ‘Value of Chinese Foreign Direct Investment to EU-28, from 2010 to
2019, by ownership of investment’. https://www.statista.com/statistics/1084385/chinaforeign-direct-investment-to-eu-by-ownership-of-investment/#:~:text=Value%20of%20
Chinese%20FDI%20to,2019%2C%20by%20ownership%20of%20investment&text=In%20
2019%2C%20about%2011.7%20billion,much%20less%20than%20private%20investment.

4 – Trade defence instruments
Policy documents
European Union
• European Commission (2018). ‘EU modernises its trade defence instruments’. Memo
23-01-2018. https://ec.europa.eu/commission/presscorner/detail/en/MEMO_18_396.
• General Court of the EU (2016). ‘Case T-80/14 ECLI:EU:T:2016:504’, ‘Case T-111/14
ECLI:EU:T:2016:505’, ‘Case T-120/14 ECLI:EU:T:2016:501’, ‘Case T-121/14 ECLI:EU:T:2016:500’
and ‘Case 139/14 ECLI:EU:T:2016:499’.
• Report Trade Defence Instruments Committee, 24-04-2018
Netherlands
• IRHP instructions and reports 2013–2019 in general (internal documents), and more
specific:
- IRHP 2014-027c TPC Verslag Leden 23-05-2014 to IRHP 2017-34c TPC Verslag Leden
24-11-2017
- IRHP 2014-035b TPC Handleiding Plv. 04-07-2014. (Internal document)
- IRHP 2014-046b TPC Handleiding LDN 3 oktober 2014. (Internal document)
- IRHP 2016-34b TPC Handleiding Leden 28 oktober 2016. (Internal document)
• Ministry of Foreign Affairs (2013). ‘Antidumping maatregel op biodiesel uit Argentinië en
Indonesië en brief Argentijnse minister van handel. 28 October 2013. (internal document)
• Ministry of Foreign Affairs (2015). ‘Verslag gesprekken DGBEB met directeur Trade Defence
en MEPs’. 27 October 2015. Berichtenverkeer. (Internal document)
• Ministry of Foreign Affairs (2016). ‘Annotated agenda FAC on trade’. 7 September 2016.
• Ministry of Foreign Affairs (2019). ‘NL positie t.a.v. voorlopige EU antibsubsidiemaatregel
biodiesel Indonesië’. 15 August 2019. (internal document)
• Permanent Representative EU (2020). ‘The Netherlands’ Priorities for the EU Trade Policy
Review’.
• Tweede Kamer, vergaderjaar 2015–2016, 21 501-02, nr. 1615
• WTO
• WTO (2016a). ‘European Union – Anti-Dumping Measures on Biodiesel from Argentina’.
Appellate Body Report, WT/DS473/AB/R and Add.1

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Trading interests and values

• WTO (2016b). ‘European Union – Anti-Dumping Measures on Biodiesel from Argentina’.
Panel Report WT/DS473/R and Add.1, as modified by Appellate Body Report WT/DS473/AB/R.
• WTO (2018). ‘European Union – Anti-Dumping Measures on Biodiesel from Indonesia’.
Panel Report WT/DS480/R and Add.1

Interviews
• Interview with EC Deputy Director, held 25 March 2020
• Interview with EC Deputy Director, held 06 April 2020
• Interview with policy maker at the MFA, held 8 July 2019
• Interview with policy maker at the MFA, held 18 February 2020
• Interview with policy maker at the MFA, held 16 April 2020
• Interview with policy maker at the MFA, held 17 April 2020

Literature
• Bachus et al., (2018). ‘Disciplining China’s Trade Practices at the WTO: How WTO
Complaints Can Help Make China More Market-Oriented’. https://www.cato.org/policyanalysis/
disciplining-chinas-trade-practices-wto-how-wto-complaints-can-help-make-china-more.
• De Ville, F. (2019). ‘Naïve no longer»? The hardening of EU trade policy discourse and
practice towards China and its limits’. https://www.researchgate.net/
publication/333868699_Naive_no_longer_The_hardening_of_EU_trade_policy_
discourse_and_practice_towards_China_and_its_limits
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
• EPRS (2018). ‘Modernising trade defence instruments’. Briefing. July 2018
• Koeth, W. (2018). ‘From ‘global Europe’ to trade defence: the EU responds to Trump and
China’. EIPA working paper. https://www.eipa.eu/wp-content/uploads/2019/01/FromGlobal-Strategy-to-trade-defence.pdf
• Van Bael & Bellis (2017). ‘The new EU anti-dumping methodology and other upcoming
changes to the EU anti-dumping rules’. 20-12-2017

Other documents
• CBS (2020). ‘Nederland handelsland – Export, investeringen & werkgelegenheid 2020’. CBS:
The Hague, The Netherlands. https://longreads.cbs.nl/nederland-handelsland-2020/
nederland-handelsland-2020-export-investeringen-en-werkgelegenheid-een-introductie/
• UK.gov (2013). ‘Review of the Balance of Review of the Balance of Competences between
the United Kingdom and the European Union Trade and Investment’. https://assets.
publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/
file/279322/bis_14_591_balance_of_competences_review_Trade_and_investment_
government_response_to_the_call_for_evidence.pdf

| 231 |

Trading interests and values

Websites
• Amfori (2017). ‘FTA Round table Debate: EU’s Modernisation of Trade Defence Instruments’.
21-03-2017 https://www.amfori.org/event/fta-round-table-debate-eu%E2%80%99smodernisation-trade-defence-instruments (Last visited 05-05-2021).
• Bike-eu.com (2017). ‘E-Bike Import Continues to Show Huge Growth’. Online article.
22-08-2017. https://www.bike-eu.com/market/
nieuws/2017/08/e-bike-import-continues-to-show-huge-growth-10131018 (Last visited
05-05-2021)
• Bike-eu.com (2019). ‘It’s Official: EU Imposes Anti-Dumping Duties on E-Bikes Imported
from China Online article. 18-01-2019. https://www.bike-eu.com/laws-regulations/
nieuws/2019/01/its-official-eu-imposes-anti-dumping-duties-on-e-bikes-imported-fromchina-10135147 (Last visited 05-05-2021).
• CBS (2019). ‘Dutch trade in facts and figures – export, investment and employment 2019’.
https://longreads.cbs.nl

5 – Trade and sustainable development Chapters
Policy documents
| 232 |

European Union
• Council Decision 2019/6052/EU of 15 April 2019. Available via: https://www.consilium.
europa.eu/media/39180/st06052-en19.pdf.
• European Commission (2015a). ‘Trade for All’.
• European Commission (2015b). ‘Position paper Trade and Sustainable Development
Chapter/Labour and Environment: EU paper outlining key issues and elements for
provisions in the TTIP’. 7 January 2015, https://trade.ec.europa.eu/doclib/docs/2015/
january/tradoc_153024.pdf, (last visited 25 September 2020).
• European Commission (2015c). ‘EU textual proposal Trade and Sustainable Development in
TTIP’. 6 November 2015, https://trade.ec.europa.eu/doclib/docs/2015/november/
tradoc_153923.pdf, (last visited 25 September 2020).
• European Commission (2018). ‘Feedback and way forward on improving the
implementation and enforcement of Trade and Sustainable Development Chapters in EU
Free Trade Agreements’. 26 February 2018, https://trade.ec.europa.eu/doclib/docs/2018/
february/tradoc_156618.pdf.
• European Commission (2020a). ‘Operating guidelines for the Single Entry Point and
complaints mechanism for the enforcement of EU trade agreements and arrangements’. 16
November 2020, https://trade.ec.europa.eu/doclib/docs/2020/november/tradoc_159074.
pdf
• EU-Korea FTA (2011). https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:2011:1
27:FULL&from=EN.
• EU/JP/en p. 482-483. http://trade.ec.europa.eu/doclib/docs/2018/august/tradoc_157228.
pdf#page=440.

Trading interests and values

• Kaag, S. and J.-B. Lemoyne (2020). ‘Non-paper from the Netherlands and France on trade,
social economic effects and sustainable development’. 8 May 2020, pp. 1-3.
• Von der Leyen, U. (2019). ‘Mission letter to Commissioner-designate for Trade’. 10
September 2019, https://ec.europa.eu/commission/sites/beta-political/files/mission-letterphil-hogan-2019_en.pdf (last visited 28 September 2020).
Netherlands
• Eerste Kamer, vergaderjaar 2020-2021, 35154-G
• IRHP instructions and reports 2013–2019 in general (internal documents), and more
specific:
- IRHP 2015-49b TPC Handleiding Plv 9-10-2015. (Internal document)
- IRHP 2015-52b TPC Handleiding Leden 14-10-2015. (Internal document)
- IRHP 2016-21b TPC Handleiding Plv 03-06-2016. (Internal document)
- IRHP 2016-34b TPC Handleiding Leden 28 oktober 2016. (Internal document)
- IRHP 2017-08c TPC Verslag Plv 08-03-2017. (Internal document)
- IRHP 2017-13b Handleiding Plv 21 april 2017. (Internal document)
- IHRP 2017-16b Handleiding Plv 19 May 2017. (Internal document)
- IRHP 2017-18b Handleiding Plv 9 juni 2017. (Internal document)
- IRHP 2017-22b Handleiding Leden 5 juli 2017. (Internal document)
- IRHP 2017-28b Handleiding Plaatsvervangers 29 september 2017. (Internal document)
- IHRP 2018-02c TPC Verslag Plv 19-01-2018. (Internal document)
- IRHP 2018-08b Instructie TPC leden 9-03-2018. (Internal document)
- IRHP 2018-08c TPC Verslag Leden 09-03-2018. (Internal document)
- IHRP 2018-16b Instructie TPC Plv 08-05-2018. (Internal document)
- IHRP 2018-17b Instructie TPC Plv 18-05-2018. (Internal document)
- IRHP 2018-21b Instructie TPC Leden 21-06-2018. (Internal document)
- IRHP 2018-34c TPC Verslag Plv 16-11-2018. (Internal document)
- IRHP 2018-36b TPC Instructie Plv 30-11-2018. (Internal document)
- IRHP 2018-36c TPC Verslag Plv 30-11-2018. (Internal document)
• Memorie van Toelichting (2019) http://www.rijksbegroting.nl/2019/voorbereiding/
begroting,kst248597_6.html.
• Ministry of Foreign Affairs (2013). ‘A world to gain’.
• Ministry of Foreign Affairs (2016). ‘35154 Goedkeuring van de op 30 oktober 2016 te Brussel
tot stand gekomen Brede Economische en Handelsovereenkomst (CETA) tussen Canada,
enerzijds, en de Europese Unie en haar lidstaten, anderzijds (Trb. 2017, 13)’. Kamerbrief
inzake nota naar aanleiding van het verslag inzake de goedkeuring van CETA. https://www.
rijksoverheid.nl/ministeries/ministerie-van-buitenlandse-zaken/documenten/
kamerstukken/2019/06/24/
kamerbrief-inzake-nota-naar-aanleiding-van-het-verslag-inzake-de-goedkeuring-van-ceta
• Ministry of Foreign Affairs (2018). ‘Investing in global prospects: for the world, for the
Netherlands.

