Introduction - Investing into North African Solar Power - page 28

Morocco, the abovementioned issue of investor nationality makes a GmbH more
preferable. This could avoid questions of effective control of the SPV or even an
investor and its shareholders. The risk that an ICSID tribunal could assess these
questions in depth is low, but at the same time it is unique project, which might lead
to a more detailed review. Finally, the GmbH and S.A.R.L. offer the same rights to
all shareholders. Since the investor is raising the necessary funds to invest in a
project like the Desertec Concept and will bear most of the risks, they should
receive at least 50 %+1 share of the new SPV. If Morocco desires a greater
influence, an investor is unlikely to accept these conditions, which would endanger
the complete project.

1.5.3 PPP Setup for Desertec

Only two PPPs agreements are suitable to implement the Desertec project. These
are BOT/BOOT agreements and concessions. As illustrated above, BOT/BOOT
agreements have a lot in common and are quite frequently applied in emerging
countries. 235 In cases of energy production, a combination of BOOT models often
includes a concession at its core or a global service contract. 236 Morocco also has
some BOTs working within its territory. 237 The advantage of BOT/BOOT agree-
ments is that the investor is the owner of the project during the entire contracting
period and the host state receives the project at the end of this period. Thus, the
concerns and interests of both contracting sides are met. As the choice of agree-
ment—BOT or BOOT—is up to the contracting partner. As BOT and BOOT
agreements are both very similar, the next section of this thesis can be applied to
both forms of agreements. However, in order to provide a better understanding,
only BOT agreements will be discussed

...
BOTs are frequently used in combination with a concession in the case of power
plants. 238 In Morocco, investors and public parties already have some experience of
cooperation in the field of energy, as in the case of Jorf Lasfar Power Plant
Concession highlights. 239 A concession for the implementation of the Desertec
Concept could encompass all of the relevant parts of a BOT. The “build” aspect
could be part of the construction contract. The “operate” aspect could be handled by

235

Badawi ( 2003 ), 1.

236

Kistner and Price ( 1999 ), 5.

237

Kistner and Price ( 1999 ), 3.
238 Hunter ( 2007 ), 165 (166); Herdegen ( 2003 ), 13 (15); Badawi ( 2003 ), 3; Sometimes it is even
pointed out that concession contracts are repeatedly used for big scale projects, in: Karl ( 2003 ),
37 (54); ICSID [2004] ARB/02/5—Decision, 8 para 18 and 11 para 32; ICSID [2001] ARB/98/8—
Award, 2 para 3; ICSID [2008] ARB/06/13—Award, 38 para 57 and 39 para 59; Bremer ( 2005 ),
60.
239 La Forge and Nouel ( 2008 ), slide 2.