Title

Agreement on reciprocal promotion and protection of investments between

......................................

and

the Kingdom of the Netherlands.

Body

The ......................................... and the Kingdom of the Netherlands,

hereinafter referred to as the Contracting Parties,

Desiring to strengthen their traditional ties of friendship and to extend and intensify economic relations between them by creating conditions with a view to attract and promote responsible foreign investment of the Contracting Parties in their respective territories that contribute to sustainable economic development;

Recognizing that fostering an open and transparent policy environment and protecting investments of investors of one Contracting Party in the territory of the other Contracting Party are conducive to the stimulation of mutually beneficial economic activity and intensification of economic cooperation;

Reaffirming their commitment to sustainable development and to enhancing the contribution of international trade and investment to sustainable development;

Recognizing the importance of equality between men and women when formulating, implementing and reviewing measures within the field of international trade and investment;

Considering that these objectives can be achieved without compromising the right of the Contracting Parties to regulate within their territories through measures necessary to achieve legitimate policy objectives, such as the protection of public health, safety, environment, public morals, labor rights, animal welfare, social or consumer protection or for prudential financial reasons;

Have agreed as follows:

Body

Section 1. Definitions and Scope

Article 1. Definitions

For the purposes of this Agreement:

(a) "investment" means every kind of asset that has the characteristics of an investment, which includes a certain duration, the commitment of capital or other resources, the expectation of gain or profit, and the assumption of risk. Forms that an investment may take include:

(i) movable and immovable property as well as any other property rights in rem in respect of every kind of asset, such as mortgages, liens and pledges;

(ii) rights derived from shares, bonds and other kinds of interests in companies and joint ventures;

(iil) claims to money, to other assets or to any contractual performance having an economic value;

(iv) rights in the field of intellectual property, technical processes, goodwill and know-how;

(v) rights granted under public law or under contract, including rights to prospect, explore, extract and exploit natural resources.

Claims to money within the meaning of sub (iii) does not include claims to money that arise solely from commercial contracts for the sale of goods or services by a natural or legal in the territory of a Contracting Party to a natural or legal person in the territory of the  other Contracting Party, the domestic financing of such contracts, or any related order, judgment, or arbitral award.

(b) Returns that are invested shall be treated as investments and any alteration of the form in which assets are invested or reinvested shall not affect their qualification as investments.

(c) "investor" means with regard to either Contracting Party:

(i) any natural person having the nationality of that Contracting Party under its applicable law;

(ii) any legal person constituted under the law of that Contracting Party and having substantial business activities in the territory of that Contracting Party; or

(iii) any legal person that is constituted under the law of that Contracting Party and is directly or indirectly owned or controlled by a natural person as defined in (i) or by a legal person as defined in (ii).

A natural person who has the nationality of the Kingdom of the Netherlands and the other Contracting Party is deemed to be exclusively a natural person of the Contracting Party of his or her dominant and effective nationality.

Indications of having "substantive business activities" in a Contracting Party may include:

(i) the undertaking's registered office and/or administration is established in that Contracting Party;

(ii) the undertaking's headquarters and/or management is established in that Contracting Party;

(iii) | the number of employees and their qualifications based in that Contracting Party;

(iv) the turnover generated in that Contracting Party; and

(v) an office, production facility and/or research laboratory is established in that Contracting Party;

These indications should be assessed in each specific case, taking into account the total number of employees and turnover of the undertaking concerned, and take account of the nature and maturity of the activities carried out by the undertaking in the Contracting Party in which it is established.

(d) "freely convertible currency" means a currency which is widely traded in international foreign exchange markets and widely used in international transactions.

(e) "territory" means the territory of the Contracting Party concerned, including [if applicable] its territorial sea and any area beyond and adjacent to its territorial sea within which it exercises jurisdiction or sovereign rights in accordance with international law.

Article 2. Scope and Application

1. This Agreement shall apply to an investment, made in accordance with the applicable law of the host Contracting Party at the time the investment is made, that is directly or indirectly owned or controlled by an investor of the other Contracting Party and existing on the date of entry into force of this Agreement or made thereafter.

