Investor Presentaiton
119
admitted the counterclaim, the tribunal went on to dismiss it on the
merits.
126
Impact of the ISDS clause. The formulation of the treaty's
ISDS clause has an important influence on the admissibility of
counterclaims. This clause delineates the scope of ISDS, thereby
setting the boundaries for a tribunal's jurisdiction. As discussed in
section II.B, some ISDS provisions are quite broad and give
tribunals the authority to hear "any dispute between an investor of
one Party and the other Party in connection with an investment",
or contain a similar formulation. Arbitral tribunals have decided that
such clauses are in principle broad enough to give them the power to
hear States' counterclaims, even if they arise out of alleged
violations of the host State's domestic law or investment contract.
By contrast, narrow ISDS clauses that limit arbitrable claims to
those alleging the breach of a treaty provision make a counterclaim
argument difficult given that most treaties do not impose obligations
on investors. Indeed, based on this argument, the Roussalis v.
Romania tribunal refused to entertain counterclaims against the
foreign investor.
128
127
Applicable law. The question of applicable law might also be
relevant to the issue of counterclaims. In particular, there may be a
difference between IIAs that provide for the application of the treaty
itself (and relevant international law) and IIAs that list the domestic
126 Antoine Goetz & Others and S.A. Affinage des Metaux v. Republic of
Burundi, ICSID Case No. ARB/01/2, Award, 21 June 2012, paras. 267-
287.
127 Saluka Investments BV v. Czech Republic, UNCITRAL, Decision on
Jurisdiction over the Czech Republic's Counterclaim, 7 May 2004,
para. 39; Sergei Paushok et al. v. Mongolia, UNCITRAL Rules, Award on
Jurisdiction and Liability, 28 April 2011, para. 689.
128 Roussalis v. Romania, ICSID ARB/06/01, Award, 7 December 2011,
paras. 869-972. Arbitrator Michael Reisman disagreed with the conclusion
of the majority.
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