Netherlands model Investment Agreement

19 October 2018

Agreement on reciprocal promotion and protection of investments between

----------------------------------------------------------------and
the Kingdom of the Netherlands.

The--------------------------------------- and the Kingdom of the Netherlands,
hereinafter referred to as the Contracting Parties,

Desiring to strengthen their traditional ties of friendship and to extend and intensify
economic relations between them by creating conditions with a view to attract and
promote responsible foreign investment of the Contracting Parties in their respective
territories that contribute to sustainable economic development;
Recognizing that fostering an open and transparent policy environment and protecting
investments of investors of one Contracting Party in the territory of the other Contracting
Party are conducive to the stimulation of mutually beneficial economic activity and
intensification of economic cooperation;
Reaffirming their commitment to sustainable development and to enhancing the
contribution of international trade and investment to sustainable development;
Considering that these objectives can be achieved without compromising the right of the
Contracting Parties to regulate within their territories through measures necessary to
achieve legitimate policy objectives, such as the protection of public health, safety,

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19 October 2018

environment, public morals, labor rights, animal welfare, social or consumer protection or
for prudential financial reasons;
Have agreed as follows:

Section 1: definitions and scope
Article 1
Definitions
For the purposes of this Agreement:
(a)

“investment” means every kind of asset that has the characteristics of an
investment, which includes a certain duration, the commitment of capital or
other resources, the expectation of gain or profit, and the assumption of risk.
Forms that an investment may take include:
(i)

(ii)
(iii)
(iv)
(v)

movable and immovable property as well as any other property rights
in rem in respect of every kind of asset, such as mortgages, liens and
pledges;
rights derived from shares, bonds and other kinds of interests in
companies and joint ventures;
claims to money, to other assets or to any contractual performance
having an economic value;
rights in the field of intellectual property, technical processes,
goodwill and know-how;
rights granted under public law or under contract, including rights to
prospect, explore, extract and exploit natural resources.

‘Claims to money’ within the meaning of sub (iii) does not include claims to
money that arise solely from commercial contracts for the sale of goods or
services by a natural or legal person in the territory of a Contracting Party
to a natural or legal person in the territory of the other Contracting Party,
the domestic financing of such contracts, or any related order, judgment,
or arbitral award.
Returns that are invested shall be treated as investments and any alteration
of the form in which assets are invested or reinvested shall not affect their
qualification as investments.

Met opmerkingen [MvL1]: Om de omschrijving van de
hier gedefinieerde term “investment” (1e vermelding) te
begrijpen moet eerst duidelijk zijn wat een “investment” (2e
vermelding) is. Wellicht beter om de oude definitie te
handhaven en separaat de vereisten van duration, etc. op te
nemen.
Met opmerkingen [MvL2]: Strikt genomen zegt dit
zinsdeel niets over de vraag of de genoemde categorieën (i)
– (v) kwalificeren als “investment”, terwijl dat wel de
strekking van de bepaling lijkt te zijn.

Met opmerkingen [MvL3]: Deze alinea probeert
contractuele rechten op betaling uit te sluiten van de term
“investment”. Diezelfde rechten vallen m.i. echter ook al
onder de categorie sub (v) zoals die nu is geformuleerd
(“rights granted (…) under contract”).

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(b)

19 October 2018

“investor” means with regard to either Contracting Party:
(i)
(ii)

(iii)

any natural person having the nationality of that Contracting Party
under its applicable law;
any legal person constituted under the law of that Contracting Party
and having substantial business activities in the territory of that
Contracting Party; or
any legal person that is constituted under the law of that Contracting
Party and is directly or indirectly owned or controlled by a natural
person as defined in (i) or by a legal person as defined in (ii).

A natural person who has the nationality of the Kingdom of the Netherlands
and the other Contracting Party is deemed to be exclusively a natural person
of the Contracting Party of his or her dominant and effective nationality.
(c)

Indications of having ‘substantive business activities’ in a Contracting Party
may include:
(i)
(ii)
(iii)
(iv)
(v)

the undertaking’s registered office and/or administration is
established in that Contracting Party;
the undertaking’s headquarters and/or management is established in
that Contracting Party;
the number of employees and their qualifications based in that
Contracting Party;
the turnover generated in that Contracting Party; and
an office, production facility and/or research laboratory is established
in that Contracting Party;

These indications should be assessed in each specific case, taking into
account the total number of employees and turnover of the undertaking
concerned, and take account of the nature and maturity of the activities
carried out by the undertaking in the Contracting Party in which it is
established.
(d)

“freely convertible currency” means a currency which is widely traded in
international foreign exchange markets and widely used in international
transactions.

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(e)

19 October 2018

"territory" means the territory of the Contracting Party concerned, including
[if applicable] its territorial sea and any area beyond and adjacent to its
territorial sea within which it exercises jurisdiction or sovereign rights in
accordance with international law.
Article 2
Scope and application

1.

This Agreement shall apply to an investment, made in accordance with the
applicable law of the host Contracting Party at the time the investment is made,
that is directly or indirectly owned or controlled by an investor of the other
Contracting Party and existing on the date of entry into force of this Agreement
or made thereafter.

2.

The provisions of this Agreement shall not affect the right of the Contracting
Parties to regulate within their territories to the extent [?] necessary to achieve
legitimate policy objectives such as the protection of public health, safety,
environment, public morals, labor rights, animal welfare, social or consumer
protection or for prudential financial reasons. The mere fact that a Contracting
Party regulates, including through a modification to its laws, in a manner which
negatively affects an investment or interferes with an investor’s expectations,
including its expectation of profits, is not a breach of an obligation under this
Agreement.

3.

The Contracting Parties reserve the right to introduce or maintain nondiscriminatory, appropriate and necessary measures for the purpose of
preventing investors who, alone or together, have the ability to affect materially
the terms of participation in the relevant market as a result of their position in
the market, from engaging in or continuing anti-competitive practices.

4.

Nothing in this Agreement shall be construed as preventing a Contracting Party
from discontinuing the granting of a subsidy1 and/or requesting its
reimbursement, where such measure is necessary in order to comply with
international obligations between the Contracting Parties or where it has been
ordered by a competent court, administrative tribunal or other competent
authority, or requiring that Contracting Party to compensate the investor
therefor.