2. The provisions of this Agreement shall not affect the right of the Contracting Parties to regulate within their territories necessary to achieve legitimate policy objectives such as the protection of public health, safety, environment, public morals, labor rights, animal welfare, social or consumer protection or for prudential financial reasons. The mere fact that a Contracting Party regulates, including through a modification to its laws, ina manner which negatively affects an investment or interferes with an investor's expectations, including its expectation of profits, is not a breach of an obligation under this Agreement.

3. The Contracting Parties reserve the right to introduce or maintain non- discriminatory, appropriate and necessary measures for the purpose of preventing investors who, alone or together, have the ability to affect materially the terms of participation in the relevant market as a result of their position in the market, from engaging in or continuing anti-competitive practices.

4, Nothing in this Agreement shall be construed as preventing a Contracting Party from discontinuing the granting of a subsidy (1) and/or requesting its reimbursement, where such measure is necessary in order to comply with international obligations between the Contracting Parties or where it has been ordered by a competent court, administrative tribunal or other competent authority, or requiring that Contracting Party to compensate the investor therefor. 

5. No provision of this Agreement shall be construed as to prevent a Contracting Party from fulfilling its obligations as a member of an economic integration agreement such as a free trade area, customs union, common market, economic community, monetary union, e.g. the European Union, or as to oblige a Contracting Party to extend to the investors of the other Contracting Party and to their investments or returns the present or future benefit of any treatment, preference of privilege by virtue of its membership in such an agreement.

Section 2. Investment Promotion and Facilitation

Article 3. Favorable Conditions for Investment

1. Each Contracting Party shall, within the framework of its laws and regulations and in accordance with its international obligations, promote economic cooperation and encourage the creation of favorable conditions for responsible investment in its territory that contribute to sustainable economic development.

2. Subject to its right to exercise powers conferred by its laws and regulations, each Contracting Party shall admit foreign investments.

3. The Contracting Parties affirm the G20 Guiding Principles for Global Investment Policymaking.

4. The Contracting Parties strive to strengthen the promotion and facilitation of investments that contribute to sustainable development, including but not limited through regular consultations between investment promotion and facilitation agencies and the exchange of information regarding investment opportunities.

Article 4. Transparency

Each Contracting Party shall ensure that its laws, regulations, judicial decisions, procedures and administrative rulings of general application with respect to any matter covered by this Agreement are promptly published or made available in such a manner as to enable interested persons and the other Contracting Party to become acquainted with them. Whenever possible, such instruments will be made available through the internet in English.

Article 5. Rule of Law

1. The Contracting Parties shall guarantee the principles of good administrative behavior, such as consistency, impartiality, independence, openness and transparency, in all issues that relate to the scope and aim of this Agreement.

2. Each Contracting Party shall ensure that investors have access to effective mechanisms of dispute resolution and enforcement, such as judicial, quasi-judicial or administrative tribunals or procedures for the purpose of prompt review, which mechanisms should be fair, impartial, independent, transparent and based on the rule of law.

3. As part of their duty to protect against business-related human rights abuse, the Contracting Parties must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy. These mechanisms should be fair, impartial, independent, transparent and based on the rule of law.

Section 3. Sustainable Development

Article 6. Sustainable Development

1. The Contracting Parties are committed to promote the development of international investment in such a way as to contribute to the objective of sustainable development.

2. Each Contracting Party shall ensure that its investment laws and policies provide for and encourage high levels of environmental and labor protection and shall strive to continue to improve those laws and policies and their underlying levels of protection.

3. The Contracting Parties emphasize the important contribution by women to economic growth through their participation in economic activity, including in international investment. They acknowledge the importance of incorporating a gender perspective into the promotion of inclusive economic growth. This includes removing barriers to women's participation in the economy and the key role that gender-responsive policies play in achieving sustainable development. The Contracting Parties commit to promote equal opportunities and participation for women and men in the economy. Where beneficial, the Contracting Parties shall carry out cooperation activities to improve the participation of women in the economy, including in international investment.

