What is the prevailing attitude towards foreign investment?
Belgium has adopted a positive attitude towards foreign (direct) investment that its economy is reliant upon. The federal state and the country’s three federated regions (Brussels, Flanders and Wallonia) actively seek to attract, increase and retain foreign investment. For example, the Belgian government has undertaken to reform the Kingdom’s company law and to gradually reduce the corporate income tax rates in 2018 and 2020.
What are the main sectors for foreign investment in the state?
Benefiting from its central geographic location in Europe, its highly developed transport network (including the port of Antwerp, Europe’s second-largest seaport), and Brussels being home to many European and international institutions, Belgium has attracted foreign investment across numerous sectors. The investments are made in a large range of sectors; notably, agribusiness, aeronautics and space, environmental technologies, life sciences, engineering and new materials, transport and logistics, digital, finance, insurance and energy.
Brexit also prompted foreign inward direct investment to Brussels, mostly in the insurance (eg, Lloyd’s, QBE, Ms Amlin, Navigators, Jardine Lloyd Thompson) and financial (eg, Euroclear, TransferWise) sectors. EY also announced the transfer of its European parent company to Belgium’s capital.
Is there a net inflow or outflow of foreign direct investment?
Historically, Belgium has been a capital-exporting country, though foreign outward direct investment decreased significantly, from US$24 billion in 2017 to US$7 billion in 2018.
While foreign inward direct investment reached an all-time high of US$30 billion in 2016, it dropped to US$801 million in 2017, mostly because of the ending of tax measures (such as the notional interest deduction and the dividend withholding tax exemption) aimed at attracting multinational enterprises rather than a fall in foreign investment projects. 2018 was the most prolific year for Belgium in over a decade, with 278 new projects (compared to 215 in 2017 and 200 in 2016).Investment agreement legislation
Describe domestic legislation governing investment agreements with the state or state-owned entities.
There is no domestic legislation specifically addressing investment agreements with the state or with state-owned entities. General principles of contractual and, potentially, administrative law will apply. Article 1676(3) of the Belgian Code of Civil Procedure expressly allows public entities to have recourse to arbitration with respect to agreements they conclude.
International legal obligationsInvestment treaties
Identify and give brief details of the bilateral or multilateral investment treaties to which the state is a party, also indicating whether they are in force.
Belgium concluded about 100 bilateral investment treaties (BITs) between 1964 and 2010, most of them through the Belgo-Luxembourg Economic Union (BLEU) (see question 17). These BITs have mainly been concluded with countries that are not members of the Organisation for Economic Co-operation and Development (OECD). While most of the BITs remain in force today, about 20 did not enter into force and a further 10 were terminated (and sometimes replaced).
Almost every BIT contains a specific investor-state dispute settlement mechanism, usually referred to during:
- proceedings before an ad-hoc arbitral tribunal sitting under the United Nations Commission on International Trade Law (UNCITRAL) Rules;
- proceedings before the International Centre for Settlement of Investment Disputes (ICSID);
- proceedings before the International Chamber of Commerce (ICC); or
- proceedings before the Arbitration Institute of the Stockholm Chamber of Commerce (SCC).
Certain BITs require investors to seize (first, for a determined period of time) Belgian domestic courts.
For concluded BITs either by Belgium or through the BLEU, see: http://investmentpolicyhub.unctad.org/IIA/CountryBits/19.
As an EU member state, Belgium is also bound by investment treaties concluded by the European Union on behalf of its member states, such as the Comprehensive Economic and Trade Agreement (CETA) with Canada.
Belgium is also a party to the Energy Charter Treaty (ECT), which it signed on 17 December 1994 and which entered into force on 6 August 1998.
If applicable, indicate whether the bilateral or multilateral investment treaties to which the state is a party extend to overseas territories.
Belgium has no overseas territories.
Has the state amended or entered into additional protocols affecting bilateral or multilateral investment treaties to which it is a party?
Except for the Protocol on Energy Efficiency and Related Environmental Aspects of 1994 and the amendment to the trade-related provisions of the Energy Charter Treaty of 1998, Belgium has not entered into any protocol or amendment affecting investment treaties to which it is a party.
