Introduction
In 2016, the world was witness to the Trans-Pacific Partnership Agreement (“TPP”), a multi-lateral free trade agreement conceived by twelve pacific rim countries, namely Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States (“U.S.”). It was touted as one of the biggest trade deals in the twenty years following the creation of the World Trade Organization, impacting approximately 50% of the global gross domestic product and 37% of global trade.[1] With a trade impact that the signatories claimed could essentially eliminate more than 98% of tariffs in the TPP region,[2] it was imperative that the agreement provided adequate protection not only for investors, but also host-states. The investor-state dispute settlement (“ISDS”) provisions of the agreement, therefore, were structured in a manner that could cater to both sides of the coin.
However, when the U.S., under the Trump Administration, backed out of the TPP in 2017, for fear of being a victim to unfair trade deals[3], the agreement lost its footing. This prompted the remaining states to conclude the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP/Agreement”) by incorporating, by reference, the provisions of the TPP mutatis mutandis, with certain exceptions[4] and modifications. One of the modifications included the suspension of certain provisions of the TPP until such time as deemed fit by the parties[5], which implies that they are presently not in force. For the purposes of the present article, one such provision is Article 9.19(2), which relates to the aspect of counterclaims:
“When the claimant submits a claim pursuant to paragraph 1(a)(i)(B), 1(a)(i)(C), 1(b)(i)(B) or 1(b)(i)(C), the respondent may make a counterclaim in connection with the factual and legal basis of the claim or rely on a claim for the purpose of a set off against the claimant”
The clause operates in tandem with clause (a) and (b) of Article 9.19 of the Agreement:
“(a) the claimant, on its own behalf, may submit to arbitration under this Section a claim:
(i) that the respondent has breached:
an obligation under Section A;
an investment authorisation; or
an investment agreement; and
(ii) that the claimant has incurred loss or damage by reason of, or arising out of, that breach; and
(b) the claimant, on behalf of an enterprise of the respondent that is a juridical person that the claimant owns or controls directly or indirectly, may submit to arbitration under this Section a claim:
(i) that the respondent has breached:
an obligation under Section A;
an investment authorisation; or
an investment agreement; and
(ii) that the enterprise has incurred loss or damage by reason of, or arising out of, that breach”
As a result, it appears that since the very outset, counterclaims have been dealt a bad hand. First of all, they were restricted to claims initiated in respect of an alleged breach of only an investment authorization or an investment agreement. For an alleged breach of the substantive obligations that the Agreement provides for under Section A, which include for instance National Treatment, Most-Favoured-Nation Treatment, Expropriation etc., counterclaims are impermissible. In other words, unless and until a tribunal assumes jurisdiction in respect of contract claims in addition to treaty claims, counterclaims are left to hang dry. Second of all, this limited entry has also now been suspended, which is somewhat not surprising given that the ISDS provisions in the TPP were introduced at the insistence of the U.S. Upon their withdrawal, the other states probably were left without an incentive to continue with the provision.
In the context of investment arbitration, a suspension of such kind is unfortunate given the nature of such agreements. International Investment Agreement (“IIAs”) such as the present, which include Bilateral Investment Treaties (“BITs”), are considered to be asymmetrical in nature, i.e. they aim at moderating the untrammeled exercise of sovereign power by host states[6] by imposing obligations on states and not on investors[7]. Consequently, bringing a claim against an investor under such an instrument, which does not conceive of obligations on part of the investor, is easier said than done. For this reason, there has been a consistent effort in restructuring such agreements to provide for counterclaims because they aid in promoting procedural equality by overcoming the asymmetrical nature of investment agreements. Moreover, they help make the dispute resolution process more efficient by allowing claims arising out of separate but related agreements to be adjudicated in the same proceedings involving the primary claim, thus saving time and cost. For states, counterclaims act as a boon since international arbitration offers better international enforcement prospects than national courts, like in the instance of ICSID.[8] Therefore, for the purposes of determining jurisdiction under such agreements, the scope of the arbitration agreement between the parties[9] is required to be assessed in order to determine the investor’s ‘consent’ to the bringing of the counterclaim. This shall be dealt with in the first section.
