CYIL vol. 8 (2017)

KATARÍNA CHOVANCOVÁ CYIL 8 ȍ2017Ȏ being their target, or subject, which has a right to invoke them. This approach goes along with recent theoretical developments that permit valid countermeasures, even with negative consequences for investors, but only if such invocation was clearly specified and allowed for in advance in the relevant investment treaty where investors were not granted absolute substantive and procedural rights. Without this, as Roberts 115 concluded, “… however, investor-state tribunals have no jurisdiction to rule on this defense .” 116 Within the broader theoretical range, McRae and Van Zimmeren 117 equally opined that “ unless the agreement excludes rules of international law or makes express provision for alternative rules, then relevant rules of international law are still potentially applicable .” 118 However, disappointing as it is, many investment treaties exist without dealing specifically 119 with countermeasures and their possible application in investment arbitration. It may be suggested that this situation has also arisen due to the fact that the above mentioned importation and cross-fertilization of rules, legal concepts and even useful jurisprudence across investment and trade regimes, brought about by gradual convergence of these two parts of international economic law, is still relatively young. Suffice it to say, no gloomy prospects have been foretold for countermeasures or their progressive development. However, if not solitary confinement, then at least sticking to their cautious and sophisticated specification also in investment treaties has been recommended through “ tying them down to effective irrelevance through the accretion of small drafting print of particular rules. ” 120 On the other hand, these considerations cannot disguise the fact that states have more abstained from than revelled in the use of countermeasures since the ILC Draft Articles were adopted, as “ they have been unwilling to adjust their practice to fit the requirements by which the ILC intended to limit their use …” 121 Consequently, it is then perhaps because of these reasons too that far from eschewing the prevalent prudent approach, pertaining to application of countermeasures in investment arbitrations, Paparinskis 122 – though not opposing the countermeasures off the cuff – has advised, that “ the most plausible conceptualization would treat countermeasures as not excluded in principle but as not applicable to the investor’s direct rights under the treaty. ” In concluding this article, I will end on a note of optimism. In the future, let us just hope that arbitrators in international investment arbitrations are already through with a return of Mavrommatis 123 uneasy times played in reverse. Let us also hope that when drafting clauses and diligently defining the rights of foreign investors in investment treaties, their authors 115 ROBERTS, A., Triangular Treaties: The Extent and Limits of Investment Treaty Rights, op.cit., p. 402. 116 The countermeasure defense. 117 VAN ZIMMEREN, E., MCRAE, D., Chapter 35: Countermeasures and Investment Arbitration, op. cit., p. 502. 118 As should be clear from this statement, the relevant rules are the general rules on state’s responsibility, which certainly include also the rules of countermeasures’ invocation. As a result, all expectations of investors, when making and realizing their investment in the host state, may be rooted in all their relationships with their host states and home states only in the relevant investment treaty and in specific guarantees, given investors by the host state. 119 ROBERTS, A., Triangular Treaties: The Extent and Limits of Investment Treaty Rights, op.cit., p. 357. 120 PAPARINSKIS, M., Circumstances Precluding Wrongfulness in International Investment Law, op. cit ., p. 497. 121 FITZGERALD, E., Helping States Help Themselves, op. cit ., p 86. 122 PAPARINSKIS, M., Investment Arbitration and the Law of Countermeasures, op. cit ., p. 351. 123 Mavrommatis Palestine Concessions (Jurisdiction), (Greece v. Great Britain) P.C.I.J. 1924, Ser. A, n.° 2.

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