Environmental Engineering Reference
In-Depth Information
of the World Bank or under the Kyoto Protocol which might offer additional
money. Unfortunately, the latter ends in 2012 and no new protocol is in sight.
Thus, all the financial tools like the CDM are going to end in 2012 as well. Even if
these tools apply to the Desertec Concept, it is questionable whether they have the
capability to effectively support the Desertec Concept. Those projects currently
being supported are not close to the size and complexity of this project. Overall, it
comes down to whether European states are willing to support this project or just
pay it lip service. Further funding could stem from other national institutes like the
GTZ, DEG, and KfW. As a guarantee for all investments, institutes like MIGA offer
good options (even for third parties) to secure their financial aid.
4.5 Commercial Arbitration Should Take Place at
the CAM or ICC
The question of arbitration is essential for the success of the project. Due to the long
contractual time, it is clear that there are going to be disputes about contract
interpretation or obligations. Therefore, a dispute settlement must be at hand.
First of all, it is very important to avoid any kind of arbitration. If possible, both
parties should try to resolve the dispute amicably. Taking someone to “court”
makes it difficult to cooperate later on. Consequently, ADRs are interesting ways
of preventing arbitration. Secondly it is necessary to include certain regulations in
the contract. Both parties should conclude a dispute resolution agreement. This
agreement must be divided into at least two sections—one dealing with interna-
tional commercial disputes and the other one with international investment dis-
putes. At the beginning it was unclear whether national or international courts
should deal with the Desertec Concept, but an examination revealed that this is not
an option.
No international court has the necessary competence to deal with the project.
There are also a lot of problems in relation to national courts. The independence of
Moroccan courts is questionable due to the king
'
s influence, and European inves-
tors are not in favor of “foreign” national courts. The worst start for a dispute
resolution is distrust in the independence of the respective court in charge. As a
result, the only possible and accepted form of dispute resolution is international
arbitration.
When comparing international arbitration institutions, it is noticeable that most
arbitration rules are similar, apart from the CRCICA, which is rather complicated.
Hence, it comes down to the regional focus of each institution and its experiences.
With regard to commercial disputes, the CAM and the ICC offer the best possibility
to settle disputes. First of all, there is the ICC—the oldest and most experienced
arbitration institution in the world. Its expertise is tremendous, especially with
regard to big-scale projects. The ICC is also a well-known institution on the African
continent. Its arbitration rules offer a lot of benefits, like the review of the award and