Another difficulty encountered in entertaining counterclaims is the need for its nexus with the claim, both factual and legal. This is harder to surpass because tribunals have firstly, advocated for a strong factual interdependence between the two inasmuch as they constitute “one indivisible whole” aimed at the “accomplishment of a single goal”.[10] Secondly, and more importantly, they have held that the source of the legal obligation imposed upon the investor shall be the BIT itself and not the national law of the host-state. In all, this proves difficult given that parties to a treaty arbitration rarely engage in a joint enterprise in a way that contractual parties often have and therefore, claims by host-states are more often than not grounded in separate but related agreements or its national law.[11] The second section of the article shall address this aspect.
Assessing the Requirement of ‘Consent’
While it is largely agreed that the heart of consent lies in the dispute resolution clause of a treaty, it has nevertheless been argued by some that a reference to submit to a set of institutional rules ipso facto satisfies the requirement of consent insofar as the rules permit the filing of counterclaims[12], regardless of the scope of the arbitration agreement. As such, before proceeding to assess consent under IIAs’, it is important to review the scope of such rules given that they are usually employed by IIAs and it is generally understood that institutional rules cannot confer consent.
Institutional Rules
Since the CPTPP under Article 9.19(4) provides for arbitration to be conducted either under the Convention on the Settlement of Investment Disputes Between States and Nationals of other States (“ICSID”) (including the ICSID Additional Facility Rules) or the Arbitration Rules of the United Nations Commission on International Trade Law, 1976 (“UNCITRAL Rules”) (or any other institution the claimant may choose to submit to), this article shall limit itself to them.
ICSID Convention
Under the ICSID, counterclaims fall within three concentric circles – the outermost circle mandates that it must fall within the jurisdiction of the Centre described in Article 25(1),[13] which extends to “any legal dispute arising out of an investment…”. The following circle under Article 46 requires the counterclaim to be within the scope of the consent of the parties[14], which bears reference to the scope of the arbitration agreement between the parties. In the author’s opinion, this negates the following argument of Prof. Reisman[15]:
“[…] in my view, when the States Parties to a BIT contingently consent, inter alia, to ICSID jurisdiction, the consent component of Article 46 of the Washington Convention is ipso facto imported into any ICSID arbitration which an investor then elects to pursue […]”
Following Prof. Reisman’s reasoning would render the above two pre-requisites otiose[16], i.e., the requirement of counterclaims to one, fall within the consent manifested in the arbitration agreement and two, concern a legal dispute arising out of an investment. These requirements flow from the dispute resolution agreement between the parties as well as the investment instrument encompassing it.
However, the author would be remiss if an appreciation is not expressed for the objective Prof. Reisman sought to achieve:
“[…] Article 46 works to the benefit of both respondent state and investor. In rejecting ICSID jurisdiction over counterclaims, a neutral tribunal – which was, in fact, selected by the claimant – perforce directs the respondent State to pursue its claims in its own courts where the very investor who had sought a forum outside the state apparatus is now constrained to become the defendant. (And if an adverse judgment ensues, that erstwhile defendant might well transform to claimant again, bringing another BIT claim.) Aside from duplication and inefficiency, the sorts of transaction costs which counter-claim and set-off procedures work to avoid, it is an ironic, if not absurd, outcome, at odds, in my view, with the objectives of international investment law.”
This brings us to the last innermost circle – the requirement of a counterclaim to arise out of the same subject-matter of the dispute.[17] This requires not only a factual connection with the subject-matter but also with its legal basis in view of Article 25(1), although the latter has been the subject of much debate[18].