| 233 |

Trading interests and values

• Ministry of Foreign Affairs (2020). ‘Kamerbrief over voortgang klachtenmechanisme over
duurzaamheidsbepalingen in handelsakkoorden’. 16 November 2020, https://www.
rijksoverheid.nl/ministeries/ministerie-van-buitenlandse-zaken/documenten/
kamerstukken/2020/11/16/
kamerbrief-aan-de-eerste-kamer-inzake-klachtenmechanisme-overduurzaamheidsbepalingen-in-handelsakkoorden
• Ministry of Foreign Affairs (2021). ‘Fiche 5: Mededeling Evaluatie handelsbeleid – Een open,
duurzaam en assertief handelsbeleid’. 2 April 2021, https://www.rijksoverheid.nl/
ministeries/ministerie-van-buitenlandse-zaken/documenten/publicaties/2021/02/18/
fiche-5-mededeling-evaluatie-handelsbeleid-een-open-duurzaam-en-assertiefhandelsbeleid
• Motie Vos van 13 oktober 2016 (Kamerstukken 21 501-02, nr. 1677)
• Tweede Kamer, vergaderjaar 2016-2017, 31 985, nr. 49
International
• Banks, K., T. Posner and R. Hernández (2017). ‘Arbitral panel established pursuant to
Chapter twenty in the matter of Guatemala – Issues relating to the obligations under Article
16.2.1(a) of the CAFTA-DR’. 14 June 2017, https://legacy.trade.gov/industry/tas/
Guatemala%20%20%E2%80%93%20Obligations%20Under%20Article%2016-2-1(a)%20
of%20the%20CAFTA-DR%20%20June%2014%202017.pdf (last visited 23 September 2020).
• Asselborn, J., Kofod, J.,Hallberg, A., Di Maio, L., Kaag, S.A.M., Maroto Illera, M.R., Rietser,
F., Varadkar TD, L., Skinnari, V., and Wilmès, S. (2020). ‘Non-paper Promoting Gender
Equality Through Trade Policy’. 06 November 2020.
• WTO (2017). ‘Buenos Aires Declaration on Women and Trade outlines actions to empower
women’. 12 December 2017, https://www.wto.org/english/news_e/news17_e/
mc11_12dec17_e.htm, (last visited 7 October 2020).

Interviews
• Interview with a Dutch diplomat, held 18 February 2020
• Interview with EC labour policy officer, held 6 March 2020
• Interview with EC trade policy officer, held 6 March 2020
• Interview with (former) representative of amfori, held 9 April 2020
• Interview with policy maker at the MFA, held 7 October 2019
• Interview with policy maker at the MFA, held 14 October 2019
• Interview with policy maker at the MFA, held 9 April 2020
• Interview with policy maker at the MFA, held 31 August 2020

Literature
• Ashraf, N. and J. van Seters (2020). ‘Making it count: civil society engagement in EU trade
agreements’. ECDPM Discussion paper, no. 276, pp. 1-26.
• Bronckers, M. and G. Gruni (2021). ‘Retooling the sustainability standards in EU Free Trade
Agreements’. Journal of International Economic Law, no. 24, pp. 1-27.

| 234 |

Trading interests and values

• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
• George, C. and S. Yamaguchi (2018). ‘Assessing implementation of environmental
provisions in regional trade agreements’. OECD Trade and Environment Working Papers, 2018/01,
pp. 1-41.
• Harrison, J., M. Barbu, L. Campling, B. Richardson and A. Smith (2019). ‘Governing labour
standards through free trade agreements: limits of the European Union’s Trade and
Sustainable Development Chapters’. Journal of Common Market Studies, vol. 57(2), pp. 260-277.
• IOB (2019). ‘Mind the governance gap, map the chain. Evaluation of the Dutch
government’s policy on international responsible business conduct (2012-2018)’. Policy and
Operations Evaluation Department (IOB), Ministry of Foreign Affairs, The Hague.
• Marx, A., F. Ebert, N. Hachez and J. Wouters (2017). Dispute Settlement in Trade and Sustainable
Development Chapters of EU Trade Agreements, Leuven: Leuven Centre for Global Governance
Studies.
• Melo-Arauja, B. (2018). ‘ Labour provisions in EU and US mega-regional trade agreements:
rhetoric and reality’. International and Comparative Law Quarterly, vol. 67(1), pp. 233-253.
• Orbie, J., D. Martens, M. Oehri and L. van den Putte (2016). ‘Promoting sustainable
development or legitimizing free trade? Civil society mechanisms in EU trade agreements’.
Third World Thematics: A TWQ Journal, vol. 1(4), pp. 526-546.
• Walgrave, S., J. Lefevere and A. Tresch (2012). ‘The associative dimension of issue
ownership’. Public Opinion Quarterly, vol. 76, pp. 771-782.
• Westlake, M. (2017). ‘ Asymmetrical institutional responses to civil society clauses in EU
international agreements: pragmatic flexibility or inadvertent inconsistency?’. College of
Europe Bruges Political Research Papers, no. 66, pp. 1-31.

Other documents
• Amfori (2020). ‘Position paper Towards more effective EU trade and Sustainable
Development Chapters’. https://www.amfori.org/sites/default/files/amfori-2020-21-01-TSDPosition-Paper.pdf, January 2020.
• BUSINESSEUROPE (2015). ‘Position paper on TTIP: the sustainability Chapter’. May 2015,
https://www.businesseurope.eu/sites/buseur/files/media/imported/2015-00382-E.pdf.
• CNV (2020). ‘Handel en duurzame ontwikkeling: werknemersrechten gelijk aan
investeerdersrechten. Position paper CNV Vakcentrale en CNV Internationaal’. 17 July 2020,
https://www.cnvinternationaal.nl/_Resources/Persistent/22e2158ce8368c465fa8b2ddba183
cad6ed416fc/CNVI-0129%2020170710%20Position%20paper%20CNV%20
geschillenbeslechting%20duurzaamheidshoofdstukken%20DEF.pdf.
• European Parliamentary Research Service (2019). ‘Gender equality and trade’. January 2019,
pp. 1-2.
• FNV (2018). ‘CETA feiten en fabels. Het vrijhandelsverdrag tussen de EU en Canada’. juni
2018, https://www.fnv.nl/getmedia/61fd2a59-3585-4773-b770-9323baa2fd8f/ceta-feiten-enfabels-juni-2018.pdf.

| 235 |

Trading interests and values

• TNI, SOMO, Milieudefensie and Greenpeace (2017). ‘Position paper on the enforceability of
trade and sustainable development Chapters in EU trade and investment agreements’. June
2017, https://www.somo.nl/wp-content/uploads/2018/07/of_trade_and_sustainable_
development_Chapters_in_eu_trade_and_investment_agreements_juni_2017.pdf.
• USTR (2010). ‘USTR Kirk announces labour rights trade enforcement case against
Guatemala’. 30 July 2010, https://ustr.gov/about-us/policy-offices/press-office/pressreleases/2010/july/united-states-trade-representative-kirk-announces-lab (last visited 23
September 2020).

Websites
• BusinessKorea (2020). ‘Korean government approves ILO convention ratification bill’. 8
July 2020, http://www.businesskorea.co.kr/news/articleView.html?idxno=48697 (last
visited 1 October 2020)
• European Commission (2019). ‘EU-Korea dispute settlement of workers’ rights in Korea
enters next stage’. 19 December 2019, https://trade.ec.europa.eu/doclib/press/index.
cfm?id=2095 (last visited 28 September 2020)
• European Commission (2020b). ‘Sustainable development’. https://ec.europa.eu/trade/
policy/policy-making/sustainable-development/ (last visited 6 October 2020).
• European Commission (2020c). ‘Daily news 24/07/2020’. https://ec.europa.eu/
commission/presscorner/detail/en/MEX_20_1407 (last visited 28 September 2020)
• European Commission (2020d). ‘Access2Markets contact form’. https://trade.ec.europa.eu/
access-to-markets/en/contact-form?type=COMPL_TSD_GSP (last visited 9 March 2021).
• European Commission (2020e). ‘India’. https://ec.europa.eu/trade/policy/countries-andregions/countries/india/ (last visited 28 September 2020).
• European Commission (2021). ‘Panel of experts confirms Republic of Korea is in breach of
labour commitments under our trade agreement’. https://trade.ec.europa.eu/doclib/press/
index.cfm?id=2238 (last visited 10 March 2021).
• OECD (2020). ‘MNE Guidelines’. http://mneguidelines.oecd.org/guidelines/ (last visited 7
October 2020).

