153 / 610
151
IV. Problems of Introducing Human Rights to International
Investment Arbitration
An inquiry after the outcome of the cases listed in section III shows rather alarming
results for human rights supporters. Only in one independent case and three cases in
parallel proceedings, all belonging to the first group of cases when it is the investor
who uses human rights arguments, did the breach of human rights lead to a favorable
verdict of the tribunal. Moreover, in all of these cases it was not the breach of human
rights themselves, but the consequential breach of the investment treaty that induced
the tribunal to decide in favor of the investor. In one other case, from the second group
of cases, a breach was found, but the state was not ordered to pay damages. In the rest
of the cases the arguments were either left unexamined or dismissed.
In five of the cases, it is not known which stand the tribunal took or would have
taken towards human rights arguments. In the case of
Patrick Mitchell v DR Congo
,
the arbitral award was not made public. The little information there is about the case
comes from the Decision on Annulment,
58
which does not describe how the tribunal
dealt with investor’s arguments. The cases of
Aguas del Tunari v Bolivia
and
Piero
Forresti v South Africa
were not decided on merits (see page 7); consequently, the
tribunals did not have an opportunity to express its views on the matter. In
CMS Gas v
Argentina
,
Siemens v Argentina
, and
Azurix v Argentina
, the states have not fully argued
the matter. Tribunals therefore dismissed it in one short paragraph.
59
The rest of the cases failed for one of two reasons: in one case the tribunal found it
lacked jurisdiction, in the rest the tribunal ruled that the conditions under which the
argument could have succeeded had not been fulfilled under the circumstances of the
case. The first reason is elaborated on in section IV.A, the second in section IV.B. Cases
where investor succeeded are discussed in section IV.C.
A. Lack of Jurisdiction of a Tribunal
In the case of
Biloune v Ghana
, the investor was not successful in his claim that his
human rights were breached, because the tribunal found it did not have jurisdiction
over the matter.
The term jurisdiction translates as the power of the tribunal to hear the case;
60
it
forms the cornerstone of each proceedings.
61
Jurisdiction is based solely on the consent
58
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).
59
CMS Gas Transmission Company v the Argentine Republic
(Award of 12 May 2005) ICSID Case No
ARB/01/8 [121];
Siemens AG v the Argentine Republic
(Award of 6 February 2007) ICSID Case
No ARB/02/8 [79];
Azurix Corp v the Argentine Republic
(Award of 14 July 2006) ICSID Case No.
ARB/01/12 [261].
60
Waste Management Inc v United Mexican States (Dissenting Opinion of Keith Highet) ICSID Case No
ARB(AF)/98/258 (Waste Management) [59].
61
J Lew, L Mistelis, and S Kröll,
Comparative International Commercial Arbitration (Kluwer Law
International 2003) 329.