Research On Legal Issues Of Counterclaims By Host States In ICSID Arbitration

In the Investor-State Dispute Settlement Mechanism,the International Invest ment Dispute Settlement Center plays an irreplaceable role as an institution to resolve investment disputes.Judging from subjects of cases accepted by ICSID,the majority applicants who initiated the arbitration were the investors,and the r espondent they against with were the host states.Although most of the investme nt disputes can be solved reasonably through ICSID arbitration,in recent years,there are more controversies about the ICSID arbitration results in favor of inve stors,at the meantime,the phenomenon of investors’ abuse of complaints shows the disequilibrium of interests between investors and host states.Normally,the host state can only passively defend investors’ claims in investment arbitration,b ut some countries begin to try using counterclaims to actively protect their legal regulatory and rights.Not only the host states practice is a useful attempt to r everse the crisis of the ICSID center,but also beneficial to reverse the situation of the imbalance of interests.The types of investment disputes have been changed from contract arbitratio n to investment treaty arbitration.Although the amount of counterclaim is relativ ely small,it is gradually increasing.Judging from the results of counterclaims,most counterclaims are not supported by the tribunal.In view of the unfavorable results of the host states counterclaims practice as well as its potential value,t his thesis combines the relevant provisions in the ICSID arbitration rules,the sp ecific contents of the dispute settlement rule in the investment treaties,and the I CSID cases to analyze the main issues about host states counterclaims.The thre e main issues are as follows: defects in the recognition of "consensus between t he parties to disputes",the investigation of relevance in controversy,and the lac k of legal basis for investors’ obligations.By analyzing the causes of the abovementioned issues and basing on the current investment treaty practices as well a s the latest theoretical development trends,three countermeasures are proposed,which are: perfecting the identification of the parties to the dispute,appropriatel y expanding the relevance review standards,and increasing the confirmation cha nnels for investors’ obligations.Looking back on China,based on Chinese curre nt investment development prospects,it has the possibility of using this behavior to protect its own interests in the future,and Chinese investment treaties have not yet specified this issue.Therefore,this thesis will combine the current status of its investment treaties with ICSID’s beneficial experiences in arbitrating host states counterclaims,in order to make suggestions on establishing the relevant r ules and implementing a better relevant practice.