Counterclaims in the Realm of Investment Arbitration
İnci Ataman FiganmeşeEven though since the Saluka case it is settled that theoretically host States can file counterclaims based on investment treaties, there are still no solid principles as to how to approach to the two main requirements for such counterclaims. While most of the tribunals have embraced the approach that the question of whether a counterclaim falls within the parties’ consent can only be determined by the arbitration provision of the relevant treaty, some other arbitrators embraced the approach that regardless of the wording of the arbitration provision of the relevant treaty, an investor who has initiated ICSID proceedings should be deemed to have given consent to counterclaims. Likewise, different approaches have been taken as regards to the connection requirement; while some arbitrators found that a “factual connection” is not sufficient and decided that counterclaims that have no “legal connection” with the primary claim are inadmissible, some other tribunals have decided that the existence of a “factual connection” between the counterclaim and the primary claim is sufficient for the admissibility requirement.
Milletlerarası Yatırım Tahkiminde Karşı Davalar
İnci Ataman FiganmeşeSaluka davası kapsamında verilmiş yetki kararıyla ev sahibi devletlerin ‘Yatırım Teşvik ve Koruma Sözleşmelerinde (YTKS’lerde)’ yer alan tahkim klozlarına istinat etmek suretiyle karşı dava açma olanağına sahip oldukları teorik olarak ortaya konmuş olsa da, karşı davaların hükme bağlanabilmesinin tâbi olduğu yetki ve kabul edilebilirlik şartlarının yerine gelmiş olup olmadığının belirlenmesinde nasıl bir anlayışın tatbiki gerektiği konusunda henüz netleşmiş standartlar oluşturulamamıştır. Meselâ karşı davanın, tarafların tahkim rızasının kapsamı içinde olup olmadığının belirlenmesi konusunda ağırlıklı olarak YTKS’de yer alan tahkim klozunun kapsamından yola çıkılmış olunsa da, bazı hakemler, yatırmcının tahkim davası açmakla ev sahibi devletin açacağı karşı davaları da tahkim rızasının kapsamına dahil etmiş kabul edilmesi gerektiğini ileri sürmüşlerdir. Diğer yandan, YTKS’ler genellikle yatırımcıya yükümlülük getirmediklerinden, ev sahibi devletler yatırımcının ancak mahallî hukuku veya aralarındaki sözleşmeyi ihlâl etmiş olduğunu ileri sürmeleri mümkündür; ev sahibi devletlerin YTKS hükümleri dışında kalan bu ihlâllere dayanmak suretiyle karşı dava açıp açamayacaklarına ilişkin olarak son dönemde verilmiş az sayıdaki karar dışında net bir cevap ortaya konmamıştır. Kabul edilebilirlik şartını teşkil eden, karşı dava ile asıl dava arasında bağlantı bulunması şartı bakımından, çoğunlukla asıl dava ile karşı dava arasında “hukukî bağlantı” bulunması aranmışsa da, “vakıalar bakımından bağlantı” bulunmasının yeterli olacağına karar verilmiş olan tahkim davaları da bulunmaktadır.
It was not before 2004 that an investment arbitration tribunal, namely the Saluka tribunal, put forth the theoretical possibility of the right of action of host states to file counterclaims based on an Investment Treaty. The reason that the answer to the question as to whether host States have a right to file counterclaims based on investment treaties was left unclear for so many years, lies in the one-sided nature of investment treaties. Investment treaties impose obligations on host States but generally do not provide for obligations on investors. Moreover, the manufactured consent to arbitration by means of the arbitration clauses embedded in investment treaties, vest only the investors with the right to initiate arbitration proceedings, host States on the other hand can not initiate arbitration proceedings implementing arbitration clauses in investment treaties. Last but not least, it has to be pointed out that, investment treaties except for a few rather new ones, do not include a provision on the right of the host States to file counterclaims. All these make it difficult to find an answer on whether tribunals can assume jurisdiction over counterclaims based on investment treaties.
For a counterclaim to be within the jurisdiction of an investment arbitration tribunal, it has to be within the scope of the consent of the parties to the arbitration. Like the overwhelming majority of other treaties, the relevant treaty in the Saluka case did not include a provision on counterclaims that would directly provide an answer as to the jurisdiction of the Saluka tribunal over the counterclaim brought by Czech Republic. Thus the Saluka tribunal, to find out whether the counterclaim was within the scope of the parties’ consent to arbitration looked at the arbitration clause of the relevant treaty. Since the arbitration clause of the relevant treaty referred to “all disputes… concerning an investment” and didn’t identify the investor as the sole potential claimant, the Saluka tribunal found that the consent of the parties was broad enough to encompass the counterclaims brought by the host State. The method employed by the Saluka tribunal has been followed by several other tribunals. Even though some arbitrators (Prof Reisman from the Roussalis tribunal and members of the Goetz tribunal) and commentators have put forward that an investor who has initiated ICSID proceedings must be deemed to have given consent to counterclaims, this approach seems not to have persuaded many others. For instance, in a relatively new case, namely the Vestey case, the tribunal applying the Saluka method looked at the arbitration clause of the treaty and finding that the wording of the clause was not broad enough to encompass the (possible) counterclaim of the host State declined jurisdiction, the Vestey tribunal did not even refer to the approach advocated by Prof Reisman and the arbitrators of the Goetz tribunal (Vestey Award para 333).
Because investment treaties don’t impose obligations on investors, host States can not base their counterclaims on an alleged breach of the investment treaty by the investor; host states, as like the Czech Republic did in the Saluka case, can only base their counterclaims on an alleged breache of their domestic laws or an agreement they concluded with the investor. The question to be answered at this point is whether, arbitration clauses in Investment treaties that have a language that provides that “any” or “all” disputes arising out of investment can be brought to arbitration, vests the host States with the right to both bring a counterclaim by implementing such an arbitration clause and not to base its counterclaim on an alleged violation of the same treaty but of its national laws or an agreement. As a matter of fact, this is not a question that is specifically related to counterclaims, but a question related to any claims brought by way of implementing arbitration clauses in investment treaties. It can be suggested that the more the approach that the meaning of the reference in an arbitration clause to “any or “all disputes arising out of investment” is that claimants, regardless of the legal source of the breach, can base their claims on any alleged breaches factually related to the investment receives general approval, the more counterclaims can be decided by tribunals.
It is not sufficient that the tribunal finds that the counterclaim falls within its jurisdiction, the counterclaim has also to be admissible to be entertained by the tribunal. Counterclaims are admissible only if they are “factually connected” with the primary claim. Yet, many tribunals have found that counterclaims are inadmissible because of being based on the national law of the host state and not having a “legal connection” with the primary claim. Fortunately, tribunals of relevantly new cases such as the tribunal of the Urbaser case do not embrace the approach requiring a “legal connection” and entertain counterclaims that have a “factual connection” with the primary claim, thus entertain counterclaims based on domestic laws on human rights and environmental protection (Urbaser Case para 1151).