UNCITRAL Rules
The UNCITRAL Rules, 1976 limit jurisdiction to “counterclaims arising out of the same contract”,[19] which seems problematic since most counterclaims tend to arise out of separate but related agreements[20]. For this reason, the rules as revised in 2010 do away with such limitation by providing that as long as the tribunal “has jurisdiction over it”, the counterclaim may be entertained.[21] However, considering these rules apply only to disputes under BITs’ concluded after their entry into force in 2010, it is likely that the prior rules would continue to govern majority of the disputes.[22] Nevertheless, even under the prior rules, tribunals have considered “disputes in relation to [a] contract” to include disputes under a BIT as well, subject to the fulfilment of the requirement of jurisdiction and consent. Thus, if an investment claim arises out of a ‘contract’, counterclaims arising out of the “same contract” can be introduced in the same proceedings.[23]
Investment Treaties
In the context of BITs’, the Saluka Investments BV v. Czech Republic (“Saluka”)[24] case was critical. It concerned a counterclaim brought by the Czech Republic against, in substance, a foreign parent company (Nomura) whose interests were contended to be represented by the locally-incorporated entity (Saluka) in the arbitration.[25] Naturally, the Claimant opposed on the ground that Nomura had never consented to be a party to the arbitration.[26] Refraining from addressing the issue of piercing of the corporate veil or applicability of the group of companies doctrine, the tribunal proceeded on the assumption that the “relationship between Saluka and Nomura Europe is sufficiently close to enable the Tribunal’s jurisdiction in proceedings instituted by Saluka to extend to claims against Nomura”.[27]
As such, the tribunal understood the term “all disputes… concerning an investment” occurring in Article 8(1) of the Czech Republic-Netherlands BIT between “one Contracting Party and an investor of another Contracting Party” to be wide enough to include counterclaims since Article 8 was neutral as regards the party initiating a claim.[28] Read with Article 19.3 of the UNCITRAL Rules, inter alia, a tribunal could thus exercise jurisdiction provided the other relevant considerations were met.
This line of reasoning was further developed in Urbaser v. Argentina (“Urbaser”) where the dispute arose in light of Argentina’s financial crises. Claimant was a shareholder in a locally-incorporated company that was granted the concession for providing water and sewage services in the province of Greater Buenos Aires. Emergency measures by the State following the economic crises in 2001 resulted in financial problems for the concessionaire leading to insolvency and cancellation of the concession.[29] In the arbitral proceedings initiated by Urbaser, Argentina brought counterclaims alleging failure by Urbaser in providing the necessary investment into the concession, thereby violating its international obligation of providing access to water as a human right.[30]
While considering the import of Article X(1) of the Argentina-Spain BIT, which provided that “Disputes arising between a Party and an investor of the other Party in connection with investments within the meaning of this Agreement shall, as far as possible, be settled amicably between the parties to the dispute”, the tribunal held that the clause did not impose any restriction on jurisdiction ratione personae as regards who could bring a claim.[31] Moreover, since sub-clause (2) and (3) of Article X provided that in the event of a failure to settle, the dispute could be submitted “at the request of either party”, counterclaims could clearly be entertained. In this regard, it would be important to mention that since a BIT is not an à la carte selection of provisions, an investor upon accepting the host-state’s offer to arbitrate cannot consent to submit only its claims to be heard and not of the host-state if the BIT envisages counterclaims[32]– a finding that was echoed by the tribunal[33].
