Arbitration - Investing into North African Solar Power - page 124

laws do not include sections on how to act in cases of conflict between national laws
and international conventions. 627
Finally, Moroccan national law also deals further with international arbitration.
Art. 327-46 of the Code de proc ´ dure civile highlights that international arbitration
awards are generally accepted, if they are in accordance with national and interna-
tional public policy. It is important to note that this Article mention domestic
(national) and international public policy. However, as mentioned above, in cases
of international arbitration, only international public policy should be the deciding
factor. Other jurisdictions, e.g. Algeria, Lebanon, Tunisia, want to implement an
exclusive application of international public policy. 628 As the Moroccan law was
changed a couple of years ago, it is doubtful that it will be changed soon again. As
domestic public policy applies in addition to international law, the investor should
be aware that this might cause unforeseeable difficulties. As far as it is possible, the
investor should try to negotiate that only the international standard of public policy
applies in the case of the Desertec Concept.
Taking everything into account, there is a high risk that an investor will face issues
of public policy. In Morocco, there were frequent problems with execution of
contracts. 629 This especially relates to international commercial arbitration. The
application of domestic public policy makes it highly unpredictable for an investor.
Moroccan law is very clear on the application of domestic public policy. Combined
with the “Islamic revitalization” the understanding of public policy is hard to predict.

2.7.4 Conclusion

In the case of Morocco, the risk of it using public policy to escape its obligations is
relatively low. This does not necessarily apply for other states in the MENA region.
As a basic rule, it comes down to more: the more the Shari a applies, the higher is the

risk of public policy application. As mentioned above, the Desertec Concept should
be set up as a concession. Within a lot of Islamic countries, oil concessions have been
a day-to-day practice. Furthermore, there have already been a lot of arbitration
proceedings related to these concessions. Hence, they might offer some guidance
on the topic. Oil concessions were one of the first cases of international arbitration
that Islamic states were faced with in modern times. 630 Interestingly, oil concessions
never violate public policy within Islamic countries because the profit is for the
benefit of the community. 631 These benefits

'

) must be economic and financial,
contributing to the material enrichment and profit the Islamic community.

( ...

'

632

'

627 Ouerfelli ( 2008 ), 241 (249).
628 Brower and Sharpe ( 2003 ), 643 (649).
629 Brenton et al. ( 2006 ), 9.
630 Brower and Sharpe ( 2003 ), 643 (644).
631 Ayad ( 2009 ), 93 (115).
632 Ayad ( 2009 ), 93 (115).