State Counterclaims in Investment Arbitration - A New Lease of Life?

摘要

Although the Washington Convention, as well as other arbitration rules used in investor-state arbitration, anticipates and provides for counterclaims by host States, such counterclaims have been a rare feature of practice in this area. Infrequently brought, the success of such counterclaims is rarer still, and the two-stage test of jurisdiction on the one hand and admissibility on the other has generally been applied narrowly. The recent decision in Goetz v Burundi appears to have taken a more relaxed approach to these restrictions, and could suggest an increased willingness by arbitral tribunals to find jurisdiction over counterclaims and rule on their merits. This case could be considered as a welcome step by states, particularly in the context of an apparent growing dissatisfaction with the current application of investor protection.