Has the state unilaterally terminated any bilateral or multilateral investment treaty to which it is a party?
Belgium has neither unilaterally terminated nor denounced any investment treaty since the second world war. However, Bolivia and South Africa denounced the BIT (respectively in 2013 and 2014) they had entered into with the BLEU; however, they contained a sunset clause granting protection to investors for a period of 10 years following termination.
A few BITs were terminated because they were replaced by renewed BITs between the relevant states.
Has the state entered into multiple bilateral or multilateral investment treaties with overlapping membership?
BITs concluded by the BLEU with states outside the European Union overlap with investment treaties concluded by the latter. By virtue of Regulation (EU) No. 1219/2012, such BITs remain in force and in parallel but the European Commission has the power to indicate appropriate measures to be taken by Belgium and the BLEU if it considers that an existing BIT constitutes a serious obstacle to the negotiation or conclusion of EU investment treaties.
Furthermore, with regard to the energy sector, Belgium is part of the Energy Charter Treaty (ECT) that overlaps with many BITs entered into by Belgium with other ECT contracting states. Under article 16 of the ECT, nothing in the Treaty shall be construed as derogating from any BIT provision and nothing in the BITs shall be construed as derogating from any provision of the ECT ‘where any such provision is more favourable to the investor or investment’.
The BITs concluded by the BLEU with other EU member states (Croatia, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Romania, Slovakia and Slovenia) are considered by the European Commission, EU member states and the Court of Justice of the European Union (CJEU) as overlapping with EU law; in particular, with the fundamental freedoms of the internal market. In its recent ground-breaking Achmea ruling, the CJEU has ruled that the investor-state arbitration mechanisms of intra-EU BITs are incompatible with the principle of autonomy of EU law. As a result, the European Commission has requested that EU member states terminate their intra-EU BITs and indicates that it considers that the investor-state dispute resolution mechanism contained in the ECT cannot be applied to intra-EU disputes. In January 2019, the EU member states announced in three separate declarations (a first declaration is signed by 22 of the 28 EU member states, a second declaration jointly by Finland, Luxembourg, Malta, Slovenia and Sweden and a third declaration was issued by Hungary alone) their intention to terminate all intra-EU BITs. While sharing the same core, the three declarations differ, especially with respect to the continuous application of the ECT to intra-EU disputes. In addition, EU member states announced their intent to intensify discussions among themselves and with the European Commission to better ensure ‘complete, strong and effective protection of investments within the European Union’, by improving existing or creating new tools where needed.ICSID Convention
Is the state party to the ICSID Convention?
Belgium is a party to the ICSID Convention 1965, which has been in force since 26 September 1970. The Minister of Foreign Affairs has been designated by Belgium as the competent authority for the recognition and enforcement of arbitral awards rendered pursuant to the Convention.
Belgium has neither excluded any territories nor has it made any notification concerning a class of disputes that it would or would not consider submitting to the jurisdiction of the ICSID. It has not designated any constituent subdivisions or agencies as possible parties to an ICSID dispute.Mauritius Convention
Is the state a party to the UN Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention)?
Belgium has signed the Mauritius Convention on 15 September 2015 but has not yet ratified it.Investment treaty programme
Does the state have an investment treaty programme?
In 2009, by virtue of the Lisbon Treaty, the external trade policy became an exclusive competence of the European Union, which means that, in principle, EU member states have been precluded from entering into new BITs since then. Before this date, Belgium had concluded approximately 100 BITs, most of them through the BLEU.
Pursuant to Regulation (EU) No. 1219/2012, EU member states may seek the European Commission’s authorisation to conclude new BITs with third countries. Belgium has not done so to date.
Regulation of inbound foreign investmentGovernment investment promotion programmes
Does the state have a foreign investment promotion programme?
The three Belgian regions are competent to attract and promote foreign investment in Belgium, designing and implementing their own policies. They have concluded several cooperation agreements, between themselves and with the federal state, to coordinate their actions.Applicable domestic laws
Identify the domestic laws that apply to foreign investors and foreign investment, including any requirements of admission or registration of investments.