6 – Trade in Services Agreement
Policy documents
European Union
• European Commission (2015). ‘Complementary protocol on movement of natural persons
for business purposes’. December 2015. https://trade.ec.europa.eu/doclib/docs/2015/
december/tradoc_154125.pdf
• European Commission (2016). ‘Trade in Services Agreement (TiSA) – factsheet’. 26
September 2016. https://trade.ec.europa.eu/doclib/docs/2016/september/tradoc_154971.
doc.pdf

| 236 |

Trading interests and values

• European Commission (2021). ‘Annex to the Communication from the Commission to the
European Parliament, the Council, the European Economic and Social Committee, and the
Committee of Regions –Trade Policy Review – An Open, Sustainable and Assertive Trade
Policy’. 18 February 2021. https://trade.ec.europa.eu/doclib/docs/2021/february/
tradoc_159439.pdf
• European Commission (2021). ‘Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee, and the
Committee of Regions - Trade Policy Review - An Open, Sustainable and Assertive Trade
Policy’. 18 February 2021. https://trade.ec.europa.eu/doclib/docs/2021/february/
tradoc_159438.pdf
Netherlands
• Government of the Netherlands (2017). ‘Like minded letter on data flows in trade
agreements’. 16 May 2017. https://www.government.nl/topics/treaties/documents/
letters/2017/05/19/like-minded-letter-on-data-flows-in-trade-agreements
• Government of the Netherlands (2019). ‘Digital Agenda for Foreign Trade and Development
Cooperation (BHOS)’. 31 July 2019. https://www.government.nl/documents/policynotes/2019/07/31/digital-agenda-for-foreign-trade-and-development-cooperation-bhos
• IRHP instructions and reports 2013–2019 in general (internal documents), and more
specific:
- IRHP 2013-28b TPC Handleiding Plv 21 juni 2013. (Internal document)
- IRHP 2016-34b TPC Handleiding Leden 28 oktober 2016. (Internal document)
• Ministry of Foreign Affairs (2016). ‘Publieke diensten in handelsakkoorden’. 18 January
2016.
• Ministry of Foreign Affairs (2017). ‘BHOS Policy Note: Digital Agenda for Global Prospects’.
31 July 2017.
• Ministry of Foreign Affairs (2021). ‘Fiche 5: Mededeling Evaluatie handelsbeleid – Een open,
duurzaam en assertief handelsbeleid’. 2 April 2021, https://www.rijksoverheid.nl/
ministeries/ministerie-van-buitenlandse-zaken/documenten/publicaties/2021/02/18/
fiche-5-mededeling-evaluatie-handelsbeleid-een-open-duurzaam-en-assertiefhandelsbeleid
• Tweede Kamer, vergaderjaar 2015–2016, 25 074, nr. 189.
• Tweede Kamer, vergaderjaar 2016-2017, 1075
International
• WTO (2011). ‘Preferential treatment to services and service suppliers of least-developed
countries’. 19 December 2011. https://docs.wto.org/dol2fe/Pages/SS/directdoc.
aspx?filename=q:/wt/l/847.pdf&Open=True

Interviews
• Interview with a Dutch diplomat, 18 February 2020
• Interview with an EU diplomat, 28 January 2021
• Interview with former MFA policy maker, 22 March 2021
• Interview with policy maker at the MFA, 7 October 2019

| 237 |

Trading interests and values

• Interview with policy maker at the MFA, 14 October 2019
• Interviews with policy makers at the MFA, 16 October 2019
• Interview with policy maker at the MFA, 18 October 2019
• Interviews with policy makers at the MFA, 21 October 2019
• Interview with policy maker at the MFA, 31 October 2019

Literature
• Delimatsis, P. (2016). ‘TTIP, CETA, TiSA Behind Closed Doors: Transparency in the EU Trade
Policy’. SSRN Electronic Journal. 10.2139/ssrn.2835956. https://www.researchgate.net/
publication/317997374_TTIP_CETA_TiSA_Behind_Closed_Doors_Transparency_in_the_
EU_Trade_Policy
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
• Lodder, G. (2019). ‘Selectief naast restrictief. Evaluatie van de Wet modern migratiebeleid’. 1
Juni 2019. Universiteit Leiden, Instituut voor Immigratierecht https://www.rijksoverheid.
nl/documenten/rapporten/2019/12/04/
tk-bijlage-evaluatie-van-de-wet-modern-migratiebeleid
• Nakatomi and Michitaka (2015). ‘Sectoral and plurilateral approaches in services
negotiations: Before and after TISA’. ECIPE Policy Brief, No. 2/2015, European Centre for
International Political Economy (ECIPE), Brussels. https://www.econstor.eu/
bitstream/10419/174791/1/ecipe-pb-2015-02.pdf
• Schill, S. (2017). ‘Authority, Legitimacy, and Fragmentation in the (Envisaged) Dispute
Settlement Disciplines in Mega-Regionals’. 14 March 2017. Amsterdam Center for
International Law, ACIL Research Paper 2017-04 https://papers.ssrn.com/sol3/papers.
cfm?abstract_id=2932810

Other documents
• EPSU (2016). ‘EPSU update on the Comprehensive Economic and Trade Agreement (CETA),
Transatlantic Trade and Investment Partnership (TTIP), the Trade in Services Agreement
(TiSA)’. Augustus 2016. https://www.epsu.org/sites/default/files/article/files/2016.08.16%20
Trade%20Update%20August%202016.pdf
• FNV (2016). ‘TiSA, Trade in Services’. https://www.fnv.nl/getmedia/ea608f09-c489-4113a8fa-469e4ecbbc84/tisa-brochure-def.pdf
• Greenpeace (2016a). ‘Leaked TiSA texts reveal threats to climate’. 20 September 2016
https://www.greenpeace.org/eu-unit/issues/democracy-europe/1295/
leaked-tisa-texts-reveal-threats-to-climate/
• Greenpeace (2016b). ‘TiSA - Another Secret Free Trade Agreement putting the Paris
Agreement in a straight jacket’. September 2016 https://www.greenpeace.org/static/
planet4-eu-unit-stateless/2018/08/4d10e8e1-4d10e8e1-tisa_report_en_sept16_09w.pdf
• Greenpeace (2016c). ‘The TiSA trade agreement benefits only corporations Environmental,
consumer and data protection threatened’. November 2016 https://trade-leaks.org/
wp-content/uploads/2016/11/TiSA-factsheet.pdf
• Vrij Nederland article (2016) https://www.vn.nl/de-grote-broer-van-ttip-is-bijna-rond/

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Trading interests and values

• Oostrom, L. et. al. (2016). ‘Measuring the inter economy in the Netherlands’. 7 October
2016. https://www.cbs.nl/nl-nl/achtergrond/2016/41/
measuring-the-internet-economy-in-the-netherlands

Websites
• Bigwobber (2017). ‘Factsheet 7: TiSA’. 21 December 2017. https://bigwobber.nl/wp-content/
uploads/osd/20171221/2399.pdf (last visited February 2021)
• EPSU (2021). ‘Search on TiSA’. https://www.epsu.org/search?search_api_fulltext=TiSA (last
visited March 2021)
• Rijksoverheid (2021). ‘Wat is TiSA. https://www.rijksoverheid.nl/onderwerpen/
handelsverdragen-europese-unie/vraag-en-antwoord/wat-is-tisa (last visited February 2021)
• World Bank data on added value of trade in services for Europe and the Netherlands:
https://data.worldbank.org/indicator/NV.SRV.TOTL.ZS?locations=NL and https://data.
worldbank.org/indicator/SL.SRV.EMPL.ZS.
• WikiLeaks (2016a). https://www.wikileaks.org/tisa/
• WikiLeaks (2016b). ‘TiSA analysis bij Sanya Reid Smith of the Third World Network’. 14
October 2016. https://www.wikileaks.org/tisa/document/
• WikiLeaks (2016c). ‘TiSA core text’. 21 June 2016, https://www.wikileaks.org/tisa/
document/20160621_TiSA_Core-Text/page-1/#pagination
• WTO (2021a). ‘Key stages in the services negotiations’. https://www.wto.org/english/
tratop_e/serv_e/key_stages_e.htm (last visited February 2021)
• WTO (2021b). ‘Principles of the trading system’ https://www.wto.org/english/thewto_e/
whatis_e/tif_e/fact2_e.htm (last visited January 2021)
• WTO (2021c). ‘Services Trade’. https://www.wto.org/english/tratop_e/serv_e/serv_e.htm
(last visited February 2021)
• WTO (2021d). ‘The WTO’s rules’. https://www.wto.org/english/tratop_e/region_e/regrul_e.
htm (last visited August 2021)
• WTO (2021e). ‘Trade in Services and LDCs’. https://www.wto.org/english/tratop_e/serv_e/
ldc_mods_negs_e.htm (last visited February 2021)

