الرقابة القضائية على التحكيم في المنازعات المتعلقة بالعقود الادارية : دراسة مقارنة
Author name:
حيدر مدلول بدر عبد الله
Supervisor name:
حنان محمد مطلك القيسي
General topic:
Law
Specific topic:
Administrative Law
Degree:
Master
University:
Mustansiriyah University - Faculty Of Law - Department Of Public Law
Language:
Arabic
University location:
Baghdad
First pages:
13T1470 - p.pdf
Abstract:
The administration resorts - in the process of performance of its obligations - to many means, it may resort to issuing administrative decisions in order to make a certain impact on the basis of its authority in issuing decisions under the laws and regulations, and it may resort to agreements and compromise with others, whether they are individuals or companies, to perform what is so - called contract, by which obligations and the rights of both parties are determined.The importance of administrative contract as a method that is used by the administration to express its own will both at the internal or international level due to the tendency of the states to market economy, and the need to encourage national and foreign private investments.Of course an administrative contract may cause disputes between the parties that require the need to end it, and despite the fact that the administrative court is competent in the consideration of administrative contracts’ disputes, but due to the backlog of cases before the courts, slow procedures, the possibility of prolonged conflict because of the multiplicity of levels of litigation, and the possibility of appeal in verdicts before the courts, as well as the desire of foreign parties to be liberated as much as possible from the constraints imposed by the legal systems of litigation to the extent that bring them the prompt settlement of disputes in general, and administrative ones in private, all of that led to the necessity of finding other means beside the state’ judiciary in order to ease the burden on the latter, And legal systems have already responded to it and Created a lot of optional and alternative ways to the state’ judiciary in resolving administrative contracts disputes, and arbitration comes in the forefront of these ways.Arbitration appeared as an agreement to submit the dispute to a specific person or persons designated to resolve it without the competent court, but as a system it is not without flaws which imposed a judicial control, either in the previous procedures stage on or in the subsequent stage, in order to avoid these disadvantages and tranquility of the availability of real or fictitious fears of listing down arbitration in administrative contracts.Arbitration as a special tribunal exercising its jurisdiction outside the mandate of the State Judiciary, where the parties to the conflict select together an arbitrator to resolve it, so the wills of the parties grant an arbitrator the authority of government, though arbitration derives its effectiveness and the enforcement of his decisions of the authority the state’ judiciary as the only public authority that owns the power to bind opponents to the implementation, and here the State Judiciary supplies Arbitration with the reasons for its effectiveness in order to achieve justice, and this is so - called judicial control of arbitration.And in spite of the importance of judicial control over arbitration, particularly in the field of administrative contracts, but it did not have the attention of the jurisprudence of public law in some regimes such as Egypt and France, because of the preoccupation with this jurisprudence with the problematic of the extent to which administrative contracts disputes to arbitration, that no longer exist and of no importance because Arbitration has become a global judicial system and inserting it in commercial contracts, whether international or local, whether civil or administrative is granted
