149 / 610
147
are more likely to be employed by the state. It is not surprising; investors are usually
juridical persons and thus most human rights do not apply to them.
17
If they do,
investors rather invoke the standard of protection offered to them by international
arbitration instruments as it is higher than the standard of protection from human
rights instruments.
18
The group contains seven cases, three of which were decided in
parallel proceedings.
Investors complained of breaches of various rights of both procedural and substantial
nature. In the case of
Al-Warraq v Indonesia
,
19
the investor argued that Indonesia has
breached its ‘basic rights’, that is the right to be presumed innocent,
20
the right to a
fair trial,
21
the right to be informed of the proceedings,
22
and the right to be properly
summoned to attend a trial.
23
In the parallel cases of
Veteran Petroleum Limited v Russia
,24
Yukos Universal Limited
v Russia
,
25
and
Hulley Enterprises Limited v Russia
,
26
the investors claimed that Russia
resorted to arrests, intimidation, harassment, searches and seizures to deprive the
investor of its ability to run the business, and also violated the principle of due process.
27
Although the investors themselves did not label these violations as breaches of human
rights, the state argued that that was precisely what the investors were invoking.28 The
tribunal also understood the claims as claims of human rights breach.
29
In the case of
Biloune v Ghana
,
30
the investor complained that he had been held
in custody without a charge. Lastly, in the case of
Patrick Mitchell v DR Congo
31
the
investor claimed that the premises housing his firm were sealed, documents were seized
and employees forced to leave.32
17
ibid 88.
18
ibid 88.
19
Hesham Talaat M Al-Warraq v Republic of Indonesia
(Final Award of 15 December 2014) UNCITRAL.
20
ibid [177] – [188].
21
ibid [189] – [201].
22
ibid [202] – [206].
23
ibid [213] – [230].
24
Veteran Petroleum Limited (Cyprus) v the Russian Federation
(Final Award of 18 July 2014) PCA Case No
AA 228.
25
Yukos Universal Limited (Isle of Man) v the Russian Federation
(Final Award of 18 July 2014) PCA Case
No AA 227.
26
Hulley Enterprises Limited (Cyprus) v the Russian Federation
(Final Award of 18 July 2014) PCA Case No
AA 226.
27
ibid 761.
28
ibid 764.
29
ibid 765.
30
Biloune and Marine Drive Complex Ltd v Ghana Investments Centre and the Government of Ghana
(Award
on Jurisdiction and Liability of 27 October 1989) 95 ILR 184.
31
Patrick Mitchell v Democratic Republic of Congo
(Decision on the Application for Annulment of the
Award of 1 November 2006) ICSID Case No ARB /99/7) (award not publically available).
32
As the award is not publically available and the Application for Annulment Award does not mention any
other information on the original claim, it is not able to say how exactly the investor labeled its claims.