1

"subsidy" includes "state aid" as defined in EU law.

Met opmerkingen [MvL4]: Tekstueel niet zuiver. De
verdragsluitende Staten behouden sowieso het soevereine
recht om maatregelen te nemen. Het BIT kan de Staat
hooguit (afgezien van discussie over specific performance)
schadeplichtig maken indien een bepaalde maatregelen
wordt genomen. Wellicht beter om op te nemen: “shall not
be liable for introducing…”, of: “It shall not be considered a
breach of this Agreement if a Contracting Party
introduces…”.
Met opmerkingen [MvL5]: Zelfde opmerking als
hiervoor. Het BIT weerhoudt een Staat juridisch niet van
handelen. Het BIT verbindt aan een handeling hooguit
schadeplichtigheid.

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5.

19 October 2018

No provision of this Agreement shall be construed as to prevent a Contracting
Party from fulfilling its obligations as a member of an economic integration
agreement such as a free trade area, customs union, common market, economic
community, monetary union, e.g. the European Union, or as to oblige a
Contracting Party to extend to the investors of the other Contracting Party and to
their investments or returns the present or future benefit of any treatment,
preference of privilege by virtue of its membership in such an agreement.

Section 2: Investment promotion and facilitation
Article 3
Favorable conditions for investment
1. Each Contracting Party shall, within the framework of its laws and regulations
and in accordance with its international obligations, promote economic
cooperation and encourage the creation of favorable conditions for responsible
investment in its territory that contribute to sustainable economic development.
2. Subject to its right to exercise powers conferred by its laws and regulations, each
Contracting Party shall admit foreign investments.
3. The Contracting Parties affirm the G20 Guiding Principles for Global Investment
Policymaking.
4. The Contracting Parties strive to strengthen the promotion and facilitation of
investments that contribute to sustainable development, including but not
limited through regular consultations between investment promotion and
facilitation agencies and the exchange of information regarding investment
opportunities.
Article 4
Transparency
Each Contracting Party shall ensure that its laws, regulations, judicial decisions,
procedures and administrative rulings of general application with respect to any
matter covered by this Agreement are promptly published or made available in such
a manner as to enable interested persons and the other Contracting Party to
become acquainted with them. Whenever possible, such instruments will be made
available through the internet in English.

Met opmerkingen [MvL6]: Dit is een vergaande
toezegging waaraan weinig landen zullen voldoen, ook
Nederland niet. Het is zeker “possible” om alle wetten,
rechtspraak, etc. in Engelse taal online te zetten, maar niet
praktisch of kostenefficiënt. De beperking “with respect to
any matter covered by this Agreement” is vaag / onduidelijk.

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19 October 2018

Article 5
Rule of law
1. The Contracting Parties shall guarantee the principles of good administrative
behavior, such as consistency, impartiality, independence, openness and
transparency, in all issues that relate to the scope and aim of this Agreement.

Met opmerkingen [MvL7]: De strekking van “guarantee”
is niet helder. Wellicht opnemen: “adhere to”.

2. Each Contracting Party shall ensure that investors have access to effective
mechanisms of dispute resolution and enforcement, such as judicial, quasi-judicial or
administrative tribunals or procedures for the purpose of prompt review, which
mechanisms should be fair, impartial, independent, transparent and based on the
rule of law.
3. As part of their duty to protect against business-related human rights abuse, the
Contracting Parties must take appropriate steps to ensure, through judicial,
administrative, legislative or other appropriate means, that when such abuses occur
within their territory and/or jurisdiction those affected have access to an effective
remedy. These mechanisms should be fair, impartial, independent, transparent and
based on the rule of law.

Met opmerkingen [MvL8]: Enkelvoud of meervoud?
Tekst is nu niet consistent.

Section 3: Sustainable development
Article 6
Sustainable development
1. The Contracting Parties are committed to promote the development of international
investment in such a way as to contribute to the objective of sustainable
development.
2. Each Contracting Party shall ensure that its investment laws and policies provide for
and encourage high levels of environmental and labor protection and shall strive to
continue to improve those laws and policies and their underlying levels of protection.
3. The Contracting Parties recognize that it is inappropriate to lower the levels of
protection afforded by domestic environmental or labor laws in order to encourage
investment.

Met opmerkingen [MvL9]: De bepaling ziet nu alleen op
het gedeelte van de wet- en regelgeving die valt onder de
term “investment laws and policies”. Dat lijkt een onnodige
beperking. Wellicht “its laws and policies” hanteren.

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19 October 2018

4. A Contracting Party shall not adopt and apply domestic laws contributing to the
objective of sustainable development in a manner that would constitute
unjustifiable discrimination or a disguised restriction on trade and investment.
5. Within the scope and application of this Agreement, the Contracting Parties reaffirm
their obligations under the multilateral agreements in the field of environmental
protection, labor standards and the protection of human rights to which they are
party, such as the Paris Agreement, the fundamental ILO Conventions and the
Universal Declaration of Human Rights. Furthermore, each Contracting Party shall
continue to make sustained efforts towards ratifying the fundamental ILO
Conventions that it has not yet ratified.
6. The Contracting Parties are committed to cooperate as appropriate on investmentrelated sustainable development matters of mutual interest in multilateral fora.
Article 7
Corporate Social Responsibility
1. Investors and their investments shall comply with domestic laws and regulations of
the host state, including laws and regulations on human rights, environmental
protection and labor laws.
2. The Contracting Parties reaffirm the importance of each Contracting Party to
encourage investors operating within its territory or subject to its jurisdiction to
voluntarily incorporate into their internal policies those internationally recognized
standards, guidelines and principles of corporate social responsibility that have been
endorsed or are supported by that Party, such as the OECD Guidelines for
Multinational Enterprises, the United Nations Guiding Principles on Business and
Human Rights, and the Recommendation CM/REC(2016) of the Committee of
Ministers to Member States on human rights and business.
3. The Contracting Parties reaffirm the importance of investors conducting a due
diligence process to identify, prevent, mitigate and account for the environmental
and social risks and impacts of its investment.
4. Investors shall be liable in accordance with the rules concerning jurisdiction of their
home state for the acts or decisions made in relation to the investment where such
acts or decisions lead to significant damage, personal injuries or loss of life in the
host state.

