In 2018 the government adopted its new model bilateral investment treaty (BIT). Following this adoption, the government has now obtained the authorisation required to start the renegotiations with eight non-EU countries and conclude new BITs with two others. The government has made clear that the new model BIT is intended to serve as an opening offer that sets the scene for the negotiations. However, as each negotiation will have its own dynamic, it is difficult to predict what the new Dutch BITs will look like.
The Amsterdam Court of Appeal recently had to decide on an application for recognition and enforcement of an online arbitral award regarding a loan in bitcoins. To date, this has been a subject that the Dutch courts have seldom encountered. Notably, the Amsterdam Court of Appeal took a critical approach in what may be considered a test case for recognition and enforcement of online arbitral awards in the Netherlands.
The Netherlands Arbitration Institute (NAI) recently introduced a new transparency policy, which aims to enhance the transparency of arbitral proceedings without harming their confidential nature. This is a promising step by the NAI, which will hopefully contribute to a more cost-effective, efficient and credible arbitration practice in the Netherlands.
In June 2018 a new arbitration court specialised in art-related disputes was launched in The Hague. The court, which offers an attractive and efficient dispute resolution mechanism for cross-border art-related disputes, was founded by the Netherlands Arbitration Institute (NAI) in collaboration with Authentication in Art. According to the NAI's website, it has now started accepting arbitrator and mediator applications for the Court of Arbitration for Art.
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 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.
Dutch dismissal law contains certain distinguishing elements which make it unique within Europe. For example, it is based on a dual system, which includes a preventive dismissal assessment. Employers that intend to dismiss employees must be mindful of these unique features. Otherwise, the dismissal attempt may fail, resulting in the nominated employee remaining in the company's employment or the employer paying a higher severance payment to the employee.
For most employers, the threat of high fines has been sufficient to encourage them to try and comply with the EU General Data Protection Regulation (GDPR). Now, more than six months after the GDPR's introduction, the question has arisen as to whether employers' concerns in this regard were justified. Recent case law and an incremental penalty imposed by the Dutch Data Protection Authority show that employers should be taking the GDPR seriously when it comes to personnel files.
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.
The government aims to terminate the gas production of the large-scale Groningen Field as soon as possible. The reason for this decision is the Zeerijp earthquake of January 2018. However, immediately reducing production from the Groningen Field to a much lower level would lead to safety and security risks in the Netherlands and neighbouring countries. As such, the next few years will be used to decide on a safe production level and simultaneously safeguard security of supply.
The minister of economic affairs and climate policy recently announced that the scope of the main subsidy scheme for renewable energy in the Netherlands, the Stimulation of Sustainable Energy Production, will be broadened. Under the new scheme, various technologies will no longer compete on the basis of amounts of renewable energy produced, but rather on the amounts of carbon dioxide and other greenhouse gases that have been avoided.
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 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.