Host States’ Counterclaims on Human Rights in Practical Investment Arbitration

Abstract

This paper analyzes the potential hindrance to the positive results of counterclaims on human rights protection in the practical investment arbitration, then evaluates whether ASEAN Comprehensive Investment Agreement and other treaties with investment provisions would be acceptable legal grounds to enable such counterclaims. This paper argues that to ensure more sustainable investment, future investment treaties should directly provide explicit states’ rights to make counterclaims on human rights protection. As such, these explicit provisions will create better legal grounds for host state to defend their legitimate rights on protecting human right, guarantee the predictability, and avoid the inconsistent interpretation or the reluctance of tribunals. This paper will delve in four substantial issues, including: (i) overview on counterclaims in international investment disputes; (ii) international and municipal regulations on human right protection in investment activities; (iii) host states’ counterclaims on protection of human rights in practical investment arbitration; (iv) control future commitments on states’ counterclaims on human rights.