Environmental Engineering Reference
In-Depth Information
Convention requires a designation of the contracting state before any subdivision or
agencies can give their consent to ICSID arbitration. Vice versa, consent of a
subdivision or agency to ICSID jurisdiction cannot extend to the state,
160
making
it is advisable that an investor gets consents from both—the state and the agency or
subdivision.
161
Although paragraphs 1 and 3 of Art. 25 of the ICSID Convention are
closely related to another, paragraph 1 deals with the
ratione personae
and
locus
standi
, while paragraph 3 deals with modalities of the consent to ICSID arbitration.
Both are paragraphs include vital requirements for a possible jurisdiction of an
ICSID tribunals both requirements must be met.
162
No. 5 of the ICSID Model
Clauses offers an example of designation and consent agreements for the invest-
ment contract.
163
Hence, in a long-term contract, the investor should demand a
written commitment of designation and consent of the agency or subdivision.
164
In
a case where this designation is missing, the ICSID tribunal will dismiss the case.
165
3.5.1.1.1 ONE as an Agency
Consequently, it is essential to assess what ONE is. As highlighted on their
homepage, ONE is an “etablissement public”,
166
established in 1963.
167
Without
a doubt, ONE is not a subdivision, but could be an agency. The concept of agency is
functional and not structural.
168
It does not matter if the agency is a corporation, to
what extent the government owns it or if it has legal personality, as the most
important criterion is if
(
...
) it performs public functions on behalf of the
'
169
As mentioned earlier, ONE is the state monopoly for
energy production and distribution, which is a service of general interest. Thus,
ONE performs functions on behalf of Morocco, which makes it an agency. Finally a
Contracting State (
...
).
'
160
Schreuer (
2009
), 170 para 312.
161
Reed et al. (
2004
), 21; Schreuer (
2009
), 170 para 312.
162
Schreuer (
2009
), 150 para 232.
163
No. 5 ICSID Model Clause: The name of constituent subdivision or agency is [a constituent
subdivision]/[an agency] of the Host State, which has been designated to the Centre by the
Government of that State in accordance with Article 25(1) of the Conventiopara In accordance
with Article 25(3) of the Convention, the Host State [hereby gives its approval to this consent
agreement]/[has given its approval to this consent agreement in citation of instrument in which
approval is expressed]/[has notified the Centre that no approval of [this type of consent agree-
ment]/[of consent agreements by the name of constituent subdivision or agency is required].
164
Reed et al. (
2004
), 21.
165
ICSID [1997] ARB/95/2 - Award, 329 (351-352) paras 2.32-2.33; Schreuer (
2009
), 155 para
249.
166
An appropriate translation would be “public corporation”.
167
Office national d
´lectricit´ (
2010
).
168
Schreuer (
2009
), 153 para 243.
169
Schreuer (
2009
), 153 para 243.
'
