Counterclaims in Investment Arbitration

Edward Guntrip, Ph.D., Brunel University, is a Senior Lecturer in International Law at the University of Sussex. He is a former solicitor and publishes in the fields of international investment law, investment arbitration and international human rights law.

Acknowledgements


Abbreviations


Table of Treaties


Table of Cases


1 Investment Arbitration and Counterclaims

 1.1 Introduction


 1.2 Foreign Investors, Investment Arbitration and International Law


 1.3 Host State Courts


 1.4 The Potential Role of Counterclaims in Investment Arbitration


 1.5 Holding Foreign Investors Accountable for Breaches of International Law




2 Jurisdiction over Counterclaims

 2.1 Introduction


 2.2 Consent to Investment Arbitration


 2.3 Jurisdiction over Counterclaims

 2.3.1 icsid Convention and icsid Arbitration Rules


 2.3.2 icsid Additional Facility Arbitration Rules


 2.3.3 uncitral Arbitration Rules


 2.3.4 Analysis of Arbitral Practice




 2.4 Recalibrating Consent to Counterclaims


 2.5 Preliminary Conclusions




3 The Nexus between Claims and Counterclaims

 3.1 Introduction


 3.2 The Good Administration of Justice and Counterclaims


 3.3 The Nexus between Claims and Counterclaims in Investment Arbitration

 3.3.1 icsid Convention and icsid Arbitration Rules


 3.3.2 icsid Additional Facility Arbitration Rules


 3.3.3 uncitral Arbitration Rules


 3.3.4 Analysis of Arbitral Practice




 3.4 Establishing the Nexus between a Claim and Counterclaim


 3.5 Preliminary Conclusions




4 Applicable Law and Counterclaims

 4.1 Introduction


 4.2 Determining the Applicable Law


 4.3 Applicable Law and Arbitration Rules

 4.3.1 icsid Convention and icsid Arbitration Rules


 4.3.2 icsid Additional Facility Arbitration Rules


 4.3.3 uncitral Arbitration Rules


 4.3.4 Analysis of Arbitral Practice




 4.4 Tailoring Applicable Law Provisions to Counterclaims


 4.5 Preliminary Conclusions




5 The Source of the Counterclaim

 5.1 Introduction


 5.2 Suitable Legal Obligations

 5.2.1 Treaty Law


 5.2.2 Customary International Law


 5.2.3 Jus Cogens


 5.2.4 Domestic Law


 5.2.5 Soft Law




 5.3 The Desirable Characteristics of the Legal Obligation


 5.4 Preliminary Conclusions




6 The Merits of the Counterclaims

 6.1 Introduction


 6.2 Legitimacy and Inconsistent Decision-Making


 6.3 Inconsistent Decision-Making in Arbitral Practice


 6.4 Means of Overcoming Conflicting Interpretations


 6.5 Assessing the Desirability of Counterclaims in Investment Arbitration


 6.6 Preliminary Conclusions




7 The ‘Magic’ of Counterclaims

 7.1 Introduction


 7.2 Counterclaims in Investment Arbitration


 7.3 Wider Implications


 7.4 Concluding Observations




Bibliography


Index