Study On Host Country Counterclaim In International Investment Arbitration

Investor-host country dispute resolution mechanism plays an important role in dealing with the depoliticization of international investment disputes.To date,most of the host country ’s counterclaims have been found by the arbitral tribunal to have no jurisdiction or to have been rejected by vague provisions in international investment agreements,lack of linkage between the arbitral and counterclaims.Compared with the rapid development and improvement of investor-host country dispute resolution mechanism,the development of host country counterclaim system is lagging behind.Firstly,this paper discusses the basic theory of counterclaim and the host country counterclaim rules.By reviewing the legislation and development of counterclaim at home and abroad,this paper summarizes its enlightenment and reference for the development of arbitration system.In particular,it focuses on the provisions of counterclaims in the investment arbitration rules.Through the analysis of the judicial practice and theoretical research of these provisions,it is concluded that the basic premise for the international investment arbitration tribunal to have jurisdiction over the counterclaims of the host country is that both parties in the arbitration case and the dispute agree to the settlement of disputes by the investment arbitration tribunal,and its counterclaims are not independent,but closely related to the main claim.Secondly,some cases of international investment arbitration tribunal are analyzed.This chapter analyzes the counterclaim cases resorting to the arbitral tribunal.The arbitral tribunal makes a comprehensive rejection of the jurisdiction of the counterclaim,supports the jurisdiction to reject the legal facts,and directly rejects the legal facts.The legal requirements of ’ consent ’ and ’ connection of counterclaim facts ’ are further clarified.Then,this paper discusses the problems in the counterclaim practice of the International Investment Arbitration Tribunal.This chapter sorts out the disputes and ambiguity of the establishment elements of counterclaims,namely,“ consent ” and“ connection ”.The host country ’ s procedural regulation of counterclaims should refer to the similar dispute settlement mechanism in international investment treaties,and use it as a reference for institutional design and practical application.In addition,the proposal of counterclaims should also meet two basic premises,namely,obtaining the consent of both parties,and there is a close relationship between counterclaims and the current suit,at least meeting the actual relevance.Finally,this paper proposes solutions to counterclaims in international investment arbitration and implications for China.First of all,constructive suggestions are put forward on the basis of theory and practice for the issue of “ consent of the parties to the dispute ” and “ relevance ” in practice.Then,the specific provisions of the dispute settlement mechanism established in the existing foreign investment treaties in China are combed and analyzed.Combined with the discussions on the legal basis and trial practice of counterclaim in the previous chapters,it is proposed that China should also establish and improve the provisions on counterclaim in investment treaties,and actively use the counterclaim rule to safeguard its own rights and interests.