Environmental Engineering Reference
In-Depth Information
(
) [T]o the extent that the obligations assumed by the State party are of a contractual
nature, such obligations must originate in a contract between the State party to the Treaty
and the foreign investor as (
...
). 211
...
In addition, in a case at the SCC concerning the Czech-British BIT, the tribunal
rejected attribution of any entity behavior to the state. 212 However, if the breach of
the contract amounts to a violation of the BIT (and therewith can be connected to a
treaty claim), ICSID tribunals have jurisdiction again. 213
If contract claims are at issue, it depends on who is party to the respective
contract. If the state is a direct party, an attribution might be possible. If an agency
or subdivision is the contractual party, it depends on the legal personality. In cases,
where the agency or subdivision is legally and financially independent, an attribu-
tion cannot take place according to the ILC Responsibility 2001. A mere contract
between a legally independent agency and an investor is not part of international
law and does not constitute any international obligations. An application of the ILC
Responsibility 2001 is not possible. This case is treated in accordance to the
applicable law of the contract (e.g. municipal law of the host state). The only
exception is that a contract claim amounts to a treaty claim.
Consequently, there are certain risks for an investor if they are contracting solely
with ONE. Such a cooperation excludes the jurisdiction of ICSID tribunals. Con-
tractual claims could “only” be subject to domestic litigation/arbitration or inter-
national commercial arbitration. The only possibility to revive ICSID jurisdiction
would be to conclude all contracts with ONE and Morocco.
3.5.1.1.4.4 Assessment of Attribution
As mentioned above, ONE is closely related to the state. Almost all its functions
deal with the service of general interest and as it mostly acts for the state, discussion
concerning the quality of it acts are irrelevant. Therefore it is clear that
( ... ) if a State-owned corporation acts inconsistently with the international obligations of
the State that owns and controls it, the State may be responsible provided that it has actually
authorized the conduct in question as a result of its capacity to direct and control the actions
of the corporation. 214
There is no doubt that contracts between Dii or another investor and ONE could
not have been claims in front of an ICSID tribunal, as long as they are contractual.
Consequently, it would have been beneficial for Dii—or any other investor—to
internationalize each contract and lift it to the level of international law. If inter-
national law applies to the contract, each breach of the contract would be a violation
of international law. This would lead to the application of the ILC Responsibility
2001 and a possible attribution to Morocco. As mentioned above,
the sole
211 ICSID [2007] ARB/02/8—Award, 59 para 205.
212 Case discussed, in: Gallus ( 2008 ), 157 (162).
213 ICSID [2001] ARB/00/4, 609 (624) paras 62-64.
214 Muchlinski ( 2014 ), para 46.
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