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Home > Journal > Advance publication

Should Host-State be Allowed to Make Counterclaims for Environmental Damage in Investment Disputes?

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A. Zwolankiewicz
A. Zwolankiewicz

Published 14 August 2023

Abstract

The issue of counterclaims has recently been the subject of debate in the context of the reform of investment arbitration. The possibility of raising counterclaims has been addressed by UNCITRAL'S Working Group III, which examined various means of implementing reforms to establish a framework for counterclaims by the States.
Raising counterclaims against investors should be examined in the light of recent increasing backlash against the Investor-State Dispute Settlement ("ISDS") mechanism. One of the arguments raised by the critics of ISDS is that the host States remain perpetual respondents and the ISDS system does not focus on investors obligations vis-à-vis States.

On the other hand, there are already existing mechanisms under the ISDS which seek to ensure that protection to investors is given only to investments compliant with local laws. Enabling the host States to bring counterclaims could also deter foreign investors from launching arbitration and undermine investors' protection under investment treaties.

The article addresses the potential legal basis and challenges for counterclaims in investment arbitration. The article first addresses the two-step assessment determining the possibility of bringing counterclaims, i.e. (i) jurisdiction (consent) and (ii) admissibility (connectedness to the primary claim). Further, the article examines the cases in which counterclaims were allowed, and rejected. Emphasis is placed on counterclaims for environmental damage in Perenco v. Ecuador and Burlington v. Ecuador.

This paper will be part of the second TDM Special Issue on "International Investment Arbitration - Environmental Protection and Climate Change Issues". More information here www.transnational-dispute-management.com/news.asp?key=1893

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Suggested Citation

A. Zwolankiewicz (2023, forthcoming) "Should Host-State be Allowed to Make Counterclaims for Environmental Damage in Investment Disputes?"
(TDM, ISSN 1875-4120) August 2023, www.transnational-dispute-management.com

"Advance publication" is the name given to material that is published ahead of its appearance in a regular structured issue of our Journal. It is also possible to monitor this via RSS. Subscribers will receive update alerts via e-mail of the published articles as soon as they have been added to the website.

Other recently published material:

Summary of Young-OGEMID Hot Topic Discussion No. 2: "Empirical Study - Provisional Measures in Investor-State Arbitration" (February 2023)

24 August 2023

Counterclaims based on Corporate Climate Change Responsibility: Challenges and Prospects

22 August 2023

Simplifying the Pathway to 2030: The Need for More, not Less, Protection for Climate Change-Related investment

21 August 2023

Politics of Investment Protection: Is the Trend of Adopting Environmental Protection Clauses Bringing any Balance?

17 August 2023

How Are Investment Tribunals Going to Interpret 'Environmental Provisions' under New Generation Investment Agreements? - Mapping the Changes in Recent Treaties from 2016 to 2021

16 August 2023

Complete listing of Advance publication.

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