التحكيم في منازعات العقود الإدارية

Abstract

Nowadays, the use of arbitration has grown considerably and has become a regular and even favourite means for investors in the settlement of their disputes including administrative ones, as administrative contracts are characterized by specific clauses that do not prevail in private law contracts. These very contracts are so diverse : concession contracts, public service contracts, provision concession contracts, B.O.T contracts… As a legal settlement mode for prevailing litigation or likely to occur, arbitration has different forms : ad hoc or institutional, forced or conventional, domestic or international. Arbitration is also distinguished by the simplicity of procedure formalism, speed in handling disputes and the issuance of arbitration sentence, and confidentiality. However, practice has shown that arbitration has some negative aspects relating mainly to high cost and lack of neutrality and objectivity which can be noted within some referees. Moreover, arbitration is a major topic in jurisprudential circles and has been addressed by most Arab and international legislation, albeit with a divergence of views. Thus French law, for example, which has expressed from the beginning a hostile position, has adopted arbitration exceptionally by buoying it with several guarantees, while the Egyptian legislator solemnly admits it in administrative contracts, and the Tunisian legislator has only allowed international administrative arbitration. By cons, Algerian law is characterized by the introduction of another arbitration domain dedicated to relations between the State and legal entities of public law, namely that of public procurement. Finally, Moroccan law is more extended as it allows both internal and international administrative arbitration without any conditionality. It is also to be noted that the position of justice vis-à-vis arbitration in disputes related to administrative contracts do not deviate much from the position of legislation. Thus, in the case of France, we find that the State Council closely watches the performance of its expertise in administrative disputes while differences are observed in the Egyptian case through court decisions where opinions are shared between acceptance and rejection towards administrative arbitration. Similarly, lawyers opinions are shared between those in favor of arbitration in administrative contracts disputes and those against while putting forward arguments explaining each of the two positions. However, it should be noted that there is a divergence of views as to territorial and international conventions regarding the approval of the administrative arbitration. Finally, in the Arab world, it is to be noted that the legislative dynamics and legal developments recorded during last years have shown a straight entry in the era of arbitration. In the end, we can say that arbitration is really the jurisdiction of the future.