Environmental Engineering Reference
In-Depth Information
legitimacy of the umbrella clause. The scope is only relevant. The above analysis
shows that there is a restrictive interpretation and a broad interpretation. Due to the
fact that there is no stare decisis within ICSID case law, only the restrictive
approach can be considered—despite the fact that more ICSID tribunals are now
supporting the broad notion of the umbrella clause. If an ICSID tribunal decides to
apply the broad notion, this would only be beneficial for the investor. However,
taking the wording and the intention of Art. 11(1) of the G/M-BIT into account,
even the restrictive approach can lead to the acceptance of the umbrella clause. First
of all, both BIT parties desired an extension. The G/M-BIT is the second BIT
between Germany and Morocco. The BIT entered into force on the 12th of April
2008. The two major ICSID decisions concerning the treatment of the umbrella
clause took place between 2003 and 2004. Therefore, both parties knew about the
issue of interpretation of the umbrella clause approximately 4 years prior to its
ratification and decided not to change the text of the BIT and did not include any
commentary or limitations on Art. 11(1) of the G/M-BIT. The interpretation of the
BIT clause revealed a broad formulation, which indicates that both parties are
willing to limit their sovereignty. As a result, Art. 11(1) of the G/M-BIT is an
umbrella clause which transforms all contract claims into investment claims.
As mentioned above, there is only an attribution if the state is part of the
contract. The same must apply in the case of the umbrella clause because mere
contractual violation by a third party cannot lead to liability on the side of the
Moroccan state. This is different in the case of ONE as it is a state monopoly. This
does not mean, however, that the investor should rely on the application of the
umbrella clause. Therefore, it is very important that the PPP includes specific rules
on the handling of contract claims.
3.5.2
Ratione Materiae
Under the ICSID Convention
After clarifying who can be party to the dispute (
ratione personae
), the following
section deals with the question of
ratione materiae
. The ratione materiae deals with
the question of what can be subject to Art. 25(1) of the ICSID Convention. In the
case of the Desertec Concept, the question of “investment” is particularly relevant.
Since the project is still in the planning stage, only selected topics will be discussed.
3.5.2.1 Requirements of Art. 25 of the ICSID Convention
The basic requirements of Art. 25(1) of the ICSID Convention are consent and a
'
The basic require-
ment for any form of international arbitration is consent. Then, the question of what
is a legal dispute is the subject of review. Finally, there is an analysis of investment
and its prerequisites.
(
...
) legal dispute arising directly out of an investment (
...
).
'
