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Blog: Counterclaims in investor-state disputes: time for the system to change?


At a packed BIICL event on 6 November 2020, we discussed counterclaims in investor-state disputes. DLA Piper and the Investment Treaty Forum brought together an excellent panel to discuss the complexities of asserting counterclaims, including jurisdictional, substantive and enforcement aspects of it: Michael Ostrove, David Herlihy, Alison Macdonald and Dainis Pudelis from the State Chancellery of the Republic of Latvia.

Although I was not one of the event's main speakers, I have been interested in this topic ever since preparing counterclaims for Romania in Roussalis v Romania ICSID case back in 2007. My first serious article on international investment law in 2012 was also devoted to counterclaims.

It was rather striking that most of the issues I raised in my 2012 article have still not been resolved. That includes passing through the jurisdictional gateways of the relevant dispute resolution clauses, interpreting applicable arbitration rules and actually finding the sources of obligations of investors.

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