Environmental Engineering Reference
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incorporated into the concession agreement 404 as they are generally accepted. 405
Although it is not advisable because international law does not have the regulation
density of domestic laws, e.g. no regulation for technical questions. 406 If it is
chosen, both parties must rely on the common legal principles of international
law and the arbitrators have a lot of leeway regarding their decisions. 407 In practice
the application of international law, governing contracts between the state and the
investor (e.g. concession contract) decreased. 408 This is also due to the fact that
international law, including minimum standards, always applies and therefore tri-
bunals consider the latter. 409 One reason for the decrease is that the relationship
between developing and developed countries has changed and moved from an
emotional to a professional platform. 410 Today, developing countries have better
legal frameworks to host a project, which is leading to a “renationalization” of
contracts (e.g. concessions). 411
Despite the improving national legal frameworks within developing countries,
de facto international law still plays an important role. Instead of using international
law as proper law, it is frequently applied as a
of the host state law. 412
Therefore, the parties should include a section in their agreement which states that
international law functions as a back-up. 413 This was best illustrated in the Aminoil
case , as the tribunal applied Kuwait law (“as the most directly involved”) and
international law,
regulative
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'
414 The tribunal
did not decide the relationship between international and Kuwait law, but men-
tioned that they do not conflict with each other. 415 International law is often also
incorporated into national law, so an investor could rely on domestic regulations. 416
Nevertheless, the status of international law within domestic law varies from state
to state, which requires a specific inclusion of international law. 417
With regard to the Desertec Concept, it is very important that both parties can
rely on a detailed legal framework. The size and relevance of the project almost
which formed a constituent part of Kuwait law.
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404 Schobener et al. ( 2010 ), 244-245, Kap. 4 § 16 paras 90-91; Concerning concession agree-
ments, in: Herdegen ( 2003 ), 13 (18).
405 Schobener et al. ( 2010 ), 245, Kap. 4 § 16 para 93.
406 Schreuer ( 2009 ), 562 para 36; Herdegen ( 2003 ), 13 (19).
407 Herdegen ( 2003 ), 13 (19).
408 Metje ( 2008 ), 103 et seq.; Nevertheless there are still some contracts applying international law
as proper law, in: Herdegen ( 2003 ), 13 (20).
409
Metje ( 2008 ), 104-105; Herdegen ( 2003 ), 13 (22).
410
Herdegen ( 2003 ), 13 (20).
411
Metje ( 2008 ), 105 and 107-108; Herdegen ( 2003 ), 13 (20).
412 Herdegen ( 2003 ), 13 (20); cf Metje ( 2008 ), 72-73.
413 Maniruzzaman ( 2001 ), 309 (325); Metje ( 2008 ), 108.
414 Ripinsky and Williams ( 2008 ), 4.
415 Ripinsky and Williams ( 2008 ), 4.
416 Schreuer ( 2009 ), 582 para 100.
417 Schreuer ( 2009 ), 582-583 para 103.
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