Research On The Counterclaim Of The Host Country In International Investment Arbitration

International investment arbitration plays an important role in the dispute settlement mechanism between investors and the host country(ISDS).The original intention of the dispute settlement mechanism between the host country and investors is to protect investors from the infringement of their interests by the host country as a sovereign state.However,in recent years,when settling disputes between countries and investors,the arbitral tribunal for international investment has become more and more inclined to protect the interests of investors and neglected some fundamental interests of the host country,thus leading to the increasingly unbalanced status of both parties in international investment arbitration.As an important stipulation of arbitration procedure,counterclaim is an important procedural right of both parties to arbitration disputes.It is of great significance to safeguard the fairness of arbitration procedure and balance the interests of the parties to arbitration.Therefore,as the imbalance of ISDS mechanism intensifies,some countries begin to use counterclaim against investors in international investment arbitration to balance their unequal status with investors in investment arbitration.Since the 1970 s,the host country began to file counterclaims against investors in international investment arbitration,but these counterclaims were either ruled by the international investment tribunal that they had no jurisdiction or were rejected.Only in a few cases did the host country's counterclaims receive the support of the arbitration tribunal.The main reason is that the provisions of the international investment treaty are not conducive to the filing of the counterclaim and the international investment tribunal is too strict on the conditions for the filing of the counterclaim.Based on this,analyzes existing about the request rules,find out the cause of the detrimental to the host country a counterclaim,and carry on the reasonable modification,path for the host country counterclaim good law,for the balance of international investment arbitration in the interests of the investors and the host country in order to improve the existing ISDS imbalance mechanism is of great significance.In addition to the introduction,this paper is divided into four chapters:Chapter one is an overview of the counterclaim of the host country in international investment arbitration.This paper mainly introduces the basic theory of counterclaim,the development and current situation of counterclaim of host country in international investment arbitration,the problems of the counterclaim of the host country in the international investment arbitration,and the necessity of counterclaimof host country to international investment arbitration,and lays the foundation of full text that counterclaim of host country should be included in international investment arbitration.Chapter two mainly analyzes the legal basis of the counterclaim of the host country.Based on the analysis of the procedural and substantive legal basis of the counterclaim of the host country,this paper summarizes the conditions for the counterclaim of the host country to be filed in international investment arbitration,and seeks for the procedural and substantive legal basis for the counterclaim of the host country.Chapter three is an empirical study on the counterclaim of the host country.Selection is mainly focused on the two typical case about the host country to the right of claim,through a counterclaim for the host country and to analyze the opinions of the host country a counterclaim,the arbitration tribunal found that the main law of international investment arbitration tribunal supported a counterclaim requirements,so as to find the international investment treaty is a counterclaim,the host of the international investment arbitration court important basis.It mainly analyzes the problems existing in counterclaim provisions in international investment treaties,and puts forward relevant improvement Suggestions on the basis of analysis,so as to promote the host country to file counterclaim in international investment arbitration.Chapter four is the stipulation and construction suggestion of counterclaim in China's international investment treaty.This paper mainly sorts out the counterclaim provisions in China's international investment treaties,concludes that there are no provisions on the counterclaim of the host country in China,and analyzes the necessity of the inclusion of China's investment treaties into the counterclaim of the host country.Finally,it puts forward Suggestions on the construction of the counterclaim system of the host country in China's international investment legal system.