<center><span class="news-text_italic-underline">BBVA SA v Bolivia (ECLI:NL:HR:2026:678)</span> — Dutch Supreme Court, 17 April 2026</center>
The underlying dispute concerned the nationalisation of Bolivia's pension system. BBVA had managed a pension fund through its subsidiary, BBVA Previsión AFP SA (“<span class="news-text_medium">Previsión</span>”), since 1996. In 1997, BBVA and Previsión concluded an agreement with the Bolivian regulator (the “<span class="news-text_medium">Agreement</span>”), which partially excluded arbitration. Spain and Bolivia subsequently concluded a bilateral investment treaty (“<span class="news-text_medium">BIT</span>”) in 2001.
In 2009, Bolivia nationalised its pension system, but BBVA and Bolivia were unable to agree terms for transferring the fund held in Previsión to the Bolivian state. In 2018, BBVA commenced Dutch-seated ICSID arbitration proceedings, claiming that Bolivia had violated the Spain-Bolivia BIT. The arbitral tribunal ruled in BBVA's favour in 2022.
Bolivia initiated annulment proceedings before the Hague Court of Appeal, arguing that no valid arbitration agreement existed. Whilst it was common ground that the dispute qualified as an investment dispute under the BIT, Bolivia contended that the parties had waived their right to arbitration under the Agreement and that BBVA could not therefore rely on the BIT.
The Court of Appeal rejected that argument. It held that the BIT constituted a separate invitation to treat addressed to Spanish investors which BBVA had accepted by filing its request for arbitration and that, as the BIT post-dated the Agreement, its terms amended the Agreement to the extent that the Agreement had excluded arbitration.
Bolivia further argued that a sovereign state can only be bound by an arbitration agreement where its consent is clear and unambiguous and that the Agreement required any amendments to be made in writing. The Court of Appeal held that the BIT satisfied both requirements. Bolivia appealed to the Supreme Court.
Following the Advocate General's opinion of 14 November 2025, the Supreme Court dismissed Bolivia's appeal without further elaboration, endorsing the Court of Appeal's reasoning in full. The court confirmed that a sufficiently clear, unambiguous and written arbitration agreement had been established, on the basis that the Agreement's exclusion of arbitration had been amended by the subsequently concluded BIT.
This decision serves as an important reminder to state parties who may consider that prior agreements have effectively excluded recourse to arbitration. Where a BIT of a later date provides for investor-state dispute resolution, it may operate to amend earlier contractual arrangements to the contrary — even where those arrangements contain formal amendment requirements. States should carefully assess the interaction between existing contractual frameworks and subsequently concluded investment treaties when structuring their dispute resolution arrangements.