Met opmerkingen [MvL10]: De precieze strekking
hiervan is niet duidelijk.

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19 October 2018

5. The Contracting Parties express their commitment to the international framework
on Business and Human Rights, such as the United Nations Guiding Principles on
Business and Human Rights and the OECD Guidelines for Multinational Enterprises,
and commit to strengthen this framework.

Section 4 – investment protection
Article 8
Non-discriminatory treatment
1. Each Contracting Party shall accord to an investor of the other Contracting Party and
to an investment of an investor of the other Contracting Party, treatment no less
favorable than the treatment it accords, in like situations, to its own investors and to
their investments with respect to conduct, operation, management, maintenance,
use, enjoyment and sale or disposal of their investments in its territory.
2. Each Contracting Party shall accord to an investor of the other Contracting Party
and/or to an investment of an investor of the other Contracting Party, treatment no
less favorable than the treatment it accords in like situations, to investors of a third
country and to their investments with respect to the conduct, operation,
management, maintenance, use, enjoyment and sale or disposal of their
investments in its territory.
3. Substantive obligations in other international investment and trade agreements do
not in themselves constitute “treatment”, and thus cannot give rise to a breach of
paragraph 2 of this Article, absent measures adopted or maintained by a Contracting
Party pursuant to those obligations. Furthermore, the “treatment” referred to in
paragraph 2 of this Article does not include procedures for the resolution of
investment disputes between investors and States provided for in other
international investment and trade agreements.
Article 9
Treatment of investors and of covered investments
1. Each Contracting Party shall ensure fair and equitable treatment of the investments
of investors of the other Contracting Party. In addition, each Contracting Party shall
accord to such investments full physical security and protection.

Met opmerkingen [MvL11]: Deze tekst is mij niet
duidelijk. Als Nederland o.g.v. een ander verdrag verplicht is
om aan een investeerder uit land X een gunstiger
behandeling te gunnen, en dat gebeurt vervolgens ook, is
Nederland vanaf dat moment een zelfde behandeling
verschuldigd aan investeerders uit de Staat waarmee deze
BIT wordt gesloten? Dat lijkt mij niet de bedoeling van deze
bepaling.

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19 October 2018

2. A Contracting Party breaches the aforementioned obligation of fair and equitable
treatment where a measure or series of measures constitutes:
a)
Denial of justice in criminal, civil or administrative proceedings;
b)
Fundamental breach of due process, including a fundamental breach of
transparency, in judicial and administrative proceedings;
c)
Manifest arbitrariness;
d)
Direct or targeted indirect discrimination on wrongful grounds, such as
gender, race, nationality, sexual orientation or religious belief;
e)
Abusive treatment of investors such as harassment, coercion, abuse of power,
corrupt practices or similar bad faith conduct; or
f)
A breach of any further elements of the fair and equitable treatment
obligation adopted by the Contracting Parties in accordance with paragraph 3
of this Article.
3. The Contracting Parties shall, upon request of a Contracting Party, review the
content of the obligation to provide fair and equitable treatment and may
complement this list through a joint interpretative declaration within the meaning of
Article 31, paragraph 3, sub a, of the Vienna Convention on the Law of Treaties.
4. When applying paragraph 2 of this Article, a Tribunal may take into account whether
a Contracting Party made a specific representation to an investor to induce an
investment that created a legitimate expectation, and upon which the investor relied
in deciding to make or maintain that investment, but that the Contracting Party
subsequently frustrated.
5. When a Contracting Party has entered into a written commitment with investors of
the other Contracting Party regarding a specific investment, that Contracting Party
shall not, either itself or through an entity exercising governmental authority, breach
the said commitment through the exercise of governmental authority in a way that
causes loss or damage to the investor or its investment.
6. For greater certainty, a breach of another provision of this Agreement or of any
other international agreement does not constitute a breach of this Article. In
addition, the fact that a measure breaches domestic law does not, in and of itself,
establish a breach of this Article.

Met opmerkingen [MvL12]: Deze alinea suggereert dat
de beschreven situatie kan vallen onder één van de in lid 2
genoemde categorieën. Niet duidelijk is onder welke
categorie uit lid 2 deze alinea (lid 4) zou kunnen vallen.
Andersom lijkt de situatie van lid 4 reeds op zichzelf oneerlijk
c.q. onredelijk, maar zolang de situatie niet tevens onder lid
2 valt te brengen zal de investeerder geen schadeloosstelling
kunnen vorderen.

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19 October 2018

Article 10
Fiscal Treatment
1. With respect to taxes, fees, charges and to fiscal deductions and exemptions, each
Contracting Party shall, regarding the operation, management, maintenance, use,
enjoyment and disposal of the investment, accord to investors of the other
Contracting Party who are engaged in any economic activity in its territory,
treatment not less favorable than that accorded to its own investors or to those of
any third State who are in like situations, whichever is more favorable to the
investors concerned.
For this purpose, however, any tax benefits granted by that Contracting Party
pursuant to the following obligations shall not be taken into account:
a) under an agreement for the avoidance of double taxation; or
b) by virtue of its participation in a customs union, economic union, monetary
union or similar institution, such as the European Union, or on the basis of
interim agreements leading to such unions or institutions; or
c) on the basis of reciprocity with a third State.
2. Nothing in this Agreement shall be construed to prevent a Party from
adopting or maintaining any taxation measure aimed at preventing the
avoidance or evasion of taxes pursuant to its tax laws or its agreements for the
avoidance of double taxation.
3. This Agreement does not affect the rights and obligations of a Party under an
agreement for the avoidance of double taxation. In the event of inconsistency
between such agreement and this Agreement, the agreement for the avoidance of
double taxation prevails to the extent of the inconsistency.
Article 11
Treatment related to free transfer
1. The Contracting Parties shall guarantee that payments relating to an investment may
be transferred, including to bank accounts in the other Contracting State. The
transfers shall be made in a freely convertible currency, without restriction or delay,
and at the market rate of exchange applicable on the date of transfer. Such transfers
include in particular though not exclusively:
a)

profits, interests, dividends and other current income;

Netherlands model Investment Agreement
b)

c)
d)
e)
f)
g)
h)

19 October 2018

funds necessary;
i. for the acquisition of raw or auxiliary materials, semi-fabricated or
finished products, or
ii.
to replace capital assets in order to safeguard the continuity of an
investment;
additional funds necessary for the development of an investment;
funds in repayment of loans;
royalties or fees;
earnings of natural persons;
the proceeds of sale or liquidation of the investment;
payments arising under Articles 12 and 13 of this Agreement.

