BITing Back - A Study of the Conditions for Respondent State Counterclaims in Investor-State Investment Arbitration under Bilateral Investment Treaties

Abstract: In this thesis, I present a study of the conditions for a respondent state to introduce counterclaims in the same arbitration as an investor’s initial claim in a dispute arising from a Bilateral Investment Agreement (BIT). The study shows that although the most widely used procedural frameworks for arbitration explicitly allow for counterclaims, tribunals have adopted a restrictive approach to counterclaims, generally rejecting them, even when the arbitration clause in the relevant BIT has been drafted in a way that leaves open the possibility for the tribunal to rule on other disputes than solely the ones arising from an alleged breach of the host state’s treaty obligations towards the foreign investor. In principle, it is possible to assess what may constitute more or less favourable conditions for respondent state counterclaims. For example, a ‘wider’, more inclusive phrasing of an arbitration clause in terms of what may be subject to review by the tribunal is to prefer over a ‘narrower’ phrasing. However, it is important to emphasise that the conditions are examined by an independent tribunal in each specific case, which means that in practice, the outcome may be different than anticipated. Finally, after considering the parties’ interests of, for example, efficiency, procedural economy, and a neutral forum with their possibilities to influence the process as well as the principle of equality of the parties, it can be said that an open, more inclusive approach to counterclaims is consistent with the objectives of investment arbitration.