Environmental Engineering Reference
In-Depth Information
have proposed (e.g. in Switzerland) that:
) immunity from enforcement mea-
sures should be treated in the same way as restrictive immunity from jurisdic-
tion.
(
...
'
517
In total it is possible to observe that the plea of immunity is slowly pushed
back by national courts.
518
State immunity remains an important issue as globali-
zation keeps on and states try to protect itself against unjustified claims of third
parties.
519
At the same time is noticeable that there is a movement granting
immunity to global PPPs. This might be interesting as an investor, like Dii could
have been, has the potential to become a TNC.
520
If this would be the case
immunity issue might arise on both side of the cooperation.
'
2.5.2.1
ICSID and Immunity
As mentioned above, there is the same problem within investment arbitration. The
ICSID Convention also differentiates between immunity from jurisdiction and
immunity from execution.
521
Some authors point out that the solution rests with
the domestic courts and their application of Art. 54(3) and 55 of the ICSID
Convention.
522
The proposed solution mentions that domestic courts should do a
combined reading of both articles to give the claimant a valid title for execution
'
) that where such measures are directed at the assets of a state,
execution is possible under the law of the (host state) in which execution is
sought.
(
...
) provided, (
...
523
However, this is not applied by ICSID tribunals and therefore can
only serve as an idea.
The ICSID Model Clause offers a possible solution to the problem of immunity
according to Art. 55 of the ICSID Convention. The ICSID Model Clause 15
524
proposes a waiver of immunity from execution of the award. In reality it might be
difficult for an investor to conclude a comparable waiver with Morocco or ONE
because the host state might understand it as an infringement of its immunity. The
investor would be faced again with the difficult task of negotiating a waiver.
Nevertheless, the obligation under the ICSID Convention remains, independent of
the problems concerning from execution.
525
'
517
Reinisch (
2006
), 803 (809); Pengelley (
2009
), 859 (865); Other courts also pointed out that a
waiver of immunity encompasses all forms of immunity, in: Pengelley (
2009
), 859 (861); Opposite
behaviour of courts, in: Reinisch (
2008
), 107 (112).
518
Krieger (
2012
), 1.
519
Krieger (
2012
), 1-2.
520
Krieger (
2012
), 2.
521
Saunders and Salomon (
2007
), 467 (469).
522
Nmehielle (
2001
), 21 (36).
523
Nmehielle (
2001
), 21 (36); cf Delaume (
1983
), 784 (800).
524
Clause 15 ICSID Model Clause: The Host State hereby waives any right of sovereign immunity
as to it and its property in respect of the enforcement and execution of any award rendered by an
Arbitral Tribunal constituted pursuant to this agreement.
525
Nmehielle (
2001
), 21 (40); cf Delaume (
1983
), 784 (799) and (801).