Belgian legislation does not distinguish domestic and foreign investments and does not require any authorisation specific to foreign investments. As such, there is no limit on foreign ownership in Belgium and both foreign and domestic investors are free to set up a business (subject to sector-related authorisations).Relevant regulatory agency
Identify the state agency that regulates and promotes inbound foreign investment.
Belgium’s regions are responsible for regulating and promoting inbound foreign investment. Consequently, the Brussels Invest and Export, Flanders Investment and Trade, and Wallonia Export-Investment agencies are responsible for promoting inbound foreign investment for their respective region. A liaison unit for international investment exists, composed of government agency representatives from federal public services finances, foreign affairs and economy, and the Prime Minister’s office.Relevant dispute agency
Identify the state agency that must be served with process in a dispute with a foreign investor.
BITs concluded by Belgium or the BLEU are usually silent on this point. The state agency should be identified on a case-by-case basis, taking into consideration the nature of the claim and the state entity involved. Under a cautious approach, notices should be served to the federal Prime Minister, the Minister of Foreign Affairs and the Minister of the Economy, as well as the relevant regional government.
Investment treaty practiceModel BIT
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.Preparatory materials
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.Scope and coverage
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.Protections
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;
- the ICC; or
- the SCC.
Does the state have an established practice of requiring confidentiality in investment arbitration?
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).
Investment arbitration historyNumber of arbitrations
How many known investment treaty arbitrations has the state been involved in?
To date, two investment arbitrations have been filed against Belgium.
The Ping An case (ICSID Case No. ARB/12/29) occurred in the context of the dismantling and nationalising of the Belgian-Dutch bank and insurance group Fortis by the Benelux states during the 2008 global financial crisis. The Chinese company Ping An Insurance, one of the world’s leading insurers and Fortis’ largest single shareholder at that time (holding almost 5 per cent of Fortis’ shares, acquired for a value of more than €2 billion), claimed - in substance - that the measures adopted by Belgium amounted to an illegal expropriation and a breach of the fair and equitable treatment and constant protection and security standards of protection. It was the first reported investment arbitration filed against Belgium and the first time that a mainland Chinese company turned to ICSID arbitration. Ping An’s claims relied on two BITs, the 1986 BLEU-China BIT (for the substantive provisions) and its successor, the 2009 BLEU-China BIT (for the jurisdictional provisions). On 30 April 2015, the arbitral tribunal dismissed Ping An’s claims on jurisdictional grounds, holding that the dispute arose before the entry into force of the 2009 BIT, which did not include the obligations under the 1986 BIT on which Ping An relied in formulating its claims (see: www.italaw.com/sites/default/files/case-documents/italaw4285.pdf).
The DP World case (ICSID Case No. ARB/17/21) is pending at the time of writing. The United Arab Emirates company, which held a 60 per cent indirect shareholding in a container terminal at the port of Antwerp, filed a notice of arbitration under the BLEU-United Arab Emirates BIT on 29 June 2017. The dispute relates to a decision of the Antwerp’s port authority to grant part of DP World’s concession to one of its competitors, Mediterranean Shipping Company. Pursuant to article 12(2) of the applicable BIT, the dispute should have been submitted to a Belgian domestic court or arbitration for a duration of at least 15 months. DP World filed a claim with the Belgian Centre for Arbitration and Mediation (CEPANI), but Belgium agreed to waive this obligation (‘in order to guarantee an efficient and less costly process, and to ensure legal certainty’) and the case was referred to ICSID arbitration (see: https://icsid.worldbank.org/en/Pages/cases/casedetail.aspx?CaseNo=ARB/17/21). The case was also discussed before the Belgian Parliament (see: www.lachambre.be/kvvcr/showpage.cfm?section=qrva&language=fr&cfm=qrvaXml.cfm?legislat=54&dossierID=54-b147-864-1299-2017201820607.xml). Between 10 and 14 June 2019, the arbitral tribunal held hearings on jurisdiction and the question of liability in London.Industries and sectors
Do the investment arbitrations involving the state usually concern specific industries or investment sectors?
The Ping An case concerned the banking and insurance sector while the DP World case concerned the transportation sector.Selecting arbitrator
Does the state have a history of using default mechanisms for appointment of arbitral tribunals or does the state have a history of appointing specific arbitrators?
