اسم المؤلف:
عيسى عبد الجبار اسماعيل
اسم المشرف:
غازي فيصل مهدي
المستخلص:
We study and consider holding joint operation in General and total starting with the definition and finally end the joint operation contract and statement of jurisdiction and how Iraqi courts jurisdiction to hear disputes arising from this contract relying on analytical approach adopted in induction and deduction and comparison between the views of scholars and texts of laws and judicial rulings and reached to hold interoperability human administrative contracts in nature , Whereby the Department undertakes and called (the concession - granting authority) to a special law called the obligor a management and use of public facilities at his own expense and fee payable to beneficiaries which are profitable and have a fixed - term contract (usually short) advanced stage is similar to the concession contracts with many international administrative and administrative contracts but differs with her on some properties. And holding joint operation is a new kind of contract types, is a groundbreaking product of contemporary life contributes to the development of public facilities, themed mostly infrastructure projects such as ports, airports and railways and road and air transport and sea and can apply this type of contracting in many sectors including the oil industry and others, and that the Administration not only functions in accordance with this contract to ensure the execution of the contract But interfering in guiding implementation and by choosing the most appropriate ways to ensure the smooth running of the General Annex, while adhering to the principle of legality when issuing administrative decisions, in order to derive rights from the contractor as a public authority and which shall ensure the smooth running of the General Annex and native rights these rights are constant for the Administration, even if not included in the contract : 1. for management power to amend certain terms of the contract relating to the General Annex, at its sole discretion, 2. the management authority of the sanction in the case of breach of contractual obligations unilaterally without having to crack.3. the management authority to terminate the contract unilaterally before it has finished The rights enjoyed by the administration corresponding obligations upon themselves and are committed, which is committed to implementing its obligations stipulated in the contract and management rights are, the joint operating contract ends in one of two ways, either a natural end to expiry, and either premature end before expiry, with access to consensual solutions to common operating contracts and dispute them amicably and arbitration according to Iraqi law, the Iraqi civil courts have jurisdiction to consider the joint operating contract disputes and have full jurisdiction in consideration. The study showed the need of developing countries for such type of contract, to provide financing for projects without having to download the State budget additional financial burdens or resort to foreign loans, as well as providing advanced technology and management expertise and technical, the survey regarding the legal nature of the joint operation contract, these contracts are of administrative contracts in nature and subject to common law rules , And cannot be a private law contract, the Administration will prevail over the will of contracted, they sponsor and guarantor of functioning of a public utility, the study showed that this type of hiring needs to advance preparations for hiring or contracting project and the negotiation phase, feasibility phase and from both sides of the contract if the negotiation phase, feasibility phase the Administration set conditions that include determining the duration of the contract And select the required technology and technical specifications as well as the financial aspects of the project, and the personal implementation contractor to contract because of these contracts on the personal account idea in choosing a contractor and as a general rule no contractor may waive the contract because another contractor, contractor run and manage a project to provide services to beneficiaries, as committed to maintenance of equipment, machinery and equipment and replace any faulty ones and the training of national cadres on their use and maintenance , And as committed to equip the project with modern technology, and at the end of the period re annex to management and in good condition and is one of the most important fundamental obligations in the common operating contracts in addition to a Palace. Joint operating contract is a legal system and a sophisticated and flexible contractual terms of procedures of negotiations and a feasibility study and on both sides to avoid potential loss and damage with a note to the contract is no cooperative relationship uplifts to form or generate new moral character (company) and that's what strengthens what about avoiding losses and this contract is one of the most important means of trade and international deal to developing countries and in special circumstances such as Iraq and you want to get the aid in Modern technology of developed countries and access to advanced technology and machinery and equipment in addition to the methods and systems and modern technologies of management and operation and the training of its cadres, and the idea of a joint operation is a partnership between the public and private sector which needs a high degree of trust and cooperation and transparency, integrity and professionalism and expertise among the limbs. The basis for this search is carried out by the Ministry of transport of the joint operating contracts for the years 2009 and 2010 and its proven success where the Ministry convert most self - funded companies from losing companies into profitable companies with sophisticated mechanisms of action resulting from the experience and professionalism of its top management (Minister) and transparent dealings and integrity that enjoyed by these mechanisms and effective solutions for example is holding a joint operation and who returned to the Ministry of financial profits and the entry of foreign investments As well as modern and sophisticated means and management and operation of public facilities and the development and training of its workforce and increase size notes revenue Ministry and companies during the years 2008 and 2009 and 2010 compared to previous years. Joint operating contract features (create, manage and operate or manage, operate or operate shared) that belongs to an area or a particular sector but its flexible recruiting in all sectors and activities and could change depending on the public and industry can benefit from a contract manufacturing or joint manufacturing management contract or contract creation and management and joint manufacturing and the oil and electricity. Etc. with retention of its President, in accordance with the regulations of the relevant sectorial precooked and benefit from the experience of the Ministry of transport in 2009 and 2010 exclusively something needs to hold seminars and conferences for the purpose of idea and promoting it, that second side to hold interoperability is investment and introducing foreign capital and get advanced technology and modern techniques and training Iraqi cadres and learn modern management and operating methods