2. This Agreement shall not be construed so as to prevent the Contracting Parties from
fulfilling, in good faith, its international obligations for the purpose of maintaining
international peace and security.
3. Notwithstanding paragraph 1, nothing in this Article shall be construed to prevent a
Contracting Party from applying in an equitable and non-discriminatory manner and
not in a way that would constitute a disguised restriction on transfers, its laws
relating to:
a) bankruptcy, insolvency, bank recovery and resolution, or the protection of the
rights of creditors, and the prudential supervision of financial institutions;
b) issuing, trading, or dealing in financial instruments;
c) financial reporting or record keeping of transfers where necessary to assist law
enforcement or financial regulatory authorities;
d) criminal or penal offenses, deceptive or fraudulent practices;
e) the satisfaction of judgments in adjudicatory proceedings.
f) social security, public retirement or compulsory savings schemes.
Article 12
Expropriation
1. Neither Contracting Party shall nationalize or take any other measures depriving,
directly or indirectly, the investors of the other Contracting Party of their
investments, unless the following conditions are complied with:
a) the measure is taken in the public interest;
b) the measure is taken under due process of law;

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c) the measure is taken in a non-discriminatory manner; and
d) the measure is taken against prompt, adequate and effective compensation.
2. Direct expropriation occurs when an investment is nationalised or otherwise directly
taken through formal transfer of title or outright seizure.
3. Indirect expropriation occurs if a measure or a series of measures of a Contracting
Party has an effect equivalent to direct expropriation, in that it substantially deprives
the investor of the fundamental attributes of property in its investment, including
the right to use, enjoy and dispose of its investment, without formal transfer of title
or outright seizure.

Met opmerkingen [MvL13]: “equivalent” suggereert
“hetzelfde” of “van de zelfde orde”, terwijl “substantially
deprived” juist geen directe expropriation is maar ‘slechts’
een indirecte. De bepaling is in die zin tegenstrijdig. Wellicht
“similar” i.p.v. “equivalent” en de komma weg (evt. “to the
extent that” i.p.v. “in that”).

4. The determination of whether a measure or a series of measures by a Contracting
Party, in a specific factual situation, constitutes an indirect expropriation requires a
case-by-case, fact-based inquiry that considers, amongst other factors:
a) the economic impact of the measure or series of measures, although the sole
fact that a measure or a series of measures of a Contracting Party has an adverse
effect on the economic value of an investment does not establish that an indirect
expropriation has occurred;
b) the duration of the measure or series of measures by a Contracting Party; and
c) the character of the measure or series of measures, notably their object and
context.
5. The compensation referred to in paragraph 1 of this Article shall amount to the fair
market value of the investment at the time immediately before the expropriation or
the impending expropriation became known, whichever is earlier. For greater
certainty, this method to evaluate the compensation also applies in case of unlawful
expropriation. Valuation criteria shall include going concern value, asset value
including the declared tax value of tangible property, and other criteria, as
appropriate, to determine fair market value.
6. In addition to paragraph 5 of this Article, the compensation shall include interest at a
normal commercial rate from the date of expropriation until the date of payment
and shall, in order to be effective for the investor, be paid and made transferable,
without delay, to the State designated by the investor and in the currency of the
State of which the investor is a national or in any freely convertible currency
accepted by the investor.

Met opmerkingen [MvL14]: In het regelmatig
voorkomende geval dat een Staat niet voldoet aan een
veroordelend vonnis is er veel voor te zeggen om de
investeerder een hogere rente toe te kennen dan de
normale commerciële rente. Een risico-opslag is dan goed
verdedigbaar. Als een Staat slechts de normale commerciële
rente behoeft te vergoeden geeft dat de Staat weinig
aansporing om te voldoen aan een veroordelend vonnis van
het overeengekomen forum.

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7. The affected investor shall have the right, under the law of the expropriating
Contracting Party, to a prompt review of its claim and of the valuation of its
investment, by a judicial or other independent authority of that Contracting Party, in
accordance with the principles set out in this Article.
8. Except in the rare circumstance when the impact of a measure or series of measures
is so severe in light of its purpose that it appears manifestly excessive, nondiscriminatory measures of a Contracting Party that are designed and applied in
good faith to protect legitimate public interests, such as the protection of public
health, safety, environment or public morals, social or consumer protection or
promotion and protection of cultural diversity, do not constitute indirect
expropriations.
9. This Article does not apply to the issuance of compulsory licences granted in relation
to intellectual property rights, to the extent that such issuance is consistent with the
Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to
the WTO Agreements.
Article 13
Compensation for losses
1. Investors of a Contracting Party who suffer losses in respect of their investments
owing to war or other armed conflict, revolution, a state of national emergency,
revolt, insurrection or riot in the territory of the other Contracting Party shall be
accorded by the latter Contracting Party treatment, as regards restitution,
indemnification, compensation or other settlement, no less favorable than that
accorded by that Contracting Party to its own investors or to investors of any third
State, whichever is more favorable to the investor concerned.
2. Without prejudice to paragraph 1 of this Article, investors of a Contracting Party who,
in any of the situations referred to in that paragraph, suffer losses in the territory of
the other Contracting Party resulting from:
(a) requisitioning of their investment or a part thereof by the latter's armed forces
or authorities; or
(b) destruction of their investment or a part thereof by the latter's armed forces or
authorities, which was not required by the necessity of the situation;

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shall be accorded prompt, adequate and effective restitution or compensation by
the other Party. The amount of such compensation shall be determined in
accordance with the provisions of Article 12.
Article 14
Subrogation
If the investment of an investor of a Contracting Party is insured against noncommercial risks or otherwise give rise to payment of indemnification in respect of
such investment under a system established by law, regulation or government
contract, any subrogation of the insurer or re-insurer or agency designated by that
Contracting Party to the rights of the said investor pursuant to the terms of such
insurance or under any other indemnity given shall be recognized by the other
Contracting Party.