7 – Investment protection and investor duties
Policy documents
European Union
• Council of the European Union (2018). ‘Negotiating directives for a Convention
establishing a multilateral court for the settlement of investment disputes’. 1 March 2018.
https://data.consilium.europa.eu/doc/document/ST-12981-2017-ADD-1-DCL-1/en/pdf
• EU MS’ non paper (2015). ‘Improvements to CETA and beyond’. 6 March 2015. https://www.
eerstekamer.nl/overig/20150306/improvements_to_ceta_and_beyond/document

| 239 |

Trading interests and values

• European Commission (2015). ‘ Investment in TTIP and beyond – the path for reform.
Enhancing the right to regulate and moving from current ad hoc arbitration towards an
Investment Court’. May 2015. https://trade.ec.europa.eu/doclib/docs/2015/may/
tradoc_153408.PDF
• European Parliamentary Research Service (2020a). ‘EU–China Comprehensive Agreement
on Investment - Levelling the playing field with China’. September 2020. https://www.
europarl.europa.eu/RegData/etudes/BRIE/2020/652066/EPRS_BRI(2020)652066_EN.pdf
• European Parliamentary Research Service (2020b). ‘Multilateral Investment Court Overview of the reform proposals and prospects’. January 2020. https://www.europarl.
europa.eu/RegData/etudes/BRIE/2020/646147/EPRS_BRI(2020)646147_EN.pdf
Netherlands
• Adviesraad Internationale Vraagstukken (2015). ‘Internationale investeringsbeslechting –
van ad hoc arbitrage naar een permanent investeringshof’. 10 April 2015. https://www.
adviesraadinternationalevraagstukken.nl/documenten/publicaties/2015/04/10/
internationale-investeringsbeslechting
• Berichtenverkeer (2016a). ‘Investeringen - Lancering multilateraal investeringshof - eerste
bijeenkomst 13 en 14 december’. 16 december 2016. (internal document)
• Berichtenverkeer (2016b). ‘Investeringen - Verslag technische bijeenkomst multilateraal
investeringshof’. 28 November 2016. (internal document)
• Berichtenverkeer (2016c). ‘Investeringen - WEF/WTI roundtable: positief-kritische
bespreking van het Investment Court System, maar geen heldere narrative rondom
nut-en-noodzaak’. 1 June 2016. (internal document)
• Government of the Netherlands (2018). ‘Revised action plan and annual progress review on
policy coherence for development’. 13 July 2018. https://www.government.nl/documents/
parliamentary-documents/2018/07/13/
revised-action-plan-and-annual-progress-review-on-policy-coherence-for-development
• IRHP instructions and reports 2013–2019 in general (internal documents), and more
specific:
- 20171122 Verslag TPC SI 22 november 2017.
- Europa - EU - Raadswerkgroep - Handel - Verslag TPC SI 25 januari 2017 (internal
document)
- Handleiding voor TPC leden Plv, Australie en Nw-Zeeland 7-12-2020 (internal document)
- IRHP 2017-04b Handleiding Plv 3 februari 2017 (internal document)
- IRHP 2017-13c TPC Verslag Plv 21-04-2017 (internal document)
- IRHP 2017-22b Handleiding Leden 5 juli 2017 (Internal document)
- IRHP 2017-32b Handleiding TPC Leden 27 oktober 2017 (internal document)
- IRHP 2017-35b Handleiding TPC plaatsvervangers 1-12-2017 (interal document)
- IRHP 2017-36b Handleiding TPC plaatsvervangers 7-12-2017 (internal document)
- IRHP 2018-02b Instructie TPC plaatsvervangers 19-01-2018 (internal document)
- IRHP 2018-06b Instructie TPC plaatsvervangers 16-02-2018 (internal document)
- IRHP 2018-11c TPC Verslag Attaches 4 april 2018 (internal document)
• Ministry of Foreign Affairs (2013). ‘A world to gain’
• Ministry of Foreign Affairs (2017). ‘BHOS Policy Note: Digital Agenda for Global Prospects’.
31 July 2017.

| 240 |

Trading interests and values

• Ministry of Foreign Affairs (2018). ‘Investing in global prospects’. May 2018. https://www.
government.nl/documents/policy-notes/2018/05/18/investing-in-global-prospects
• Ministry of Foreign Affairs (2020). ‘ Van voorlichten tot verplichten: een nieuwe impuls
voor internationaal maatschappelijk verantwoord ondernemerschap’. 16 October 2020.
https://www.rijksoverheid.nl/documenten/beleidsnotas/2020/10/16/
van-voorlichten-tot-verplichten-een-nieuwe-impuls-voor-internationaal-maatschappelijkverantwoord-ondernemerschap
• Rijksoverheid (2018). ‘Handelsagenda bij de nota ‘Investeren in perspectief’. 5 October
2018. https://www.rijksoverheid.nl/documenten/brieven/2018/10/05/
handelsagenda-bij-de-nota-investeren-in-perspectief
• Tweede kamer (2017). Plenaire vergadering, 27 juni 2017. https://www.tweedekamer.nl/
debat_en_vergadering/plenaire_vergaderingen/details?date=27-06-2017
• Tweede Kamer, vergaderjaar 2013–2014, 21501 02, nr. 1397
• Tweede Kamer, vergaderjaar 2014–2015, 2313
• Tweede Kamer, vergaderjaar 2017-2018, 33 625, nr. 265. Annexes https://www.tweedekamer.
nl/kamerstukken/brieven_regering/detail?id=2018Z14064&did=2018D39633
• Tweede Kamer, vergaderjaar 2018–2019, 34 952, nr. 32
• Tweede Kamer, vergaderjaar 2018–2019, 34 952, nr. 58
• UNCTAD (2019a). ‘Netherlands model Investment Agreement’. 22 March 2019 https://
investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5832/
download
International
• International Centre for Settlement of Investment Disputes (2006). ‘ICSID convention,
regulations and rules’. April 2016 https://icsid.worldbank.org/sites/default/files/ICSID%20
Convention%20English.pdf
• UNCTAD (2019b). ‘2018 Dutch Model Investment Agreement: A Comparison with UNCTAD
Policy Tools’. January 2019

Interviews
• Interview with a Dutch diplomat, held 18 February 2020
• Interview with an EU diplomat, 28 January 2021
• Interview with an OECD expert, 12 April 2021
• Interview with policy maker at the MFA, 7 October 2019
• Interview with policy maker at the MFA, 14 October 2019
• Interviews with policy makers at the MFA, 16 October 2019
• Interview with policy maker at the MFA, 18 October 2019
• Interviews with policy makers at the MFA, 21 October 2019
• Interview with policy maker at the MFA, 31 October 2019
• Interview with policy maker at the MFA, 6 January 2021
• Interview with policy maker at the MFA, 22 March 2021

| 241 |

Trading interests and values

Literature
• Columbia Centre for Sustainable Investment (2019). ‘An Advisory Centre on Investment
Law’. 10 September 2019. http://ccsi.columbia.edu/files/2019/09/KPS-ACIIL-AcademicForum-Sept.-19-final-pdf.pdf
• Columbia Centre for Sustainable Investment (2020). ‘Perspectives on topical foreign direct
investment issues’. 14 December 2020. http://ccsi.columbia.edu/files/2018/10/No-293Baltag-FINAL.pdf
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
• Intstitute for International Economics (2000). ‘The MAI and the Politics of Failure : Who
Killed the Dog?’. https://piie.com/publications/Chapters_preview/91/2iie2725.pdf

Other documents
• Arcuri, A., Verbeek, B. J. (2019). ‘The New Dutch Model Investment Agreement: On the
Road to Sustainability or Keeping up Appearances?’. Erasmus Law review, issue 4 http://
www.erasmuslawreview.nl/tijdschrift/ELR/2019/4%20(incomplete)/ELR-D-19-00026
• Lavranos, N. (2013). ‘The new EU Investment Treaties: Convergence towards the NAFTA
model as the new Plurilateral Model BIT text?’. Vrije Universiteit Brussel. https://cris.vub.
be/ws/portalfiles/portal/29952551/SSRN_id2241455.pdf

Websites
• BDI (2020). ‘Setting New Rules – The Free Trade Agreements of the European Union’. 29
May 2020. https://english.bdi.eu/article/news/setting-new-rules-the-free-tradeagreements-of-the-european-union/ (Last visited February 2021)
• Centre for international governance innovation (2017). ‘Is It Time to Redesign or Terminate
Investor-State Arbitration?’. 11 April 2017. https://www.cigionline.org/articles/it-timeredesign-or-terminate-investor-state-arbitration (Last visited February 2021)
• European Commission (2017a). ‘State of the union 2017 – A multilateral investment court’.
https://trade.ec.europa.eu/doclib/docs/2017/september/tradoc_156042.pdf (Last visited
March 2021)
• European Commission (2017b). ‘The Opinion of the European Court of Justice on the
EU-Singapore Trade Agreement and the Division of Competences in Trade Policy’.
September 2017. https://trade.ec.europa.eu/doclib/docs/2017/september/tradoc_156035.
pdf (Last visited March 2021)
• European Commission (2019). ‘European Court of Justice confirms compatibility of
Investment Court System with EU Treaties’. 30 April 2019 http://trade.ec.europa.eu/doclib/
press/index.cfm?id=2014 (Last visited March 2021)
• European commission (2020a). ‘EU and China reach agreement in principle on
investment’. 30 December 2020. https://ec.europa.eu/commission/presscorner/detail/en/
ip_20_2541 (Last visited January 2021)
• European Commission (2020b). ‘Overview of FTA and other negotiations’. https://trade.ec.
europa.eu/doclib/docs/2006/december/tradoc_118238.pdf (Last visited November 2020)

