Investor Presentaiton
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Another way to manage parallel proceedings is to appoint the
same arbitrators in the related proceedings." This approach can
work whether the cases are brought under the same or under
different treaties. Appointing the same arbitrators would likely
contribute to the consistency of the arbitral rulings, though it would
be of less assistance in reducing costs. Yet there would still likely be
some economies of scale because the arbitrators would only have to
become familiar with the relevant facts once.
K. Counterclaims by respondent States
A treaty-based investor-State dispute can only be initiated by
investors who allege that a host State breached the applicable IIA.
Over the past few years, however, in a growing number of IIA
cases, respondent States have attempted to advance counterclaims
against the claimant investor. Such counterclaims have been usually
based on an allegation that the investor had violated its own
obligations relating to the investment.
The main rationale for counterclaims is procedural economy and
the sound administration of justice: the idea is that all claims
connected to the dispute could be dealt with in a single proceeding
by the same tribunal. This would prevent unnecessary delays and
costs related to double or multiple fact-finding endeavours, and
written and oral submissions. Smooth adjudication of counterclaims
could be in the interest of investors because the alternative for them
121 The cases Salini v. Morocco and Consortium R.F.C.C. v. Morocco
involved similar factual and legal issues and were both based on the same
BIT between Spain and Morocco. The ICSID Secretariat recommended
appointing the same arbitrators in both proceedings. While separate awards
were rendered, coherence in the application of the law was assured by this
approach. See Salini Costruttori S.p.A. and Italstrade S.p.A. v. Morocco,
ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July 2001; and
Consortium R.F.C.C. v. Kingdom of Morocco, ICSID Case No. ARB/00/6,
Final Award, 22 December 2003.
UNCTAD Series on International Investment Agreements IIView entire presentation