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A counterclaim is only possible if the parties to the counterclaim are the same as to the primary claim
A tribunal has to respect a mandatory choice of forum clause in a contract if the IIT requires the tribunal to take into account the provisions of such contracts; thus, the respondent cannot base a counterclaim in a treaty-based arbitration on an alleged breach of such a contract
- International Investment Treaties (IITs) > Protection of Investors under IITs > Waiver of Rights Under an IIT
- Investment Treaty Arbitration > Counterclaims
It is a general legal principle that a counterclaim must have a close connexion with the primary claim
The respondent has the burden of establishing a tribunal's jurisdiction concerning a counterclaim
- Investment Treaty Arbitration > Jurisdiction > Further Problems
- Investment Treaty Arbitration > Counterclaims
For admissibility and jurisdiction, it is sufficient that the claimant demonstrates prima facie that he or she has been adversely affected by measures of the respondent
A dispute settlement clause conferring jurisdiction upon a tribunal for "all disputes" is not limited to claims initiated by an investor; thus, counterclaims by the respondent are within the jurisdiction of the tribunal
- International Investment Treaties (IITs) > Protection of Investors under IITs > Dispute Settlement Clauses > Wide Dispute Settlement Clauses
- Investment Treaty Arbitration > Jurisdiction > Further Problems
- Investment Treaty Arbitration > Counterclaims
Protection of Investors under IITs
Dispute Settlement Clauses
Wide Dispute Settlement Clauses
A dispute settlement clause conferring jurisdiction upon a tribunal for "all disputes" is not limited to claims initiated by an investor; thus, counterclaims by the respondent are within the jurisdiction of the tribunal
Waiver of Rights Under an IIT
A tribunal has to respect a mandatory choice of forum clause in a contract if the IIT requires the tribunal to take into account the provisions of such contracts; thus, the respondent cannot base a counterclaim in a treaty-based arbitration on an alleged breach of such a contract
Jurisdiction
Further Problems
The respondent has the burden of establishing a tribunal's jurisdiction concerning a counterclaim
A dispute settlement clause conferring jurisdiction upon a tribunal for "all disputes" is not limited to claims initiated by an investor; thus, counterclaims by the respondent are within the jurisdiction of the tribunal
Admissibility
Prima Facie Case
For admissibility and jurisdiction, it is sufficient that the claimant demonstrates prima facie that he or she has been adversely affected by measures of the respondent
Counterclaims
A counterclaim is only possible if the parties to the counterclaim are the same as to the primary claim
A tribunal has to respect a mandatory choice of forum clause in a contract if the IIT requires the tribunal to take into account the provisions of such contracts; thus, the respondent cannot base a counterclaim in a treaty-based arbitration on an alleged breach of such a contract
It is a general legal principle that a counterclaim must have a close connexion with the primary claim
The respondent has the burden of establishing a tribunal's jurisdiction concerning a counterclaim
A dispute settlement clause conferring jurisdiction upon a tribunal for "all disputes" is not limited to claims initiated by an investor; thus, counterclaims by the respondent are within the jurisdiction of the tribunal