Availability of Counterclaims to Host States for Moral Damages Sustained

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ABSTRACT

The availability of moral damages to investors has been a topic of discussion for considerable time and continues to be so even after the seminal Desert Line v. Yemen decision. The position is unsettled and probably will be for some time. Another unclear matter is whether such damages should be available to States. In other words, should host States be permitted to bring moral damages claims as a counterclaim in investment arbitration proceedings commenced against them? This is a difficult question that has no clear answer. Case law and scholarly opinion fail to provide a definitive answer. This article considers the relevant awards and scholarly opinions and seeks to comment on their acceptability.

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