Harshad Pathak

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Counterclaims in investment treaty arbitration hold immense significance. Counterclaims have the potential to nullify biases and bolster the confidence of States in investment treaty arbitration. That being said, the multitude of jurisdictional hurdles faced by counterclaims under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) risk dampening the aforementioned potential. It is two of these hurdles emanating from the consensual nature of arbitration that I address herein. Part II of this article commences by analyzing the provisions of the ICSID Convention to derive the prerequisites of a valid counterclaim in investment treaty arbitration. Part III examines the first hurdle relating to the scope of an investor’s consent to arbitrate counterclaims and how must this be construed. Thereafter, Part IV discusses the second hurdle concerning the arbitral tribunal’s jurisdiction ratione personae and explores the possibility of a host state filing counterclaims that implicate a non-consenting third-party. Part V concludes.