A priori, the dispute resolution clause is the foundation for determining consent. Where such a clause limits jurisdiction to claims concerning the BIT itself, counterclaims would likely not be entertained since BITs’ usually impose obligations only on states and not investors[34], unless the context provides otherwise. Spyridon Roussalis v. Romania[35] (“Spyridon Roussalis”) was a classic example. The Claimant, a Greek national, had made an investment through its Romanian proprietorship in a Romanian privatized warehouse company by way of a share-purchase agreement. In the arbitration, he alleged that this investment was subjected to a series of malicious and unjustifiable regulatory acts by agencies of the Romanian Government resulting in domestic court proceedings, all of which constituted, in effect, expropriation of his investment, not to mention violation of FET and other protections under the Romania-Hellenic Republic BIT.[36] The State in-turn brought counterclaims asserting that, inter alia, Claimant and its Romanian proprietorship had failed to make the investment they so claimed, which in a way was a re-hash of its claims before the Romanian courts.[37]
The majority held that since Article 9 of the BIT provided that “Disputes between an investor of a Contracting Party and the other Contracting Party concerning an obligation of the latter under this Agreement, in relation to an investment of the former…” shall be settled amicably failing which, “…the investor concerned may submit the dispute either to the competent courts of the Contracting Party in the territory of which the investment has been made or to international arbitration…”, the clause was narrow in scope and only contemplated claims brought by investors concerning obligations of the host-state.[38] On the other hand, the phrase “all disputes… concerning an investment” appearing in Saluka would seem to include obligations imposed upon both parties and not just the host-state given that the BIT envisages counterclaims.
The CPTPP Route
The Agreement, as on date, appears to mirror the language of the BIT in Spyridon Roussalis. Firstly, Article 9.19(2) of the CPTPP, which provides that “[w]hen the claimant submits a claim pursuant to paragraph 1(a)(i)(B), 1(a)(i)(C), 1(b)(i)(B) or 1(b)(i)(C)”, which pertain to investment authorizations and investment agreements, “…the respondent may make a counterclaim…”, stands suspended as on date. Therefore, the intent of the parties to specifically exclude the right of a Respondent to bring a counterclaim with regard to any other investment instrument/obligation contemplated by the Agreement must be given full effect. If, however, the provision stands unsuspended at a later date in time, counterclaims with regard to instruments contemplated therein could be entertained by a tribunal.
Secondly, the term ‘Claimant’ appearing in the operative Article 9.19(1)(a)(i)(A) and 9.19(1)(b)(i)(A) insofar as “the claimant…may submit to arbitration under this Section a claim that the respondent has breached an obligation under Section A…” is not neutral as regards jurisdiction ratione personae. This is because Article 9.1 defines claimant to mean “an investor of a Party that is a party to an investment dispute with another Party…” and thus ‘Respondent’, though defined broadly as a “Party that is a party to an investment dispute”, would necessarily mean a host-state. Consequently, the Agreement does not appear to contemplate counterclaims by a host-state in relation to obligations arising under the BIT, i.e. under ‘Section A’. Thus, not only does the treaty prohibit a host-state from acting as a Claimant and bring its counterclaim(s) in respect of a violation of the substantive obligations under the treaty, the state parties to the Agreement have ensured that the limited room available to breathe has also been crushed by the suspension. The latter position is unlikely to change because the suspended provisions were introduced in the TPP at the instance of the United States and without its return, the parties to the CPTPP have no incentive to terminate the suspension. For this reason, during the negotiation of the Agreement, Japan and Australia had pushed only for suspension[39] and not for removal of the provisions.
Lastly, a mere reference to submit to arbitration under the ICSID or ICSID Additional Facility Rules or the UNCITRAL Rules or those of any other institution under Article 9.19(4) in relation to claims made by a ‘Claimant’ either in respect of the suspended or operative provisions would not ipso facto satisfy the requirement of consent. This is more-so considering Article 9.19(6) provides that “The arbitration rules applicable under paragraph 4 that are in effect on the date the claim or claims were submitted to arbitration under this Section shall govern the arbitration except to the extent modified by this Agreement.” Thus, where the Agreement requires consent to be ascertained in the manner indicated earlier, determining the same by virtue of a mere reference to ICSID/UNCITRAL Rules would be inconsistent with the Agreement and consequently, be deemed modified to the extent indicated by the Agreement. In other words, since the Agreement contemplates consent to a counterclaim to be ascertained in a specific manner, reference to an institutional rule as propagated by Prof. Reisman would not be sufficient.
