اسم المؤلف:
ابتسام حامد ماضي
اسم المشرف:
وسام صبار عبد الرحمن العاني
المستخلص:
In the domain of public law administration enjoys the privileges of public power, but in the field of administrative contracts it is not free to contract in any way, legislator intervenes to restrict the freedom of administration to by following one of the contracting methods, the most important of these methods is the public tender method, as a general principle of the contract, under which Leaders choose the contractor who offers the best tender in terms of financial and technical conditions, and to achieve the purpose of the public tender, there is a set of principles that govern The principle of publicly and freedom of competition, equality and equal opportunities.Great development in various aspects of life, and the desire of developing countries to keep pace with the advanced countries, the administration has adopted an important and complex projects, for accelerate economic development, and these projects require technical expertise and qualifications of high technology may not be available in the local contractors and national or local companies, or that the goods to be purchased is not manufactured, to cally so management direction to the international public tender, which may be subscribed by persons, or local and foreign companies to implement these projects, by publishing the announcement of this tender in newspapers, local and global announcement means.As a result of this development, the number of contracts signed by the administration with the foreign contractor, such as international works increased, contracts for the processing of import, and contracts of key turn job... etc., these contracts closely relates to the management of its activities within the framework of its development plans, and these contracts have raised a lot of legal problems characterized by difficulty both on applicable law or jurisdiction, due to the lack of parity in the legal and economic position between the parties to the contract and in the actual potential, where the contract is between the administration, which has legal position as one of the persons of public law, and between the foreign contractor, who be a natural person or legal moral, and it is often a private company, a multinational, and those contracts is surrounded by many laws of the branches of public and private law, public and private international law us well. Therefore management contracts with foreign contractor characterized a private nature to that included in the conditions do not like her in the traditional administrative contract, as a legislative consistency, which is provided for in most management contracts with the foreign contractor, where the purpose of this condition is the exclusion of any amendment attached to the national law of the Contracting, and not in effect the contract in order to preserve the contractual balance, and thus prevents the contracting administration to modify the terms of the contract unilaterally, and then achieve protection and legal security for foreign contractors, but this condition and find sometimes opposition among some political and doctrinal medium. the lack of compatibility and the principles of the permanent sovereignty of the state, and to relieve attracted condition legislative consistency, the contracting parties agreed to include the requirement to renegotiate, it is a condition requires the commitment of the contracting parties to renegotiate some of the contract to meet the emergency conditions that occurred terms, for the purpose of modifying the contractual obligations to the extent reasonable to raise serious harm carried by one of the parties as a result of these circumstances, that the this is done in good faith, and honesty in dealing, and a commitment to coopekation, and management of the negotiations in a constructive manner and avoid any obstacles, and provide all the necessary information needed to negotiate. Such conditions can affect the nature of the contract and the privileges and powers of the contracting administration, which is incompatible with the general framework of the theory of objectivity administrative contract tradition, yet remains administration enjoyed their authorities in the face of foreign contractor, but not to the same degree that it enjoys in the face of national contractor in the contract internal management, and therefore, the management contract with the foreign contractor is held by the general law of contracts for his Chiefs special administrative contract, and this contract is administratively but a new concept developed in line with the economic developments at the international level. Since the management contract with the foreign contractor is surrounded by numerous laws the public and private like the laws of public and private international law, and based on the most important principles that govern contract with a foreign contractor, the base will, which means freedom of contractors to choose the applicable law on the subject of their contract law, and therefore are subject to contract the legal system is derived from the will of the law, which may be the law of the contracting or public international law, or to cross - country to state law.The judiciary is the basical mean of settling disputes management contracts with the foreign contractor, but the foreign contractor seeks to separate disputes its contracts signed with the administration away from the domain of the judiciary, he resorts to alternative means of settling disputes, because of its these alternative means of advantages are confidential, and the speed of procedures, efficiency allocates those who adjudicate in disputes, as well as the neutrality of those means, and most important of these alternative means is arbitration, where he became at the present time is the usual favorite method employed by the conflicting parties to resolve disputes that arise under management contracts with the foreign contractor, but in the event of failure to reach a friendly solution alternative means of settling disputes management contracts with the foreign contractor, are resorting to the judiciary, and the will of the contracting parties have a role in determining jurisdiction to settle disputes management contracts with the foreign contractor has to agree to refer the dispute to the national courts or international justice, if they chose judiciary National to settle the dispute, it raised the problem of determining jurisdiction over disputes administrative contracts, if it followed the judicial system in the state is a unified system, where the ordinary courts is that separates disputes administrative contracts signed with foreign contracting, but the problem is determining jurisdiction appear in countries that take the dual judicial system, where there is in this system double sided independent Judiciary, one normal and the other the administrative court of the judiciary, and increasingly the issue difficult when the state takes the dual system, and make the jurisdiction to hear disputes administrative contracts from the jurisdiction of the ordinary courts, as is the case in Iraq, may choose to Parties Contracting resort to international justice represented by the international Court of Justice, but they were not able to establish the case directly before them, but held the lawsuit by the state, which enjoys a foreign contracted nationality, in accordance with the principle of diplomatic protection, but difficult to achieve this, the parties have resorted to international arbitration commission, which is one of the alternative methods of settling disputes management contracts with the foreign contractor, was formed as the Arab investment Court due to the unified agreement for the investment of Arab capitals in the Arab countries on a temporary basis until the established Arab Court of Justice and the Court of investing Arab specializes in investment disputes in which the sides are Arab States or nationals of those state.
