Abstract

The protection of the environment as a common good is a horizontal issue affecting all stakeholders. Counterclaims in investor-State dispute settlement are an effective instrument to enhance the balance between the disputing parties. Environmental counterclaims allow the tribunal to award compensation, reparation and restoration of damages caused to the environment in relation to the investment. This paper analyses three of the main issues that the tribunal shall address when deciding over the counterclaim brought: jurisdiction, admissibility, and liability. It presents the legal bases of investors’ obligations; discusses investor-State arbitration cases where environmental counterclaims have been successful and those that were not; draws a parallel with further courts and tribunals for international environmental protection; and provides a hopeful outlook for the future.

This paper will be part of the third 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