Factual and Legal Connectivity with the Claim
Unless a treaty provides for a standard of connectivity like the CPTPP, tribunals have often been guided by the scope of the institutional rule in terms of which jurisdiction is exercised. Under the ICSID, Article 25(1) prescribes that “jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment…”, which may be employed to determine whether a counterclaim arises “directly out of the subject-matter of the dispute…”[40]. On the other hand, the UNCITRAL Rules require counterclaims to “[arise] out of the same contract”, which has now been amended, as mentioned earlier.
Blurring the Lines of Connectivity
Klöckner v. Cameroon is often seen as the starting point for the “connectivity test”.[41] The tribunal there had to consider whether it could exercise jurisdiction over a counterclaim brought by Cameroon alleging shortcomings in the management of a fertilizer factory set up by Klöckner. This concerned not only the supply contract under which the factory was set up, but also a Protocol of Agreement that vested responsibility for the technical and commercial management of the factory upon Klöckner, which was to be carried out under a separate Management Contract.
On the one hand, the Tribunal held that it had no jurisdiction over disputes arising under the Management Contract containing an exclusive ICC arbitration clause. However, on the other hand, it ruled that it had jurisdiction over issues of “technical and commercial management” arising under the Protocol of Agreement that provided for ICSID arbitration, which included issues that did not exclusively arise out of the agreement containing the ICC arbitration clause. Reasoning thus, it went on to state –
“the case [involved] one and the same bilateral relationship, because the three instruments are bound together by a close connecting factor: agreement was reached for the supply of a fertilizer factory, and its technical and commercial management, in return for payment of a price and for certain investment guarantees”. As such, “the reciprocal obligations had a common origin, identical sources, and an operational unity. They were assumed for the accomplishment of a single goal, and are thus interdependent…”.[42]
The next case advocating for legal connectivity was Amco v. Indonesia (“Amco-I”).[43] Amco had entered into an agreement with a local Indonesian company to invest in and manage a hotel complex in Indonesia, which was authorized by the Indonesian Government. When disputes arose, the investment license was cancelled by the Government and the agreement was rescinded by the Jakarta courts. When Amco initiated ICSID arbitration under the rescinded agreement for damages, Indonesia counterclaimed seeking payment of the taxes that would have been paid but for the license, which per them was lawfully rescinded.[44] Once the tribunal found against such lawfulness, the counterclaim was rejected.[45] In annulment proceedings, the ad-hoc committee annulled this finding, which resulted in the finding dismissing the counterclaim being annulled as well.[46]
The issue before the Resubmission Tribunal was whether the counterclaim by Indonesia alleging tax fraud on part of Amco was a “legal dispute arising directly out of an investment” under Section 25(1) of the ICSID and thus, conferred the tribunal with jurisdiction ratione materia.[47] The Tribunal noted that Article 25(1) only covered rights and obligations applicable to an investor as a consequence of an investment agreement entered into with a host state. Tax fraud being an obligation arising as a result of the operation of the host-state’s general law, would not be covered, unless specifically contracted for in the investment agreement.[48] This was reiterated and confirmed by the Saluka Tribunal wherein while the claim concerned Saluka’s investment in the Czech Republic and its treatment by the Respondent that was alleged to constitute a breach of the Czech Republic-Netherlands BIT, the counterclaim involved non-compliance of the general law of the Czech Republic. Thus, it neither constituted an “indivisible whole” nor shared an operational unity with the primary claim asserted by Saluka.[49]
However, the approach of the Saluka Tribunal in relying on Klöckner seems to be inappropriate. The language in Klöckner referring to claims and counterclaims that are aimed at the “accomplishment of a single goal” is simply misplaced and inappropriate in an investment treaty context where the parties to the arbitration have rarely been engaged in a joint enterprise in the way that contractual parties often have.[50] Given that primary claims in a treaty arbitration do not usually arise under a contract but an investment treaty, indivisibility of the counterclaim with the claim ought not to be assessed under the umbrella of the “same contract” under the old UNCITRAL Rules as Saluka did.[51] The better approach would have been to resort to the phrase “concerning an investment” appearing in Article 8 of the treaty.[52] This would give counterclaims more room to breathe, considering, in general, an investor cannot violate a BIT and claims by a host-state are bound to arise from violations of its national law or a contract between the investor and itself.[53] Given that the applicable law of the Czech Republic-Netherlands BIT in Saluka included the law of the Contracting Parties as well as general principles of international law, the counterclaim could have been entertained.
