Counterclaims in Investment Arbitration: Holding Foreign Investors Accountable for Violations of International Law

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Counterclaims in Investment Arbitration: Holding Foreign Investors Accountable for Violations of International Law

By Edward Guntrip
Brill Nijhoff June 2024

Specifications

ISBN-13
9789004420946
Publisher
Brill Nijhoff
Publication
June 2024
Format
Hardback
Jurisdiction
Netherlands ? Countri(es) for reference only

Details

Foreign investors benefit from investment protection standards in international investment law which are enforceable in investment arbitration. However, international law does not directly bind foreign investors and investment arbitration struggles to address foreign investor misconduct. Thus, host States cannot easily claim against foreign investors for breaches of international law in investment arbitration.

In Counterclaims in Investment Arbitration, Edward Guntrip illustrates how host States can use counterclaim procedures in investment arbitration to hold foreign investors accountable for misconduct that breaches international law. Based on arbitral practice, the book sets out how host States can amend their State practice and litigation strategies to enhance the effectiveness of counterclaim procedures and assesses when host States should take this course of action.

Table of Contents

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
2.4 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
3.4 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
4.4 Tailoring Applicable Law Provisions to Counterclaims
4.5 Preliminary Conclusions

5. The Source of the Counterclaim
5.1 Introduction
5.2 Suitable Legal Obligations
5.3 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
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