The Desertec Concept and the ICSID Convention

Abstract

This chapter deals with questions related to the application of the International Centre for Settlement of Investment Disputes Convention (ICSID Convention) to a solar thermal power plant. As there is no investor, the Desertec Industrial Initiative serves as a prime example. A significant part of this chapter examines the future of national Bilateral Investment Treaties under the Treaty of Lisbon. Then, Art. 25 of the ICSID and its requirements concerning the ratione personae and ratione materiae are considered. Looking at the ratione personae, the locus standi and the umbrella clause are particularly important. As the Moroccan state company ONE must be part of a Private Public Partnership, questions concerning the locus standi (consideration as an agency/application of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts) arise. In the case of the ratione materiae, the issue of the notion of investment is closely assessed. Due to the Salini Decision, it is unclear whether ICSID tribunals apply certain criteria to the assessment investments according to Art. 25 of the ICSID Convention. As the Desertec Industrial Initiative planned to primarily supply the European market, the criterion which says that there must be a contribution to the economic development of the host state might be problematic. Based on an assessment of the case law and the prevailing opinions of legal theorists, a worst case scenario is set up as a guideline for investors.