CPTPP’S Approach
Insofar as Article 9.19(2) of the Agreement permits counterclaims arising out of an “investment agreement” or “investment authorization”, it recognizes the need for deciding claims arising out of separate but related agreements along with the primary claim. If the suspension were thus to be revoked, counterclaims would be permitted provided there were a factual and legal connection with the “subject-matter” of the claim. Since this reiterates the wording of Article 46 of ICSID, if a tribunal were to therefore interpret a counterclaim as arising “out of an investment”, which is in conformity with Article 25(1) of ICSID as well, and avoid the approach taken by the Saluka tribunal, jurisdiction could be assumed. Given that the Agreement provides that the governing law in such case would be the one applicable to the investment instrument or as the parties “may otherwise agree”, insofar as either may include the domestic law of the host-state and general principles of international law, counterclaims could be entertained on merits. Even if no applicable law is available or chosen, the position would remain unchanged since the Agreement nevertheless would provide recourse to the said two branches of laws as a safety net.[54]
Taking support from Urbaser, a tribunal could thus, consider a counterclaim against a corporation alleging violation of a right grounded in international law since today, it includes, inter alia, corporate social responsibility.[55] The claim therein was nevertheless dismissed since the obligation to provide access to water was considered a ‘positive obligation’ imposed upon states under international law, which when contracted out to an investor, had at its source in domestic law. A priori, only a ‘negative obligation’ to abstain from committing an act having its basis in international law could be entertained since it is applicable equally to states and individuals / private entities.[56] However, considering a negative obligation usually requires a positive action as a precursor, the line is quite thin.
The CPTPP nevertheless incorporates corporate social responsibility as an investor obligation as well as the right of host-states to take measures to ensure that the investment activity “in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives”[57] Even though a counterclaim cannot expressly be filed enforcing such obligation falling under ‘Section A’ of the Agreement, but for the limitation on meaning of “Claimant” under the Agreement, in light of Urbaser, it could have been argued that implicitly, counterclaims in respect of such obligations could be entertained.
Conclusion
There are multiple reasons for preferring counterclaims in investment arbitration. Had the U.S. not backed out, the TPP would have achieved these, and much more. In its present state however, the CPTPP is designed to disallow counterclaims at all cost. Any scope to even interpret “an obligation under Section A” under Article 9.19(a)(i)(A) and (b)(i)(A) to include counterclaims involving investor obligations covered by the said Section of the Agreement was rendered mute in light of the restrictive meaning given to the term “Claimant”. Although unfortunate, this is not surprising given that the investor-state dispute settlement provisions were included in the TPP only upon the insistence of the United States. Its absence led to a loss of support for the mechanism. Unless the United States makes a return, which some authors advocated for by projecting the CPTPP as a solution to the U.S.-China trade war,[58] it is unlikely that the CPTPP would create an impact qua counterclaims in a manner its predecessor intended to achieve. With the coming of the Biden Administration, a commitment to the CPTPP still seems a far cry even though the U.S. continues to renew its international obligations. This is because for now, all efforts are concentrated on domestic issues such as the COVID-19 virus and revitalization of American industries.[59] Even if the U.S. were to ultimately join the Agreement, it is unlikely it would do so without revisions and updates.[60]
[1] Tania Voon & Elizabeth Sheargold, The Trans-Pacific Partnership, 5 Br. J. Am. Leg. Studies 341, 343(2016); Report of the World Bank Group on the Global Economic Prospects: Spillovers Amid Weak Growth, 221 (January 2016), available at https://www.worldbank.org/content/dam/Worldbank/GEP/GEP2016a/Global-Economic-Prospects-January-2016-Spillovers-amid-weak-growth.pdf.
