The Netherlands has released a new draft investment treaty for
public comment ("Draft BIT"). If
adopted, the Draft BIT may raise questions about the Kingdom's
attractiveness for foreign investors who have long taken advantage
of Dutch treaty protections by structuring their investment via
companies in the Netherlands. The Netherlands proposes to use
the new model as a basis for renegotiating its existing BITs with
non-EU states, and, as such, the new draft's more restrictive
provisions may be significant for existing investors with
protection under existing BITs, as well as those considering future
investments. Key features of the Draft BIT are considered
below.
Background
The Netherlands is currently signatory to over 100 BITs, many of
which are based on its 2004 Model BIT. Following the European
Court of Justice's recent decision that international
arbitration provisions in intra-EU BITs are incompatible with EU
law, the Netherlands is understood to be
