Environmental Engineering Reference
In-Depth Information
2.1
International Arbitration
Despite the fact that an increasing number of national courts are dealing with issues
of international law and resolving these cases, the amount of arbitration institutions
and arbitrators is constantly growing.
7
This is also due to the general acceptance of
international arbitration as a method of (international) dispute settlement.
8
Over the
past few decades, there has been an increase in arbitration usage instead of litigation
in local courts.
9
Authors frequently view international courts and tribunals as being
advantageous as they are impartial “organs” with legal expertise which have
experience of solving legal disputes.
10
2.1.1
International Courts
In the case of the Desertec Concept, the only possible international court would be
the International Court of Justice (ICJ). The ICJ is the principal judicial organ of the
UN (Art. 92 Charter of the United Nations (UN Charter)) and one of the principal
organs of the UN (Art. 7(1) of the UN Charter). All members of the UN are
ipso
facto
parties to the Statute of the International Court of Justice (ICJ-Statute),
pursuant to Art. 93(1) of the UN Charter. All decisions of the ICJ are binding for
UN member states, as Art. 94(1) of the UN Charter highlights. Nevertheless, Art.
95 of the UN Charter underlines that the ICJ is not the only institution which settles
international disputes.
According to Art. 36(1), 38 of the ICJ Statute, the ICJ has jurisdiction
concerning all matters the parties refer to it and decides in accordance with
international law. The ICJ is not limited to certain international law claims or in
its
ratione materiae
.
11
The jurisdiction depends on the consent of the parties as Art.
36(2) of the ICJ Statute implies, but the parties are not obliged to consent to ICJ
jurisdiction.
12
Art. 34(1) of the ICJ Statute regulates that only states can be party to
the ICJ. Therefore, the ICJ is not an option in cases where natural or judicial persons
are involved. As an investor like Dii is generally a private company, the ICJ is not
applicable to the Desertec Concept.
7
Wood (
2007
), 575 (575).
8
Redfern et al. (
2004
), 1 para 1-01.
9
Loncle (
2005
), 3 (3).
10
Ulfstein et al. (
2007
), 3 (8).
11
Ebner (
2005
), 107 and 109.
12
Ebner (
2005
), 107.