Environmental Engineering Reference
In-Depth Information
Members of the OECD also tried to negotiate the Multilateral Agreement on
Investments (MAI) from 1995 to 1998.
53
The MAI was the first attempt to lift the
investment protection from a bilateral to a multilateral level.
54
The MAI
s main
idea was to unify different the protection standards of several BITs and to raise the
level of investment protection in some cases.
55
Nevertheless, the MAI never
entered into force because developing countries did not feel correctly represented
during the negotiation process,
56
which leads to the fact that MAI does not help
concerning the Desertec Concept investment. Overall, there is no multilateral or
regional investment protection regime which could apply in the case of the Desertec
Concept, leaving protection to BITs
'
3.3 The Applicability of the G/M-BIT
As mentioned above, Germany and Morocco concluded a new BIT in 2001, which
would apply in the case of the Desertec Concept. Nevertheless, there are some
doubts concerning the applicability of the G/M-BIT, due to a shift of competence on
the European level. This question not only deals with the G/M-BIT, but rather all
BITs of EU member states. Until the Treaty of Lisbon, there was no doubt that the
competence to conclude BITs was located in the EU member states,
57
although
there were cases before the Treaty of Lisbon which dealt with the issue of BITs
concluded before EU membership.
58
According to Art. 351(2) of the TFEU (for-
merly Art. 307(2) of the TEC), all
(
...
) (m)ember (s)tate(s) (
...
) concerned shall
'
take all appropriate steps to eliminate the incompatibilities (
if prior treaties are
not compatible with the European Treaties. In 2009, the ECJ dealt with a case
concerning Austrian and Swedish BITs and concluded that even hypothetical
incompatibilities with the European Treaties are against community law.
59
...
)
'
53
Zampetti and Sauv
´
(
2007
), 211 (249) and (250); Karl (
2003
), 37 (37); Krajewski (
2009
), 180;
Schobener et al. (
2010
), 252-253, Kap. 4
§
17 para 121; Kim (
2007
), 55-59.
54
Karl (
2003
), 37 (37).
55
Kim (
2007
), 53-55; Schobener et al. (
2010
), 252-253, Kap. 4
§
17 para 121; Krajewski (
2009
),
180; cf Herdegen (
2003
), 13 (27); Zampetti and Sauv
´
(
2007
), 211 (250).
56
Herrmann et al. (
2007
), § 17 para 789; Karl (
2003
), 37 (41-42); Kim (
2007
), 57-59; Schobener
et al. (
2010
), 252, Kap. 4 §17 para 120 and 253, Kap. 4 §17 para 122; Krajewski (
2009
), 181;
Herdegen (
2003
), 13 (27); Detailed reasons for MAI failure, in: Zampetti and Sauv´ (
2007
),
211 (250-251).
57
Griebel (
2009
), 469 (469); Sch
obener et al. (
2010
), 227, Kap. 4 § 14 para 20; Due to the new
European competence there is need for coordination and adjustments, in: Tietje (
2010
), 5 (19).
58
Potest
€
a(
2009
), 225 (238).
59
Potest
a(
2009
), 225 (241); The cases dealt with transfer clauses, which do occur in almost all
BITs, in: Potest
a(
2009
), 225 (239) and (243).
