Counterclaims in Investment Arbitration: Old Questions, New Answers?

in The Law & Practice of International Courts and Tribunals
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Abstract

There have been several cases involving counterclaims in recent investment arbitration practice. Though counterclaims are well-known in international litigation, they raise special issues when it comes to investor-State arbitration, especially when it is based on treaties that recognize only rights and not obligations of private parties; thus, a counterclaim may be a way of rebalancing investment law, by allowing States to file claims against investors. However, certain conditions must be fulfilled which are not always easy to combine with the special features of investment arbitration. That is what this article explores, in order to determine whether counterclaims could be a way of addressing the critique that has been recently formulated against investment arbitration.