Abstract

VOHRYZEK-GRIEST, Ana. STATE COUNTERCLAIMS IN INVESTOR-STATE DISPUTES: A HISTORY OF 30 YEARS OF FAILURE. Int. Law: Rev. Colomb. Derecho Int. [online]. 2009, n.15, pp.83-123. ISSN 1692-8156.

Investor-State forums, particularly ICSID, permit and encourage State counterclaims. Yet State counterclaims in investor-State disputes always fail. This article surveys State counterclaims in investor-State disputes in an attempt to understand why they always fail. The article first examines jurisdictional requirements for State counterclaims. Subsequently, the article summarizes and aggregates tribunals' interpretations of these requirements, extracting a rough representation of counterclaim treatment. Cumulative information suggests that the repeated failures might be explained in part by narrow interpretations of counterclaim jurisdictional requirements. As well, lack of substantive protections for States in bilateral investment treaties, free trade agreements and other international investment agreements (IIAs) appears to exacerbate the problem. Finally, the article suggests that concerned States include substantive protections for States in their IIAs.

Keywords : State Counterclaims; Jurisdictional Requirements; ICSID Convention; International Investment Agreements; Counterclaims; International Centre for Settlement of Investment Disputes; Court rules.

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