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Trading interests and values

• European Commission (2021a). ‘The European Commission launches a call for applications
for candidates to become members of the panel selecting adjudicators for EU trade and
investment agreements’. January 2021. https://trade.ec.europa.eu/doclib/docs/2021/
january/tradoc_159356.01.2021.pdf (Last visited January 2021)
• European Commission (2021b) ‘The Multilateral Investment Court project’. 21 December
2016, updated January 2021. http://trade.ec.europa.eu/doclib/press/index.cfm?id=1608
(Last visited March 2021)
• European Parliament (2017). ‘From arbitration to the investment court system (ICS) – the
evolution of CETA rules’. June 2017. European Parliamentary Research Service, PE 607.251.
https://www.europarl.europa.eu/RegData/etudes/IDAN/2017/607251/EPRS_
IDA(2017)607251_EN.pdf (Last visited March 2021)
• European Parliament (undated). ‘Legislative train schedule – Multilateral investment
court’. https://www.europarl.europa.eu/legislative-train/theme-a-balanced-andprogressive-trade-policy-to-harness-globalisation/file-multilateral-investment-court-(mic)
(Last visited February 2021)
• Fiettalaw (2020). ‘Brexit and international agreements: the Withdrawal Agreement and
beyond (January 2020)’. https://www.fiettalaw.com/brexit/brexit-and-internationalagreements-the-withdrawal-agreement-and-beyond-january-2020/ (Last visited January
2020)
• Glawcal (undated). ‘A new draft Dutch model bit: a new “gold standard”?’. http://www.
glawcal.org.uk/news/a-new-draft-dutch-model-bit-a-new-gold-standard (Last visited
March 2021)
• Lexisnexis (2020). ‘Umbrella clauses in investment treaty arbitration’. https://www.
lexisnexis.co.uk/legal/guidance/umbrella-clauses-in-investment-treaty-arbitration (Last
visited December 2020)
• OECD (undated). ‘Due dilligence’. https://www.oecdguidelines.nl/oecd-guidelines/
due-diligence-guidances
• Overheid.nl (2018). ‘Nieuwe modeltekst investeringsakkoorden’. https://www.
internetconsultatie.nl/investeringsakkoorden (Last visited June 2021)
• Rijksoverheid (2020). ‘Investeren in het buitenland’. 15 October 2020. https://www.
rijksoverheid.nl/onderwerpen/internationaal-ondernemen/
investeringsbeschermingsovereenkomsten (Last visited February 2021)
• TNI (2019). ‘As the world meets to discuss ISDS, many fear meaningless reforms’. 5 April
2019. https://longreads.tni.org/isds-many-fear-meaningless-reforms (Last visited February
2021)
• UNCTAD (2021a). ‘International investment agreements navigator’. https://
investmentpolicy.unctad.org/international-investment-agreements/countries/148/
netherlands (Last visited February 2021)
• UNCTAD (2021b). ‘Investment dispute settlement navigator’ https://investmentpolicy.
unctad.org/investment-dispute-settlement/country/148/netherlands (Last visited February
2021)
• UNCTAD (2021c). ‘Treaty-based ISDS Cases Brought Under Dutch IIAs: an Overview’. 9
February 2021. https://investmentpolicy.unctad.org/publications/135/treaty-based-isdscases-brought-under-dutch-iias-an-overview (Last visited March 2021)

| 243 |

Trading interests and values

8 – Economic Partnership Agreements with Africa
Policy documents
European Union
• Denmark, France, Ireland, the Netherlands and the UK (2013). Joint letter to the High
Representative of the Union for Foreign Affairs and Security Policy, and Vice President of
the European Commission and the European Commissioners for Development and Trade.
5 December 2013.
Netherlands
• Eerste Kamer, vergaderjaar 2011-2012, 32 799
• Eerste Kamer, vergaderjaar 2011-2012, 32 882
• IOB (2015). ‘IOB Analyse EPA’s programma’. (Internal document)
• IRHP instructions and reports 2013–2019 in general (internal documents), and more
specific:
- IRHP 2014-02c TPC Verslag Plv 17-01-2014. (Internal document)
- IRHP 2014-07b TPC Handleiding 05-02-2014. (Internal document)
- IRHP 2014-016b TPC Handleiding Plv 19-03-20144. (Internal document)
- IRHP 2014-021b TPC Handleiding Leden 25-04-2014. (Internal document)
- IRHP 2014-042b TPC Handleiding Plv. 5-09-2014. (Internal document)
- IRHP 2014-049b TPC Handleiding PLV 30-10-2014. (Internal document)
- IRHP 2014-049c TPC Verslag Plv 30-10-2014. (Internal document)
• Ministry of Foreign Affairs (undated). ‘Beoordelingsmemorandum DDE – ICTSD sustainable
development in trade’. (Internal document)
• Ministry of Foreign Affairs (2012). ‘Nederlandse exporten van kip richting Ghana’. 30 mei
2012. Brief aan de Voorzitter van de Tweede Kamer der Staten Generaal. Ref. BEB/IMH
2012.6570030. (Internal document).
• Ministry of Foreign Affairs (2013a). ‘A world to gain: A New Agenda for Aid, Trade and
Investment’.
• Ministry of Foreign Affairs (2013b). ‘Toezegging Kamerbrief Economische
Partnerschapsakkoorden (EPA’s)’. Brief aan de Voorzitter van de Tweede Kamer der
Staten-Generaal. Ref. BEB/IMH 2013.161456. 16 May 2013. (Internal document)
• Ministry of Foreign Affairs (2013c). ‘Memo: Uitwerking kamerbrief EPA’s’. 11 June 2013.
(Internal document)
• Ministry of Foreign Affairs (2014a). ‘Aanleveren BIS Afrikadag (EPA INZET R)’. October 2014.
(Internal document)
• Ministry of Foreign Affairs (2014b). ‘Berichtenverkeer Senegal - EU - ACP - Handel Bliksembezoek De Gucht over EPAs/ licht aan het einde van de tunnel?”’. 22 January 2014.
(Internal document)
• Ministry of Foreign Affairs (2014c). ‘Berichtenverkeer: Europa - EU - TPC – Handel’. (Internal
document)
• Ministry of Foreign Affairs (2014d). ‘Bevindingen EPA-stakeholder bijeenkomsten. Brief aan
de Voorzitter van de Tweede Kamer der Staten-Generaal’. Ref. Minbuza-2014.107482. 25
March 2014. (Internal document)

| 244 |

Trading interests and values

• Ministry of Foreign Affairs (2014e). ‘Interview R met NRC. November 2014’. (Internal
document)
• Ministry of Foreign Affairs (2015a). ‘Internal communication IMH to request for input from
embassies’. January 2015. (Internal document)
• Ministry of Foreign Affairs (2015b). ‘Informatie voor Kamerbrief over EPA’s lessons learnt uit
de onderhandelingen’. 19 March 2015. (Internal document)
• Ministry of Foreign Affairs (2015c). ‘Letter sent as response to an earlier letter sent 04-112015’. Ref. Minbuza-2015.963. (internal document)
• Ministry of Foreign Affairs (2015d). ‘Stand van zaken en bevindingen
onderhandelingsproces EPA’s’. Brief aan de Voorzitter van de Tweede Kamer der StatenGeneraal. May 2015. (Internal document)
• Ministry of Foreign Affairs (2015e). ‘Voortgang onderhandelingen over Economische
Partnerschapsakkoorden’. Brief aan de Voorzitter van de Tweede Kamer der StatenGeneraal. Ref. Minbuza 2015.442380. September 2015. (Internal document)
• Ministry of Foreign Affairs (2016). ‘Draft speech SADC signing ceremony - 7 juni’. June 2016.
(Internal document)
• Ministry of Foreign Affairs (2018). ‘20180907 QAs: Zullen de EPAs ooit van kracht worden?’.
September 2018. (Internal document)
• Tweede Kamer, vergaderjaar 2010-2011, 32 883-3
• Tweede Kamer, vergaderjaar 2014-2015, 21 501-04, nr. 167
| 245 |

Interviews
• Interview with a Dutch diplomat, held 14 October 2020
• Interview with an expert, held 16 June 2020
• Interview with EC trade policy officer, held 4 March 2020.
• Interview with EC trade policy officer, held 6 March 2020.
• Interview with policy officer at the MFA, held 7 October 2020.
• Interview with former policy maker at the MFA, held 26 October 2020

Literature
• Coherentiemonitor (2015). ‘Let’s walk the talk together; de stand van zaken van
beleidscoherentie voor ontwikkeling’. 23 March 2015. https://www.partos.nl/actueel/
nieuws/artikel/news/coherentiemonitor-2015-lets-walk-the-talk-together/.
• ECDPM and ODI (2009). ‘The Interim Economic Partnership Agreements between the EU
and African States: Contents, challenges and prospects’. July 2009. Eds. Bilal, S and Stevens,
C. Ch3, p. 48. https://ecdpm.org/wp-content/uploads/2013/11/PMR-17-Interim-EconomicPartnership-Agreements-Between-EU-Africa-2009.pdf
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
• Heron, T. (2011). ‘Asymmetric bargaining and development trade-offs in the CARIFORUMEuropean Union Economic Partnership Agreement’. In: Review of International Political
Economy, Vol. 18(3), pp. 328-357

Trading interests and values

• Ilorah, R. and Ngwakwe, C. (2015). ‘Economic Partnership Agreements between AfricanCaribbean-Pacific countries and the European Union: revisiting contentious issues’. In:
Journal of African Business, Vol. 16(3), pp. 322-338
• IOB (2017). ‘Better Ways of Trading. Evaluation of Technical Assistance for Trade Policy and
Regulations’. December 2017.
• Kohnert, D. (2015). ‘Horse trading? EU–African Economic Partnership Agreements (EPAs)’.
In: Review of African Political Economy, Vol. 41(143), pp. 141-147.
• Krapohl, S. and S. van Huut (2020). ‘A missed opportunity for regionalism: the disparate
behaviour of African countries in the EPA-negotiations with the EU’. In: Journal of European
Integration, vol. 42(4), pp. 565-582.
• Moerland, A. and Weinhardt, C. (2020). ‘Politicisation ‘reversed’: EU Free Trade
Negotiations with West Africa and the Caribbean’. In: Politics and Governance, Vol. 8(1), pp.
266-276.
• Overseas Development Institute (2007). ‘The Costs to the African, Caribbean and Pacific
Group of States (ACP) of Exporting to the EU under the Generalized System of Preferences
(GSP)’. March 2007. London, UK: Overseas Development Institute. https://cdn.odi.org/
media/documents/6151.pdf.
• Saana Consulting (2014). ‘2014 review of the International Centre for Trade and Sustainable
Development’. Final report. 13 August 2014. Department for International Development.
• Zamfir, I. (2018). ‘An overview of the EU–ACP countries’ economic partnership agreementsBuilding a new trade relationship’. In: European Parliamentary Research Service, PE 625.102
– July 2018, pp. 1-11.

