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A Domain for Arbitral Lawmaking?

AUTHORITY OF INTERNATIONAL INVESTMENT ARBITRAL TRIBUNALS IN THE CONTEXT OF ENVIRONMENTAL COUNTERCLAIMS

Louise Roelfsema (13453297)

PUBLIC INTERNATIONAL LAW | SUPERVISOR: LYS KULAMADAYIL

EMAIL: LOUISE.ROELFSEMA@STUDENT.UVA.NL | SUBMITTED: 30-06-2021 WORDS: 13573

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“It is not wisdom but authority that makes a law.”

Thomas Hobbes

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Abstract

Although the international investment system has been considered successful in terms of numbers, various criticisms are aimed both at the inability of tribunals to address contemporary environmental issues as well as the perceived inequality of the relationship between investors and states. For these reasons, this research will be a study of the authority of investment tribunals, and it will be focused on interpreting this concept within recent developments regarding environmental counterclaims. Tribunals dealing with these issues are seen to interpret requirements regarding their jurisdiction to hear environmental counterclaims remarkably broad, so much so that recent awards could be considered examples of “creative interpretation”

or “arbitral lawmaking”. These interpretations relate to requirements that determine the de jure authority of tribunals, which according to a positivist approach should determine the limits of the authority of tribunals. However, as arbitral tribunals in this context are, based on a social approach to authority, determined to have a strong sense of de facto authority, it suggests that a lack of de jure authority can be compensated for with a strong sense of de facto authority. In fact, it suggests that de facto authority might be more influential regarding the role of tribunals in this specific context than their de jure basis. At the same time, the potential of a tribunal’s de facto authority is limited by the pre-emptiveness of its awards, which suggests that although the authority of tribunals is largely dependent on social recognition, normative considerations will play an important role in establishing its limits.

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Table of contents

1. Introduction ... 1

2. A legal framework of Authority ... 3

2.1 Methodology ... 3

2.2 Authority Intertwined ... 3

2.3 Authority and The Positivist Approach ... 5

2.3.1 Kelsen on the Authority of Norms ... 5

2.3.2 Hart on the Authority of Norms ... 7

2.3.3 Raz and the Service Conception ... 8

2.4 Authority as a Social Concept ... 9

2.4.1 Zarbiyev on Marks of Authority ... 9

2.4.2 Gorobets on Authority and Legitimacy ... 12

2.5 Overview ... 13

3. International Investment Tribunals and Environmental Counterclaims ... 14

3.1 The Process of Interpretation ... 14

3.2 The Development of Environmental Counterclaims ... 15

3.3 Environmental Counterclaims in Practice ... 16

3.3.1 Counterclaims and de jure Authority ... 17

3.3.1.1 The Burlington and Perenco Awards ... 17

3.3.1.2 The Goetz Award ... 19

3.3.1.3 The Urbaser and Aven Awards ... 20

3.3.1.4 Conclusions on de jure Authority ... 24

3.3.2 Counterclaims and de facto Authority ... 25

3.3.2.1 The limits on de facto Authority Potential ... 28

3.3.2.2 Conclusions on de facto Authority ... 30

4. Conclusion ... 32

5. Bibliography ... 34

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Abbreviations

BIT Bilateral Investment Treaty

FTA Free Trade Agreement

ICJ International Court of Justice

ICSID International Centre for Settlement of Investment Disputes IIA International Investment Agreement

IIAT International Investment Arbitral Tribunal

UNCITRAL United Nations Commission on International Trade Law

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1 Introduction

Alongside the immense rise in numbers of awards in the international investment system, various doubts have been raised with regards to the system’s compatibility with contemporary times.1 Such doubts often revolve around the possibility to incorporate emerging environmental standards into investment disputes.2 As with the discussion on investment and human rights, there are often calls for tribunals to include more references to such substantive rights in their awards, as at present these are minimal. This sentiment even goes as far as to suggest that the lack of reference affects “the legitimacy of the international regime”.3 One avenue that has been increasingly attempted to achieve this goal with regards to environmental norms, is through introducing environmental counterclaims into an existing dispute. Because this approach has the possibility of holding investors accountable for breaches of international environmental law, exploring its development is a relevant effort. What is often suggested with regards to these environmental counterclaims, is that they hold the potential of rebalancing a system that has increasingly been favoring the interests of investors.4

However, rather than exploring in what way the development of environmental counterclaims affects the position of the host state or investor, this thesis focuses on the authority of the man in the middle; namely the investment tribunal. As investment arbitration is a growing field of dispute settlement, the increased importance of the role of international investment arbitral tribunals (IIATs) requires “intensified scrutiny of their work”.56 The main research question related to these actors that will be addressed in this thesis is what the development of environmental counterclaims reveals about the role and authority of IIATs within the system of investment arbitration at large.

The international investment system “exists at the intersection of multiple fields”, where both public and private, domestic and international interests are seen to blend.7 The role of

1 David Schneiderman, "Legitimacy and Reflexivity in International Investment Arbitration: A New Self- Restraint?," Journal of International Dispute Settlement 2, no. 2 (2011): 3.

2 Arnaud de Nanteuil, "Interactions (1): Investment Law, Human Rights and Environmental Law," in International Investment Law (Edward Elgar Publishing, 2020), 372-372.

3 Jean-Michel Marcoux, "Informal instruments to impose human rights obligations on foreign investors: An emerging practice of legality?," Leiden Journal of International Law 34, no. 1 (2021): 110.

4 Ted Gleason, "Examining host-State counterclaims for environmental damage in investor-State dispute settlement from human rights and transnational public policy perspectives." International Environmental Agreements: Politics, Law and Economics (2020): 2.

5 Chiara Giorgetti, "Who Decides Who Decides in International Investment Arbitration," University of Pennsylvania Journal of International Law 35, no. 2 (Winter 2013): 434.

6 Anthea Roberts, "Clash of paradigms: actors and analogies shaping the investment treaty system," American journal of international law 107, no. 1 (2013): 45

7 Roberts, 49.

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2 states in international investment arbitration is a dual one, as they function both as public parties to a treaty as well as respondents to private claims brought by investors.8

Not only is this duality revealed with regards to the private and public dimension, one could also argue that the investment system requires two different approaches to authority.

