Human Rights and Environmental Counterclaims in Investment Treaty Arbitration

Abstract

Generally, Investment Treaty Arbitration (ITA) is unidirectional in nature. It only permits the investor to file a claim against the host State. Bilateral Investment Treaties (BITs) or International Investment Agreements (IIAs) typically do not impose substantive obligations on the investors which can allow host States to institute a claim against the investor before an arbitral tribunal. This is rooted in the idea that BITs are aimed at protecting the rights of investors in the territory of the host States. The host States, in return, benefit from the investments made by the foreign investors. Therefore, in an ITA the investor holds the sword and the respondents hold the shield. Such an asymmetric structure of ITA, however, as it stands today, does not adequately reflect all the dimensions and dynamics of an