شرط الثبات التشريعي في العقود الإدارية ذات الطابع الدولي

الملخص EN

Administrative contracts of an international character are characterized by the duration of the implementation of the obligations arising therefrom, Usually the contractual relationship between the state and the contractor, a long period of time may be up to several years, Hence the importance of determining the legal status of the two sides of the Nodal League during this long period on the basis of the possibility of amending the national legislation governing this relationship, It may be easy for a foreign contractor to know his or her legal status when signing a contract, Making it easier for him to calculate the economic feasibility of his contract activity, However, these calculations will inevitably be affected by the legal framework governing the work of the contractor.

The situation may be more difficult if the State issues national legislation that differs from that which was in force at the time of the entry into force of the contract, How can the contractor ensure that any subsequent legislation is not applied to him if he is prejudicial to his contractual status? In short, this is the idea of "the requirement of legislative stability", and the intended purpose.

Thus, the agreement on this condition is in the status of waiver the State in favor of the contracting party, for a part of sovereignty in the field of legislation, Through pledge to protect him from submission to the application of any subsequent legislative amendments that may harm his economic status.

Undoubtedly, there are many risks of economic dimension that may affect the profitability of the work in the contracted project, including future risks that depend essentially on the margin of profit deviation referred to in the feasibility study, As well as commercial risks arising from fluctuations in the subject prices of the investment, financial risks arising from currency risks related to the subject of investment, technical risks in relation to the inefficiency of equipment used in the project, or the need to replace them from time to time else.

The requirement of legislative stability often deals with the content of the contractual obligations of the contract on both parties, and their impact on the interests of each party.

This requirement is usually included in the terms of the contract with the foreign contractor, especially in concession contracts, Here, it is often agreed between the parties to the contractual relation, to restrict the right of the State to amend by its unilateral will.

Such a condition may also be met by bilateral or regional international agreements under which a Contracting State is obliged to grant preferential protection to investors of the State or other States through the non-application of subsequent legislation or procedures to contracts concluded with such investors if it were prejudicial to their legal status.