Whereas in international courts more generally, consent of parties to bring a case to court is an important hurdle, in investment arbitration that focus on consent seems to be highlighted even more. Indeed, the consent given by parties in the constituting legal instruments, is often the focal point of analysis for IIATs, as it determines the arbitral process.9

On the other hand, there is a large role to play for the actors issuing the decisions, as arbitrators are selected by parties based on their views and reputation.10 This suggests that in investment arbitration one can observe both a source based as well as an actor based approach to authority, which makes studying these distinct aspects of the system and analyzing them an interesting task. The theories used to assess authority within the context of investment arbitration would thus have to account both for the strong focus on the written consent of the parties to the dispute, as well as the position and recognition of arbitrators.

Because of its focus on written norms as the basis for authority, the legal positivist approach is best suited in determining the limits of de jure authority of tribunals, but in itself it is insufficient to explain the way that de facto authority is constructed in the international investment system.11 A social approach that accounts for the recognition of an arbitrator’s position will on the other hand be appropriate to determine the de facto authority of tribunals.

To that end, applying the marks of authority introduced by Fuad Zarbiyev is most useful, whereas the theories of Raz, which focus on normative considerations of authority, are capable of limiting the possible capacity of this de facto authority.

Through analyzing the development of environmental counterclaims both from an internal legal perspective as well as an external socio-political perspective, this research will thereby contribute to an understanding both of the developments taking place in the context of environmental counterclaims, as well as the role and authority of IIATs within the system of investment arbitration.

8 Anthea Roberts, "Power and persuasion in investment treaty interpretation: the dual role of states," American Journal of International Law 104, no. 2 (2010): 182.

9 Christoph Schreuer, "Consent to arbitration," in The Oxford Handbook of International Investment Law, (Oxford University Press, 2008), 1.

10 Catharine Titi, "The arbitrator as a lawmaker: Jurisgenerative processes in investment arbitration," The Journal of World Investment & Trade 14, no. 5 (2013): 829.

11 Marcin Menkes, "Treat the Cause, Not the Symptom: The Legal-Rational Authority of International Investment Arbitration," Bocconi Legal Papers 8 (2016): 112.

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3 Chapter 2: A Legal Framework of Authority

2.1 Methodology

Various diverging theories on the concept of authority exist. As scholarly work on the concept of authority slowly progressed, the primary focus of research shifted over time from legal norms and sources to the study of institutions and actors.12 However, theories from both these approaches are useful in understanding certain elements of the concept of authority in the context of international investment arbitration. Considered the specifics of the system of investment arbitration, two perspectives seem best suited with regards to the topic chosen, namely the positivist approach as well as the sociological interpretation. As this thesis will not focus on the merits of specific awards, but rather on the social facts underlying legal norms, the legal positivist approach has been opted for to study the de jure authority of tribunals as opposed to other approaches to authority that instead focus on the contents of norms.13 The positivist approach will allow an interpretation of the elements of authority based on the consent of the parties to form, which plays a key role in the arbitration process.

Since the other central element of authority in this context will revolve around the position of individual arbitrators and their reputations, the social approach to authority, with its focus on social recognition of actors rather than written norms, will be most helpful. By using these two specific theories out of a vast array of approaches to authority, the most holistic insight into the overarching developments taking place in the context of environmental counterclaims and the authority of IIATs will be achieved.

2.2 Authority intertwined

The term authority is notoriously hard to define. As political scholar Ian Herd put it “authority is perhaps the most interesting concept in social science, sitting as it does between the ideas of power and legitimacy, of control and freedom, of civil society and the state”.14 In this thesis, the focus will lie on defining the concept of authority, but no deep understanding can emerge without also addressing some of these other closely related topics.

Ever since attempts have been made to define authority as a concept, debate has persisted with regards to the position of the term legitimacy within that definition. The relation

12 Birgit Peters and Johan Karlsson Schaffer, “The Turn to Authority Beyond States,” Transnational Legal Theory 4, no. 3 (2013): 216-117.

13 Leslie Green and Thomas Adams, “Legal Positivism,” The Stanford Encyclopedia of Philosophy Archive, 2003, https://stanford.library.sydney.edu.au/archives/sum2020/entries/legal-positivism/.

14 Ian Hurd, "Legitimacy and authority in international politics," International organization 53, no.2 (1999): 400.

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4 of the concept of authority to legitimacy and power will depend on one’s approach to the definition of authority. Some scholars have argued that authority can be defined as “legitimized power”, clearly indicating that the building blocks of authority are both power and legitimacy.15 When power of a certain actor becomes legitimized it will thus result in the validation of authority of that actor and the decisions and rules it creates. The other way around, when an actor has authority, this authority always implies legitimacy. In this line of thought, the reason why various different theories exist on authority is because there is debate on what constitutes the legitimization of power.16

However, others argue that although the notions of authority and legitimacy may at times seem necessarily intertwined, conflating the two concepts creates difficulties in explaining certain situations where power cannot be legitimized but appears authoritative or the other way around. For one, without making a distinction between the two concepts, an increase in authority automatically increases an actor’s legitimacy.17 This seems counterintuitive considering it is possible for a specific actor to gain more authority even though that actor is not perceived as more legitimate. Next to that, it denies the idea that authority can ever be illegitimate, which is “troubling for both normative and conceptual reasons.”18 This is especially so when one considers that there are clear examples of institutions exercising legal authority, which were nonetheless considered illegitimate.19 When interpreting authority as a concept separate from legitimacy, the question of authority depends more on whether there exists factual recognition of power, rather than whether that authority is legitimized.20

One important distinction that is relevant with regard to this debate and to defining the concept of authority in general, is the difference between so called de jure authority and de facto authority. De facto authority is considered to refer to the actual recognition of an actor in practice, whereas de jure authority refers to the notion of legitimate authority often through a process of legal delegation.21

The present chapter will focus mainly on defining how de facto authority can be observed and how it differs from de jure authority. In this determination, the position will be

15 Hurd, "Legitimacy and authority," 400.

16 Hurd, 400-401.

17 Karen J Alter, Laurence Helfer, and Mikael Rask Madsen, "How context shapes the authority of international courts," Law & Contemporary Problems 79, no.1 (2016): 7.

18 Alter, Helfer, and Madsen, 7.

19 Think here of the discussion on the sanctions given by the UN Security Council against specific individuals or the campaign of NATO in Kosovo, see Peters and Schaffer, “The Turn to Authority,” 324.

