Environmental Engineering Reference
In-Depth Information
3.5
Jurisdiction According to the ICSID Convention
As mentioned above, Art. 25(1) of the ICSID Convention deals with the issue of
jurisdiction.
157
The following section takes a closer look at the question of
ratione
personae
and
ratione materiae
. The question of nationality was already discussed
earlier and thus will not be part of the following sections. The
ratione temporis
will
not be covered because this issue is only relevant at the time the dispute arises.
3.5.1
Ratione Personae
Under the ICSID Convention
The
ratione personae
encompasses several requirements. Within this section, the
focus will be on the
locus standi
and specific questions of the umbrella clause. Parts
of the assessment of
locus standi
were conducted in the first chapter under the topic
of investor nationality. Thus, the newly formed SPV would be the investor in the
case of the Desertec Concept. Since the investor will be the majority shareholder,
the following section will refer to Dii as “the investor” for better illustration. This is
also due to the fact that Dii would have been the main claimant in a case of
expropriation.
3.5.1.1 Locus Standi
Taking a closer look at the present case, there are several possible partners. First of
all, there would have been Dii as a private investor. As mentioned above, even a
shareholder of an investor company is able to sue according to ICSID jurisdiction
and the G/M-BIT. Secondly, there is the contracting state as the other party to the
arbitration. As illustrated before, there are two possible contractual partners—ONE
and the state of Morocco. Morocco is a contracting state to the ICSID Convention
and hence can be a party to a tribunal. In the case of ONE, this is a bit more difficult
and thus needs further examination.
It is not unusual that an agency or subdivision, which is legally distinct from the
state but exercises public functions, is a party in state contracts.
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These sub-
divisions and agencies are not only respondents concerning ICSID arbitration as
they may also commence ICSID proceedings.
159
Art. 25(3) of
the ICSID
157
Article 25(1) ICSID Convention:
'
(
...
) [t]he jurisdiction of the Centre shall extend to any legal
dispute arising directly out of an investment, between a Contracting State (or any constituent
subdivision or agency of a Contracting State designated to the Centre by that State) and a national
of another Contracting State, which the parties to the dispute consent in writing to submit to the
Centre. When the parties have given their consent, no party may withdraw its consent unilaterally
.
'
158
Schreuer (
2009
), 149 para 230.
159
Schreuer (
2009
), 149 para 231.