Other documents
• ICTSD (2014). ‘Contributing to a constructive debate on EPAs in the SADC and the EAC’.
Funding proposal to the Government of the Netherlands. Geneva, August 2013. (Internal
document)
• UNECA (2020). African Regional Integration Index Report 2019. P. 11. African Union: Addis
Ababa.

Websites
• Africaportal.org (undated). ‘South African Institute of International Affairs SAIIA’. https://
www.africaportal.org/content-partners/south-african-institute-of-international-affairssaiia/ (Last visited 30 April 2021)
• Africa Renewal (2007). ‘Africans fear ‘ruin’ in Europe trade talks’. July 2007 https://www.
un.org/africarenewal/magazine/july-2007/africans-fear-%E2%80%98ruin%E2%80%99europe-trade-talks (Last visited 2020)
• CADTM (2018). ’The EU caught in the trap of Nigeria’s refusal to sign the West Africa
Economic Partnership Agreement and the Continental Free Trade Area’. 9 May 2018.
https://www.cadtm.org/The-EU-caught-in-the-trap-of (Last visited 27 February 2020)
• ECDPM (undated). ‘Dossier: FAQ – Economic partnership Agreements’. https://ecdpm.org/
dossiers/dossier-economic-partnership-agreements/. (Last visited 24 April 2021)

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• Euractive (2018). ‘The Cotonou agreement, has it fulfilled its promises?’. 29 August 2018.
https://www.euractiv.com/Section/agenda-for-change/news/the-cotonou-agreement-hasit-fulfilled-its-promises/ (Last visited April 2021)
• European Commission (undated). ‘Tradehelp Everything but Arms’. https://trade.ec.
europa.eu/access-to-markets/en/content/everything-arms-eba (Last visited 24 February
2020)
• Government of the Netherlands (2013). ‘Ploumen seeks to get European trade negotiations
with Africa back on track’. 16 May 2013. https://www.government.nl/latest/
news/2013/05/16/ploumen-seeks-to-get-european-trade-negotiations-with-africa-back-ontrack (Last visited 20 February 2020)
• IMF (2019). ‘Exports FOB to Partner Countries’. https://data.imf.org/regular.
aspx?key=61013712 (Last visited 18 March 2021)
• The East African (2019). ‘EPA: Test of unity as Kenya breaks away’. 28 January 2019. https://
www.theeastafrican.co.ke/business/EPA-test-of-unity-as-Kenya-breaks-away-/25604954710-aul875/index.html (Last visited 24 February 2020)
• TradeMark East Africa (2021). ‘Who we are – about TMEA’. https://www.trademarkea.com/
who-we-are/ (Last visted 03 April 2021)
• Tralac (2021). ‘About tralac’. https://www.tralac.org/about.html (Last visited 30 April 2021)
• Trapca.org, 2017. ‘Vlearning’. https://www.trapca.org/vlearning/ (Last visited 30 April 2021)

9 – Overarching observations, general conclusions and
recommendations
Policy documents
European Union
• European Commission (2021a). ‘Annex to the Communication from the Commission to the
European Parliament, the Council, the European Economic and Social Committee, and the
Committee of Regions - Trade Policy Review - An Open, Sustainable and Assertive Trade
Policy’. 18 February 2021. https://trade.ec.europa.eu/doclib/docs/2021/february/
tradoc_159439.pdf
• European Commission (2021b). ‘Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee, and the
Committee of Regions - Trade Policy Review - An Open, Sustainable and Assertive Trade
Policy’. 18 February 2021. https://trade.ec.europa.eu/doclib/docs/2021/february/
tradoc_159438.pdf
Netherlands
• Government of the Netherlands (2018). ‘Revised action plan and annual progress review on
policy coherence for development’. 13 July 2018. https://www.government.nl/documents/
parliamentary-documents/2018/07/13/
revised-action-plan-and-annual-progress-review-on-policy-coherence-for-development

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Trading interests and values

• Ministry of Foreign Affairs (2013). ‘A world to gain: A New Agenda for Aid, Trade and
Investment’.
• Ministry of Foreign Affairs (2018). ‘Investing in global prospects: for the world, for the
Netherlands’.
• Ministry of Foreign Affairs (2021). ‘Fiche 5: Mededeling Evaluatie handelsbeleid – Een open,
duurzaam en assertief handelsbeleid’. 2 April 2021, https://www.rijksoverheid.nl/
ministeries/ministerie-van-buitenlandse-zaken/documenten/publicaties/2021/02/18/
fiche-5-mededeling-evaluatie-handelsbeleid-een-open-duurzaam-en-assertiefhandelsbeleid
• Tweede Kamer, vergaderjaar 2008-2009, 26 485, nr. 68
• Tweede Kamer, vergaderjaar 2020-2021, 21 501-02 nr. 2269

Literature
• Baumgartner, F. and B. Jones (1993). ‘Agendas and instability in American politics’. Chicago:
The University of Chicago Press
• Baumgartner, F. and B. Jones (2002). ‘Policy dynamics’. Chicago: The University of Chicago
Press
• Baumgartner, F., J. Berry, M. Hojnacki, D. Kimball and B. Leech (2009). Lobbying and policy
change: who wins, who loses, and why’. Chicago: The University of Chicago Press.
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
• Häge, F. (2013). ‘Coalition building and consensus in the Council of the European Union’.
British Journal of Political Science, vol. 43(3), pp. 481-504.
• Hoekman, B. & Sabel, C. (2021). ‘Plurilateral Cooperation as an Alternative to Trade
Agreements: Innovating One Domain at a Time’. RSCAS Working Papers 2021/01, European
University Institute.
• Jenkins-Smith, H., S. Gilbert, W. Brian (1991). ‘Explaining change in policy subsystems:
analysis of coalition stability and defection over time’. American Journal of Political
Science, vol. 35(4), pp. 851-880;
• Junk, W. (2019). ‘When diversity works: the effects of coalition composition on the success
of lobbying coalitions’. American Journal of Political Science, vol. 63(3), pp. 660-764;
• Kingdon, J.W. (1995). ‘Agendas, alternatives and public policies’. (2nd edition). Boston:
Addison Wesly Longman Inc..
• König, T., B. Luetgert, and T. Dannwolf (2006). ‘Quantifying European Legislative Research:
Using Celex and Prelex in EU Legislative Studies’. European Union Politics 7(4), pp. 553-574.
• Sabatier, P. (1988). ‘An advocacy coalition framework of policy change and the role of
policy-oriented learning therein’. Policy Sciences, vol. 21, pp. 129-168.
• Weible, C., T. Heikkila, P. deLeon and P. Sabatier (2012). ‘Understanding and influencing
the policy process’. Policy Sciences, March 2012.

Other documents
• EUI Global Governance Programme (2021). ‘Schuman Conversations on ‘Open, Sustainable
and Assertive: EU Trade Policy Looking Forward’’. held and attended 25 March 2021

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Trading interests and values

• European Commission (2021c). ‘EU trade policy day’. session on Multilateralism as an
engine of global recovery, held and attended 26 April 2021. https://trade.ec.europa.eu/
doclib/events/index.cfm?id=2262#programme

Websites
• Clingendael Spectator (2018). ‘Trilogy: shifting EU coalitions post-Brexit’. 9 July 2018,
https://spectator.clingendael.org/nl/publicatie/trilogy-shifting-eu-coalitions-post-brexit
(last visited 8 April 2021).
• Europa NU (2020). ‘Wat zijn de gevolgen van de Brexit voor de positie van Nederland in de
Europese Unie?’. 2 maart 2020, https://www.europa-nu.nl/id/vl5qg7iuije1/nieuws/wat_
zijn_de_gevolgen_van_de_brexit_voor?ctx=vkrahi0jjyzj&tab=0 (Last visited 8 April 2021)
• European Comission (2020). ‘Empowering women and girls’. https://ec.europa.eu/
international-partnerships/topics/empowering-women-and-girls_en#header-5139 (Last
visited 14 May 2021)
• WTO (2017). ‘Ministerial conferences - New initiatives on electronic commerce, investment
facilitation and MSMEs’. 13 December 2017 https://www.wto.org/english/news_e/
news17_e/minis_13dec17_e.htm (Last visited 12 May 2021)
• WTO (2021). ‘The WTO’s rules’. https://www.wto.org/english/tratop_e/region_e/regrul_e.
htm (last visited August 2021)
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Annex 1 – Applied methodology
Literature
• Beach, D. (2017). ‘Process-tracing methods in social science’. Qualitative Political Methodology,
pp. 1-28
• Collier, D. (2011). ‘Understanding Process Tracing’. PS: Political Science and Politics, 44:4, pp.
823-830.
• Dür, A. (2008). ‘Measuring Interest Group Influence in the EU: A Note on Methodology’.
European Union Politics, vol. 9(4), pp. 559-576.
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
• Hooghe, L. and G. Marks (2001). ‘Multilevel governance and European integration’.
Lanham: Rowman & Littlefield.