20 Michael Zürn, A theory of global governance: Authority, legitimacy, and contestation (Oxford University Press, 2018), 64-65.

21 Alter, Helfer and Madsen, "How context shapes the authority of international courts," 33.

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5 taken that questions of authority can be addressed without necessarily conflating the concept with that of legitimacy, whilst at the same time arguing that the term is not limited to social recognition alone. In that line of thought, the term legitimacy will have a separate meaning to that of authority, determined primarily by questions of morality rather than legal or social recognition. Further determinations of legitimacy will however be beyond of the scope of this thesis.

2.3 Authority and the Positivist Approach

One tradition that has left a considerable legacy in defining authority, as its focus on legal norms and sources once formed the key understanding of the authority of law, is referred to as the positivist approach, or the legal rational approach.22 Amongst its early adherents are well- known scholars such as John Austin as well as Jeremy Bentham, whereas in the twentieth century the tradition was further developed by Hans Kelsen, H.L.A. Hart and Joseph Raz.23 Although many different theses have been developed under this strand of thought, some have been more influential in shaping subsequent developments of theories on the topic.24

All positivist theories are broadly based on one principle conception, which forms the basis of legal positivism as a theoretical category. This is the assumption that “in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits”.25 This central belief is further supported by a social thesis and a separability thesis. The former assumes that what is regarded as law in a particular country “is fundamentally a matter of social fact or convention.”26 The latter suggests that a connection between law and morality cannot be assumed.27 Legal positivists will differ in their interpretations of the above theses. However, as their focus lies on analyzing the origins of norms themselves, these approaches will be understood as defining de jure authority.

The term legal rational authority was first identified by Max Weber and has left its mark on other theories proposed by legal philosophers and sociologists following him.28 Weber introduced legal rational authority as one form of authority that is specifically derived from

22 See Dennis Patterson, A companion to philosophy of law and legal theory (Chichester: Wiley-Blackwell, 2010), 228 and Peters and Schaffer, “The Turn to Authority,” 316 as well as Ingo Venzke, How interpretation makes international law: on semantic change and normative twists (Oxford University Press, 2012), 18.

23 Patterson, A companion to philosophy, 228.

24 Patterson, 228.

25 John Gardner, "Legal Positivism: 5 1/2 Myths," American Journal of Jurisprudence 46, no.1 (2001): 199.

26 Patterson, 228.

27 Patterson, 228.

28 Jeffery D Houghton, "Does Max Weber's notion of authority still hold in the twenty‐first century?," Journal of Management History 16, no.4 (2010): 450.

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6 legal rules.29 This type of authority signifies that the actor has authority only insofar as the rules from which its powers originate grant it. As a consequence, this means that the authority of that particular actor will depend on the legitimacy of those norms on which its authority is based.

According to Weber, this legitimization of norms occurs when the norms can be constituted in a legal manner. The norms on which legal rational authority is based thus both create the authority of the actor, as well as constrain it. 30

After Weber, other legal philosophers also engaged with the topic of legitimate laws as the basis of authority. The perspectives by Hans Kelsen and H.L.A. Hart will be introduced next to illustrate the approach of the legal positivist theory. Their views will be used in understanding the elements of authority in investment arbitration related to the written consent of the parties. Thereafter the theories as proposed by another influential theorist, Joseph Raz, will be introduced, which will form a more substantial part of this sub-section as his theses will be used to compliment the understanding of de facto authority. Kelsen, Hart and Raz will be the focus of this section as they have been recognized as the “architects” of this theoretical approach as we know it.31

2.3.1 Kelsen on the Authority of Norms

The earliest one of the three, Hans Kelsen, based his interpretation on the conception that legal norms are there to guide legal officials in their application of the law. The substance of the rule is, according to Kelsen, thus directed at court officials and not at subjects of the law.32 Legal rules are by nature normative because rather than describing a situation as it is, they inherently possess a proposal of how things ‘ought’ to be.33 The power and authority of officials to apply the law in that way to its subjects comes from a chain of legitimacy of the law itself. Kelsen sees the collection of legal rules as a “normative system”.34 The law derives its legitimacy from the fact that it has been created by an entity that also derives its own authority from a legal norm. In this line of thought, all legitimacy of laws and the consequent authority of officials in the end derive from one specific norm, also called the Grundnorm. This can take the form of a

29 Max Weber, "The three types of legitimate rule," Berkeley Publications in Society and Institutions 4, no. 1 (1958): 1-11.

30 Martin E Spencer, "Weber on legitimate norms and authority," The British journal of sociology 21, no. 2 (1970): 125.

31 Green and Adams, “Legal Positivism,” 1.

32 Green and Adams, 3.

33 Brian H Bix, "Kelsen, Hart, and legal normativity," Revus. Journal for Constitutional Theory and Philosophy of Law 34 (2018): 2.

34 Hans Kelsen, "On the basic norm," California Law Review 47, no. 1 (1959): 107.

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7 constitution but it does not have to be so.35 The legitimacy of this Grundnorm cannot be derived from other sources, hence its authority is “presupposed”.36 By presupposing the legitimacy of this “Grundnorm”, Kelsen makes no normative judgement of that norm, but rather views it as

“the necessary precondition” for the existence of a normative system of rules.37 The legitimacy of the rules on which powers are based are thus the ultimate condition for officials to issue authoritative norms.38

2.3.2 Hart on the Authority of Norms

The problems with the above theory were clear, as the question of what this Grundnorm would be constituted by remained unanswered.39 Therefore, new theories were developed. One very significant contribution to that question was given by H.L.A. Hart. Basing his theories on a more social premise, the answer to what constitutes authority of a legal system lies not, as Kelsen proposed, in legal norms alone, but in social rules that can be observed in practice.40

Hart proposes that by studying various customs related to three different rules, authority can be understood in a particular society. These are first of all, the question of what person or actor has the authority to settle a dispute. Secondly, what sources shall be binding on this person when making decisions (also called the rule of recognition).41 Lastly, how can these particular sources be changed.42 This suggests that the legal rules that govern a certain society, are in essence social norms practiced by officials that rule on disputes.43 Hart distinguishes the situation of “being obliged” from that of “having an obligation”. Whereas the former refers to situations where people act in a certain way only out of fear of sanctions, the latter describes a situation whereby the social norms dictate a person’s behavior.44 The theory does not extend to general practices, but only those observable in officials, and does not suggest that laws represent a cultural phenomenon.45 Hart does thus not stray away from the concept that rules are the primary basis of authority, but merely envisages a different source for their legitimacy.