Section 5: Settlement of Disputes between an investor of a Contracting Party
and the other Contracting Party
Article 15
Multilateral investment court
1. Upon the entry into force between the Contracting Parties of an international
agreement providing for a multilateral investment court applicable to disputes under
this Agreement, the relevant provisions set out in this Section shall cease to apply.
2. The Contracting Parties shall, if necessary, adopt transitional arrangements taking
into account the legitimate expectations of investors in ongoing disputes under the
procedures set out under this Section.
Article 16
Scope of application
1. This Section shall apply to a dispute between, on the one hand, an investor of one
Contracting Party and, on the other hand, the other Contracting Party concerning
treatment alleged to be a breach of a provision in Section 4 of this Agreement, which
breach allegedly causes loss or damage to the investor or its investment(s).

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2. The Tribunal shall decline jurisdiction if the investment has been made through
fraudulent misrepresentation, concealment, corruption, or similar bad faith conduct
amounting to an abuse of process.
3. The Tribunal shall decline jurisdiction if an investor within the meaning of Article 1(b)
of this Agreement, which has changed its corporate structure with a main purpose to
gain the protection of this Agreement at a point in time where a dispute had arisen
or was foreseeable. This particularly includes situations where an investor has
changed its corporate structure with a main purpose to submit a claim to its original
home state.
Article 17
Alternative dispute resolution
Any dispute should, as far as possible, be settled amicably through negotiations,
conciliation or mediation. Such settlement may be agreed at any time, including
after proceedings under this Section have been commenced. A disputing party shall
give favorable consideration to a request for negotiations, conciliation or mediation
by the other disputing party.
Article 18
Consultations
1.

Where a dispute has not been resolved in a manner as provided for under Article 17,
an investor of a Contracting Party alleging a breach of a provision in Section 4 of this
Agreement, may submit a written request for consultations to the other Contracting
Party. During these consultations, the disputing parties may use non-binding third
party procedures, such as good offices, conciliation or mediation.

2.

A request for consultations within the meaning of this Article shall contain the
following information:
(a) the name and address of the investor and, where such request is submitted on
behalf of a locally established company, the name, address and place of
incorporation of the locally established company;
(b) the provision(s) in Section 4 of this Agreement, alleged to have been breached;
(c) the legal and factual basis for the claim, including the treatment alleged to be
inconsistent with the provision(s) in Section 4 of this Agreement;
(d) the relief sought and the estimated amount of damages claimed; and

Met opmerkingen [MvL15]: De Minister (brief 26-102018) spreekt van “zullen (…) niet-ontvankelijk worden
verklaard”. Juridisch is dit iets anders dan “decline
jurisdiction”.

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19 October 2018

(e) evidence establishing that the claimant is an investor of the other Party and that
it owns or controls the investment and, where it acts on behalf of a locally
established company, that it owns or controls the locally established company.
Where a request for consultations is submitted by more than one investor or on
behalf of more than one locally established company, the information in (a) and (e)
shall be submitted for each investor or each locally established company, as the case
may be.
3.

Unless the disputing parties agree to a longer period, consultations shall be held within
60 days of the submission of the request for consultations under paragraph 2.

4.

The request for consultations must be submitted within:
(a) five years of the date on which the investor first acquired, or should have first
acquired, knowledge of the treatment alleged to be inconsistent with a provision in
Section 4 of this Agreement, and of the loss or damage alleged to have been
incurred thereby; or
(b) two years of the date on which the investor or, as applicable, the locally
established company, exhausts or ceases to pursue claims or proceedings before a
tribunal or court under the domestic law of a Contracting Party; and, in any event,
no later than ten years after the date on which the investor first acquired, or should
have first acquired knowledge, of the treatment alleged to be inconsistent with a
provision in Section 4 of this Agreement, and of the loss or damage alleged to have
been incurred thereby.

5.

In the event that the claimant has not submitted a claim pursuant to Article 19 of
this Agreement within eighteen months of submitting the request for consultations,
the investor shall be deemed to have withdrawn its request for consultations. This
period may be extended by agreement between the parties involved in the
consultations.

6.

The time periods in paragraphs 4 and 5 shall not render a claim inadmissible where
the investor can demonstrate that the failure to request consultations or submit a
claim is due to the investor’s inability to act as a result of actions taken by the other
disputing party, provided that the investor acts as soon as reasonably possible after
it is able to act.

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Article 19
Submission of a claim
1.

If a request for consultations has been submitted according to the procedures laid
down in Article 18 and where such consultations do not result in a resolution of the
claim within six months from the date of the written request for consultations, the
investor may submit a claim under one of the following sets of rules on dispute
settlement:
a) the Convention on the Settlement of Investment Disputes between States and
Nationals of Other States of 18 March 1965 (ICSID Convention) or in accordance
with the Rules on the Additional Facility for the Administration of Proceedings by
the Secretariat of the Centre (ICSID Additional Facility), where the conditions for
proceedings pursuant to the ICSID Convention do not apply;
b) the arbitration rules of the United Nations Commission on International Trade
Law (UNCITRAL Arbitration Rules), with the understanding that the Permanent
Court of Arbitration (PCA) shall administer the proceedings;
The rules on dispute settlement according to which a claim has been submitted, shall
apply subject to the rules in this Section and the other relevant procedures laid
down in this Agreement.

2.

All the claims identified by the investor in the submission of its claim pursuant to this
Article must be related to treatment identified in its request for consultations
pursuant to Article 18, paragraph 2 of this Agreement, or to treatment that occurred
after the request for consultations was submitted.

3.

