Akademik Veri Yönetim Sistemi
Public and private international law bulletin, cilt.2, sa.40, ss.1659-1707, 2020 (ESCI)
Even though since the Saluka case it is settled that theoretically host States can file counterclaims based on investment treaties, there are still no solid principles as to how to approach to the two main requirements for such counterclaims. While most of the tribunals have embraced the approach that the question of whether a counterclaim falls within the parties' consent can only be determined by the arbitration provision of the relevant treaty, some other arbitrators embraced the approach that regardless of the wording of the arbitration provision of the relevant treaty, an investor who has initiated ICSID proceedings should be deemed to have given consent to counterclaims. Likewise, different approaches have been taken as regards to the connection requirement; while some arbitrators found that a "factual connection" is not sufficient and decided that counterclaims that have no "legal connection" with the primary claim are inadmissible, some other tribunals have decided that the existence of a "factual connection" between the counterclaim and the primary claim is sufficient for the admissibility requirement.