35 Kelsen, “On the basic norm,” 108.

36 Kelsen, 108-209.

37 Green and Adams, “Legal Positivism,” 4.

38 Graham Hughes, "Validity and the basic norm," California Law Review 59, no.3 (1971): 696.

39 Green and Adams, “Legal Positivism,” 4.

40 Stephen Perry, "Hart on social rules and the foundations of law: liberating the internal point of view," Fordham Law Review 75, no. 3 (2006): 1171.

41 Kent Greenawalt, "The Rule of Recognition and the Constitution," Michigan Law Review 85, no. 4 (1987):

621.

42 Green and Adams, “Legal Positivism,” 4.

43 Scott J Shapiro, "What is the internal point of view," Fordham Law Review 75, no.3 (2006): 1157.

44 H. L. A. Hart, "Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Professor Bodenheimer,"

University of Pennsylvania Law Review 105, no. 7 (1956-1957): 966.

45 Green and Adams, “Legal Positivism,” 5.

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8 2.3.3. Raz and the Service Conception

Joseph Raz is an influential scholar who has contributed significantly to the further development of the positivist understanding of authority. Raz proposes another basis for the authority of norms. His main argument is that for a certain rule or decision to be authoritative, it should replace the reasons that the person or entity intended to act on in the first place.46 This type of reason has been called an ‘exclusionary reason’ by Raz, and determining when these reasons should constitute authority is the key to his understanding of the concept. 47 Overall, the theory proposes that any authority can only be a legitimized imposition on an individual’s autonomy when that authority makes rules and decisions that are in service to that person.

Hence, it is referred to as the ‘service conception of authority’.48

The theory that Raz proposes is based on two different theses; the ‘dependence thesis’

and ‘normal justification thesis’. Both these theses combined also imply the existence of a third thesis, the so called ‘pre-emptive thesis’.49 Firstly, the dependence thesis is based on the idea that for any directive to be considered a legitimate authority, it has to at a minimum reflect the reasons that the subject would already inherently base its actions on.50 What is not required is that that subject is consciously aware of these reasons.51

Secondly, the normal justification thesis proposes that the subjects of a certain authority have to be in general better off with complying with the replacement of reasons that is suggested for them, rather than to attempt identifying their own reasons and consequently act on that basis.

That authority will thus only be legitimate when it does in fact represent those reasons better than the subject itself could manage to discover, which will lead to that subject being able to comply with those reasons better as a result.52

Thirdly, from these theses discussed above flows a third one; the so-called ‘pre-emptive thesis’. Under this thesis Raz suggests the way that subjects should treat a certain authority. As the reasons for action are replaced by the reasons proposed by the directive, a subject should treat legitimately authoritative directives as their reason for action. That is to say, the directive should be the motivation for a subject to act a certain way, rather than any other considerations

46 Heidi M Hurd, "Challenging authority," The Yale Law Journal 100, no. 6 (1991): 1617.

47 Kenneth Ehrenberg, "Joseph Raz’s theory of authority," Philosophy Compass 6, no. 12 (2011): 887.

48 Joseph Raz, the Morality of Freedom (Oxford; New York: Clarendon Press, 1986), 5-6.

49 Raz, 47.

50 Raz, 47.

51 Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford; New York: Oxford University Press, 2009), 147-148.

52 Raz, the Morality of Freedom, 53.

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9 that might be relevant in that determination.53 The general pre-emptiveness of a decision will also depend on the pre-emptiveness of the law that it is based on.54

These theories proposed by Raz should not be on their own considered as the determinative criteria for an authoritative directive. Raz recognizes that it is indeed possible for a directive to be authoritative without meeting the theories introduced above. However, he does argue that meeting the criteria of these theses comes close to determining the requirements of being considered an authoritative entity.55

2.4 Authority as a Social Concept

Whereas the positivist tradition focuses on the sources of laws to determine authority, different approaches to the concept of authority that shift away from this traditional focus have been developed over time and have become more widely accepted in both international law and international relations.56 The social approach moves beyond the concept of authority of the law and focuses on the question of the authority of actors from the perspective of different disciplines.57 This social approach generally assumes that the legal realm does not exist autonomously. Rather, social influences are capable of shaping the legal realm, regardless of whether those within it recognize that these “underlie the law’s explicit functioning”.58

2.4.1 Zarbiyev on Marks of Authority

Fuad Zarbiyev, a well renowned international legal scholar, introduces to the reader various novel ‘marks on authority’ to understand the concept within the context of international law.

His approach provides for a different view to understand when actors are considered to have authority, and by identifying various marks, his theory can be easily applied to distinct actors or institutions. As the main aim of this thesis is to address the authority of IIATs, the marks will prove to be a useful tool to determine the social recognition of these actors. Although Zarbiyev does not mention the terms de facto or de jure authority in his approach, this paper will apply his marks of authority as factors indicating the existence of de facto authority as they focus on the recognition of authority of actors rather than that of norms.

53 Raz, the Morality of Freedom, 58.

54 Kostiantyn Gorobets, "International Courts' de facto Authority: Between Legitimacy and Pre-emption,"

Available at SSRN: https://ssrn.com/abstract=3642519, (2020): 17-18.

55 Joseph Raz, “Facing up: A reply,” Southern California Law Review 62 (1988-89): 1180.

56 Peters and Schaffer, “The Turn to Authority,” 216-217.

57 Zürn, “A theory of Global Governance,” 40-45.

58 Richard Terdiman, “The Force of Law: Toward a Sociology of the Juridical Field by Pierre Bourdieu,” The Hastings Law Journal 38 (1987): 807.