The responding Contracting Party hereby unconditionally consents to the submission
of a claim as provided under this Section.

4.

The consent under paragraph 3 of this Article and the submission of a claim under
paragraph 1 of this Article shall be deemed to satisfy the requirements of:
a) Article 25 of the ICSID Convention or the ICSID Additional Facility Rules for
written consent of the parties to the dispute; and
b) Article I of the New York Convention for “arising out of a commercial
relationship”.
c) Article II of the New York Convention for an “agreement in writing”.

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19 October 2018

5.

A claim may only be referred to a Tribunal pursuant to paragraph 1 of this Article if
the investor withdraws or discontinues any existing proceeding before a tribunal or
court under domestic or international law with respect to a measure alleged to
constitute a breach referred to in its claim and waives its right to initiate any claim or
proceeding before a tribunal or court under domestic or international law with
respect to a measure alleged to constitute a breach referred to in its claim.

6.

A claim with respect to restructuring of debt issued by a Contracting Party may only
be submitted under this Section in accordance with the Protocol on public debt.

7.

If two or more claims have been submitted separately to arbitration under this
Article and the claims have a question of law or fact in common and arise out of the
same events or circumstances, either party to the dispute may seek a consolidation
order at either Tribunal. After giving all disputing parties the opportunity to be heard,
the Tribunal shall in principle accept such request for consolidation, especially where
the claimants are small and medium sized enterprises.

8.

The claimant shall disclose to the other disputing party and to the Tribunal the name
and address of a third party funder. The disclosure shall be made at the time of the
submission of a claim, or as soon as possible if the funding has been granted after
the submission of a claim.
Article 20
Constitution and functioning of the Tribunal
1. All Members of the Tribunal under this Agreement shall be appointed by an
appointing authority. In the event that the claimant chooses arbitration pursuant to
the ICSID Convention or the Additional Facility in accordance with Article 19,
paragraph 1, subparagraph a, the Secretary-General of ICSID shall serve as
appointing authority for arbitration under this Agreement. In the event that the
claimant chooses arbitration pursuant to the UNCITRAL Arbitration Rules in
accordance with Article 19, paragraph 1, subparagraph b, the Secretary-General of
the Permanent Court of Arbitration shall serve as appointing authority for arbitration
under this Agreement.
2. The appointing authority shall appoint Members of the Tribunal that fulfill the
conditions set out in paragraphs 5 and 6 of this Article, after thoroughly consulting
the disputing parties. In appointing the Members of the Tribunal, the appointing
authority shall strive for gender and geographic diversity. For greater certainty, in

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19 October 2018

making appointments the Secretary General of ICSID is not limited to the Panel of
Arbitrators.
3. The Tribunal shall be composed of three Members. After consulting the disputing
parties, the appointing authority may decide that the Tribunal consists of one
Member taking into account the complexity of the case, the amount of damages
claimed and the desirability of keeping the costs of the procedure as low as possible,
especially for small and medium sized enterprises.
4. The appointing institution shall publish the composition of each Tribunal on its
website together with the date of the constitution of the Tribunal, the name of the
disputing parties, the legal basis for the claim, and the relief sought.
5. The Members of the Tribunal shall possess the qualifications required in their
respective countries for appointment to judicial office, or be jurists of recognized
competence. The appointing authority shall make every effort to ensure that the
members of the Tribunal, either individually or together, possess the necessary
expertise in public international law, which includes environmental and human
rights law, international investment law as well as in the resolution of disputes
arising under international agreements. In addition, Members of the Tribunal shall
not act as legal counsel or shall not have acted as legal counsel for the last five years
in investment disputes under this or any other international agreement.
6. Members of the Tribunal and their staff shall be independent of, and not be
affiliated with or take instructions from, either disputing party or Contracting Party
with regard to matters related to the dispute. They shall not participate in the
consideration of any dispute that would create a direct or indirect conflict of interest,
including as a party-appointed expert or witness. Arbitrators shall comply with the
International Bar Association Guidelines on Conflicts of Interest in International
Arbitration and any supplemental rules agreed upon by the Contracting Parties.
7. If a disputing party considers that a Member of the Tribunal has a conflict of interest,
it shall send to the President of the International Court of Justice a notice of
challenge to the appointment. The notice of challenge shall be sent within 15 days of
the date on which the composition of the division of the Tribunal has been
communicated to the disputing party, or within 15 days of the date on which the
relevant facts came to its knowledge, if they could not have reasonably been known
at the time of composition of the division. The notice of challenge shall state the
grounds for the challenge.

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8. If, within 15 days from the date of the notice of challenge, the challenged Member
of the Tribunal has elected not to resign from the division, the President of the
International Court of Justice shall, after hearing the disputing parties and after
providing the Member of the Tribunal an opportunity to submit any observations,
issue a decision within 45 days of receipt of the notice of challenge and notify the
disputing parties and the other Members of the division. A vacancy resulting from
the disqualification or resignation of a Member of the Tribunal shall be filled
promptly.
9. The fees and expenses of Members of the Tribunal as well as of witnesses and
experts involved in the procedure shall be governed by ICSID Administrative and
Financial Regulation 14.
10. The Tribunal shall determine whether the treatment subject to the claim is
inconsistent with the provisions in Section 4 of this Agreement. In making its
determination, the Tribunal shall apply the provisions of this Agreement and other
rules of international law applicable between the Contracting Parties. It shall
interpret this Agreement in accordance with customary rules of interpretation of
public international law, as codified in the Vienna Convention on the Law of Treaties.
11. Without prejudice to preliminary objections raised in accordance with Article 21 of
this Agreement and absent a different agreement between the disputing parties, the
arbitral proceedings shall, in the interest of an expeditious resolution of the dispute
and in order to prevent unnecessary bifurcation of the proceedings, in general
consider issues of jurisdiction and merits together.
12. The Tribunal shall not have jurisdiction to determine the legality of a measure,
alleged to constitute a breach of this Agreement, under the domestic law of the
disputing Contracting Party. In determining the consistency of a measure with this
Agreement, the Tribunal may consider, as appropriate, the domestic law of the
disputing Party as a matter of fact. In doing so, the Tribunal shall follow the
prevailing interpretation given to the domestic law by the court or authorities of that
Contracting Party and any meaning given to domestic law by the Tribunal shall not
be binding upon the courts or the authorities of that Contracting Party.
13. The “UNCITRAL Transparency Rules” shall apply to disputes under this Section. The
Tribunal and the disputing parties shall give positive consideration to a request from
a third party to submit as an amicus curiae oral or written submissions in accordance
with Article 4 of these Rules. The Tribunal shall give the reasons for a decision to
deny such request.

