Reconceptualizing counterclaim assessment in investment treaty arbitration: a discourse on fairness through Rawlsian justice theory

Abstract The article delves into the intricate dynamics of counterclaims within the Investor-State Dispute Settlement (ISDS) system. It critically evaluates the asymmetry and fairness concerns associated with ISDS, advocating for a recalibrated approach through the lens of Rawlsian justice. The article further explores the viability of counterclaims as a mechanism to address the imbalances between investors and host states, underscoring the necessity for a more equitable legal framework. By integrating John Rawls’ Theory of Justice, the article proposes a novel interpretative paradigm that aims to enhance the fairness and legitimacy of counterclaims in ISDS. This approach seeks to balance the rights and obligations of involved parties, ensuring a just resolution of disputes while fostering a fairer arbitration environment.