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10 Zarbiyev introduces his understanding of the concept of authority in response to the claims that authority is determined by reference to the possibility to “issue formally binding decisions”.59 His main argument for introducing such a new understanding is that he claims the concept of authority is much too complex to be grasped only with reference to this specific power. His approach to authority is developed with regards to the authority to “determine the content of international law on a particular point and state where international law stands on that point”.60 In this approach, the focus lies not on determining under what conditions authority of an actor might be justified, but to understand the “social phenomenon in terms informed by experience.”61

Zarbiyev believes that what creates and legitimizes authority depends not on the way power is enforced or persuaded, but rather on the person who emanates it. Zarbiyev argues that authority should be viewed as ‘deference entitlement’, the understanding that authority exists only because of voluntary submission.62 To solve the paradox whereby voluntary submission would suggest the existence of a choice, the author inserts the idea that a ‘belief system’ is the basis for submission through social sanctions. He argues that as long as this belief system is in place in a community “authority is obeyed by its individual members as a result of ‘compelling social pressures’”.63 It is because of this belief system that people will follow certain decisions, not because of its merits, but because of the fact it derives from a person or institution with authority. As Zarbiyev puts it: “if authority is ‘the right to speak credibly’, who has such a right is a matter of social recognition”.64

Through so-called ‘marks of authority’ Zarbiyev attempts to show how it is possible to recognize actors that possess this social authority within the international legal system. These are the ‘deference-entitling properties’ that depending on the community grant an actor deference.65

Zarbiyev first introduces the mark of process. As states tend to have various interpretations regarding their own commitments in international law, the value of independent and impartial interpretation of what the international law is, has increased. For that reason, the decisions taken in those ‘neutral’ places have been considered to be authoritative statements of

59 Fuad Zarbiyev, “Saying Credibly What the Law Is: On Marks of Authority in International Law,” Journal of International Dispute Settlement, 9, no.2 (2018): 292.

60 Zarbiyev, 293.

61 Zarbiyev, 294.

62 Zarbiyev, 295.

63 Zarbiyev, 296.

64 Zarbiyev, 297.

65 Zarbiyev, 298.

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11 what international law is.66 This neutrality requires the “potential of impartiality, of objectivity, disinterestedness” in (quasi-)judicial proceedings.67

Secondly, the mark of ‘superior knowledge’ is introduced. Knowledge of a certain area is generally seen as authority enhancing.68 Especially when it regards areas of specialized knowledge, the authority of the actors within that area is increased. Interestingly, the important issue with regards to the mark of knowledge is not whether it is factually correct, but whether that possession of knowledge has been socially recognized.69 This recognition is also symbolic, as it changes the perception others have of this actor, as well as the perception that actor has of itself and the way it will feel obliged to conform to this image.70 Interpretations of actors that possess socially recognized knowledge will thus be seen as more authoritative compared to those that do not.

Thirdly, reputation is often seen as “as a natural mark of authority”.71 In case of different conflicting decisions, reputation can play an important role. This can be the reputation of a certain institution, but also the reputation of for example individuals or organizations.72 It will thus partly depend on the socially recognized reputation of the actor whether its decisions will be accepted as authoritative. Other scholars have also illustrated this link between the practice of interpretation on the one hand and the reputation of the interpreting entity on the other. Ingo Venzke even suggests that the structures of past interpretations and practices should be understood “as the already present distribution of a legal claim’s chance to succeed in the practice of interpretation”.73

Lastly, Zarbiyev introduces the mark of authorship, which connects the concept of authority through the understanding of “the author regarded as ‘owner’ and authority as

‘possession’”.74 In this line of thought, the author of a certain decision will have a right to interpret his or her own text. The concept could also be extended to include authorship of treaties.75

Based on the above marks, it becomes clear that the authority of a certain actor is highly dependent on the social recognition, meaning that the authority may differ depending on the

66 Zarbiyev, “Saying Credibly What the Law Is,”, 299-300.

67 Zarbiyev, 300.

68 Zarbiyev, 301.

69 Zarbiyev, 304.

70 Zarbiyev, 305.

71 Zarbiyev, 305.

72 Zarbiyev, 306.

73 Venzke, “How Interpretation makes International Law”, 49.

74 Zarbiyev, 307.

75 Zarbiyev, 307.

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12 audience as it depends on a perception.76 In that sense, authority should be understood as a dynamic concept. Zarbiyev adds to this the theory that with deference entitling properties spreading more equally over different actors in the international system, the relevance of those properties might diminish. Due to a multiplicity of ‘authoritative’ actors, an environment of competition might be created whereby these actors are in constant competition with each other to “win or keep recognition of their claims”.77

2.4.2 Gorobets on Authority and Legitimacy

Returning to the authority-legitimacy debate, it is useful to consider the approach taken by legal scholar Kostiantyn Gorobets. His take on the matter is of value, as rather than taking one of the opposite positions in the aforementioned debate, he chooses to explore the middle ground.

Gorobets proposes that the normative implications for an actor will determine the boundaries of the de facto authority potential of that actor. If these boundaries are crossed, that creates potential risks for the existence of de facto authority, which do not always necessarily materialize. These suggested normative implications are dependent not on issues of legitimacy, but on normative reasons such as the preemptive reasons introduced by Raz.78

If this interpretation was followed in the current context, the theories by Zarbiyev and Raz could complement each other, whereby the marks of Zarbiyev are used to indicate the existence of de facto authority and the preemptive thesis by Raz determines the boundaries of the potential of that authority. This seems to be a nuanced approach to the issue of legitimacy, as it does not assume that the terms of authority and legitimacy are necessarily dependent on each other, without taking it to the other extreme whereby normative questions never come into play when defining de facto authority.

Separating the two concepts will also avoid the aforementioned issues that come into being if the two concepts are conflated. Namely that an increase in authority is always legitimate, or that authority can never be illegitimate to begin with.

In that sense, it should be possible for an actor to be authoritative, but not legitimate or the other way around. One can thus credibly diverge from the assumption that the concept of legitimacy is inherent to the concept of authority, whilst at the same time using an approach to authority that contains a social element.

76 Zarbiyev, “Saying Credibly What the Law Is,” 309-310.

77 Zarbiyev, 310-311.

78 Gorobets, "International Courts' de facto Authority," 13.

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13 2.5 Overview

To tie together all the concepts and theories above, a quick overview of the theoretical approach that will be used in subsequent chapters is helpful. For one, the concept of authority is understood to consist of both a de jure, as well as a de facto element. Regarding the de jure element, the positivist approach is followed, whereas for the de facto element marks of social recognition will be used. Because the potential increase for de facto authority needs to be balanced to that of de jure authority, certain limits have to be identified. For this purpose, the theories of Joseph Raz, especially his preemptive thesis, will be used. These approaches together will allow for a meaningful analysis of the concept of authority within the dynamic context of IIATs, and uncover underlying currents in the new developments regarding environmental counterclaims.

