Counterclaims in Investor-State Arbitration: A Tale of Two Cases

This article explores the evolving role of counterclaims in investment treaty arbitration. While arbitral rules commonly permit counterclaims, their success has historically been limited due to challenges such as the scope of the parties’ consent to arbitration and the lack of a relevant investor obligation to ground the counterclaim. However, a discernible increase in counterclaims under the ICSID Convention over the past 15 years suggests that there may be a shift in practice. Against this backdrop, this article carries out a comparative analysis of two recent decisions – Iberdrola v. Guatemala (2020) and Lopez Goyne Family Trust v. Nicaragua (2023) – highlighting key similarities and differences in reasoning and discussing their broader significance.

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Publication Details

Journal
National Law School of India Review
Published
2025-01-01
DOI
https://doi.org/10.55496/gwqf7575
Primary Topic
International Arbitration and Investment Law
Type
article
Field-Weighted Citation Impact
0.00
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article

Counterclaims in Investor-State Arbitration: A Tale of Two Cases

Godwin Tan, Justin Tan
National Law School of India Review
International Arbitration and Investment Law
article

Counterclaims in Investor-State Arbitration: A Tale of Two Cases

Godwin Tan, Justin Tan
article en

Abstract

This article explores the evolving role of counterclaims in investment treaty arbitration. While arbitral rules commonly permit counterclaims, their success has historically been limited due to challenges such as the scope of the parties’ consent to arbitration and the lack of a relevant investor obligation to ground the counterclaim. However, a discernible increase in counterclaims under the ICSID Convention over the past 15 years suggests that there may be a shift in practice. Against this backdrop, this article carries out a comparative analysis of two recent decisions – Iberdrola v. Guatemala (2020) and Lopez Goyne Family Trust v. Nicaragua (2023) – highlighting key similarities and differences in reasoning and discussing their broader significance.

National Law School of India ReviewVol. 36(1)
Openalex Percentile: Top 64%
International Arbitration and Investment Law
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