In the two investment arbitrations filed against Belgium reported to date, Belgium has appointed its arbitrators (Professor Brigitte Stern in DP World and Professor Philippe Sands QC in Ping An).Defence
Does the state typically defend itself against investment claims? Give details of the state’s internal counsel for investment disputes.
In the two investment arbitrations filed against Belgium reported to date, Belgium has been represented by (different) external counsel. In principle, Belgium is represented before (non-EU) international courts and tribunals by the Direction Public International Law, within the Direction General Legal Affairs of the Ministry of Foreign Affairs.
Enforcement of awards against the stateEnforcement agreements
Is the state party to any international agreements regarding enforcement, such as the 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards?
Belgium is part to both the ICSID Convention of 1965, which entered into force on 26 September 1970, and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), which entered into force on 16 November 1975. Belgium has made a reciprocity reservation.Award compliance
Does the state usually comply voluntarily with investment treaty awards rendered against it?
Belgium has not been defeated in a reported investment arbitration to date.Unfavourable awards
If not, does the state appeal to its domestic courts or the courts where the arbitration was seated against unfavourable awards?
Not applicable.Provisions hindering enforcement
Give details of any domestic legal provisions that may hinder the enforcement of awards against the state within its territory.
As a general rule, article 1412-bis of the Belgian Code of Civil Procedure exempts from attachment and enforcement all assets belonging to the Belgian state (in the broadest sense, including the federated entities, the provinces, the municipalities, public interest agencies and public-law corporations). However, public entities are required to draw up a list of assets that can be attached. If they do not, or if the listed assets are not sufficient to satisfy the creditor’s claim, assets that are ‘manifestly not useful for the public entity’s mission or the continuity of public service’ can be attached by the creditor. In that case, the public entity may replace the attached assets by other assets of its choice (present on the Belgian territory and sufficient to satisfy the claim). If the public entity considers that the attached assets are useful for its mission or the continuity of public service, it may oppose the attachment before Belgian courts.
With respect to enforcement of awards against foreign states, Belgium has recently modified its rules on state immunity from enforcement by adopting the Act of 23 August 2015 inserting a new article 1412quinquies to the Belgian Code of Civil Procedure. Under this provision, foreign states’ assets located in Belgium cannot be subject to enforcement proceedings by creditors save for three narrow exceptions:
- the foreign state has expressly (and specifically) consented to the seizure of the assets;
- the foreign state has reserved or allocated the assets to the enforcement of the claim that gives rise to the seizure; or
- the assets are used for an economic or commercial activity (as opposed to a public service activity) and relate to the entity against which the enforceable title or authentic or private documents are addressed.
This Act is widely seen as a consequence of the diplomatic crisis caused by the launching of attachment and enforcement proceedings against Russia by former Yukos shareholders; in particular, the vehicle company Yukos Universal Ltd. In conjunction with a US hedge fund holding debt securities against Argentina, Yukos Universal Ltd filed an application against the new regime before the Belgian Constitutional Court. The applicants alleged that it breached the principles of equality and non-discrimination by imposing disproportionate hurdles to creditors of foreign states as compared to other types of creditors. The application was dismissed by the Constitutional Court in Decision No. 48/2017 of 27 April 2017. The court considered that the difference in treatment:
- relied on an objective criterion (ie, the nature of the debtor);
- was legitimated by the Act’s aim of fostering international comity; and
- was proportionate because it reflects customary international law.
The court did, however, strike out, for the first exception, the requirement that the state must have specifically consented to the seizure, finding that this went too far as compared to customary international law.
Update and trendsKey developments of the past year
Are there any emerging trends or hot topics in your jurisdiction?Key developments of the past year32 Are there any emerging trends or hot topics in your jurisdiction?Opinion 1/17 of the CJEU
In September 2017, Belgium requested the opinion of the CJEU on the compatibility with EU law of the Investment Court System (ICS) provided for by the Comprehensive Economic and Trade Agreement between the EU and Canada (CETA), in particular with: the exclusive competence of the CJEU to provide the definitive interpretation of EU law; the general principle of equality; the requirement that EU law is effective; and the right to an independent and impartial judiciary.