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14 Chapter 3: International Investment Tribunals and Environmental Counterclaims

In the past chapter, defining the concept of authority was the central aim. Various theoretical approaches were introduced and it was illustrated how the particularities of investment arbitration require a dual approach to the concept. However, as the main aim of this thesis is to analyze the authority of IIATs within the specific context of environmental counterclaims, it is necessary to engage with the awards that are found within this particular development. These awards will be studied through the lens of the theoretical framework laid out in the previous chapter. In that way, this chapter will form the main answer to the question in what way authority, be it de jure or de facto, can be observed in the context of international environmental counterclaims and what it reveals about the role of IIATs. In the process, the main issues and tensions that emerge with regards to the further development of environmental counterclaims will be illustrated.

To start, the different processes by which arbitrators can generally interpret unclear provisions will be discussed, which will illustrate how the interpretation in the context of counterclaims should be understood. Thereafter, interpretations of awards related to the de jure authority of IIATs will be analyzed through the lens of the positivist theories. Lastly, the de facto authority of IIATs, and its potential limits, will be evaluated through applying the marks of Zarbiyev and the theories of Raz.

All in all, this chapter will form the link between the concept of authority, the principle of arbitral interpretation and the development of environmental counterclaims within investment arbitration. The scope of this chapter will be limited to counterclaims brought to tribunals established under the ICSID or UNCITRAL Arbitration Rules.

3.1 The Process of Interpretation

Arbitrators are generally not bound by the precedent of previous awards when deciding on disputes.79 However, in practice, tribunals often rely on the decisions of other tribunals, and in that way they create “standards and expectations regarding the understanding of often vague or incomplete provisions”.80 When interpreting certain issues, two different processes have been identified. Firstly, the process whereby tribunals fill in the gaps in treaties for which they have a legal competence provided by the relevant arbitration rules. Such competence can for example

79 Paula Costa e Silva, Beatriz de Macedo Vitorino and Filipa Lira de Almeida, “Arbitral Precedent: Still Exploring the Path,” Kluwer Arbitration Blog, October 28, 2018,

http://arbitrationblog.kluwerarbitration.com/2018/10/28/arbitral-precedent-still-exploring-the-path/.

80 Titi, "The arbitrator as a lawmaker," 831.

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15 be found in article 42(1) of the ICSID Convention. The second process has been referred to as

“creative interpretation” and describes the process whereby tribunals actually decide the content of a rule, by “displaying arbitral activism, ostensibly overstepping their mandate in order to serve their own policy interests”.81 This last type of interpretation has also been referred to as lawmaking, as even though it differs from legislative processes, it can develop “normative rules that, while not binding, influence future awards, shape party expectations, and thereby affect the future behavior of both arbitral panels and economic actors”.82

When it comes to the tribunal’s competence to interpret its own jurisdiction, it is a general rule that although tribunals have the authority to establish their jurisdiction, they cannot assume it by default.83 This suggests that any determination of a tribunal’s competence will have to be based on the expressed consent of the parties and cannot be assumed beyond that.

3.2 The Development of Environmental Counterclaims

In investor state arbitration, it is generally the investor that brings a claim against a state due to some violation of either the BIT or the investment contract.84 However, it is in certain cases possible for the state to bring a counterclaim against the investor when it believes that the investor has violated certain obligations. Rather than being a defense against the principal claim, a counterclaim by a state has the purpose not only to reject the investor’s claim, “but also the condemnation of the claimant for the violation of the law applicable to the dispute”.85 The question of counterclaims is often a difficult one, due to “the asymmetry of the arbitration agreements underpinning most investment claims”.86 What is meant by this, is that BITs and investment contracts are often one-sided, as they only provide for obligations on the side of the state and not on that of the investor.87

It has been argued that introducing the possibility to bring a counterclaim has the potential of rebalancing the system more towards the state and its citizens, by circumventing

81 Titi, "The arbitrator as a lawmaker," 833.

82 Brian D. King, and Rahim Moloo, "International Arbitrators as Lawmakers," New York University Journal of International Law and Politics 46, no.3 (2013): 883.

83 Chittharanjan F. Amerasinghe, International arbitral jurisdiction (Leiden: Brill Publishers, 2011), 74.

84 Yaraslau Kryvoi, 'Counterclaims in Investor-State Arbitration,' LSE Law, Society, and Economy Working Papers 8/2011, 14 (2011): 3.

85 Arnaud de Nanteuil, "Counterclaims in Investment Arbitration: Old Questions, New Answers?," The Law &

Practice of International Courts and Tribunals 17, no. 2 (2018): 374.

86 James Harrison, "Environmental Counterclaims in Investor-State Arbitration: Perenco Ecuador Ltd v Republic of Ecuador, ICSID Case No ARB/08/6, Interim Decision on the Environmental Counterclaim, 11 August 2015," The Journal of World Investment & Trade 17, no. 3 (2016): 479.

87 De Nanteuil, “Counterclaims in Investment Arbitration”, 376.

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16 the procedural benefits that investors generally enjoy when bringing a claim.88 Furthermore, it is suggested that when counterclaims can be based on new substantive determinations in international law, it would open the way to holding investors environmentally accountable on the international stage in the future.89

At the same time, critics express doubts as to the desirability of addressing these claims at the international level, as it allows host states to circumvent the domestic legal system and its relevant checks and balances. It is argued that these claims are better addressed at the domestic level, whereby states already have the discretion to address environmental laws and obligations for investors.90

Both the UNCITRAL and ICSID Arbitration Rules leave open the option to bring a counterclaim.91 However, the main issue for tribunals in all the awards thus far, has been to establish their jurisdiction to hear a counterclaim.92 These considerations are often based on both procedural as well as substantive issues related to the expressed consent of parties, as well as the possibility of identifying obligations on the side of the investor. As elements of substance and procedure are so closely intertwined in this area, and one could debate to what extent they have separate meanings to begin with,93 the analysis in this chapter will not attempt such a separation. Rather, the discussion will focus on the relevant elements of those awards where environmental claims were admitted and subsequently analyze them in light of the theoretical framework discussed in the previous chapter. As counterclaims have been admitted only rarely, the main focus will lie on the reasoning in those awards where they have been admitted, namely the Urbaser and Aven awards.

