Please Join our United Nations Practice Group in Part III of its UN Lecture Series on "Correcting Asymmetry: Human Rights and Environment-Based Counterclaims in Investor-State Dispute Resolution."

Through the design of international investment agreements, foreign investors have brought claims against the States challenging domestic executive and regulatory measures, including those related to the environment and sustainable development. In contrast, although nearly all arbitral rules provide for the right to assert counterclaims, host States have generally been limited to defending claims brought against them. The capacity for a host State to bring an independent counterclaim has been tested only in a handful of cases, some of which involved environmental considerations.

To date, counterclaims based on an investor’s non-compliance with environmental laws have played a role in at least nine cases. This development in arbitral practice has been accompanied by a parallel development of “new generation” investment treaties that incorporate environmental, human rights and other non-economic obligations. As States increasingly seek to preserve their right to regulate in the interests of the environment and human rights and show a willingness to protect those interests from investors, counterclaims in investment arbitration may prove their potential as a mechanism to safeguard and promote both domestic and international public policy concerns.

This panel will discuss how counterclaims may be a means of correcting the asymmetry of the current investment regime, including with respect to the enforcement of investors’ obligations in relation to business and human rights. The panel will explore the recent cases in which States have raised environmental counterclaims with varying degrees of success and will consider the conclusions to be drawn for global policy-making and future investment treaty negotiations.

With this background in mind, the lecture will address the following questions:

• What is the legal standard for seeking counterclaims in investment treaty arbitration?
• In light of the recent jurisprudence, what are the current limitations States may face in seeking to raise counterclaims and can they be overcome through different legal theories and/or next generation investment treaties?
• Several new Model BITs seek to establish responsibility for investors’ human rights violations. How might the recent legislation in the European Union and the United Kingdom on business and human rights inform these claims?

Speakers:

• Introduction remarks: Christina G. Hioureas, Partner and Global Co-Chair at Foley Hoag’s International Litigation & Arbitration Department and Chair of the UN Practice Group
• Moderator: Eva Paloma Treves, Senior Associate at Foley Hoag’s International Litigation & Arbitration Department
• Ambassador Michael Imran, Deputy Permanent Representative and Legal Adviser of Sierra Leone to the United Nations
• Grant Hanessian, Independent Arbitrator and Adjunct Professor of Law and Fordham Law School
• Lindsay Gastrell, Senior Counsel, Arbitration Chambers

Foley Hoag's United Nations Practice Group provides legal advice, capacity building training, and representation to State Sovereigns on matters before and relating to the United Nations.

This includes matters before the General Assembly, Sixth Committee to the General Assembly (Legal Affairs), Security Council, and United Nations Commission on International Trade Law (UNCITRAL), among other bodies. The group also provides legal representation to Permanent Missions to the United Nations consulates and embassies on matters before U.S. Courts, including under the Foreign Sovereign Immunities Act (FSIA).

Foley Hoag’s United Nations practice group is part of the firm’s International Litigation and Arbitration Department, which includes more than 30 highly experienced international litigators – based in New York, Washington, Boston and Paris. The practice has served over 60 States before the International Court of Justice, the International Tribunal for the Law of the Sea, and international arbitral forums such as the Permanent Court of Arbitration, the International Centre for the Settlement of Investment Disputes and the International Chamber of Commerce, among others.

The lecture will be followed by a reception. Space is limited.