Environmental Engineering Reference
In-Depth Information
Intentions of the parties can only a secondary tool to determine, if there is a
contribution to the economic development of the host state.
3.7.5.2 Desertec Concept as a Contribution and Its Benefits
The primary goal of Dii was to supply Europe and it is most likely that any investor
pursues the same target. This means that MENA countries would not be the prime
beneficiaries of the project. It would instead serve the energy needs of Europe.
Nevertheless, MENA and therewith Morocco would benefit from the project. Even
if Morocco is not the primary market of the Desertec Concept, there would be still
positive side effects.
Previously, ICSID tribunals accepted BOT/Concession power plants as a con-
tribution to the economic development of the host state. Similarly the provision of a
service of general interest was also regarded as a contribution. However, if the
Desertec Concept does not primarily supply the MENA region, there could be doubt
about the applicability of both decisions. One tribunal dealt with the issue of transit
highways and the profit of third parties. In this case, there is a possibility that the
neighboring countries benefit more than the host state. The ICSID tribunal men-
tioned that facilitation of land transportation and strengthening a country
s position
as a transit country within a region is a contribution to the economic
development.
595
Due to the fact that there is still some time before HVDC transmissions lines
exist all over Europe, there should be a focus on the supply of the MENA region.
596
Therefore, it would be best for an investor to keep its promises (e.g. open technol-
ogy) and implement them.
597
Furthermore, there might be a legal obligation for an
investor to supply Morocco (and MENA countries). As mentioned above, the
contracts between the parties might be evidence of a contribution to the economic
development. The three main contracts are the concession contract, the state
contract and the PPA. Therewith, an investor legally binds itself to its promises
concerning MENA supply, if this obligation is part of these contracts. Vice versa,
these contracts (especially a PPA) create a legal obligation for Morocco/ONE to
purchase the produced energy. In addition, there are the concession fee and tax
payments of the Desertec Concept. As mentioned above, the best way to set up the
Desertec Concept would as a BOT/Concession. This would include a concession
fee paid to the public party. Due to the concession fee, the state of Morocco would
also benefit even if the energy is primarily produced for Europe. Both parties can
also agree within the concession agreement that the prime function of the project is
the supply of the MENA (e.g. Morocco) region. Therewith, the ICSID decisions
concerning BOT/Concession power plants and service of general interest would
'
595
ICSID [2009] ARB/07/12, 28 para 86d).
596
Deutsch and Hobohm (
2010
), 54 (58).
597
Deutsch and Hobohm (
2010
), 54 (58).