[2] Id.
[3] Daniel C.K. Chow, Ian Sheldon & William Mcguire, How the United States Withdrawal from the Trans-Pacific Partnership Benefits China, 4(1) University of Pennsylvania Journal of Law & Public Affairs, 37, 38, 39(2018).
[4] The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (entered into force on December 30, 2018), Art. 1.
[5] Id., Art. 2.
[6] Gustavo Laborde, The Case for Host State Claims in Investment Arbitration, (2010) 1(1) Journal of International Dispute Settlement 97, 98.
[7] Andrea K. Bjorklund, The Role of Counterclaims in Rebalancing Investment Law, (2013) 17 Lewis & Clark L. Rev. 461, citing Jason Webb Yackee, Investment Treaties and Investor Corruption: An Emerging Defense for Host States?, (2012) 52 Va. J. Int’l L. 723, 742; Jeswald W. Salacuse, The Three Laws of International Investment: National, Contractual, and International Frameworks for Foreign Capital, (Oxford University Press, 2013) 383, 384.
[8] Yaraslau Kryvoi, Counterclaims in Investor-State Arbitration (LSE Law, Society and Economy Working Papers, August 2011) 4, 5, available at http://eprints.lse.ac.uk/38469/1/WPS2011-08_Kryvoi.pdf.
[9] Hege Elizabeth & Veenstra-Kjos, Counterclaims by Host States in Investment Treaty Arbitration, (2007) 4 Transnational Dispute Management 1, 6.
[10] Saluka Investments BV v. Czech Republic, UNCITRAL Arbitration, Decision on Jurisdiction over the Czech Republic’s Counterclaim of 7 May 2004.
[11] Pierre Lalive & Laura Halonen, On the Availability of Counterclaims in Investment Treaty Arbitration, (2011) 2 Czech Y.B. Int’l L. 141, 153, 154, available at https://www.lalive.law/wp-content/uploads/2017/07/pla_lha_availability_counterclaims_invtreaty_arb2011.pdf.
[12] Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1, Declaration by W. Michael Reisman attached to the Award (December 07, 2011) 146; See also, Antoine Goetz &Consorts et S.A. Affinage des Metaux v. Republique du Burundi, ICSID Case No. ARB/01/2, Award (June 21, 2012) 90, 91 (¶ 278-280).
[13] Dafina Atanasova, Carlos Adrian Martinez Benoit & Josef Ostransky, Counterclaims in Investor-State Dispute Settlement Under International Investment Agreements, The Graduate Institute Geneva, Centre for Trade and Economic Integration, Trade and Investment Law Clinic Papers (2012), 8.
[14] Id.
[15] Spyridon Roussalis; Antoine Goetz (n 12).
[16] Hege Elizabeth (n 7).
[17] Dafina Atanasova (n 13).
[18] Pierre Lalive (n 11) 144, 145.
[19] Arbitration Rules of the United Nations Commission on International Trade Law, 1976, Art. 19(3).
[20] Jan Paulsson & Georgios Petrochilos, Revision of the UNCITRAL Arbitration Rules (2006) ¶ 173, 174, available at https://www.uncitral.org/pdf/english/news/arbrules_report.pdf.
[21] UNCITRAL Rules (n 19) Art. 21(3).
[22] Pierre Lalive, (n 11) 145, 146.
[23] Id.; Zachary Douglas, The International Law of Investment Claims (Cambridge University Press, 2009) 257.
[24] Saluka Investments BV v. Czech Republic, UNCITRAL Arbitration, Decision on Jurisdiction over the Czech Republic’s Counterclaim of 7 May 2004.
[25] Saluka (n 10) 7, ¶ 29
[26] Id.
[27] Id.¶ 44.
