Environmental Engineering Reference
In-Depth Information
the risk of losing its money. Due to the PPA, the state has an obligation to pay, and
due to the subsidies there is always enough money. ICSID tribunals have accepted
PPAs and subsidies in different cases without excluding the requirement “risk”. It
would be wrong to believe that risk stops at the question of remuneration. In the
case of the Desertec Concept, there is a lot of risk inherent to the project because
there have been no similar projects up to now. ICSID tribunals must accept that and
should refrain from taking an overly narrow approach. Due to the size, uniqueness
and importance of the Desertec Concept, ICSID tribunals should be aware that risks
besides remuneration might occur. Hence, they should not exclude risk.
There are also some requirements left, namely “in the territory of the host state”,
“regularity of profit and return”, assets invested
bona fide
and assets invested “in
accordance with the laws of the host state.” The requirements of invested
bona fide
and assets invested in accordance with the laws of the host state also highlight the
importance of a partnership and mutual consideration. Cases involving German
companies have stressed that the investor should not try to circumvent local laws
just for its benefit. Although it is an international project, an investor must play by
the rules of the host state. Vice versa the host must obey international rules and its
laws. Finally, there is the problem of contribution to the economic development of
the state. Even within the different approaches within investment law, this is the
most widely discussed element of the Salini test.
4.10 The Desertec Concept Is a Contribution
to the Economic Development of the Host State
As the most diverse element of the Salini test, the criterion contribution to the
economic development of the host state has been the subject of a lot of controversial
discussion within ICSID case law and the literature. The main argument against this
element is that it is almost impossible to define. In cases where ICSID tribunals
have applied it, they assessed every investment individually, without setting any
standards or guidelines. Therefore, the only way to find out whether the respective
investment will contribute to the economic development of the host state depends
solely on the view of the tribunal. This leads to an enormous unpredictability, and it
also shows why this element is such a hot topic.
With regard to the Desertec Concept, there seems to be no initial problem. It is a
major investment sum which will go into Morocco. The investment will take at
least 30 years. New technology is coming into the Morocco. There is a great chance
of new jobs and the transfer of knowledge. In addition, it will replace conventional
energy production. This will lead to a cleaning of the environment, which will
automatically raise living standards. It will also lift Morocco to the level of a global
player. Due to the importance of the project and Europe
s interest, it offers a great
chance for “average” countries to gain more international influence.
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