Counterclaims

Counterclaims, ESG, ISDS

(Law Offices of Kiran N Gore PLLC; The George Washington University Law School)/ /Leave a comment

For decades, modern international investment law and arbitration have provided both the procedural mechanisms and substantive grounds for States to advance counterclaims in such proceedings. Coupled with the increased inclusion of provisions on the State’s right to regulate and provisions concerning the substantive areas of environmental, social, and governance (“ESG”) in the latest generation of…

BIT, Counterclaims, ICSID, ICSID Amendments, ICSID Arbitration, ICSID Convention, ICSID Proceedings, International arbitration, Investment Arbitration, Investment law, ISDS, ISDS Reform, Third party funding

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On January 20, 2022, ICSID submitted its amended rules to the Administrative Council for a vote, marking the end of the five-year-old process of modernizing the ICSID Rules. ICSID members are expected to cast a vote on the amended rules by March 21, 2022, and if approved, the rules will enter into force on July…

Arbitration Institutions and Rules, BIT, Counterclaims, International arbitration, Investment Arbitration, Regime Interaction, Regime Interaction in Investment Arbitration

(Stockholm University) and (Durham Law School)/ /Leave a comment

This post deals with the conceptual underpinnings and theoretical justification for the practice of counterclaims in investment arbitration. First, it is important to delineate this post from an analysis of counterclaims case-law in investment arbitration, as ample accounts of the counterclaim debate in practice can be found here, here, and here.  Equally, this post does…

Counterclaims, Investment, Investment Arbitration, Investor-State arbitration, ISDS

(Macchi di Cellere Gangemi) and (Stockholm University)/ /Leave a comment

The discussion within UNCITRAL Working Group III (WG III) on counterclaims has still remained, to a certain extent, deadlocked, as opposed to discussions on other topics under the table. As a result, the UNCITRAL Secretariat has been put (at least) until now in the unfortunate position of being unable to bring a coherent package of…

Colombia, Counterclaims, Investment Arbitration, Latin America, Police Powers, Treaty Interpretation

(Esguerra Asesores Jurídicos)/ /Leave a comment

On 12 March 2021, a tribunal issued an award in the case of Naturgy v. Colombia (ICSID Case No. UNCT/18/1) under the Colombia-Spain BIT (2005) (the “BIT”). The decision is the first in a wave of four decisions decided in the first half of 2021 in favor of Colombia. Naturgy is noteworthy for its engagement…

Appellate Court, Counterclaims, Exhaustion of Local Remedies, Frivolous Claims, Investment Arbitration, Reform, Third party funding, UNCITRAL

(Columbia Law School), (Georgetown Law), and (School of Law, Christ University)/ /2 Comments

Calls for investor-State dispute settlement (“ISDS”) reform have persisted for some time (see blog coverage here). Competing calls for retaining the status quo, modifying the system, or abandoning the system altogether have each gained traction. With a drastic increase in the number of investment cases being brought, accompanied by the “mega” awards, the international community…

Arbitration, Arbitration Institutions and Rules, BIT, Counterclaims, Enforcement, Investment Arbitration, Reform, UNCITRAL WG III Series

(Macchi di Cellere Gangemi)/ /Leave a comment

A cursory reading of the mandate of Working Group III reveals that the discussion at UNCITRAL of ISDS (Investor-State Dispute Settlement) reform focuses only on procedural aspects of dispute settlement under investment treaties and excludes any substantive aspects. However, the topic of respondent states’ counterclaims, albeit procedural in itself, is so inextricably intertwined with substantive…

Counterclaims, Damages experts, Ecuador, Environment, Independent experts

(Herbert Smith Freehills) and (Herbert Smith Freehills )/ /Leave a comment

After 11 years and more than US$ 89 million in costs,1)Perenco claimed US$ 57,923,322 in legal costs and other expenses, while Ecuador claimed US$ 31,620,369.27 for legal costs and other expenses and an additional US$ 49,629.76 for Petroecuador’s legal costs (a total of US$ 31,701,618.76). an international tribunal rendered a final decision awarding damages in…

Arbitration, Counterclaims, Environment, Investment agreements, Investment Arbitration, Investor-State arbitration

(Twenty Essex) and (King's College London)/ /Leave a comment

The potential clash between protection of investors under investment treaties and protection of the environment has emerged in a number of recent arbitrations. More than 60 investment disputes filed since 2012 have had some environmental component. Amongst them, there have been several cases in which States have sought to enforce environmental law against investors in…

Arbitration, Counterclaims, Escalation clauses, France

(Gide Loyrette Nouel)/ /Leave a comment

In a judgment of 24 May 2017 (Biogaran v International Drug Development, case n° 15-25.457), the commercial chamber of the French Cour de Cassation (Supreme Court) considered the question of whether a counterclaimant is bound by the requirements of a “multi-tier” dispute resolution clause. The clause in question required the parties to mediate as a…

BIT, Counterclaims, ICSID Arbitration, ICSID Convention, Investment Arbitration

(Arbitration Center at the Institute of Modern Arbitration)/ /Leave a comment

The beginning of 2017 has already been remarkable to contribute to discussions regarding counterclaims in investment arbitration: two recently finalized cases against Latin America states (Urbaser et al. v The Argentine Republic, ICSID Case No ARB/07/26 ; Burlington Resources Inc. v Republic of Ecuador, ICSID Case No. ARB/08/5) provide several noteworthy points for further debates…