The Dutch government recently published a draft model bilateral investment treaty (model BIT), which it intends to use as a basis for negotiating their existing and future EU BITs with non-EU members states.
Following numerous recent criticisms around the topic of investment protection and investment arbitration, the draft model BIT is aimed at striking a better balance between the rights and duties of host States and investors. Though in large the draft model BIT imitates the existing model BIT, main deviations are found in the stricter requirements for investors seeking protection and the arbitration specific provisions.
To that, one of the most significant proposed changes is the abandonment of the party-appointment of arbitrators system, which is a process viewed by many as one of arbitration’s most valuable attributes. In turn, the model BIT states that all members of the arbitral tribunal will either be appointed by the Permanent Court of Arbitration (PCA) or the International Center for the Settlement of Investment Disputes (ICSID) (Article 19.1 of draft model BIT).
The draft model BIT furthermore, states that “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 [arbitration] provisions set out in this Section shall cease to apply” (Article 15.1 of draft model BIT).
The Dutch government launched an online public consultation forum, seeking opinion from civil society on the draft model BIT. This consultation ended on 18 June 2018 and the result of it will be published soon.
The Netherland’s draft model BIT can be found here.