Counterclaims

Corporate Social Responsibility Clauses in Investment Treaties

CSR refers to rules and practices companies follow voluntarily to limit the negative social, environmental and other externalities caused by their activities. There is a trend to incorporate CSR standards in investment treaties. Could CSR clauses be useful in consolidating enforceable investor obligations and serving as a basis for state counterclaims?

Awards  |  December 21, 2018

Tribunal finds Costa Rica’s measures to protect the environment did not breach FET or its expropriation obligations under CAFTA-DR

DAVID R. AVEN AND OTHERS V. REPUBLIC OF COSTA RICA, ICSID CASE NO. UNCT/15/3

ITN  |  October 18, 2018

Burlington v. Ecuador

Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5 (Published in 2018 in International Investment Law and Sustainable Development: Key cases from the 2010s and on this website on October 18, 2018. Read more here.) Decisions and Award are available at https://www.italaw.com/cases/181 Keywords Taxation, investor obligations, environmental counterclaim Key Dates Request for Arbitration: April […]

ITN  |  October 18, 2018

Urbaser v. Argentina

Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26 (Published in 2018 in International Investment Law and Sustainable Development: Key cases from the 2010s and on this website on October 18, 2018. Read more here.) Decisions and award are available at http://www.italaw.com/cases/1144 Keywords Human rights, […]

Awards  |  September 26, 2017

Argentina ordered to pay over USD320 million for unlawful expropriation in airlines case

Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic, ICSID Case No. ARB/09/1

Awards  |  September 26, 2017

Ecuador awarded USD41 million in counterclaim against U.S. oil and gas company Burlington Resources

Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5

Awards  |  November 26, 2015

ICSID tribunal renders interim decision on Ecuador’s environmental counterclaim in long-running dispute

Perenco Ecuador Limited v. Republic of Ecuador, ICSID Case No. ARB/08/6

Counterclaims by States in Investment Arbitration

It is quite common in investment arbitration for the respondent State to include in its defense to treaty claims one or more criticisms of the investor’s underlying conduct. Yet while such arguments feature prominently in State defenses, they are rarely framed as counterclaims seeking affirmative relief. The reason may lie in an instinctive preference by States to pursue any affirmative claims in their own courts. But it may also lie in perceived limits to the jurisdiction of international tribunals to hear State counterclaims.

Two recent ICSID decisions have reached entirely different conclusions on the issue of jurisdiction over State counterclaims. This essay touches briefly on certain jurisprudential and policy factors that may explain the divergent results and frame future cases for further analysis.

ITN  |  July 12, 2011

Awards and Decisions

Swiss claimant fails jurisdictional stage for not qualifying as an ‘investor’ Alps Finance and Trade AG v. Slovak Republic Damon Vis-Dunbar A claim against the government of Slovakia has failed after a three-member tribunal declined jurisdiction. The tribunal determined that the claimant was not an “investor” as intended by the Switzerland-Slovakia bilateral investment treaty. In […]

ICSID tribunal dismisses RSM Production Corporation’s claim against Grenada

By Damon Vis-Dunbar 26 March 2009 An American businessman has failed in his claim against Grenada under a 1996 oil and gas agreement, in a contract dispute conducted before an ICSID tribunal. Initiated in 2005, the ICSID claim was one of a host of legal avenues pursued by Jack J. Grynberg, the president and CEO […]