Environmental Engineering Reference
In-Depth Information
Chapter
2
will discuss the issues underpinning investment arbitration. As invest-
ment arbitration is distinct from commercial arbitration, other rules and procedures
apply. In the case of a solar thermal project, questions about the definition of
investment may arise and thus need further assessment. Therefore, Chap.
2
will
introduce the system of investment arbitration according to the International Centre
for the Settlement of Investment Disputes Convention (ICSID Convention) and
assess the meaning of investment in the context of a solar thermal power plant in the
MENA region.
1.1 Contracting Parties
Before discussing a possible contract, it is important to know who can be a party to
it. This project involves two sides: the European side and the MENA region. It is
important to assess all the possible contracting parties as this will have an influence
on questions of commercial and investment arbitration.
1.1.1 The European Side
The EU cannot be a contracting party because it lacks the necessary competence. A
violation of competence leads to an immediate invalidity
ultra vires
according to
Art. 46 of the Vienna Convention on the Law of Treaties (VCLT).
14
Due to the
inaccurate wording and a lack of clarity with regard to interactions with Directive
2003/54/EC,
15
neither the TFEU
16
nor Directive 2009/28/EC
17
create a legal basis
for EU action. Another way the EU cooperates with the MENA region is through
the European Neighborhood Policy (ENP),
18
which includes initiatives like the
Neighborhood Investment Facility (NIF).
19
The ENP offers some interesting tools,
but so far it has failed to live up to expectations,
20
so the EU is consequently
“limited” to playing the role of mediator. In addition, the Euro-Mediterranean
Partnership (EMP) and the launch of the Union of Mediterranean (UM) and its
14
Pache and Bielitz (
2006
), 316 (320).
15
Klinski (
2005
), 207 (209-210) and (212).
16
As this provision was quite important under the ECT, it is argued that it lost some of its
relevance due to the stipulation in the TfEU and not
the EUT,
in: Bungenberg (
2009
),
205 (211); Baur and Blask (
2002
), 636 (640).
17
Ringel and Bitsch (
2009
), 807 (810); Lehnert and Vollprecht (
2009
), 307 (308-309).
18
Werenfels and Westphal (
2010
), 1 (21).
19
One practical example of NIF in action is a feasibility study for a Concentrated Solar Power
(CSP) plant in Tunisia, in: European Commission (
2010c
) NIF—Projects in the Southern Region.
20
Werenfels and Westphal (
2010
), 1 (21).