Most of the recent free trade agreements concluded by the EU (including with Singapore (the EUSFTA) and Vietnam (the EUVFTA)) also provide for this mechanism, whereby investor disputes may be submitted to a permanent and institutionalised court, whose members (subject to strict independence and impartiality requirements) are appointed in advance by the states party to the treaty and whose decisions are subject to an appellate body. The EU ultimately aims to replace the bilateral investment courts of each of these treaties by a single multilateral investment court. International negotiations are currently ongoing at UNCITRAL Working Group III, where the reform of the Investor-State Dispute Settlement system is under discussion.
In January 2019, Advocate General Bot concluded that the ICS mechanism for the settlement of investor-state disputes was compatible with the EU Treaties and the EU Charter of Fundamental Rights. The CJEU followed suit in its opinion 1/17 of 30 April 2019.
Similarly to the Achmea case (C-284/16 of 5 March 2018), the principle of autonomy of EU law constituted the crux of the court’s opinion. The court underscored at the outset that the mere fact that CETA’s ICS stands outside the EU judicial system does not, in itself, breach the autonomy of the EU legal order. It follows from the reciprocal nature of international agreements and the need to maintain the powers of the EU in international relations that an international tribunal may have jurisdiction to interpret those agreements without being subject to their interpretation by the domestic courts of the parties to the agreements. The principle of autonomy of EU law would only be breached if the CETA Tribunal could interpret and apply EU rules other than the provisions of the CETA or issue awards having the effect of preventing the EU institutions from operating in accordance with the EU constitutional framework. The court was satisfied that this was not the case.
Further, as the situation of Canadian investors that invest within the EU are only comparable to EU investors that invest in Canada (as opposed to EU investors that invest within the EU), the court found that there was no difference of treatment of persons in a relevant similar situation.
The CJEU also considered that the effectiveness of EU competition law cannot be jeopardised by the CETA Tribunal’s decisions (eg, by awarding damages equivalent to the amount of fines imposed by the European Commission or a national competition authority) because CETA acknowledges that the parties may take appropriate measures to proscribe anticompetitive behaviours and guarantees their right to regulate to achieve legitimate objectives in the public interest.
Finally, the court did not conclude that the CETA’s ICS would breach the right to court. As regards the CETA Tribunal’s accessibility, it underscored that the Council of the EU had undertaken to ensure ‘better and easier access to this new court for the most vulnerable users, namely [small and medium-sized enterprises] and private individuals’. The court also found that CETA offers sufficient procedural guarantees as to the CETA Tribunal’s independence from the parties.
The importance of this ruling goes beyond CETA’s ICS. As underscored by AG Bot in his opinion, ‘what is at issue here is the definition of a model which is consistent with the structural principles of the EU legal order and which, at the same time, may be applied in all commercial agreements between the European Union and third States’ (section 86). The court also envisaged the setting up of a ‘multilateral investment Tribunal in the longer term’ (section 108).2019 Model BIT
In 2019, BLEU has adopted a new model BIT (2019 BLEU Model BIT) replacing the 2002 BLEU Model BIT. In line with the current trend of the EU’s investment protection policy, the 2019 BLEU Model BIT emphasises the promotion of investment supporting sustainable development objectives (article 14) and offers contracting parties greater regulatory powers in that regard (article 15). In this perspective, the 2019 BLEU Model BIT provides that the violation of fundamental principles and rights at work cannot be used by a contracting state as an encouragement for attracting or retaining foreign investments (article 16). Similarly, the 2019 BLEU Model BIT considers it inappropriate to lower the environmental standards of protection to encourage investment (article 15).
Among other modifications, the 2019 BLEU Model BIT also refines the definitions of ‘investors’ (article 2(2)) and ‘investment’ (article 2(3)) and modifies the arbitration rules available to investors in case of investor-state dispute (article 19(D)(4)). As opposed to the 2002 BLEU Model BIT, the SCC and ICC rules will only be available where all disputing parties agree to their application.
As indicated, no BIT has been concluded by Belgium or by the BLEU since 2010, and the 2019 BLEU Model BIT has yet to be applied.
The new model is available at: https://diplomatie.belgium.be/sites/default/files/downloads/54k1806007.pdf.