Human Rights Counterclaims in Investment Treaty Arbitration
Grotius Centre Working Paper No 2018/078-IEL
Revue Belge de Droit International, Forthcoming
16 Pages Posted: 2 Nov 2018
Date Written: October 8, 2018
The use by a host States of counterclaims-while having a long pedigree in interstate litigation-has in recent years gradually made its appearance in investment treaty arbitration. While such counterclaims have more often than not been unsuccessful, recent cases show that tribunals are increasingly spending more time discussing the merits of counterclaims. Also, recent cases have shown that counterclaims may provide an avenue for host States to bring human rights violations by the foreign investor under the jurisdiction of an arbitral tribunal, an evolution that has not only been visible in the practice of investment tribunals, but also in certain investment treaties which now explicitly provide for the possibility for States to bring counterclaims. In this article, I explore the legal framework for the use of counterclaims by host States for violations by the investor of human rights obligations. I first summarize the current state of affairs in relation to the human rights obligations of foreign investors. I then discuss the use and practice of counterclaims in investment treaty arbitration in general, and then analyse the possibility of using host State counterclaims to bring a human rights-based claim against foreign investors.
Keywords: Investment Law, Arbitration, Counterclaims, Human Rights, Jurisdiction
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