Possibility of Counterclaims in Investment Treaty Arbitration
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Traditionally, arbitration grounded on dispute resolution clauses in international investment agreements (hereinafter ‘IIAs“) only entertained claims made by the investor. This view, however, does not consider that in certain circumstances, the alleged IIA violation of the host state can be triggered by a violation by the foreign investor of the host state’s domestic law. In such a situation, according to the traditional view, the arbitral tribunal can only decide on whether the host state has breached its IIA obligations, and the host state can only bring its case before its national courts. But what if the decisions of the two judicial bodies are inconsistent? To this dilemma, counterclaims by the respondent state might be the solution. For a counterclaim to be allowed before the arbitral tribunal, however, two requirements need to be satisfied. First, in regard of jurisdiction, the scope of dispute in the dispute resolution clause, in which is contained the implied consent to arbitration, has to be broad enough to include counterclaims. Second, in regard of admissibility, there has to be a sufficiently close link between the claim of the investor and the counterclaim. These requirements are needed for the true equality of arms between the investor and state in the arbitration process.
Abstract
Traditionally, arbitration grounded on dispute resolution clauses in international investment agreements (hereinafter ‘IIAs“) only entertained claims made by the investor. This view, however, does not consider that in certain circumstances, the alleged IIA violation of the host state can be triggered by a violation by the foreign investor of the host state’s domestic law. In such a situation, according to the traditional view, the arbitral tribunal can only decide on whether the host state has breached its IIA obligations, and the host state can only bring its case before its national courts. But what if the decisions of the two judicial bodies are inconsistent? To this dilemma, counterclaims by the respondent state might be the solution. For a counterclaim to be allowed before the arbitral tribunal, however, two requirements need to be satisfied. First, in regard of jurisdiction, the scope of dispute in the dispute resolution clause, in which is contained the implied consent to arbitration, has to be broad enough to include counterclaims. Second, in regard of admissibility, there has to be a sufficiently close link between the claim of the investor and the counterclaim. These requirements are needed for the true equality of arms between the investor and state in the arbitration process.
참고문헌 (16)
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