Abstract

This article explores the possibility for host States to present counterclaims in arbitration proceedings with foreign investors when the parties' arbitration agreement is based on a unilateral offer by those States in a bi- or multilateral investment treaty ("arbitration without privity"). As will be demonstrated, the focus in these instruments on the investor's substantive rights may constitute an obstacle in this regard, as the counterclaim, by virtue of the consensual nature of arbitration, must fall within the arbitration agreement's definition of arbitrable claims (the ...