Comparative Analysis between the 2018 and 2004 Dutch Model Bilateral Investment Treaty Texts

This article compares the recently published 2018 Dutch model bilateral investment treaty text (2018 Model bit) and the former 2004 version. The changes to the 2018 Model BIT reflect the reaction by European Union (EU) Member States to the increasing number of investor-state disputes against them, the general backlash against free trade agreements (FTA), and the CJEU’S decision in Achmea. Furthermore, the drafters of the new Dutch Model bit carefully took into consideration the framework of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the European Commission’s proposal for the establishment of an Investment Court System (ICS) as a substitute for the current investor-state dispute settlement system (ISDS). As a result, the 2018 text incorporates significantly stricter provisions than the ones of the former version.