Investment treaty practice in Belgium

Investment treaty practice

Does the state have a model BIT?

Yes. The 2002 BLEU Model BIT is usually offered by BLEU to the prospective third state for approval (see: http://investmentpolicyhub.unctad.org/Download/TreatyFile/2831). This model has been replaced in 2019, but Belgium has not concluded any BIT since 2010 (see question 32).

BLEU was founded by the convention establishing an economic union between Belgium and Luxembourg, signed in Brussels on 25 July 1921. The purpose of this convention was to set up a regional economic integration organisation primarily based on a common external trade-investment policy, customs and excises union, and monetary union. Over time, the convention was adapted to accommodate the Benelux Economic Union, European Economic Community and European Union through the adoption of new protocols up to the negotiation of a new convention that entered into force in 2005.

Does the state have a central repository of treaty preparatory materials? Are such materials publicly available?

The preparatory materials of the treaties concluded by Belgium are archived with the Diplomatic Archives Service of the Ministry of Foreign Affairs. Such materials can be freely accessed if the relevant treaty is 30 years old or more, unless it is classified. If the treaty has been signed less than 30 years ago, an authorisation to consult the materials can be requested through an application to the management committee of the Ministry of Foreign Affairs.

The preparatory materials can be consulted on site at Rue des Petits Carmes, 1/5 B-1000 Brussels, Belgium.

What is the typical scope of coverage of investment treaties?

An investor is defined by the 2002 BLEU Model BIT (article 1(1)), and most BLEU BITs, as any natural person who is considered as a citizen of one of the contracting states (according to the legislation of that state) or any legal person constituted in accordance with the legislation of one of the contracting states and having its registered office in the territory of that state. Some BITs do not require the presence of a registered office, while a handful of them require the presence of business activity or residence. Subject to a couple of exceptions, the BLEU BITs do not foresee the possibility of a company controlled by an investor to be considered as an investor itself.

The 2002 BLEU Model BIT (article 2) defines investments as ‘any kind of assets and any direct or indirect contribution in cash, in kind or in services, invested or reinvested in any sector of economic activity’. It further provides a non-exhaustive list of protected investment:

a) movable and immovable property as well as any other rights in rem, such as mortgages, liens, pledges, usufruct and similar rights; b) shares, corporate rights and any other kind of shareholdings, including minority or indirect ones, in companies constituted in the territory of one Contracting Party; c) bonds, claims to money and to any performance having an economic value; d) copyrights, industrial property rights, technical processes, trade names and goodwill; e) concessions granted under public law or under contract, including concessions to explore, develop, extract or exploit natural resources.

Finally, it makes clear that ‘changes in the legal form in which assets and capital have been invested or reinvested shall not affect their designation as “investments” for the purpose of this Agreement’. Most BLEU BITs contain this definition, although some of the listed items sometimes differ and part of the older BITs merely define investment as ‘any kind of asset’. A couple of BITs exclude certain fields or dealings with states (including state-owned entities) from their scope of application. Finally, a handful of BLEU BITs require investments to be made in accordance with national law or to have received prior written approval from the relevant state’s competent authorities.

What substantive protections are typically available?

The 2002 BLEU Model BIT (and most BLEU BITs) grants investors protection in the articles that follow:

• fair and equitable treatment and continuous protection and security, with the exception of measures required to maintain public order (article 3);
• national treatment and most-favoured-nation treatment, with the exceptions of tax matters and privileges granted by one contracting state to investors of a third state by virtue of its participation or association in a regional economic organisation (article 4);
• prohibition of expropriation or nationalisation (or any other measure having the effect of directly or indirectly dispossessing investors of their investments), unless reasons of public purpose, security or national interest require a derogation; in which case, the measures must be:
• taken under due process of law;
• neither discriminatory nor contrary to any specific commitments;
• accompanied by provisions for the payment of an adequate and effective compensation, amounting to the actual value of the investments on the day before the measures were taken or became public (article 5); and
• free transfers of all payments relating to an investment (article 6); and
• umbrella clause (article 9).

What are the most commonly used dispute resolution options for investment disputes between foreign investors and your state?

The two investment arbitrations filed against Belgium reported to date have been conducted under the ICSID Rules and administered by the ICSID Secretariat. The 2002 BLEU Model BIT (article 10) allows investors to refer the arbitration to:

• an ad-hoc arbitral tribunal sitting under the UNCITRAL Rules;
• ICSID;
• the ICC; or
• the SCC.

Does the state have an established practice of requiring confidentiality in investment arbitration?

No.

Does the state have an investment insurance agency or programme?

Belgium established an official export credit agency, Office national du ducroire - Nationale Delcrederedienst, in 1939 (although its origins date back to 1921). This agency, rebranded as Group Credendo to underline its internationalisation, offers insurance to companies and financial institutions against ‘financial losses due to commercial failure or political events emanating from any public authority which can prevent the due performance of a contract or an investment’, including ‘confiscation, expropriation, nationalisation, requisition or destruction of the company’s assets; selective discrimination making your investment uneconomical; forced abandonment of the investment; forced divestiture of the shareholding interest; non repatriation of dividends, debt repayments or proceeds from a forced sale; arbitrary and unfair call of guarantees by a public sector buyer; non honouring of arbitration awards; equity and lenders in infrastructures projects’ (see: www.credendo.com/about/credendo-export-credit-agency). Credendo offers worldwide protection, which is not contingent to the existence of an investment treaty between Belgium and the host state.

Since 18 September 1992, Belgium has been a member of the Multilateral Investment Guarantee Agency, an international organisation that is part of the World Bank Group that offers political risk insurance and credit enhancement guarantees (see: www.miga.org/what-we-do).