Environmental Engineering Reference
In-Depth Information
(1) of the ICSID Convention. All three versions do not include any restrictions on
investment.
Unlike the ICSID, NAFTA and the ECT have a definition of investment. 339 In
both cases, the definition of investment is broad and thus comparable to most BIT
definitions. 340 Taking all the above-mentioned into account, most parties seem to
favor an undefined term. Although there are several indications that an investment
includes certain requirements, the opposing arguments outweigh these. The fact
that Art. 25(1) of the ICSID Convention does not include a definition combined
with the preparatory work and the different language versions support the interpre-
tation of a broad investment term. Hence, only the parties to the respective BIT can
limit the notion.
3.6.2 The Desertec Concept as an Investment According
to the G/M-BIT
Taking a closer look at the G/M-BIT, Art. 1(1)(a-e) defines investments. Similarly
to most BITs, the G/M-BIT uses a broad definition of investments. There are almost
no exclusions of investment types. Art. 1(1)(e) of the G/M-BIT is very relevant for
the Desertec Concept. There it
¨ ffentlich-rechtliche und
vertragliche Konzessionen einschließlich Aufsuchungs- und Gewinnkonzessionen
f¨r nat¨rliche Ressourcen
is mentioned that
'
341 are investments according to the BIT. The French
version is comparable to the German version of the BIT. 342 There could be some
doubts as to whether the protection only includes concessions concerning natural
resources. As mentioned above, implementation of the Desertec Concept is similar
to typical natural resource concessions. However, Art. 1(1)(e) of the G/M-BIT
might restrict the protection for concessions only for cases of exploration and profit.
The word
'
343 indicates that these concession types are specifically
included. It does not mean that all concessions must relate to natural resources in
general. Hence, Art. 1(1)(e) of the BIT applies to the above-proposed form of
cooperation for the implementation of the Desertec Concept. The burden of proof,
i.e. if it is an investment according to the BIT, lies on the side of the claimant. 344
'
einschließlich
'
339
Karl ( 1994 ), 809 (811).
340
Karl ( 1994 ), 809 (811).
341
Public and private concessions, including exploration and profit concessions concerning natural
resources.
342 Article 1(1)(e) G/M-BIT (French version):
les concessions de droit public ou contractuelles, y
'
compris celles relatives
a la prospection et l
exploitation de resources naturelles
.
'
'
343 Including.
344 Sergei Paushok , CJSC Golden East Company and CJSC Vostokneftegaz Company v Mongolia
[2011] Award—Proceeding pursuant to UNCITRAL Arbitration Rules, 32 para 200.
Search WWH ::




Custom Search