Environmental Engineering Reference
In-Depth Information
As mentioned above, it is doubtful that the ICSID Convention is going to be
changed to allow the EU to become a member. This would be difficult as it would
need all the ICSID Convention member states to vote on this unanimously. If the G/
M-BIT were replaced, the ICSID Convention may no longer be applicable. As
illustrated above, there are other ISDS mechanisms which may be used. A possible
solution would be to resort to arbitration under the UNCITRAL Rules or to make
use of the ICC Rules. However, at the moment, no one knows how the situation is
going to develop as the EU and Morocco are just starting to negotiate a new
investment agreement, nor how the EU member states, third states, investors and
third state investors are going to react if the ICSID mechanism is not an option
anymore. Most European BITs illustrate that the ICSID Convention is the primary
choice of the ISID, which makes it difficult to predict how an exclusion of the
ICSID would be received. It is noteworthy that the EU member states have already
refused to cancel the old BITs which exist between the EU member states, despite
an European Commission request.
114
Finally, there also remains the issue of
whether the G/M-BIT is still applicable, as mentioned above, due to the fact that
it was concluded before the Treaty of Lisbon.
115
This could become an issue if an
investor wants to fall back on the ICSID Convention after a new EU-BIT with
Morocco is in place. Based on the ruling of the German Constitutional court, it is
not clear how other German courts would react to such a claim as they might
support the validity of the G/M-BIT.
Until this agreement enters into force, the G/M-BIT will remain fully in force
and this thesis will discuss the application of the ICSID Convention according to
the G/M-BIT. Questions about the notion of investment under the ICSID Conven-
tion might also apply to other arbitration institutions and will also be discussed.
3.4 Precedents in International Law
Over the past few centuries, ICSID tribunals have decided numerous different
arbitration cases. These often involved similar topics or facts. Consequently,
ICSID tribunals frequently referred to previous ICSID decisions. In some cases,
there was even a chain of reference to justify the final decision. The term precedent
is mostly used in connection with stare decisis, which means
to stand by what is
'
116
This raises the question if international law recognizes or allows stare
decided.
'
decisis.
114
Griebel (
2009
), 469 (469).
115
This would not apply, if Germany and Morocco both accept a new form of investment treaty
instead of the G/M-BIT, as it is state sovereignty to change existing contracts.
116
Kaufmann-Kohler (
2007
), 357 (358); cf Commission (
2007
), 129 (134).
