Environmental Engineering Reference
In-Depth Information
2.5.2.2 Consequences for the Investor
As Art. 20 of Resolution A/59/38 and the strict wording of the other provisions
imply, there is a need for an explicit waiver. Thus, a mere arbitration clause is
not sufficient.
526
If the state has not explicitly declared a waiver of execution
immunity, enforcement by writ can only be against non-sovereign assets.
527
Some authors point out
extends over almost
every asset of the state.
528
It is therefore very important that the waiver is
clearly worded, so as to avoid any interpretation and hence rejection of it.
529
Waivers of immunity are rare outside the financial field.
530
that
the
'
cloak of immunity
'
It must be kept in
mind that a concluded waiver does not solve all
issues concerning award
enforcement, as some risks remain.
531
Although there are some courts in favor of a wide interpretation of waivers,
this is not the general rule. The prevailing opinion demands a separate waiver
for execution immunity. As mentioned above, only a powerful investor has a
chance to successfully agree to a waiver of execution. Since an investor has the
potential to become a TNC, they might have the competence to agree to waiver
with Morocco. State sovereignty allows Morocco to conclude this kind of
waiver. To prevent any misunderstandings, both parties should conclude sepa-
rate waivers for the contracts (e.g. concession contract and state contract). In
this way, they will clarify that the waivers affect international commercial and
investment arbitration. If there are no separate waivers, an investor runs the risk
of facing immunity from execution claims in all cases of international arbitra-
tion. This is not an uncommon risk, and does not only relate to the Desertec
Concept. The fact remains that the state complies with the arbitration award in
most cases. Otherwise it would jeopardize its international credibility. Hence,
the risk of immunity objection is relatively low. A missing waiver should not
lead to the abandonment of the complete project.
526
Reinisch (
2006
), 803 (819).
527
French and US courts also differ between explicit and implicit waivers of immunity, in: Turck
(
2001
), 327 (341); Semler (
2003
), 97 (102); McIlwrath and Savage (
2010
), 359 para 6-091; cf
Saunders and Salomon (
2007
), 467 (469); cf Reinisch (
2006
), 803 (804); Herdegen (
2003
),
13 (34); cf Hunter (
2007
), 165 (166).
528
Saunders and Salomon (
2007
), 467 (469); In most cases execution of awards within the
territory of the host state imposed by home state courts are going to fail, in: Semler (
2003
),
97 (102).
529
Delaume (
1985
), 319 (344); Nmehielle (
2001
), 21 (39).
530
Delaume (
1985
), 319 (344); Nmehielle (
2001
), 21 (40).
531
Ziegler (
2012
), 4.
