Environmental Engineering Reference
In-Depth Information
projects have been important lessons, e.g. the desire to regulate all possible situa-
tions still to come frequently ended in the failure of the whole project. Flexibility
can be achieved by including adjustment clauses and with ongoing communication
between all relevant contract parties. Nevertheless, there are already risks which are
known but cannot be changed. The major one is the unpredictability of the arbitra-
tion institutions
decision. The ICC, the CAM and the ICSID are not bound by
precedents. Thus, it is almost impossible to predict an outcome of an arbitration
process. The best example is the Salini decision itself. Before this decision, no-one
had ever thought of actually defining investment or setting up any requirements.
This makes it very difficult for lawyers to advise their clients. As another example,
the umbrella clause and its treatment shows how difficult it is to predict an outcome.
The almost exact same case was decided in two different ways by different ICSID
tribunals. The different outcomes in the arbitration process can also be illustrated by
the Salini test. Since 2001, several ICSID tribunals have dealt with this issue and
come up with numerous different decisions. There have been cases decided in
accordance with the Salini which were annulled later on, and vice versa annulment
processes which supported the Salini application, unlike the initial court. There is a
categorization into three main groups, but even the liberal approach does not agree
on how to handle all the criteria. Therefore, it was important to assess the Desertec
Concept according to the most restrictive approach within ICSID case law. There is
still a chance that another tribunal will lift the Salini test to a new level, but the only
way to predict this would be with a crystal ball. However, the shifting of law and
opinions is part of the lawyer
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s job. Consequently, it is important to pay attention to
the development of case law and adjust to it. The best solution would be to avoid
any confrontation in front of an arbitration institution. This always ends with a
winner and loser, which is not helpful in cooperation. As the PPP already indicates,
it must be a partnership, which means that all interests must be balanced at all times.
There are risks, but the term “investment” encompasses risk. This thesis offers a
guideline to avoid the most severe risks. Consequently, there is a great chance that
the Desertec Concept will be a success for year.
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