Research On The Counterclaim Rules Filed By Host States In The International Investment Dispute Settlement Mechanism

Investor-state dispute settlement mechanism has played a critical role in nonpolitically addressing international investment disputes since its first appearance in 1959.During these years,developing countries,with ever-increasing economic power,have placed more importance to such issues as defending state economic sovereignty,protecting environment and conserving natural resources,thus having greater needs for the balance of investor and host state rights.Furthermore,ISDS mechanism is no longer confined to the protection of investor rights,which has expanded its scopes to the protection of labor and human rights.Noticeably,although the states are always considered as defendants in the long run,few of them have tried their utmost to change the unequal statue.By tactfully making the use of existing rules,some host states have gradually filed counterclaims since 1970s,so as to protect their rights and to stave off imbalanced situation which is in favor of investors.Needless to say,yet most arbitral tribunals have no jurisdiction over counterclaims or even rejected them,which can be attributed to several reasons,such as the ambiguity of "content" rules and the lack of connectedness between claims and counterclaims.Therefore,compared with the ISDS mechanism,the counterclaim rules are still behind in the development.In combination with China's existing international investment regulations,this thesis tries to find the development path of the counterclaim rules in China under the new international trade and investment background.Five sections,including the conclusion,are contained in the thesis and are set as follow:The background information,purposes,current situation,contents,methodology and innovations are introduced in the first section.Some relevant rules in the different legal dictionaries,systems and international dispute settlement institutions are included in the second section.Mcanwhile,the changing process of counterclaims rules,including the generation procedure and process and new trends are presented.Developed countries refuse to the introduction of counterclaim rules,while developing countries are willing to accept these.Additionally,the necessity and the reasonability which includes counterbalancing the rights,improving the efficiency and making fairer adjudications,as well as some possible negative influences,such as lowering contractual effectiveness and challenging judicial sovereignty of the states,are analyzed.Some original problems in the existing international investment legal regime,as well as several issues happened in the application of international investment rules,including the lack of investors' obligations,the weakness in the connectedness between investors and states,the inadequate subject and the illegal investment,are deeply analyzed in the third section,in order to find out why counterclaims are rarely acceptable.Macroscopically examined the current situation of ISDS mechanism and rules related to counterclaims in the China's international investment legal regime,the necessity and the construction of counterclaim rules are explored in the fourth section.On the basis of the analysis of the existing rules and topical cases,the thesis suggests it is necessary for China to adjust its agreements,setup counterclaim rules,stabilize investor obligations and clarify liability fixation in the following China's FTAs or BITs under the new international investment and trade background,for the purpose of effectively settling international investment dispute and counter-balancing investor rights.