Environmental Engineering Reference
In-Depth Information
short comparison, with an ICSID case is necessary, which dealt with a
comparable case.
In the Salini case, an Italian company concluded a contract with the Moroccan
company ADM.
170
The Moroccan Treasury and other public entities held 89 % of
all shares, the Minister was the President of the Board of Directors and according to
the Articles of Association the Board of Directors had far-reaching powers. The
contract dealt with the construction of a highway. The ICSID tribunal first assessed
ADM from a structural perspective and concluded that ADM was an entity con-
trolled by the Moroccan state.
171
In a second step, the tribunal analyzed ADM from
a functional point of view and concluded that ADM performed tasks which were
under state control, like:
(
...
) responding to structural needs of the Kingdom of
'
172
Then the tribunal highlighted that ADM represented the state of
Morocco and performed Morocco
Morocco (
...
).
'
s obligation and thus acts in the name of
Morocco.
173
Comparing this to the situation of contracting with ONE, there are a
lot of similarities.
As mentioned above, ONE is a public monopoly which includes a lot of state
influence. Therefore, the structure of ONE and ADM are comparable. This is also
illustrated by the purpose of both companies. On the one hand is ONE, which deals
with the provision of energy, (a service of general interest), and on the other hand is
ADM, which is concerned with infrastructure (also a service of general interest).
Without a doubt, ONE fulfills the requirement of Art. 25(1) of the ICSID Conven-
tion as a state agency, but it is not listed as an agency under the ICSID Conven-
tion.
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Thus, Morocco should designate ONE to ICSID jurisdiction if ONE
contracts with foreign investors.
175
As mentioned above, this is the only way for
ONE to be a party to ICSID jurisdiction.
'
3.5.1.1.2 The Host State
'
s Scope of Responsibility
It is questionable, if Morocco is responsible for actions by ONE. In 2001, the ILC
produced the ILC Draft Articles on Responsibility of States for Internationally
Wrongful Acts (ILC Responsibility 2001). There is no doubt that according to
customary international law the state is responsible for all its organs, provinces and
municipalities.
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However, the literature is dived on this issue of whether the ILC
Responsibility is part of international customary law, although most seem to
170
ICSID [2001] ARB/00/4, 609 (617-618) para 32.
171
ICSID [2001] ARB/00/4, 609 (617-618) para 32.
172
ICSID [2001] ARB/00/4, 609 (618) para 33.
173
ICSID [2001] ARB/00/4, 609 (618) para 35.
174
ICSID (
2014
) List of contracting states and other signatories of the Convention.
175
Ecuador designated a company to ICSID jurisdiction, which allowed the investor to sue against
Ecuador and its agency, in: ICSID [2008] ARB/05/12, 24-25 para 63.
176
Dolzer and Schreuer (
2008
), 195.