[28] Saluka (n 10) 9, ¶ 39.
[29] Urbaser S.A. & Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. Arb/07/26, Award (December 08, 2016) ¶ 34.
[30] Id.¶ 36.
[31] Urbaser(n 28)¶ 1143-45.
[32] Pierre Lalive (n 11) 150.
[33] Urbaser(n 28) ¶ 1146-47.
[34] Pierre Lalive (n 11) 148
[35] Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1, Declaration by W. Michael Reisman attached to the Award (December 07, 2011) 146.
[36] Spyridon Roussalis (n 12) ¶ 9-10.
[37] Id. ¶ 747-757.
[38] Id. ¶ 866-69.
[39] Christopher F. Corr, Francisco de Rosenzweig, William Moran, Samuel David Scoles & Matt Solomon, The CPTPP Enters into Force: What Does it Mean for Global Trade (White & Case, January 2019), available at https://www.whitecase.com/sites/whitecase/files/files/download/publications/the-cptpp-enters-into-force-what-does-it-mean-for-global-trade.pdf. See also, Adam Taylor, A timeline of Trump’s complicated relationship with the TPP (Washington Post, April 13, 2018), available at https://www.washingtonpost.com/news/worldviews/wp/2018/04/13/a-timeline-of-trumps-complicated-relationship-with-the-tpp/.
[40] Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Article 46
[41] Klöckner Industrie-Anlagen v. United Republic of Cameroon and Société Camerounaise des Engrais. ICSID Case No. ARB/81/2, Award (October 21, 1983) 65.
[42] Id.; See also, Saluka (n 11) 14, 15; Dafina Atanasova(n 13) 30, 31.
[43] Amco Asia Corporation and Others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Award (November 20th, 1984) 283.
[44] Id.
[45] Id. 287
[46] Amco Asia Corporation, Panamerican Development Ltd. and Pt Amco Indonesia v. Republic of Indonesia, ICSID Case No. ARB/81/1, Decision on the application for annulment (May 16th, 1986) 116.
[47] Resubmitted Case, ICSID Case No. ARB/81/1, Decision on Jurisdiction (May 10th, 1988) ¶115-116 (“Amco-II”).
[48] Amco (n 31) ¶125-126.
[49] Saluka (n 11) ¶ 60-61, 78-79. See also, Dafina Atanasova (n 13) 35.
[50] Pierre Lalive (n 11) 153, ¶ 7.39.
[51] Pierre Lalive (n 11) 153, ¶ 7.39.
[52] Id.
[53] Id. ¶ 7.40.
[54] CPTPP (n 3) Art. 9.25(2)(b).
[55] Urbaser (n 28) ¶ 1195. For a broad discussion, see page 315 to 319.
[56] Urbaser(n 28) ¶ 1210.
[57] See, CPTPP (n 3) Art. 9.16 and 9.17.
[58] Peter Petri & Michael Plummer, Why the CPTPP could be the answer to the US-China trade war (VOX CEPR Policy Portal, October 30, 2019), available at https://voxeu.org/content/why-cptpp-could-be-answer-us-china-trade-war.
[59] Daisuke Akimoto, Japan expects Biden to rejoin the TPP (The Diplomat, February 12, 2021), available at https://thediplomat.com/2021/02/japan-expects-biden-to-rejoin-the-tpp/.
[60] Taisei Hoyama and Alex Fang, Can Biden return the US to TPP? Does it matter? 2 experts explain (April 01, 2021), available at https://asia.nikkei.com/Editor-s-Picks/Interview/Can-Biden-return-the-US-to-TPP-Does-it-matter-2-experts-explain.
This article has been authored by Mr. Neil Chatterjee, a Senior Associate at SKV Law Offices and Master of Laws in International Dispute Settlement (MIDS). This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues. A PDF form of this article is available here: One Step Forward, Two Steps Back- Why the CPTPP Needs Reconsideration in Order to Advance the Cause of Counterclaims in Investment Arbitration