Wiater-Hellgardt P (2026)
Publication Language: English
Publication Type: Journal article
Publication year: 2026
Pages Range: 1 - 42
DOI: 10.1163/22119000-bja10104
The article reconceptualises counterclaims and damage assessment in investor–state dispute settlement (ISDS) as mechanisms for enforcing investors’ human rights and environmental obligations against the analytical background of a matrix of regulatory instruments. Drawing on the practice of ISDS tribunals, it identifies three key priorities for ISDS reform: clarifying investor obligations through explicit codification in investment agreements while remaining open to domestic and evolving legal standards; defining procedural rules for host state counterclaims to strengthen accountability without undermining states’ regulatory responsibilities; and ensuring that investor misconduct in environmental and human rights matters is treated as a distinct factor in damage assessment rather than being subsumed under contributory fault. This need for reform is being addressed only selectively in the ongoing negotiations of UNCITRAL Working Group III (WGIII), where the substantive dimension of investor obligations has increasingly been diluted amid political divergences among states. While WGIII’s current approach to codifying counterclaims could enhance clarity and flexibility, the treatment of damage assessment continues to generate uncertainty, as violations of environmental and human rights obligations are not yet explicitly recognised as distinct mitigating factors.
APA:
Wiater-Hellgardt, P. (2026). Investor Accountability Through Counterclaims and Damage Assessment. Journal of World Investment & Trade, 1 - 42. https://doi.org/10.1163/22119000-bja10104
MLA:
Wiater-Hellgardt, Patricia. "Investor Accountability Through Counterclaims and Damage Assessment." Journal of World Investment & Trade (2026): 1 - 42.
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