Introduction - Investing into North African Solar Power - page 24

Although the Moroccan loi 13-09 relative aux energies renouvelables (loi 13-09) 202
is exempt from the ONE monopoly as it allows energy production by third
parties, 203 according to Art. 2 of loi 13-09, ONE must guarantee the production
of energy (including renewable energy). If the energy production is above 50 MW,
it is necessary to conclude a concession with ONE. 204 In cases of private conces-
sions, ONE gives a purchase guarantee. 205 ONE always distributes and sells all of
the energy produced, 206 which is also illustrated by the fact that despite loi 13-09,
the Moroccan grid is still run as a monopoly. 207

1.5.2 Institutional PPP and Joint Venture

Only an institutional PPP combined with a joint venture would be a suitable
solution to realize the Desertec Project. The foundation of a joint SPV would
strengthen the commitment of both parties and a detailed list of control rights
(also necessary within a contractual PPP) would shift to the foundation of the
SPV. It also has a beneficial effect on the public

s perception, as they feel that
there is state involvement through the SPV and that the state can actively protect
their rights. Studies also revealed that an institutional PPP (e.g. as a joint venture)
may have a longer negotiation period, but this allows it to be embedded in the local
population. 208 An institutional PPP also affects the creation of jobs. By choosing an
institutional PPP, the likelihood that new jobs would be created is three times higher
than if other PPP forms were used. 209

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1.5.2.1 Allocation of Shares

Based on the allocation of the shares, there are direct effects on the nationality of
the SPV and on the question of dispute resolution. Investment arbitration in
particular depends on the nationality of the investor according to Art. 25 of the
ICSID Convention as it must differ from that of the host state. On an international
level, the theory of incorporation normally prevails and the principle of the main
seat of the business (si`ge social) can be taken alternatively. 210 The theory of

202

The main idea behind loi 13-09 is to attract new investors and enable BTO projects for
renewable energies, in: Sabl ´ and Lauriol ( 2010 ).
203

Le Bihan ( 2010 ).
204 WTO ( 2009 ), 97 para 87.
205 WTO ( 2009 ), 97 para 88.
206 Jaouad ( 2010 ).
207 Jaouad ( 2010 ).
208 Komendantova ( 2010 ).
209 Komendantova ( 2010 ).