Met opmerkingen [MvL16]: Deze bepaling veronderstelt
dat een geschil efficiënter wordt afgedaan als alle eisen en
verweren in één keer worden behandeld (i.e. geen
bifurcation). Die veronderstelling is m.i. niet in zijn
algemeenheid juist. Het scheidsgerecht is het best in staat
om zelf, aan de hand van de concrete omstandigheden van
de voorliggende zaak, te beslissen of de meest efficiënte
behandeling met of zonder bifurcation is. Als bijvoorbeeld
een reëel verweer t.a.v. de bevoegdheid van het
scheidsgerecht wordt gevoerd kan het efficiënt zijn om eerst
op dat onderdeel te beslissen, in plaats van om meteen ook
over aansprakelijkheid en omvang van de schade te
procederen (en daarover getuigen en deskundigen te horen,
etc.). Deze bepaling zou m.i. weg kunnen.
Met opmerkingen [MvL17]: Soms gaat het geschil juist
om het verwijt dat de investeerder schade heeft geleden
doordat de (soms: hoogste) rechter van een land – of de
centrale overheid – een evident onhoudbare interpretatie of
toepassing heeft gehanteerd van het lokale recht. Vgl.
ECLI:NL:GHAMS:2018:3008. Ook de Yukos-zaak zou door een
zinsnede als deze wellicht anders zijn afgelopen. De
implicaties gaan mogelijk verder dan bedoeld is. Ook is niet
duidelijk of de bepaling ook ziet op de interpretatie of
toepassing van internationaal recht dat in het betreffende
land is geïncorporeerd (of bijvoorbeeld EU-recht).

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Article 21
Preliminary objections
1. Any objection that the dispute or any ancillary claim is not within the jurisdiction of
the Tribunal shall be made as early as possible. The respondent shall file the
objection no later than the expiration of the time limit fixed for the filing of the
counter-memorial, or, if the objection relates to an ancillary claim, for the filing of
the rejoinder – unless the facts on which the objection is based are unknown to the
respondent at that time.
2. The respondent may, no later than 30 days after the constitution of the division of
the Tribunal, and in any event before its first session, file an objection that a claim is
manifestly without legal merit. The respondent shall specify as precisely as possible
the basis for the objection. On receipt of such an objection the Tribunal shall
suspend the proceedings on the merits and establish a schedule for considering such
an objection consistent with its schedule for considering any other preliminary
question. The Tribunal, after giving the disputing parties an opportunity to present
their observations, shall at its first session of or promptly thereafter, issue a decision
or award stating the grounds therefor. In doing so, the Tribunal shall assume the
alleged facts to be true. This paragraph is without prejudice to the Tribunal’s
authority to address other objections as a preliminary question or to the right of the
respondent to object, in the course of the proceeding, that a claim lacks legal merit.
Article 22
Final award
1. The Tribunal and the disputing parties shall make every effort to ensure that the
dispute settlement process is carried out in a timely manner. The Tribunal shall
endeavor to issue its final award within 24 months of the date the claim is submitted
pursuant to Article 19 of this Agreement. If the Tribunal requires additional time to
issue its final award, it shall provide the disputing parties the reasons for the delay.
2. An award issued by a Tribunal pursuant to this Agreement shall be final and binding
between the disputing parties and in respect of that particular case. The respondent
shall comply with the award with undue delay.

Met opmerkingen [MvL18]: Dit is onduidelijk. Dient het
scheidsgerecht de stellingen van Staat voor waar aan te
nemen bij het nemen van een beslissing op ‘preliminary
objections’? Zal dan niet vrijwel iedere ‘preliminary
objection’ door het scheidsgerecht gegrond verklaard
moeten worden, ook als de onderbouwing feitelijk onwaar
is? Dat zal naar verwachting niet het bedoelde effect zijn van
deze tekst.

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19 October 2018

3. An award can only result in compensation for damages, unless the disputing parties
agree on restitution. Monetary compensation shall include the applicable interest at
a normal commercial rate from the date of expropriation until the date of payment.
4. The Tribunal shall not award punitive damages. Monetary damages shall not be
greater than the loss suffered by the investor, reduced by any prior damages or
compensation already provided in relation to the same factual dispute. For the
calculation of monetary damages, the Tribunal shall also reduce the damages to take
into account any restitution of property or repeal or modification of the measure.
5. The Tribunal shall order that reasonable costs incurred by the successful disputing
party shall be borne by the unsuccessful disputing party, unless the Tribunal
determines that such allocation is unreasonable in the circumstances of the case.
Such a determination may take into account whether the successful disputing party
has acted improperly, for example by raising manifestly frivolous objections or
improperly invoking preliminary objections, and whether the unsuccessful disputing
party is a small or medium sized enterprise. If only some parts of the claims have
been successful the costs shall be adjusted, proportionately, to the number or extent
of the successful parts of the claims.
Article 23
Behavior of the investor
Without prejudice to national administrative or criminal law procedures, a Tribunal
may, in deciding on the amount of compensation, take into account non-compliance
by the investor with its commitments under the UN Guiding Principles on Business
and Human Rights, and the OECD Guidelines for Multinational Enterprises.

Section 6: Consultations and Dispute Settlement between the Contracting
Parties
Article 24
Consultations of Contracting Parties
1. Either Contracting Party may propose to the other Contracting Party that
consultations be held on any matter concerning the interpretation or application of
this Agreement. The other Contracting Party shall accord sympathetic consideration
to the proposal and shall afford adequate opportunity for such consultations. Such

Met opmerkingen [MvL19]: Het scheidsgerecht kan ook
schadevergoeding toekennen op andere grond dan
expropriation.