4. The Contracting Parties recognize that it is inappropriate to lower the levels of protection afforded by domestic environmental or labor laws in order to encourage investment.

5. A Contracting Party shall not adopt and apply domestic laws contributing to the objective of sustainable development in a manner that would constitute unjustifiable discrimination or a disguised restriction on trade and investment.

6. Within the scope and application of this Agreement, the Contracting Parties reaffirm their obligations under the multilateral agreements in the field of environmental protection, labor standards and the protection of human rights to which they are party, such as the Paris Agreement, the fundamental ILO Conventions and the Universal Declaration of Human Rights. Furthermore, each Contracting Party shall continue to make sustained efforts towards ratifying the fundamental ILO Conventions that it has not yet ratified.

7. The Contracting Parties are committed to cooperate as appropriate on investment- related sustainable development matters of mutual interest in multilateral fora.

Article 7. Corporate Social Responsibility

1. Investors and their investments shall comply with domestic laws and regulations of the host state, including laws and regulations on human rights, environmental protection and labor laws.

2. The Contracting Parties reaffirm the importance of each Contracting Party to encourage investors operating within its territory or subject to its jurisdiction to voluntarily incorporate into their internal policies those internationally recognized standards, guidelines and principles of corporate social responsibility that have been endorsed or are supported by that Party, such as the OECD Guidelines for Multinational Enterprises, the United Nations Guiding Principles on Business and Human Rights, and the Recommendation CM/REC(2016) of the Committee of Ministers to Member States on human rights and business.

3. The Contracting Parties reaffirm the importance of investors conducting a due diligence process to identify, prevent, mitigate and account for the environmental and social risks and impacts of its investment.

4. Investors shall be liable in accordance with the rules concerning jurisdiction of their home state for the acts or decisions made in relation to the investment where such acts or decisions lead to significant damage, personal injuries or loss of life in the host state.

5. The Contracting Parties express their commitment to the international framework on Business and Human Rights, such as the United Nations Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises, and commit to strengthen this framework.

Section 4. Investment Protection

Article 8. Non-discriminatory Treatment

1. Each Contracting Party shall accord to an investor of the other Contracting Party and to an investment of an investor of the other Contracting Party, treatment no less favorable than the treatment it accords, in like situations, to its own investors and to their investments with respect to conduct, operation, management, maintenance, use, enjoyment and sale or disposal of their investments in its territory.

2. Each Contracting Party shall accord to an investor of the other Contracting Party and/or to an investment of an investor of the other Contracting Party, treatment no less favorable than the treatment it accords in like situations, to investors of a third country and to their investments with respect to the conduct, operation, management, maintenance, use, enjoyment and sale or disposal of their investments in its territory.

3. Substantive obligations in other international investment and trade agreements do not in themselves constitute "treatment", and thus cannot give rise to a breach of paragraph 2 of this Article, absent measures adopted or maintained by a Contracting Party pursuant to those obligations. Furthermore, the "treatment" referred to in paragraph 2 of this Article does not include procedures for the resolution of investment disputes between investors and States provided for in other international investment and trade agreements.

Article 9. Treatment of Investors and of Covered Investments

1. Each Contracting Party shall ensure fair and equitable treatment of the investments of investors of the other Contracting Party. In addition, each Contracting Party shall accord to such investments full physical security and protection.

2. A Contracting Party breaches the aforementioned obligation of fair and equitable treatment where a measure or series of measures constitutes:

a) Denial of justice in criminal, civil or administrative proceedings;

b) Fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings;

c) Manifest arbitrariness;

d) Direct or targeted indirect discrimination on wrongful grounds, such as gender, race, nationality, sexual orientation or religious belief;

e) Abusive treatment of investors such as harassment, coercion, abuse of power, corrupt practices or similar bad faith conduct; or

f) A breach of any further elements of the fair and equitable treatment obligation adopted by the Contracting Parties in accordance with paragraph 3 of this Article.

