Environmental Engineering Reference
In-Depth Information
A second approach is a different structuring of the Desertec Concept, excluding
a concession contract. This might open a new box of discussions concerning the
contribution to the economic development. If there is no concession, there would be
no concession fee and a major benefit for Morocco would be missing. Conse-
quently, the question of “who is the primary benefiter” would rise again. This
includes uncertainties like “must the host state benefit from an investment directly
or indirectly?” Overall, a missing concession would make the whole situation even
more complicated for an investor.
3.7.5.6 Evaluation of the Desertec Concept
The topic of contribution to the economic development of the host state is difficult
to assess, especially as there are no data available and neither Dii, as an example of
an investor, nor the Desertec Foundation were willing to offer any information. Due
to the lack of material the following evaluation is based on own considerations and
evaluations.
It is no surprise that a lot of ICSID tribunals and most of the literature have
rejected this element. Even tribunals supporting it did not have a consistent case law
concerning this Salini element. Based on case by case decision practice, most of the
tribunals accepted the criterion contribution to the economic development of the
host state without a detailed observation. Cases of a denial were frequently subject
to successful annulments. Due to the superficial assessment of ICSID tribunals, it is
almost impossible to predict a possible outcome. Taking the benchmark of the
ICSID tribunal
s decision into account, there is a great chance that the Desertec
Concept is a contribution to the economic development of the host state. This is also
supported by the idea that a project
'
s contribution increases equivalent to its
duration. The same applies for the proposed tests by the literature. So far, ICSID
tribunals have not referred to Art. 12(d) of the MIGA Convention in any verdict.
Therefore it is not clear whether they do not accept it as an indicator, or just did not
explicitly consider it. According to the recent case law, the chances that ICSID
tribunals might consider this article are rather small. The fact that the Desertec
Concept differs from earlier projects could be the reason for taking different aspects
into account. However, there is no certainty. It must be assumed that the ICSID
tribunals do not refer to Art. 12(d) of the MIGA Convention. This article only
serves as possible guidance to solve the problem, which deserves attention and the
Desertec Concept is a contribution to the economic development of the host state at
the moment. The issue of cost efficiency might be problematic as it is uncertain
which way the parties will head. A financial support by third parties would still be
helpful, to prevent a possible consumption of whole concession fee.
The question remains at what point the drawbacks outweigh the benefits. One
might say that if subsidies consume the concession fee completely, there is no
contribution to the economy anymore. However, this overlooks the fact that
Morocco will gain a new power plant which produces clean energy. Since Morocco
is heavily on oil for energy production, this is an advantage. Besides less CO
2
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