The government recently adopted its new model bilateral investment treaty (BIT). The proposed changes, which are likely to limit investor protection, have now been incorporated, together with additional important amendments. The model BIT reflects two government objectives: a sustainable investment policy and a better balance between the rights and obligations of both states and investors.
A consultation process on the new draft Dutch model bilateral investment treaty (BIT) recently ended. The government is expected to publish the finalised text of the new model BIT later in 2018. The new model will serve as the basis for renegotiation of the 79 BITs that the Netherlands has with states outside the European Union. Among other things, it proposes significant changes to the conduct of arbitral proceedings.
The Hague Court of Appeal recently ruled that its decision on an application for the enforcement of a foreign arbitral award would not be stayed solely on the basis of pending setting aside proceedings at the place of arbitration. Further, the court ruled that the party requesting exequatur did not have to submit Dutch translations of the award. The decision is notable, as the appeal court explicitly acknowledged the New York Convention's pro-enforcement bias, which several courts have failed to do in recent years.
The Supreme Court recently ruled that a Dutch court may enforce an annulled arbitral award if, among other things, the local annulment decision is based on grounds other than those set out in Article V(1)(a)-(d) of the New York Convention and which are not internationally recognised, or the annulment decision is irreconcilable with Dutch private international law. This judgment offers important guidance as to the Dutch courts' discretion to enforce annulled awards.
The Amsterdam Court of Appeals recently ruled that the Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. An interesting question is whether the judgment will have a bearing in the appeal of the annulment proceedings concerning the $50 billion Energy Charter Treaty arbitration case between former Yukos shareholders and Russia, which is pending before The Hague Court of Appeal.
A Dutch private limited company can make distributions of profits to its shareholders if the company's capital exceeds the aggregate of the reserves that must be maintained pursuant to the law and the company's articles of association. If a company cannot pay its due and payable debts after a distribution, the members of the board of directors can be held liable to for any resulting shortfall and the company's bankruptcy trustee can claim and recover the amount wrongfully paid from each shareholder.
According to the European Commission, the growth of flexible contracts in the Dutch labour market, as well as the inequality between flexible contracts and employment contracts for indefinite periods, is a problem. As such, one of the commission's recommendations for the Dutch government is to tackle the barriers to entering into traditional contracts or employment contracts for indefinite periods and facilitate the transition from definite contracts to employment contracts for indefinite periods.
In the new government's coalition agreement, the ruling parties promised to phase out coal-fired power plants by 2030. Thus, the minister of economic affairs and climate policy has been negotiating the closure of the five remaining coal-fired power plants in the Netherlands, and the government recently published a draft bill effecting this closure for consultation. Based on the initial public reactions, it appears that although exiting coal may be relatively easy, it may be naive to think that it can be done for free.
The government recently finalised its objectives and the negotiation format for the national climate agreement. This will be an agreement in principle, which will form the basis of the integrated national energy and climate plan pursuant to the draft regulation on the governance of the Energy Union. The state and various stakeholders will negotiate and conclude the climate agreement, for which the government recently finalised its objectives and the negotiation format.
The minister of economic affairs and climate recently announced that the new government has reserved €12 billion to grant subsidies in 2018 for the production of renewable energy under the Renewable Energy Grant Scheme. The subsidies, which will be made available to applicants in two €6 billion tranches, aim to accelerate the development and use of sustainable energy production technologies.
The new government's coalition agreement contains an ambitious paragraph on climate and energy, which observes that the European Union's aim to reduce greenhouse gas emissions by 40% (compared with 1990 levels) by 2030 will be insufficient to meet the Paris Agreement target. Therefore, the new government has set the bar higher, introducing measures to prepare the Netherlands for a 49% reduction in greenhouse gas emissions by 2030.
The number of geothermal energy projects in the Netherlands is rapidly increasing and there are growing calls for the existing legal framework to be reshaped in order to meet the specific needs of such projects and remove bottlenecks. In light of geothermal energy's potential in the much-desired energy transition, it is hoped that these growing pains can be quickly overcome and that the industry can continue to develop itself as a standalone professional industry.
The government is working hard to achieve its climate goals and has set new milestones to implement a carbon price floor, a climate agreement and the Climate Act. Further, in a landmark judgment, The Hague Appeal Court recently ordered the government to do more to combat climate change. The appeal court's judgment is unprecedented and may serve as a wake-up call for other governments worldwide.