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consultations shall be held at a place and at a time agreed upon through diplomatic
channels by the Contracting Parties.
2. A joint interpretative declaration adopted as result of consultations by the
Contracting Parties shall be binding on a Tribunal established under Section 5 of this
Agreement. Such joint interpretative declaration is not applicable in cases where a
claim has been submitted by an investor under Section 5 of this Agreement.
Article 25
Settlement of Disputes between the Contracting Parties
1. Any dispute between the Contracting Parties concerning the interpretation or
application of this Agreement, which cannot be settled within a reasonable amount
of time by means of diplomatic negotiations, shall, unless the Contracting Parties
have otherwise agreed, be submitted, at the request of either Contracting Party, to
an arbitral tribunal, composed of three members. Each Contracting Party shall
appoint one arbitrator and the two arbitrators thus appointed shall together appoint
a third arbitrator as their chairman who is not a national of either Contracting Party
and who is a national of a third State that has diplomatic relations with both
Contracting Parties.
2. If one of the Contracting Parties fails to appoint an arbitrator and has not proceeded
to do so within two months after an invitation from the other Contracting Party to
make such appointment, the latter Contracting Party may invite the President of the
International Court of Justice to make the necessary appointment. The President
shall consult both Parties which consultations shall not take no longer than one
month.
3. If the two core arbitrators are unable to agree on the chair person in the two months
following their appointment, either Contracting Party may invite the President of the
International Court of Justice to make the necessary appointment.
4. If, in the cases provided for in the paragraphs 2 and 3 of this Article, the President of
the International Court of Justice is prevented from discharging the said function or
is a national of either Contracting Party, the Vice-President shall be invited to make
the necessary appointments. If the Vice-President is prevented from discharging the
said function or is a national of either Contracting Party, the most senior member of
the Court available who is not a national of either Contracting Party shall be invited
to make the necessary appointments.

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5. In making its determination the Tribunal shall decide the dispute in accordance with
customary rules of interpretation of public international law, as codified in the
Vienna Convention on the Law of Treaties. Before the Tribunal decides, it may at any
stage of the proceedings propose to the Contracting Parties to settle the dispute
amicably. The foregoing provisions shall not prejudice settlement of the dispute ex
aequo et bono if the Contracting Parties so agree.
6. Unless the Contracting Parties decide otherwise, the Tribunal shall determine its
own procedure.
7. The Tribunal shall reach its decision by a majority of votes. Such decision shall be
final and binding on the Contracting Parties.
8. Each Contracting Party shall bear the costs of its appointed member of the Tribunal
and of its representation in the arbitration proceedings and half of the costs of the
chairman and the remaining costs. The Tribunal may, however, in its decision direct
that a higher proportion of the costs shall be borne by one of the two Contracting
Parties. Such decision shall be binding on both Contracting Parties.

Section 7: Final provisions
Article 26
Entry into Force, Duration and Termination
1. The present Agreement shall enter into force on the first day of the second month
following the date on which the Contracting Parties have notified each other in
writing that their constitutionally required procedures have been complied with, and
shall remain in force for a period of fifteen years.
2. Unless notice of termination has been given by either Contracting Party at least six
months before the date of its expiry, the present Agreement shall be extended
tacitly for periods of five years, whereby each Contracting Party reserves the right to
terminate the Agreement upon notice of at least six months before the date of
expiry of the current period of validity.
3. In respect of investments made before the date of the termination of the present
Agreement, this Agreement shall continue to be in effect for a further period of
fifteen years from that date.

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4. Subject to the period mentioned in paragraph 2 of this Article, the Kingdom of the
Netherlands shall be entitled to terminate the application of the present Agreement
separately in respect of any of the parts of the Kingdom of the Netherlands.
Article 27
Territorial Application
As regards the Kingdom of the Netherlands, the present Agreement shall apply to
the European part of the Netherlands, to Aruba, Curaçao, Sint Maarten and the
Caribbean part of the Netherlands (the islands of Bonaire, Sint Eustatius and Saba),
unless the notification provided for in Article 26, paragraph 1 provides otherwise.

IN WITNESS WHEREOF, the undersigned representatives, duly authorized thereto, have
signed the present Agreement.

DONE in two originals at
, on
,
in the …, Netherlands and English languages, the […] texts being authentic.
In case of difference of interpretation, the English text shall prevail.

For ….
For the Kingdom of the Netherlands:

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19 October 2018

Protocol on public debt
On the signing of the Agreement on reciprocal encouragement and protection of
investments between […] and the Kingdom of the Netherlands, the undersigned
representatives have agreed on the following provisions, which constitute an integral part
of the Agreement:
1.

No claim that a restructuring of public debt of a Contracting Party breaches an
obligation of this Agreement may be submitted to, or if already submitted, be
pursued under Article 19 of this Agreement if the restructuring is a negotiated
restructuring at the time of submission, or becomes a negotiated restructuring after
such submission.

2.

Subject to paragraph 1 of this Protocol, an investor may not submit a claim under
Article 19 of this Agreement that a restructuring of debt of a Contracting Party
breaches the provisions of this Agreement, unless 270 days have elapsed from the
date of submission by the claimant of the written request for consultations pursuant
to Article 18 of this Agreement.
3. A breach of Article 8, paragraph 1, does not occur merely by virtue of a different
treatment provided by a Contracting Party to certain categories of investors or
investments on grounds of a different macroeconomic impact, for instance to avoid
systemic risks or spillover effects, or on grounds of eligibility for debt restructuring.

For the purposes of this Protocol:
a) ‘negotiated restructuring’ means the restructuring or rescheduling of debt of a
Contracting Party that has been effected through:
(i) a modification or amendment of debt instruments, as provided for under their
terms, including their governing law, or
(ii) a debt exchange or other similar process in which the holders of no less than 66%
of the aggregate principal amount of the outstanding debt subject to restructuring,
excluding debt held by that Contracting Party or by entities owned or controlled by it,
have consented to such debt exchange or other process.
b) "governing law" of a debt instrument means a Contracting Party’s legal and
regulatory framework applicable to that debt instrument.