Trading interests and values

Annex 2 – Dutch position on other trade issues
Policy documents
European Union
• Belgium, Denmark, Estonia, Finland, Ireland, Latvia, Luxembourg, the Netherlands,
Slovenia and Sweden (2020). Non-paper ‘Increasing transparency & accountability: The key
to a better functioning of the Union’. January, 2020.
• European Commission (2015). ‘Trade for all’. Luxembourg, Luxembourg: Publications
Office of the European Union.
• European Commission (2021a). ‘Trade Policy Review: An Open, Sustainable and Assertive
Trade Policy’. Communication to the European Parliament, the Council, the European
Economic and Social Committee, and the Committee of the Regions. COM (2021) 66. 18
February 2021. Brussels, Belgium: European Commission. https://trade.ec.europa.eu/
doclib/docs/2021/february/tradoc_159438.pdf
• European Commission (2021b). ‘Report on the 10th round of negotiations between the EU
and Chile for the modernisation of the trade part of the EU Chile Association Agreement’.
May 2021
• European Council on Foreign Relations (2016). European foreign policy scorecard 2016.
London, UK: ECFR.
• European Parliament (2016). ‘Parliamentary questions – Subject: TTIP reading rooms and
transparency.’ 17 February 2016.
• Von der Leyen, U. (2019). ‘Mission letter by President-elect of the European Commission
Ursula von der Leyen to Phil Hogan, Commissioner Designate for trade’. 10 September
2019. Brussels: European Commission.
Netherlands
• Annotated agenda FAC on Trade. February 2016
• Instructie WTO conferentie Buenos Aires December 2017 (internal document)
• IRHP instructions and reports 2013–2019 in general (internal documents), and more
specific:
• 20190327 concept-instructie TPCSI 27 maart 2019
- IRHP 2013-06b Handleiding Plv. 01-02-2013, Pos. 5-23.
- IRHP 2013-06c TPC Verslag Plv. 01-02-2013, Pos. 14-16.
- IRHP 2013-07b Handleiding Plv. 15-02-2013, Pos. 12-17.
- IRHP 2015-09b TPC Handleiding Leden 20-02-2015, Pos. 54-55
- IRHP 2015-41b TPC Handleiding Plv 24-07-2015, Pos. 70
- IRHP 2015-44b TPC Handleiding Plv 04-09-2015, Pos. 152-154;
- IRHP 2015-49b TPC Handleiding Plv 9-10-2015, Pos. 66-67.
- IRHP 2015-56b TPC Handleiding Plv 30-10-2015, Pos. 86 .
- IRHP 2015-64b TPC Handleiding Leden 04-12-2015, Pos. 9-11
- IRHP 2017-03c TPC Verslag Leden. 27-01-2017, Pos. 60-61 .
- IRHP 2017-14b Handleiding Ldn. 28 april 2017, Pos. 483-495.
- IRHP 2017-18b Handleiding Plv 9 juni 2017, Pos. 94
- IRHP 2017-18c TPC Verslag Plv 09-06-2017, Pos. 62-63.

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Trading interests and values

- IRHP 2018-09b Instructie TPC Plv 16-03-2018, Pos. 75.
- IRHP 2018-17b Instructie TPC Plv 18-05-2018, Pos. 592
- TPC SI 03-04-2019
• Ministry of Foreign Affairs (2013). ‘A world to gain: A New Agenda for Aid, Trade and
Investment’.
• Ministry of Foreign Affairs (2016). ‘Rijksjaarverslag 2015, jaarverslag buitenlandse handel en
ontwikkelingssamenwerking (XVII)’. 18 May 2016
• Ministry of Foreign Affairs (2018a). ‘Handelsagenda bij de nota ‘Investeren in perspectief’.
05 October 2018.
• Ministry of Foreign Affairs (2018b). ‘Investing in global prospects: for the world, for the
Netherlands’.
• Ministry of Foreign Affairs (2018c). ‘Verslag online consultatie nota Buitenlandse Handel en
Ontwikkelingssamenwerking’. 22 February – 22 March 2018.
• Ministry of Foreign Affairs (2019). ‘Verslag Consultaties Gender en Handel’. 25 juni 2019.
• Ministry of Foreign Affairs (2021). ‘Fiche 5: Mededeling Evaluatie handelsbeleid – Een open,
duurzaam en assertief handelsbeleid’. 2 April 2021,
• Rutte, M., Verhagen, M., and Wilders, G. (2010). ‘Gedoogakkoord-VVD-PVV-CDA’. 30
September 2010. The Hague, the Netherlands: Rijksoverheid.
• Tweede Kamer, vergaderjaar 2013-2014, 25 074 nr.185
• Tweede Kamer, vergaderjaar 2013-2014, 25 074 nr.186
• Tweede Kamer, vergaderjaar 2015–2016, 33 625, nr. 219
• Tweede Kamer, vergaderjaar 2017-2018, 31 985, nr. 54
• Tweede Kamer, vergaderjaar 2017–2018, 33 625, nr. 250
• Tweede Kamer, vergaderjaar 2017-2018, 33 625, nr.265
• Tweede Kamer, vergaderjaar 2019-2020, 34 952, nr. 86

Literature
• Asselborn, J., Kofod, J.,Hallberg, A., Di Maio, L., Kaag, S.A.M., Maroto Illera, M.R., Rietser,
F., Varadkar TD, L., Skinnari, V., and Wilmès, S. (2020). ‘Non-paper Promoting Gender
Equality Through Trade Policy’. 06 November 2020.
• Ecorys (2018). ‘Study on the use of trade agreements’. 22 June 2018
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
• IOB (2015). ‘Gender sense & Sensitivity. Policy evaluation on women’s rights and gender
equality (2007-2014)’. IOB Evaluation no. 405. The Hague, the Netherlands: Ministry of
Foreign Affairs.
• IOB (2017). ‘Better Ways of Trading. Evaluation of Technical Assistance for Trade Policy and
Regulations’. December 2017.
• Marx, A and Van der Loo, G. (2021) ‘Transparency in EU Trade Policy: A Comprehensive
Assessment of Current Achievements’. In: Politics and Governance, 2021, Volume 9, Issue 1
• Nilsson, L., Preillon, N. (2018). ‘EU exports, preferences utilisation and duty savings by
member state, sector, and partner country’. June 2018
• OECD (2003). ‘Quantitative Assessment of the Benefits of Trade Facilitation’. TD/TC/
WP(2003)31/FINAL.

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Trading interests and values

Other documents
• WTO (2018). ‘Women and Trade – Conference on Trade and Gender’. 6 and 7 December
2018. https://www.wto.org/english/tratop_e/womenandtrade_e/tradegender18_e.htm

Websites
• European Commission (2021b). ‘Commission sets course for an open, sustainable and
assertive EU trade policy’. https://ec.europa.eu/commission/presscorner/detail/en/
ip_21_644 (last visited 15 March 2021)
• OECD (undated). ‘Trade and Gender’. https://www.oecd.org/trade/topics/trade-andgender/ (last visited June 2021)
• WTO (undated-a). ‘Overview: the TRIPS agreement’. https://www.wto.org/english/tratop_e/
trips_e/intel2_e.htm (last visited July 2021)
• WTO (undated-b). ‘Intellectual property: protection and enforcement’. https://www.wto.
org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm (last visited July 2021)

Annex 3 – Developments in the WTO
Policy documents
European Union
• European Commission (2019). ‘REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL amending Regulation (EU) No 654/2014 of the European Parliament and of the
Council concerning the exercise of the Union’s rights for the application and enforcement
of international trade rules’. 12 December 2019, EC 2019/0273 (COD), https://ec.europa.eu/
transparency/regdoc/rep/1/2019/EN/COM-2019-623-F1-EN-MAIN-PART-1.PDF
International
• WTO (2005). ‘Doha Work Programme – Ministerial Declaration’. adopted on 18 December
2005.
• WTO (2013). ‘Bali Declaration’. https://www.wto.org/english/thewto_e/minist_e/mc9_e/
balideclaration, (last visited 29 November 2019).
• WTO (2015). ‘Nairobi Ministerial Declaration’. https://www.wto.org/english/thewto_e/
minist_e/mc10_e/mindecision_e.htm, (last visited 6 December 2019).

Literature
• Fergusson, I., C. Hanrahan, W. Cooper and D. Langton (2005) ‘The Doha Development
Agenda: the WTO Framework Agreement’, CRS Report for Congress.
• Giuliani, C. (2019). ‘Multilateral Trade in Crisis: the WTO’s Appellate Body and the risk of
paralysis’. Instituto Affari Internazionali, no. 19(49).