3. The Contracting Parties shall, upon request of a Contracting Party, review the content of the obligation to provide fair and equitable treatment and may complement this list through a joint interpretative declaration within the meaning of Article 31, paragraph 3, sub a, of the Vienna Convention on the Law of Treaties.

4. When applying paragraph 2 of this Article, a Tribunal may take into account whether a Contracting Party made a specific representation to an investor to induce an investment that created a legitimate expectation, and upon which the investor relied in deciding to make or maintain that investment, but that the Contracting Party subsequently frustrated.

5. When a Contracting Party has entered into a written commitment with investors of the other Contracting Party regarding a specific investment, that Contracting Party shall not, either itself or through an entity exercising governmental authority, breach the said commitment through the exercise of governmental authority in a way that causes loss or damage to the investor or its investment.

6. For greater certainty, a breach of another provision of this Agreement or of any other international agreement does not constitute a breach of this Article. In addition, the fact that a measure breaches domestic law does not, in and of itself, establish a breach of this Article.

Article 10. Fiscal Treatment

1. With respect to taxes, fees, charges and to fiscal deductions and exemptions, each Contracting Party shall, regarding the operation, management, maintenance, use, enjoyment and disposal of the investment, accord to investors of the other Contracting Party who are engaged in any economic activity in its territory, treatment not less favorable than that accorded to its own investors or to those of any third State who are in like situations, whichever is more favorable to the investors concerned.

For this purpose, however, any tax benefits granted by that Contracting Party pursuant to the following obligations shall not be taken into account:

a) under an agreement for the avoidance of double taxation; or

b) by virtue of its participation in a customs union, economic union, monetary union or similar institution, such as the European Union, or on the basis of interim agreements leading to such unions or institutions; or

c) on the basis of reciprocity with a third State.

2. Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining any taxation measure aimed at preventing the avoidance or evasion of taxes pursuant to its tax laws or its agreements for the avoidance of double taxation.

3. This Agreement does not affect the rights and obligations of a Party under an agreement for the avoidance of double taxation. In the event of inconsistency between such agreement and this Agreement, the agreement for the avoidance of double taxation prevails to the extent of the inconsistency.

Article 11. Treatment Related to Free Transfer

1. The Contracting Parties shall guarantee that payments relating to an investment may be transferred. The transfers shall be made in a freely convertible currency, without restriction or delay, and at the market rate of exchange applicable on the date of transfer. Such transfers include in particular though not exclusively:

a) profits, interests, dividends and other current income;

b) funds necessary;

i. for the acquisition of raw or auxiliary materials, semi-fabricated or finished products, or

ii. to replace capital assets in order to safeguard the continuity of an investment;

c) additional funds necessary for the development of an investment;

d) funds in repayment of loans;

e) royalties or fees;

f) earnings of natural persons;

g) the proceeds of sale or liquidation of the investment;

h) payments arising under Articles 12 and 13 of this Agreement.

2. This Agreement shall not be construed so as to prevent the Contracting Parties from fulfilling, in good faith, its international obligations for the purpose of maintaining international peace and security.

3. Notwithstanding paragraph 1, nothing in this Article shall be construed to prevent a Contracting Party from applying in an equitable and non-discriminatory manner and not in a way that would constitute a disguised restriction on transfers, its laws relating to:

a) bankruptcy, insolvency, bank recovery and resolution, or the protection of the rights of creditors, and the prudential supervision of financial institutions;

b) issuing, trading, or dealing in financial instruments;

c) financial reporting or record keeping of transfers where necessary to assist law enforcement or financial regulatory authorities;

d) criminal or penal offenses, deceptive or fraudulent practices;

e) the satisfaction of judgments in adjudicatory proceedings. f) social security, public retirement or compulsory savings schemes.

Article 12. Expropriation

1. Neither Contracting Party shall nationalize or take any other measures depriving, directly or indirectly, the investors of the other Contracting Party of their investments, unless the following conditions are complied with:

a) the measure is taken in the public interest;

b) the measure is taken under due process of law;

c) the measure is taken in a non-discriminatory manner; and

d) the measure is taken against prompt, adequate and effective compensation.

