Consent to Counterclaims in Investor-State Arbitration: A Post-Roussalis Analysis
International Arbitration Law Review, Issue 5, 2013, Forthcoming
13 Pages Posted: 10 Oct 2013
Date Written: October 9, 2013
Cases such as Klöckner v. Cameroon and Roussalis v. Romania have featured contradictory expressions of consent with regard to the permissibility of counterclaims. In both these cases the tribunals sought to maintain the effectiveness of the contradictory provisions while resolving these conflicts. The dissenting opinion in Roussalis and subsequent academic analyses, however, have suggested resolving these conflicts in favor of the permissibility of counterclaims. These approaches necessarily render one of the conflicting provisions otiose, but are justified by reference to the policy benefits of counterclaims. The approaches taken by the Klöckner and Roussalis tribunals are preferable precisely because they attempt to maintain the effectiveness of both contradictory provisions. This is a longstanding rule in the interpretation of both treaties and contracts and emphasizes the all-important role of consent in the arbitration process. Notwithstanding the policy benefits of counterclaims, this desirability cannot be judicially imposed at the cost of treaty and contract terms negotiated and consented to by the parties to the arbitration.
Keywords: Bilateral investment treaties, Consent, Counterclaims, ICSID, Investor-State Arbitration
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