3.3 Environmental Counterclaims in Practice

In all awards where counterclaims were attempted to be introduced into the dispute, the tribunal had to determine whether it had jurisdiction over the claim and whether it was allowed to exercise that jurisdiction in the case at hand. These determinations related to jurisdiction are key to understanding the authority of IIATs. Since jurisdiction is commonly defined as “the

88 Xuan Shao, "Environmental and Human Rights Counterclaims in International Investment Arbitration: at the Crossroads of Domestic and International Law," Journal of International Economic Law 24, no. 1 (2021): 158.

89 Shao, “Environment and Human Rights Counterclaims”, 159.

90 Shao, 159-160.

91 De Nanteuil, “Counterclaims in Investment Arbitration”, 375.

92 De Nanteuil, 374.

93 George Panagopoulos, "Substance and Procedure in Private International Law," Journal of Private International Law 1, no. 1 (2005): 69.

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17 power to hear and determine a cause”94, and de jure authority was defined as the legal power to hear a claim, determinations of jurisdiction shall be understood as determinations of a tribunal’s de jure authority.

However, as stated before, it is not always possible to distinguish issues related to jurisdiction, from those of merits, as substantive issues will at times be key to determining questions of the power to exercise authority.95 For that reason, the concept of jurisdiction used also includes those substantive issues that are capable of limiting or broadening the exercise of de jure authority.

3.3.1 Counterclaims and de jure authority

The possibility to bring a counterclaim will depend mainly on the scope of the consent given by the parties. In investment arbitration in general, the consent of the parties has a primary position as it largely shapes the arbitration process.96 The BIT constitutes an offer by the state to arbitrate, and the initiation of proceedings by the investor can be seen as the acceptance of that offer. It is in this way, or through a contract, that the consent of the parties is established.97 The relevant document then specifies the requirements for the tribunal to have jurisdiction over a specific counterclaim.98 The legal competence to hear these counterclaims, as consented to by the parties, will determine whether the IIAT has de jure authority to consider the claim.

It is thus important that the possibility to bring a counterclaim is covered by the BIT or contract between the parties.99 It is the arbitration clause that is used to determine the jurisdiction of the tribunal. If it the clause is worded restrictively, it will generally be more difficult to bring a counterclaim than when the arbitration clause is openly worded.100

3.3.1.1 The Burlington and Perenco Awards

It is of course possible for parties to agree to the tribunal having jurisdiction. This was the case in the Burlington award, where the parties had agreed that the tribunal in question would have jurisdiction to hear counterclaims, which removed one of the often encountered procedural

94 John W Walsh, "The True Meaning of the Term" Jurisdiction"," American Law Register 49, no. 6 (1901): 346- 356.

95 Evan Tsen Lee, "The Dubious Concept of Jurisdiction," Hastings Law Journal 54, no. 6 (2002): 1614.

96 Andrea K. Bjorklund, "The Role of Counterclaims in Rebalancing Investment Law," Lewis & Clark Law Review 17, no. 2 (2013): 466.

97 Bjorklund, 466.

98 Hege E. Kjos, "Counterclaims by host states in investment treaty arbitration," Transnational Dispute Management 4, no. 4 (2007): 14.

99 De Nanteuil, “Counterclaims in Investment Arbitration”, 378.

100 De Nanteuil, 379-381.

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18 hurdles.101 In the Perenco award on the other hand, it was found that the consent of the parties could be implied based on a broadly phrased arbitration clause in the BIT.102 In that award, the tribunal stated more broadly that environmental counterclaims could be submitted when “a legal relationship between an investor and the state permits the filing of a claim by the State for environmental damage caused by the investor’s activities and such a claim is substantiated.”103 What exactly constitutes such a ‘legal relationship’ remains unclear.104

The cases of Burlington and Perenco are two closely related awards that both considered counterclaims brought by Ecuador. Both companies were partner investors in Ecuador, where they financed certain facilities in the oil industry. They both brought claims under the BIT between France and Ecuador, after Ecuador had introduced certain legal and tax measures that negatively impacted the companies’ investments and after it expropriated the facilities when negotiations had failed.105

Viewed from the perspective of the positivist theories establishing de jure authority of IIATs, the focus in analyzing the tribunal’s authority will lie on the documents that grant it its powers. With regards to IIATs, this document would be either the BIT or the investment contract. As it is the sovereign state that can bind itself in these treaties and contracts, there is a direct delegation of their power through these documents. Thus, following this approach, an award given by a tribunal will be authoritative only when it stays strictly within the limits of the delegation of power granted in the BIT or investment contract. However, depending on whether one follows the interpretation by Kelsen or Hart, one looks at different origins of the authority of norms. Based on Kelsen’s approach to the subject, one would expect that the authority of an IIAT is based on the BIT or investment contract, which in turn receives its respective legitimacy from the government that binds them. The government itself is then bound by the domestic rules, in the form of laws based on a constitution, which will form the

“Grundnorm”. It becomes more complicated, however, when one attempts to discover where the authority of this specific Grundnorm should come from.

If one takes the approach taken by Hart, we need to understand these instruments in a social context. Rather than assuming that the authority of norms comes only from their

101 Burlington Resources Inc. v. The Republic of Ecuador. ICSID Case No. ARB/08/5, Decision on Liability, (Dec. 14, 2012), para 1078.

102 Anna Bilanová, "Environmental Counterclaims in Investment Arbitration," European Investment Law and Arbitration Review Online 5, no. 1 (2020): 408-409.

103 Perenco Ecuador Limited v. The Republic of Ecuador, ICSID Case No. ARB/08/6, Award, (Sept. 27, 2019), para 34.

104 Harrison, “Environmental Counterclaims in Investor-State Arbitration,” 485.

105 Bilanová, “Environmental Counterclaims in Investment Arbitration,” 407-408.

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19 characterization as such, the idea is proposed that these norms are a representation of social norms, validated by the rule of recognition. In investment arbitration that would mean that States enter into BITs and contracts based on the fact that the rules that grant them these powers, in the forms of constitutions or other laws, are socially accepted by their respective societies.

