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" Arbitration in international administrative contracts and administrative contracts with international dimensions in the UAE "
Al Shamsi, Abdulla Rashid Obaid
Panara, C.
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Latin Dissertation
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832716
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TLets727491
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http://doi.org/10.24377/LJMU.t.00007456
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Al Shamsi, Abdulla Rashid Obaid
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| Title & Author
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Arbitration in international administrative contracts and administrative contracts with international dimensions in the UAE\ Al Shamsi, Abdulla Rashid ObaidPanara, C.
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| College
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Liverpool John Moores University
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| Date
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2017
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2017
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Thesis (Ph.D.)
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| Abstract
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This is a study on some controversial legal aspects of resorting to arbitration in disputes concerning administrative contracts with an international dimension – i.e. contracts between public authorities in the United Arab State (UAE) and foreign companies, as well as contracts concluded between local parties but indirectly generate results of international dimensions. In this study, I have adopted a descriptive methodology, meticulously describing the legislative and judicial status in the UAE compared to those of both Egypt and France. In addition, I have also resorted to an analytical approach to provide a concise analysis of the essence of legal provisions guided by the established jurisprudence and judicial opinions. Finally, I used the comparative approach to draw parallels and difference within the legislature and the judiciary between three legal systems, with an eye at making use of relatively advanced legal systems. According to the above, and through utilizing the three research methods mentioned, (the descriptive, analytical and comparative), we attempted to analyze the various relevant jurisprudence and judicial opinions, together with court rulings and legislative provisions. The ultimate objective is to draw scientific results from the detailed evidences drawn from the selected rulings, as well as deciding on the position of both local and international jurisprudence and judiciary on this regard. This is to consolidate the theoretical positions with existing practice. At the outset of the thesis (chapter one) this study begins with a discussion of the main concepts of the constitutional system of the United Arab Emirates (UAE), with an explanation of the federal structure of the state and the nature of the UAE system of government. This is important because this study is mainly concerned with the UAE. This is followed by an illustration of the principles of administrative law within the UAE state. The study shows that the judicial system of the UAE state adopts a unitary judicial system whereby the same courts have jurisdiction on all sorts of disputes, both on disputes arising from administrative law and administrative contracts, as well as on disputes arising between private persons. This would unify the rules that apply to all disputes relating to the administration including administrative contracts with international dimensions. (Chapter two) attempts to define the concept of the administrative contract; the main focus of this study, and the criteria for distinguishing it from other types of contracts. It is concluded that the distinctive criteria for administrative contracts in the UAE are that: (i) one party to a contract shall be a public persona (such as the state, city authorities or municipalities); (ii) the contract shall be connected to the running or organization of a public facility (such as public institutions and authorities, security organizations and educational institutions) and (iii) it shall include exorbitant conditions which are unfamiliar in private law contracts. This distinction would help determining the nature of the legal rules to be applied on settlement of disputes, whether pertaining to the rules of administrative law or those of private law. (Chapter three) displays and critically reviews the main ideas related to arbitration in administrative contracts and shows the reservations and disadvantages that might arise from resorting to arbitration in this field. (Chapter four) This study comes to a number of conclusions in relation to these reservations and disadvantages. Despite the great importance of resorting to arbitration in administrative contracts as a speedy and distinctively confidential instrument for protecting the interests of the contractual parties, my opinion resorting to arbitration for settlement of disputes should be followed only if and to the extent it encourages investment in the UAE and it is respectful of higher administrative interests of the UAE state. The same limitation should apply to international administrative contracts and administrative contracts with international dimensions. Arbitration should be carried out without prejudice to the principle that a public authority in the UAE shall pursue a public interest without prejudice to private interests. This study argues that the legislator should intervene in an unambiguous manner to achieve the following results in relation to arbitration in administrative contracts with an international dimension and formulate proposals on how best to address these issues: 1. Determine the fields in which resorting to arbitration in administrative disputes should be admitted. 2. Specify the competent authority for approval of resorting to arbitration in this field (preferably the higher administrative authority within the state, such as the cabinet of ministers, the competent minister or authorized representative among public persona. No delegation is permissible, in this regard, for public persona assuming positions inferior to the above-mentioned ones because of their distinguished expertise which brought them to shoulder highly sensitive positions. Delegation in arbitration should be restricted to a very limited domain and only endowed upon those who assume the highest executive positions and qualified to shoulder high ranking positions and responsibilities. 3. The arbitration panel shall refrain from prejudicing the nature of the administrative contract, that is to refrain from prejudicing public interests, in order not to use resorting to arbitration as a means of evading application of the rules and regulations pertaining to the established administrative contract, which are stipulated to maintain public interest and public funds without prejudice to the rights and freedoms of private persons. Hence, it is pertinent to preserve the administrative nature and enforce the substantive regulations of the administrative contract. The contract should involve provisions for including arbitration, in addition to explicitly specify that the applicable law governing the contract should be the administrative law and the theory of administrative contract, which shall be applied in case of dispute. Arbitration should be restricted to administrative contracts with international dimensions, connected with public interest projects and leading to the encouragement of foreign investment and applying the principles of arbitration for conciliation in internal administrative contracts disputes only. The study concludes by arguing that legislative reform should be carried out to introduce legislative amendments, incorporating the above-mentioned arrangements, which are crucial to the settlement of administrative contracts disputes through arbitration. Resorting to arbitration should be restricted to certain types of contracts concluded by public authorities as an exception to the general principle of resorting to a judicial authority for looking into a legal disputes. These were put in place only to strike a balance between achieving public interests of the state and protecting the rights and freedoms of individuals.
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KL Asia and Eurasia, Africa, Pacific Area, and Antarctica ; KJ Europe
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Panara, C.
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Liverpool John Moores University
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