On The Host Country's Right To Counterclaim In Investment Arbitratio

In recent years,international investment arbitration is facing many crisis,including the crisis of the legitimacy of the investment arbitration system and the crisis of the legitimacy of investment arbitration.The reasons for the aforementioned crisis include flaws in the investment arbitration system itself and the imbalance in the relationship between the rights and obligations of the host-state and the investor.Promoting the realization of the host-state counterclaim can,on the one hand,promote the positive development of the investment arbitration system to a certain extent;on the other hand,it can provide the possibility of rebalancing the interests of the host-state and investors.The system of the host-state counterclaim right in investment arbitration is an extension of the system of counterclaims in civil procedure.Therefore,the host-state counterclaim right seems to be the natural right in investment arbitration.However,the practice of the host-state counterclaim right shows us the opposite fact.In the practice of investment arbitration,the number of cases related to counterclaim is very few.Until2022,there are less than 30 investment arbitration cases involving the host-state counterclaim right,and only 2 cases are won by the host-state.After sorting out and analyzing the above cases,the author believes that the failure of the cases can be attributed to the system defects of the host-state counterclaim right,specifically the vague provisions of the existing investment arbitration rules;the lack of the host-state counterclaim right and the investor obligation.Therefore,this paper will raise questions as the starting point of the study of the host-state counterclaim right system,and reveal the significance of this paper by analyzing the role of promoting the realization of the host-state counterclaim right.Combined with the practice of investment arbitration,this paper summarizes the difficulties faced by the arbitration tribunal against the hoststate in the practice of counterclaim,and finally proposes some solutions.This paper mainly uses the empirical analysis method to systematically sort out the cases involving the counterclaim of the host-state,and classify them according to the adjudication results of the arbitral tribunal,and summarize the reasons why the counterclaim of the host-state is rarely supported by the arbitral tribunal,which mainly includes: the investor did not agree to the counterclaim made by the host-state in the investment arbitration;the content of the counterclaim submitted by the host-state was not related to the content of the investor’s original request;and the bilateral international investment treaty between the host-state and the investor’s home country did not confer the counterclaim right of the host-state or did not stipulate the obligations that the investor should bear.Taking the difference between the practice and theory of the counterclaim of the host-state as the starting point of the paper,further analyzing the role of promoting the realization of the counterclaim of the host-state,revealing the research significance of this paper,and combining the practice of investment arbitration,summarizing the reasons for the dilemma faced by the host-state in practice,and finally proposing a solution.In this paper,the full text is divided into four chapters altogether,chapter one is about some questions of the host-state counterclaim right,as mentioned above,the counterclaim right although has been stipulated in the investment arbitration procedural rules,but in investment arbitration practice,few countries proposed a counterclaim,and tribunals often fail to support the countries‘counterclaims.These leads to the differences between the theory and practice of the host-state counterclaim right,that is,although the host-state has the right to counterclaim on the institutional level,in the practice of investment arbitration,the host-state often faces the result that cannot be supported by the arbitration tribunal.Chapter two is about the necessity of promoting the realization of the host-state counterclaim right.In the second chapter,the author analyzes the practical significance and function of promoting the realization of the host-state counterclaim right,that is,to alleviate the phenomenon of investors’ abuse of litigation;It is beneficial to realize the efficiency value of investment arbitration;It is beneficial to remedy the defects of the investment arbitration system and to re-balance the procedural rights and substantive rights between the host-state and investors.The third chapter analyzes the causes of the difficulties faced by the practice of counterclaim right in the host-state.In the first chapter of this paper,the author reveals the phenomenon that the host-state ’s right of counterclaim is seldom exercised and seldom supported in practice,and in the third chapter,the author analyzes the causes of this phenomenon.In this chapter,the author analyzes and summarizes the following five reasons for the predicament of the host-state counterclaim right :(1)the identification form of investors’ "consent" to the counterclaim right is not clear;(2)the investment arbitration rules are unclear on the "relevance" between the original claim and the counter-claim;(3)the arbitral tribunal’s interpretation of the arbitration rules on the host-state counterclaim right is inconsistent;(4)the absence of the source of the host-state counterclaim right and(5)the absence of the source of investors’ obligations.The fourth chapter of this paper focuses on the solution of the practice dilemma of the host-state counterclaim right.The author divides chapter four into two parts,first.The author starts from a macroscopic perspective,In the first part,the author put forward the following solutions to ease the implementation of the host-state for the dilemma(1)countries should increase the host-state counterclaim right and the obligations of investors in terms,to clear the host-state to the right of claim right source and source of investor’s obligations;(2)the maker of investment arbitration rules shall specify the form of the consent of the investor to the host-state counterclaim right,and set the time requirement for the investor to lodge an objection to the jurisdiction and(3)the makers of investment arbitration rules shall specify the relevance standard between the counterclaim and the original claim,that is,the relevance between the counterclaim and the original claim only needs to conform to the relevance at the legal level or the relevance at the factual level.In the second part,based on China,the author analyzes the significance of the realization of the host-state counterclaim for China and gives a Chinese solution to alleviate the dilemma of the host-state counterclaim practice.