Author
Ms Hien Mai
Organisation/Institution
Yokohama National University, Graduate School of International Social Sciences
Country
JAPAN
Panel
International Arbitration and Dispute Resolution
Title
ISDS mechanism: the equilibrium position between the host State and investors
Abstract
In ordinary judicial proceedings, the right to bring a claim and the right to file a counterclaim naturally coexist, reflecting the equal procedural status of both parties before the law. ISDS (Investor–state dispute settlement), however, is structurally asymmetrical: while it empowers investors to initiate claims against states, it does not grant states a parallel avenue to bring independent claims against investors, and states rarely succeed even when attempting to raise counterclaims. The reason lies in the architecture of most existing investment treaties, where obligations are imposed primarily on host states, whereas investors are granted a bundle of protections. There is much research, as well as discussions within sessions of UNCITRAL Working Group III, suggests that counterclaims could “reduce uncertainty, promote fairness, and ultimately ensure a balance between the disputing parties.” Some recent investment treaties have included provisions allowing such right. However, whether this development can truly rebalance the relationship between states and investors remains an open question. Drawing on UNCTAD statistical data, this study seeks to unpack the underlying causes of this issue and proposes a solution by exploring the potential of transforming counterclaims into remedial measures - a substantive basis through which investor obligations can be operationalized while simultaneously strengthening public-regulatory commitments of host states (e.g, environmental protections, human right issues). This approach may be a solution for ASEAN countries, which are currently major recipients of foreign investment.
Biography
My name is Hien Mai, and I am from Vietnam. I am a PhD student in law at Graduate School of International Social Sciences, Yokohama National University (Japan). I hold an LL.B. in Law from Hanoi Law University (Vietnam) and an LL.M. from University of Turin (Italy). My research interests focus on issues in international economic law, as well as dispute settlement in investor–state relations.
