Arbitration - Investing into North African Solar Power - page 78

With regard to the Desertec Concept, the actual construction of the project will
dictate whether the investor decides to build a decentralized or centralized network.
In the case of a decentralized network, the CAM is a good option for arbitration.
Due to its focus on the MENA region and its cooperation, it is the perfect
compromise for all parties involved. Since not all the solar plants will be built at
once, the CAM might have the chance to prove itself. If an investor wants to build a
single plant, the ICC would be the more appropriate option. The ICC has the best
experience with European-African dispute resolution and handling of large scale
projects. Thanks to its new arbitration rules, the ICC ' s processes are no longer as
lengthy and as costly as they were in the past. The new option to penalize party
behavior makes it stand out from all other arbitration institutions. Thus, even a
decentralized network would be best hosted by the ICC. The CAM offers a good
alternative, but based on its lack of experience, it must be seen as the second best
choice. Irrespective of the choice of arbitration institution, the complexity and size
of the Desertec Concept project may lead to a long arbitration process. This
underlines the importance of a well negotiated PPP to avoid conflicts right from
the start of the project.

2.2.4 Enforcement of Awards According to the NY
Convention

In 1958, the NY Convention replaced the 1927 Geneva Convention on the Execu-
tion of Foreign Arbitral Awards (Geneva Convention), after the ICC lobbied for a
new, more advanced convention on the enforcement of arbitral awards. 230 One of
the reasons was to get rid of the double exequatur (meaning that an award needed to
be confirmed in the jurisdiction where it was made before it could be enforced in
another jurisdiction) under the Geneva Convention. 231 Until today authors view the
Geneva Convention as the starting point of the globalization of arbitration. 232 As
the NY Convention only deals with the enforcement of awards, there are questions
how Art. 6(1) of the Appendix V of the ICC Rules is going to be handled. In the case
of an emergency arbitration the verdict is the form of an order. Since the ICC Rules
use both terms (award and order) it is not clear how local courts will deal with this
issue. A risk remains that local courts treat both terms differently. This could
weaken emergency arbitration regulations of the new ICC Rules.
The new formulation in the NY Convention is in Art. V(1)(e), and highlights that
an award must be binding. Although there is no definition of the term “binding”,
courts consider

( ... ) that an award is binding if there is no way of bringing an

'

230 Nariman ( 2004 ), 123 (127); Harten and Loughlin ( 2006 ), 121 (125); Harten ( 2007 ), 50.
231 Moses ( 2008 ), 212-213; BGH finally accepts the doctrine of merger and abandons the double
exequatur in Germany, in: Plaßmeier ( 2010 ), 82 (82-83).
232 Nariman ( 2004 ), 123 (126).