Environmental Engineering Reference
In-Depth Information
frequently been subject to ICSID arbitration because of its categorization as an
investment.
467
Big scale projects, especially infrastructural ones, appear to be safe,
although there remain uncertainties for projects like BOTs.
468
Some claim that
BOTs fit perfectly under the Salini test.
469
Again others propose that the only way
to avoid this risk is to abandon the ICSID Convention and rely on other arbitration
methods.
470
As mentioned above, the Desertec Concept is an investment according to the G/
M-BIT and ICSID tribunals regard concession fees as an investment.
471
In one case,
both parties agreed in the arbitration agreement that a PPA constitutes an invest-
ment.
472
The tribunal therefore assumed that an investment existed.
473
Addition-
ally, it conferred that requirements of Art. 25(1) of the ICSID Convention and the
BIT were met.
474
An ICSID tribunal pointed out that the concept of investment
according to the ICSID Convention can differ from the projects economical concept
of being an investment.
475
Due to the size and importance of the Desertec Concept
and Morocco
s previous challenge, an assessment is necessary. Consequently, the
next section will assess the Desertec Concept under the Salini test. This means that
(1) a contribution (in cash, in kind or in labor), (2) certain duration of performance,
(3) participation in the risks of the transaction and (4) a contribution to the
economic development of the host state must be present. In addition, the require-
ments (5) assets invested in accordance with the laws of the host State and (6) assets
invested
bona fide
from the (2009)
Phoenix Action Ltd. v The Czech Republic
case
will also be considered.
Even the application of the UNCITRAL Rules would not eradicate the problem
of the Salini test. In recent years different ad hoc tribunals, which applied the
UNCITRAL Rules, ruled differently concerning the application of the Salini test.
476
As a result it is not clear, if a tribunal (independent of the applicable arbitration
rules) might apply the Salini test or not. Abovementioned examples (e.g. the PCA)
illustrate that arbitration tribunals are willing to resort to other tribunals or courts
decisions. This illustrates that the issue of the notion of investment even remains, if
the G/M-BIT is replaced by an EU-BIT and the sole application of the UNCITRAL
Rules. It remains unpredictable for an investor, if the Salini test is applied as the
'
467
Reinisch (
2014
), 127-128 para 151.
468
Mortenson (
2010
), 257 (278).
469
Hunter (
2007
), 165 (169).
470
Mortenson (
2010
), 257 (279).
471
ICSID [2003] ARB/01/12—Decision, 34-35 para 64.
472
ICSID [2008] ARB/04/19—Award, 36 para 148.
473
ICSID [2008] ARB/04/19—Award, 36 para 148.
474
ICSID [2008] ARB/04/19—Award, 36 para 149 and 41 para 166.
475
ICSID [2008] ARB/05/22—Award, 45 para 100.
476
Against the application of Salini, in: UNCITRAL [2011]
White Industries Australia Limited v
The Republic of India
Award, 76 para 7.4.9; In favor of the Salini test, in: UNCITRAL [2011]
Alps
Finance and Trade AG v The Slovak Republic
Award, 76-79 paras 239-247.
