荷蘭2019年雙邊投資條約範本之法律分析－投資者權利與地主國公共利益的平衡

傳統上，國際投資協定被認為是維護投資法律環境與鼓勵外國直接投資的重要法律工具。因此，當今國家締結有為數眾多的雙邊投資條約，或是於自由貿易協定中訂定投資專章。與此同時，各國通過有雙邊投資條約範本，以作為建構其保護與促進外國投資活動之法律網絡的基礎。然而，由於近年來投資者權利與地主國公共利益兩者的衝突不斷增加，國際投資協定因此開始進行改革，以平衡投資者與地主國之間的權利義務關係，而此趨勢亦展現在各國對於雙邊投資條約範本的修正。荷蘭於2019年通過之《投資互惠促進及保護協定範本》為近年來國際間所通過的新雙邊投資條約範本，其目的在取代2004年之《投資鼓勵及互惠保護協定範本》，以作為日後荷蘭與其他非歐盟成員國締結或修改雙邊投資條約的基礎文件。本文擬探討2019年荷蘭雙邊投資條約範本於何種程度上展現出對於國際投資協定過去單方面保護投資者權利的修正，以及其是否有助於地主國規制權的行使以確保公共利益。International investment agreements (IIAs) are traditionally regarded as important instruments for creating a stable investment environment and promoting foreign direct investment (FDI). As a result, States conclude a number of bilateral investment treaties (BITs) and include free trade agreements (FTAs) with investment provisions. States also adopt Model BITs as the bases for developing their extensive networks for the protection and promotion of foreign investment. However, with the conflict between the protection of the investor's rights and the public interest of the host State arise, IIAs concluded in recent years not only narrow down the scope of protection the investor used to enjoy, but also seek to ensure the host State's regulatory space for the public interest. This trend has also reflected in the amendment of Model BITs.Investment adopted by the Netherlands in 2019 (the 2019 Dutch Model BIT) aims at replacing the 2004 Model Agreement on Encouragement and Reciprocal Protection of Investment and will become the basic instrument for the Dutch Government to conclude BITs with non-EU countries. This article explores the extent to which the 2019 Dutch Model BIT has reflected the growing trend mentioned above, thereby achieving a better balance between the investor's right and the public interest of the host State.

The Godly Community

Not all of the members of the Leiden congregation had come to Plymouth in the initial settlement attempt. John Robinson remained with those in the Netherlands for the time, leaving lay elder William Brewster as the spiritual guide for the Plymouth congregation. Sunday services consisted of a morning session of prayer, scripture readings, and a sermon and discussion of those texts, concluding with psalm singing. The afternoon service was similar but with a session of prophesying that allowed the congregants to focus on a particular issue. Sermons frequently urged a social gospel upon the listeners, encouraging them to put the needs of others above their selfish interests. During much of the 1620s there was no provision for baptism or the Lord’s Supper because there was no ordained minister and it was determined that Brewster as elder could not officiate at the sacraments. Following the Dutch model, marriage was a civil rather than a religious ceremony.

The changing ecosystem of Dutch BITs

This article reviews the recent changes of the Dutch model BIT text. It provides a background of the political changes at the domestic as well as the European Union (EU) level, which have been driving these changes. The consequences of the Achmea judgment are of particular importance for the intra-EU BITs and potentially for the Energy Charter Treaty. Subsequently, the article highlights the most dramatic changes compared to the previous Dutch model BIT text and Dutch BIT practice. The author concludes that these changes will ultimately result in a lowering of the level of investor and investment protection.

RECALIBRATING THE INTERNATIONAL INVESTMENT REGIME THROUGH NARROWED JURISDICTION

The legitimacy crisis confronting the international investment regime has called for reforms to eliminate the asymmetric and troubled nature of investment treaties. These instruments grant extensive investor protections without offering reciprocal safeguards for host States wishing to preserve regulatory space. This article argues that any reform designed to redress imbalances in the existing regime should first aim at narrowing the personal jurisdiction of investment tribunals. Problematically, access to most investment treaties depends on broad nationality requirements, which have enabled investors to use corporations or passports of convenience to obtain treaty protection. This practice exacerbates the unbalanced relationship between host States and investors. It increases host States’ exposure to investment treaty claims and allows investors to circumvent newer, more State-oriented investment treaties. Using as an example the novel anti-nationality planning approach embraced in the 2019 Dutch Model BIT, this article suggests effective treaty mechanisms that States can adopt to restrict the range of investors that are entitled to claim.

The Republic Was an Empire

This chapter deals with the circumstances leading to the first of three Anglo-Dutch wars. Beginning with a proposal for political union, the chapter addresses the growing animosity between the English and the Dutch through two major themes. In the first place, from the moment of its foundation the English republic was, and behaved like, an empire. Second, it was the product, as in the Netherlands, of a rebellion and fiscal/military revolution which built the state. More than its Dutch model, the English republic entailed a sharp, indeed spectacular, break with the past, accompanied by a revolutionary as well as an imperial ideology.

The Anglo-Dutch Republic, 1649–53

This chapter covers the period between the years 1649 and 1653. It was during this time when England embarked on a revolution — the real ‘first modern revolution’ — with profound and permanent consequences. This would involve a jarring process of change, over two generations, in the course of which the institutions, administration, power-structures, and policies of English government were remade to be capable of competing with their Dutch model. That model was not only political, military, and economic but also religious, cultural, and moral. From the Dutch the English republic would take the post-dynastic policies, and the fiscal and administrative practices, of a modern, mercantile, and Protestant free state. These would be applied to the construction of a state and empire which were, or became distinct, by measures directed in the first place against the competing economic pretensions of the Dutch themselves.

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.