2. Direct expropriation occurs when an investment is nationalised or otherwise directly taken through formal transfer of title or outright seizure.

3. Indirect expropriation occurs if a measure or a series of measures of a Contracting Party has an effect equivalent to direct expropriation, in that it substantially deprives the investor of the fundamental attributes of property in its investment, including the right to use, enjoy and dispose of its investment, without formal transfer of title or outright seizure.

4. The determination of whether a measure or a series of measures by a Contracting Party, in a specific factual situation, constitutes an indirect expropriation requires a case-by-case, fact-based inquiry that considers, amongst other factors:

a) the economic impact of the measure or series of measures, although the sole fact that a measure or a series of measures of a Contracting Party has an adverse effect on the economic value of an investment does not establish that an indirect expropriation has occurred;

b) the duration of the measure or series of measures by a Contracting Party; and

c) the character of the measure or series of measures, notably their object and context.

5. The compensation referred to in paragraph 1 of this Article shall amount to the fair market value of the investment at the time immediately before the expropriation or the impending expropriation became known, whichever is earlier. For greater certainty, this method to evaluate the compensation also applies in case of unlawful expropriation. Valuation criteria shall include going concern value, asset value including the declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value.

6. In addition to paragraph 5 of this Article, the compensation shall include interest at a normal commercial rate from the date of expropriation until the date of payment and shall, in order to be effective for the investor, be paid and made transferable, without delay, to the State designated by the investor and in the currency of the State of which the investor is a national or in any freely convertible currency accepted by the investor.

7. The affected investor shall have the right, under the law of the expropriating Contracting Party, to a prompt review of its claim and of the valuation of its investment, by a judicial or other independent authority of that Contracting Party, in accordance with the principles set out in this Article.

8. Except in the rare circumstance when the impact of a measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, non- discriminatory measures of a Contracting Party that are designed and applied in good faith to protect legitimate public interests, such as the protection of public health, safety, environment or public morals, social or consumer protection or promotion and protection of cultural diversity, do not constitute indirect expropriations.

9. This Article does not apply to the issuance of compulsory licences granted in relation to intellectual property rights, to the extent that such issuance is consistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to the WTO Agreements.

Article 13. Compensation for Losses

1. Investors of a Contracting Party who suffer losses in respect of their investments owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot in the territory of the other Contracting Party shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favorable than that accorded by that Contracting Party to its own investors or to investors of any third State, whichever is more favorable to the investor concerned.

2. Without prejudice to paragraph 1 of this Article, investors of a Contracting Party who, in any of the situations referred to in that paragraph, suffer losses in the territory of the other Contracting Party resulting from:

(a) requisitioning of their investment or a part thereof by the latter's armed forces or authorities; or

(b) destruction of their investment or a part thereof by the latter's armed forces or authorities, which was not required by the necessity of the situation;

shall be accorded prompt, adequate and effective restitution or compensation by the other Party. The amount of such compensation shall be determined in accordance with the provisions of Article 12.

Article 14. Subrogation

If the investment of an investor of a Contracting Party is insured against non- commercial risks or otherwise give rise to payment of indemnification in respect of such investment under a system established by law, regulation or government contract, any subrogation of the insurer or re-insurer or agency designated by that Contracting Party to the rights of the said investor pursuant to the terms of such insurance or under any other indemnity given shall be recognized by the other Contracting Party.

Section 5. Settlement of Disputes between an Investor of a Contracting Party and the other Contracting Party

Article 15. Multilateral Investment Court

1. The Parties shall pursue with each other and other interested partners the multilateral reform of ISDS. 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 provisions set out in this Section shall cease to apply.

2. The Contracting Parties shall, if necessary, adopt transitional arrangements taking into account the legitimate expectations of investors in ongoing disputes under the procedures set out under this Section.

Article 16. Scope of Application

1. This Section shall apply to a dispute between, on the one hand, an investor of one Contracting Party and, on the other hand, the other Contracting Party concerning treatment alleged to be a breach of a provision in Section 4 of this Agreement, which breach allegedly causes loss or damage to the investor or its investment(s).