Investor Presentaiton

183 Counterclaims by respondent States provision in a treaty. Consolidation will always be possible with the consent of the parties to the dispute. Another way to manage parallel proceedings and ensure coherence of outcomes is to appoint the same arbitrators in the related proceedings. To ensure consolidation of two or more cases brought under the same IIA, a treaty may require that such a question be referred to a specially constituted "consolidation tribunal". This eliminates the problem of deciding which existing tribunal should have the authority to decide whether consolidation is appropriate and which existing tribunal would hear the consolidated case. It also takes the decision about consolidation away from the parties and puts it in the hands of a neutral decision maker. It is uncertain whether States will be able to assert counterclaims against foreign investors in the event that the applicable IIA does not explicitly address the issue. Much will depend on the scope of the IIA's ISDS clause, its provision on applicable law, and whether the treaty imposes any obligations on investors. To avoid this uncertainty, States may consider including in the IIA a specific provision on counterclaims, along with reference to the applicable laws on which a counterclaim could be based. One possibility is to include an obligation in the treaty that investors must to comply with the national laws and regulations of the host State (as long as these national laws and regulations are UNCTAD Series on International Investment Agreements II

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