الطبيعة القانونية لعقود الإدارة الدولية – عقد بناء المدارس الصينية أنموذجاً

Abstract

Having discussed the legal nature of international administrative contracts – using the Chinese school construction contract as a model – we find that international administrative contracts are not fundamentally different from domestic (national) administrative contracts. This is because all the elements of an administrative contract are present in international administrative contracts, namely: the contracting authority, the public utility, and the inclusion of public authority privileges in the contract. What distinguishes an international administrative contract from a domestic one is the presence of a foreign party, usually a foreign state or a foreign legal entity, in addition to granting certain privileges to the foreign party in the contract, The researcher concluded that the contract for the construction of Chinese schools, which was concluded between Iraq and a company holding Chinese nationality, is nothing but an international administrative contract, even though that contract is subject in its implementation and application to Iraqi laws, and the Iraqi judiciary is the competent judiciary to consider disputes that may arise as a result of the implementation of the contract. This is what was confirmed and indicated in the clauses of the contract itself. Subjecting the international administrative contract to the laws of the contracting state and its administrative judiciary does not negate the international character of the contract. What confirms this is the possibility of the contracting parties resorting to arbitration in disputed matters, provided that the contract included a clause to resort to arbitration and specified the approved arbitration bodies with the agreement of the contracting parties.