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The investors convinced the tribunal of a breach in Al-Warraq v Indonesia , Veteran Petroleum Limited v Russia , Yukos Universal Limited v Russia , and Hulley Enterprises Limited v Russia . In Biloune v Ghana and Patrick Mitchell v DR Congo , the investors were not successful. Section IV examines the reasons behind these outcomes. The question now remains whether international community should be alarmed if the factual situation revealed that human rights instruments were in all likelihood breached, yet the tribunals did not rule so. According to Reiner and Schreuer, the topic whether arbitral system is suited for dealing with human rights breaches generates a lot of controversy. 33 However, if one rephrases the question, it may seem less so. Would the protection of human rights on global level be threatened if breaches of human rights instruments could not be addressed in international investment arbitration? The answer should be no. The system of protection of foreign direct investments was created to protect investments. Protection of individuals against human rights breaches should be primarily secured by human rights instruments themselves, not by reliance on a different system. Given the differences between the two systems, asking an investment arbitral tribunal to pose as a human rights tribunal is not a suitable solution to a problem pertaining to the lack of protection of an individual. B. Human Rights Used to State’s Defense As described in section II, obligations of a state that arise under provisions of international investment law are not always seen as compatible with human rights obligations. Consequently, states might feel compelled to disregard one in order to comply with the other. The need to observe human rights has been used as states’ defence against investors’ claims in several cases. Respondent states varied in their strategy and the level of elaboration they used when arguing their case. Some called to their defence human rights without any specification ; some argued with a specific right or rights that were in jeopardy. Human rights in general were invoked in CMS Gas v Argentina , 34 where Argentina argued that investment rights have to give way to human right instruments where the latter is threatened; it stated: “as the economic and social crisis that affected the country compromised basic human rights, no investment treaty could prevail as it would be in violation of such constitutionally recognized rights . ” 35 In Siemens v Argentina ,36 the state again pointed to the social and economic situation; it claimed that human rights “would be disregarded by recognizing the property rights asserted by the Claimant

33 Reiner and Schreuer (n 16) 96. 34 CMS Gas Transmission Company v the Argentine Republic (Award of 12 May 2005) ICSID Case No ARB/01/8. 35 ibid [114]. 36 Siemens AG v the Argentine Republic (Award of 6 February 2007) ICSID Case No ARB/02/8.

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