Consequently, the rules that are created as a result of that recognition will receive this authorization as well. It is thus still an approach focused on the norms itself, in this case the BIT and the investment contract, but the authority of these norms finds a more social basis. The assumption under this positivist approach remains however, that whenever a tribunal oversteps its particular delegated powers, its authority should be diminished.

Based on this latter interpretation, it is evident that in the Burlington award there was a clear de jure authoritative basis for the tribunal to hear the counterclaim, as the consent of the parties could be found in an agreement. The positivist theory, whereby authority is understood as related only to these written rules giving tribunals their competence, thus seems to explain this particular situation rather well. However, this understanding of authority already becomes a bit more strenuous to prove with regards to the Perenco award, whereby there was no express consent of the parties to arbitrate on possible counterclaims and where there was thus no explicit consent constituting the tribunal’s de jure authority.

3.3.1.2 The Goetz Award

An award where the question of the admissibility of the claim was a central issue, was the Goetz award. The requirements of admissibility will determine whether a tribunal can exercise its jurisdiction in a particular case and thus will determine the scope of the de jure authority of IIATs. The ICSID Convention creates the possibility for tribunals to exercise its jurisdiction with regards to counterclaims brought by the state, as long as that claim arises “directly out of the subject -matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.”106 As can be observed in the quote from article 46 of the ICSID Convention above, the connection between the subject matter of the dispute and the counterclaim has to be established and cannot be assumed.107 With regards to the content of the requirement, it has been determined that there is both a factual as well as a legal component.108 The factual requirement is considered to be satisfied when the

106 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, art 46, Oct. 14, 1966, 575 U.N.T.S. 159.

107 De Nanteuil, “Counterclaims in Investment Arbitration”, 384.

108 Shao, “Environment and Human Rights Counterclaims”, 169.

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20 counterclaim relates to the same investment. Establishing the legal link may be more difficult, as it is less clear what exactly it entails. What is required at least is that the claim is based on the same legal “corpus of the ones invoked in the principle claim”.109 It has been proposed by certain tribunals that there exists a general connection requirement, even when absent from the arbitration rules. However, agreement on this issue has not been reached.110

In the Goetz award, the tribunal argued that even though the arbitration clause found in the BIT was limited to only obligations on the side of the state, it had jurisdiction to consider the counterclaims nonetheless. It concluded this after considering that the counterclaim related to the conditions introduced by the state connected the investment itself, and the parties had consented to the claim being hear by an ICSID tribunal, which implied consent to the ICSID rules.111 The tribunal thus seemed to assume that when a factual connection can be identified, the legal connection is no longer required.112 This award clearly illustrates how the requirements that need to be met before a tribunal can exercise its de jure authority are interpreted broadly, or even left out of considerations altogether. This broad interpretation in Goetz seems to further suggest that the authority of IIATs cannot be understood with reference to positivist theories alone, as the written consent of the parties does not seem to stipulate this particular use of power of IIATs to consider counterclaims.

3.3.1.3 The Urbaser and Aven Awards

A groundbreaking decision was the Urbaser award rendered by an ICSID tribunal. In this particular case, there was an investor who had shares in a concessionaire that contributed to the water and sewer facilities provided in the Argentinian state. However, after the economic crisis of 2001-2002 took place, the state took certain measures which resulted in the losses of the concessionaire in question, and as a result also those of Urbaser. The investor then brought a claim arguing that the particular measures that Argentina took were actually in violation of the BIT between Spain and Argentina.113 As a result, Argentina brought a counterclaim stating that the concessionaire had not respected the international human right to water, which it ought to have done through its investments. Urbaser then argued that the tribunal did not have jurisdiction to hear the particular counterclaim, as the state could not be a claimant and the clear

109 De Nanteuil, “Counterclaims in Investment Arbitration”, 388.

110 De Nanteuil, 384-385.

111 Antoine Goetz and others v. The Republic of Burundi, ICSID Case No. ARB/01/2, Award, (June 21, 2012), para 285.

112 Gleason, “Examining Host-State Counterclaims,” 4.

113 Bilanová, “Environmental Counterclaims in Investment Arbitration,” 406.

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21 connection to the principle claim was missing, which would leave the counterclaim beyond the scope of the consent of parties.114 Furthermore, it argued that it was not possible for the state to invoke international rights as it would “run counter to the object and purpose of treaty arbitration, which is to grant the investors a one-sided right of quasi-judicial review of national regulatory action”.115 Urbaser thus essentially argued that the tribunal did not have the de jure authority to consider the counterclaim.

However, the tribunal found that the first objection by Urbaser could not be accepted.

As the BIT did not specify what party was allowed to bring a claim to arbitration, it was not possible to exclude counterclaims per se. In fact, the tribunal stated with regards to the arbitration clause that “the provision is completely neutral as to the identity of the claimant or respondent in an investment dispute arising “between the parties””.116 As this broadly worded arbitration clause allowed the suggestion that states could also become claimants, the tribunal further concluded that “it results clearly from these provisions that either the investor or the host State can be a party submitting a dispute in connection with an investment to arbitration.”117 The tribunal does note that in accepting the offer to arbitrate by the state, Urbaser could have limited the scope of disputes that could be arbitrated, but it failed to do so.118

It further found that the connection requirement was satisfied, as the fact that the counterclaim related to the same investment as the principle claim “would be sufficient to adopt jurisdiction over the Counterclaim”.119 This broad interpretation of the connection requirement is likely to increase the number of counterclaims brought by states as it eases one of the procedural hurdles.120

The considerations above illustrate how the tribunal establishes its jurisdiction partly based on the fact that the parties did not explicitly exclude the possibility to bring counterclaims.

Thus, rather than basing its jurisdiction on the consent of parties, as would be required under the positivist theory of authority, it bases it on its own interpretation of the absence of that particular consent, thereby applying a more favorable approach to its own de jure authority than expressly provided for by the parties.

114 Gaurav Sharma, "Environmental Claims by States in Investment Treaty Arbitration," European Investment Law and Arbitration Review Online 5, no. 1 (2020): 416.

115 Urbaser S.A. and others v. The Argentine Republic, ICSID Case No ARB/07/26, Award, (Dec. 8, 2016), para 1120.

116 Urbaser, para 1143.

117 Urbaser, para 1143.

118 Urbaser, para 1147.

119 Urbaser, para 1151.

120 Sharma, “Environmental Claims by States,” 417.

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