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• Payosova, T., G. Hufbauer and J. Schott (2018). ‘The Dispute Settlement crisis in the World
Trade Organization: causes and cures”. Peterson Institute for International Economics,
Policy Brief no. 18(5).
• Woolcock, S. (2003). ‘The Singapore issues in Cancun: a failed negotiation ploy or a litmus
test for global governance?’. Intereconomics: Review of European Economic Policy, 38(5).

Other documents
• European Office of the United Nations (1947). Press release no. 469, 27 October 1947.
https://docs.wto.org/gattdocs/q/GG/PRESSRELEASE/469.pdf

Websites
• BBC (2021). ‘Biden ends deadlock over first African and first woman to lead WTO’. 5
February 2021, https://www.bbc.com/news/business-55958682 (last visited 15 March 2021).
• Bloomberg (2021). ‘Biden picks up where trump let off in hard-line stances at WTO’. 22
February 2021, https://www.bloomberg.com/news/articles/2021-02-22/biden-picks-upwhere-trump-left-off-in-hard-line-stances-at-wto (last visited 15 March 2021).
• EC (2016). ‘The WTO after Nairobi – what’s the way ahead?’. 26 April 2016, https://trade.
ec.europa.eu/doclib/press/index.cfm?id=1486&title=Speech-The-WTO-after-Nairobi%E2%80%93-whats-the-way-ahead, (last visited 28 October 2020).
• EC (2020). ‘EU and 15 World Trade Organization members establish contingency appeal
arrangement for trade disputes’. 27 March 2020, https://ec.europa.eu/commission/
presscorner/detail/en/IP_20_538 (last visited 27 October 2020).
• Financial Times (2008). ‘Doha trade talks collapse’. https://www.ft.com/content/0638a3205d8a-11dd-8129-000077b07658, (last visited 27 November 2019).
• Reuters (2007). ‘G4 talks collapse, throw trade round into doubt’. https://www.reuters.
com/article/us-trade-wto/g4-talks-collapse-throw-trade-round-into-doubtidUSL2179513320070621, (last visited 4 December 2019).
• The Hindu (2017). ‘Decision on fishing subsidies certain in WTO’s Dec. meet’. 28 October
2017, https://www.thehindu.com/business/decision-on-fishing-subsidies-certain-in-wtosdec-meet/article19934131.ece, (last visited 9 December 2019).
• US Mission to Geneva (2019). ‘Statement by Ambassador Dennis Shea
Heads of Delegation Meeting’. https://geneva.usmission.gov/2019/10/14/statement-byambassador-dennis-shea-heads-of-delegation-meeting-geneva-october-14-2019/?_
ga=2.69002709.578160319.1574340619-414101566.1574340619, (last visited 4 December
2019).
• WTO (2017). ‘Eleventh WTO Ministerial Conference’. https://www.wto.org/english/
thewto_e/minist_e/mc11_e/mc11_e.htm, (last visited 5 December 2019).
• WTO (2019) ‘Azevedo urges ministers to step up work on the road to MC 12’, https://www.
wto.org/english/news_e/news19_e/infac_05nov19_e.htm, (last visited 6 December 2019).
• WTO (2020a). ‘An unofficial guide to agricultural safeguards’. https://www.wto.org/english/
tratop_e/agric_e/guide_agric_safeg_e.htm, (last visited 28 October 2020).
• WTO (2020b). ‘Introduction to fisheries subsidies in the WTO’. https://www.wto.org/
english/tratop_e/rulesneg_e/fish_e/fish_intro_e.htm, (last visited 28 October 2020).

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Trading interests and values

Annex 4 – Annex to Trade Defence Instruments case study
Policy documents
European Union
• European Commission (2018). ‘EU modernises its trade defence instruments’. Memo
23-01-2018. https://ec.europa.eu/commission/presscorner/detail/en/MEMO_18_396.

Literature
• Ecorys (2021). ‘External developments influence Dutch Trade and Investment Policy
Making’.
• EPRS (2018). ‘Modernising trade defence instruments’. Briefing. July 2018

Other documents
• European Court of Auditors (2019). ‘Trade defence instruments – Audit preview’. May 2019.
https://
www.eca.europa.eu/lists/ecadocuments/ap19_10/ap_trade_defence_instruments_en.pdf

Annex 5 – Annex to TiSA case study
Policy documents
European Union
• European Commission (2016). ‘Trade in Services Agreement (TiSA) – factsheet’. 26
September 2016. https://trade.ec.europa.eu/doclib/docs/2016/september/tradoc_154971.
doc.pdf
Netherlands
• Tweede Kamer, vergaderjaar 2016-2017, 1075

Annex 6 – Annex to Investment case study
Policy documents
European Union
• European Parliament (2020). ‘Draft report with recommendations to the Commission on
corporate due diligence and corporate accountability’. Committee on Legal Affairs. 11
September
2020. https://www.europarl.europa.eu/doceo/document/JURI-PR-657191_EN.pdf

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Trading interests and values

Annex 7 – A brief historical perspective on the EPAs
Policy documents
European Union
• European Commission (2020a). ‘Economic Partnership Agreements: Putting partnerships
into practice’. 2020 edition, 12 August 2020. Luxembourg, Luxembourg: Publications Office
of the European Union. https://op.europa.eu/en/publication-detail/-/publication/
f45453a6-dd0a-11ea-adf7-01aa75ed71a1.
• European Parliament and Council (2013). ‘Regulation (EU) No 527/2013’. 21 May 2013.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2013.165.01.0059.01.
ENG

Literature
• ECDPM and ODI (2009). ‘The Interim Economic Partnership Agreements between the EU
and African States: Contents, challenges and prospects’. July 2009. Eds. Bilal, S and Stevens,
C. Ch3, p. 48. https://ecdpm.org/wp-content/uploads/2013/11/PMR-17-Interim-EconomicPartnership-Agreements-Between-EU-Africa-2009.pdf
• Overseas Development Institute (2007). ‘The Costs to the African, Caribbean and Pacific
Group of States (ACP) of Exporting to the EU under the Generalized System of Preferences
(GSP)’. March 2007. London, UK: Overseas Development Institute

Websites
• ECDPM (2010). ‘Dossier: FAQ – Economic Partnership Agreements’. https://ecdpm.org/
dossiers/dossier-economic-partnership-agreements/. (Last visited 01 July 2021).
• Euractive (2018). ‘The Cotonou agreement, has it fulfilled its promises?’. 29 August 2018.
https://www.euractiv.com/Section/agenda-for-change/news/the-cotonou-agreement-hasit-fulfilled-its-promises/ (Last visited April 2021)
• European Commission (undated). ‘Tradehelp Everything but Arms’. https://trade.ec.
europa.eu/access-to-markets/en/content/everything-arms-eba (Last visited 24 February
2020)
• European Commission (2020b). ’Countries and regions – Central Africa’. https://ec.europa.
eu/trade/policy/countries-and-regions/regions/central-africa/ (Last visited 02 March 2020).
• The East African (2019). ‘EPA: Test of unity as Kenya breaks away’. 28 January 2019. https://
www.theeastafrican.co.ke/business/EPA-test-of-unity-as-Kenya-breaks-away-/25604954710-aul875/index.html (Last visited 24 February 2020)
• Parliament UK (2005). ‘Appendix: African Regional and Sub-Regional Economic Integration
Groupings and the Regional Economic Partnership Agreement (EPA) Negotiations
Configurations’. https://publications.parliament.uk/pa/cm200405/cmselect/
cmintdev/68/6810.htm. (Last visited 01 July 2021).

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Published by:
Ministry of Foreign Affairs of the Netherlands
Policy and Operations Evaluation Department (IOB)
P.O. Box 20061 | 2500 EB The Hague
http://english.iob-evaluatie.nl
www.government.nl/foreign-policy-evaluations
www.twitter.com/IOBevaluatie
www.oecd.org/derec
Photographs:
Front: Aerial top view container ship full load container for logistics import export, shipping
or transportation concept background | Shutterstock |
Executive summary: Flags | Shutterstock |
Ch1: Strasbourg, France - June 14, 2017 - Image of the press room of the European
Parliament in Strasbourg | Shutterstock |
Ch2: Strasbourg, France - 20 March 2013: Plenary room of the European Parliament |
Shutterstock |
Ch3: Concept of geopolitics or worldwide economy. Chess figures placed on map banner |
Shutterstock |
Ch4: Southampton, Hampshire. Apr 22 2019. Freight shipping containers behind a fence of
barbed razor wire at one of the UK’s business ports | Shutterstock |
Ch5: 16 January 2014. Sustainable Development Goals | Flicker |
Ch6: Online payment,Man’s hands holding smartphone and using credit card for online
shopping | Shutterstock |
Ch7: Wooden gavel for judge lawyer on 50 Euro bills, corruption and bribery concept |
Shutterstock |
Ch8: The African Union and the EU, flags painted on cracked concrete | Shutterstock |
Ch9: Wooden three coins with icon face, The best excellent business services rating
customer experience, Satisfaction survey concept | Shutterstock |
Annex 1: Macro photo of tooth wheel mechanism with evaluation concept related words
imprinted on metal surface | Shutterstock |
Annex 2 - Annex 7: Container ship loading and unloading in sea port, Aerial view of business
logistic import and export freight transportation by container ship in harbor, Container
loading Cargo freight ship, Dubai | Shutterstock |
Annex 8: Retro old microphones for press conference or interview on table front gradient
aquamarine background. Vintage old style filtered photo | Shutterstock |
Annex 9: old books on wooden shelf | Shutterstock |
Layout: Xerox/Osage
Print: Xerox/OBT | The Hague ISBN: 9789051460674
© Ministry of Foreign Affairs of the Netherlands | September 2021

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