154 / 610
152
of the parties in dispute.
62
This consent ordinarily emanates from an investment treaty
between the state party and a home state of the investor,
63
in particular from a dispute
resolution clause therein. The extent of the consent, and consequently jurisdiction
ratione materiae
of the tribunal, depends on the formulation of a dispute resolution
clause in an investment treaty.
The dispute resolution clause in
Biloune v Ghana
read that ‘[a]ny dispute between
the foreign investor and the Government in respect of approved enterprise … may
be submitted to arbitration.’
64
The tribunal found that the subject of Mr Biloune’s
complaint, namely his detention, did not relate to the enterprise, and ruled that it
cannot hear the case.
65
In order to solve this problem, an investor cannot complain merely of a breach of
his rights. He or she must show that the breach affected the investment, or caused a
breach of treaty obligation as well.
In this manner the investor secured the jurisdiction of the tribunal in the parallel
proceedings in
Veteran Petroleum Limited v Russia
,
Yukos Universal Limited v Russia
,
and
Hulley Enterprises Limited v Russia
. Here the tribunal concluded the question of its
own jurisdiction by stating:
‘The Tribunal recognizes that it is not a human rights court. Nevertheless, it is
within the scope of the Tribunal’s jurisdiction to consider the allegations of harassment
and intimidation as they form part of the factual matrix of Claimants’ complaints that
the Russian Federation violated its obligations under Part III of the ECT.
’
66
The question of jurisdiction of the tribunal can prevent human rights arguments
from being raised by an investor in international investment arbitration. This however
does not present a systematic problem in the protection of human rights that would
need to be addressed. Firstly, depending on the facts of the case this obstacle can
be overcome by a careful structuring of the argument, as seen in
Veteran Petroleum
Limited v Russia
,
Yukos Universal Limited v Russia
, and
Hulley Enterprises Limited
v Russia
. Secondly, as discussed in section III.A, investment arbitration should not be
the primary forum where individuals complain against human rights breaches.
62
Reiner and Schreuer (n 16) 83.
63
Zachary Douglas,
The International Law of Investment Claims
(CUP 2009) 125.
64
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 [188].
65
ibid [203].
66
Veteran Petroleum Limited (Cyprus) v the Russian Federation
(Final Award of 18 July 2014) PCA Case
No AA 228 [765]; same quotation can be found in
Yukos Universal Limited (Isle of Man) v the Russian
Federation
(Final Award of 18 July 2014) PCA Case No AA 227 [765],
Hulley Enterprises Limited
(Cyprus) v the Russian Federation
(Final Award of 18 July 2014) PCA Case No AA 226 [765].