Environmental and Human Rights Counterclaims in International Investment Arbitration: at the Crossroads of Domestic and International Law

ABSTRACT Recently, environmental and human rights (EHR) counterclaims in investment arbitration have attracted much attention as a vehicle to recalibrate the investor–state relationship. However, until now, successful instances of EHR been admittedly rare. As explained this paper, some major barriers arbitration, concerns associated with them, are rooted domestic law basis such counterclaims. Contrary position several commentators, paper argues that grounding on international is neither practical nor beneficial, necessarily based law. Therefore, when arbitral tribunals adjudicate counterclaims, they essentially act an alternative courts. This has implications. First, questions jurisdiction admissibility decisions states turn pros cons having these claims adjudicated by opposed Second, weaknesses rules, including difficulty holding shareholders accountable, would carry over Such problems can only be efficiently tackled at level Third, revealed from inconsistent Perenco Burlington merits law-based may cause certain concerns. For play more beneficial role, decision-makers must bear mind factors taking their policy choices.