The Desertec Concept and the ICSID Convention - Investing into North African Solar Power - page 172

contract must be or can be an investment according to the ICSID Convention. If
ICSID tribunals only regard one contract as an investment, the others might be
excluded. This might argue against the use of PPPs, as it is impossible to predict
which part might be protected by the ICSID Convention. However, ICSID tribunals
handled comparable contractual setups not too strict. 310 The tribunals established
the idea of , also qualifying contracts as investments, which

individually would not qualify. 311 One ICSID tribunal mentioned that it would be
contrary to the economic reality to consider each contract separately (e.g. in the
case of a PPP). 312 Other ICSID tribunals decided similarly. 313 Consequently, the
Desertec Concept, set up as a PPP (see Figs. 1.1 , 1.2 and 1.3 ), is going to be treated
as one.

' unity of investment '

3.6 Definition of the Investment According to the ICSID
Convention

Art. 25(1) sentence 1 of the ICSID Convention addresses the term “investment”.
The article deals with the investment in the context of the jurisdiction of the centre,
stipulating all the necessary requirements to invoke an ICSID tribunal.

3.6.1 Interpretation of Art. 25(1) of the ICSID Convention

First of all, Art. 25(1) of the ICSID Convention requires interpretation. As men-
tioned above, the general rules of interpretation in international law are within the
VCLT. However, the ICSID Convention was ratified before the VCLT and there-
fore it does not apply directly to the ICSID Convention. Due to VCLT s status as

customary international law, the statutes concerning interpretation also apply to the
ICSID Convention. 314

'

310

Grubenmann ( 2010 ), 60.

311

Grubenmann ( 2010 ), 60; cf ICSID ICSID [2013] ARB/08/9—Decision on Jurisdiction and
Admissibility 139 paras 424-425; ICSID [2011] ARB/07/5—Decision on Jurisdiction and Admis-
sibility, 141-142 para 364.
312 Grubenmann ( 2010 ), 60.
313 ICSID [2004] ARB/01/3—Decision on Jurisdiction, 29 para 70; ICSID [1999] 97/4—Decision,
251 (275) para 72; ICSID [1997] ARB/96/3, 1378 (1383) para 26; ICSID [1988] ARB/82/1—
Award, 125 (144) para 4.13 and (145-146) para 4.17.
314 ICSID [2007] ARB/05/10—Award, 19-20 para 65.