The purpose of this website is to inform the market on the benefits of Dutch Bilateral Investment Treaties (BITs) for the Caribbean parts of the Kingdom of the Netherlands (Aruba, Curaçao and Sint Maarten) from an investment treaty perspective, with a specific focus on Curaçao.
For this purpose, a special taskforce has been created, which consists of several law firms and consultants with a specific expertise in investment treaties and arbitration.
The aim of the taskforce is to maintain the benefits of the BITs for the Caribbean parts of the Kingdom of the Netherlands and to promote the conclusion of new BITs with other states in the region.
A global Dutch BITs network
With more than 90 BIT, the Netherlands offers a global network of protection to investors and their investments. Dutch BITs are considered to provide the “gold standard” of investment protection because they generally offer the following benefits:
• all types of investments, including indirect investments, are covered; • a menu of arbitration rules from which investors/claimants can select the best suited one;
• high protection standards such as a broadly formulated Fair and Equitable Treatment (FET) standard, Most Favoured Nation (MFN) and National Treatment (NT) and umbrella clauses.
The post-Achmea consequences
However, the recent Achmea judgement of the Court of Justice of the EU (CJEU) has casted doubt on the continued application of the investment arbitration provisions of intra-EU BITs. Indeed, in January 2019, a majority of EU Member States have adopted a political Declaration in which they have expressed their intention to terminate all ca. 190 intra-BITs by 6 December 2019.
At the same time, the Dutch Government has adopted new Dutch model BIT text text, which significantly lowers the protection standards for investors and their investments.
These developments will most likely lead to the termination of all intra-EU BITs, including the Dutch intra-EU BITs with countries such as Czech Republic, Slovak Republic, Hungary, Rumania, Bulgaria, Latvia, Lithuania, Croatia, Estonia.
Indeed, as of February 2019, Poland terminated the BIT with the Netherlands.
The benefits for Curaçao
Since EU law does not apply to the non-European parts of the Kingdom of the Netherlands, the potential negative effects of the Achmea judgment and the Declaration should not affect Curaçao or the other Caribbean parts of the Kingdom of the Netherlands.
Thus, Curaçao can maintain its position as a very interesting destination for investors and their investments as well as a hub for investments into the region, who seek the high level of investment protection of Dutch BITs.
Additionally, Curaçao offers a stable legal framework that is closely linked to the Dutch legal system in Europe and a very attractive tax climate for foreign investors who are incorporated in Curaçao.
Therefore, existing and new Dutch BITs provide significant benefits for Curaçao, which can enhance Curaçao’s function as a hub for investments into the Americas as well as into Europe.
Maintaining existing BITs and concluding new BITs with third states
For these reasons, Curaçao should not only aim to maintain the application of the currently existing Dutch intra-EU BITs, but moreover, should intensify its efforts to conclude new BITs with other states in the region, for example with Columbia, in order to create opportunities for new in- and outgoing sustainable investments, which create economic growth and new jobs in the region.
The taskforce on promoting the benefits of existing, but also new Dutch BITs with third states, currently consists of:
• Prof. Dr. Nikos Lavranos, founder & owner of NL-Investmentconsulting, email@example.com
• Prof. Dr. Gerard Meijer, Partner at Linklaters, firstname.lastname@example.org
• Mr David den Blaauwen, NautaDutilh, David.denBlaauwen@nautadutilh.com
• Prof. Dr. Frank Kunneman, Partner at Van Eps Kunneman Van Doorne, email@example.com
• Mr Randolph Van Eps, Partner at Van Eps Kunneman Van Doorne, firstname.lastname@example.org
• Mr Terrence Melendez, Senior Manager Tax at EY Dutch Caribbean, Terrence.Melendez@an.ey.com
Please contact us if you want to join and support the taskforce or if you have any questions.
Read the open letter Openbrief tegen aanwijzing regarding the "aanwijzing"/order of the Dutch Government against Curacao.