منازعات الصفقات العمومية بين التشريع والاجتهاد القضائي

Abstract

The disputes of public deals are settled either by amicable or judicial means, but the amicability is through the various administrative appeals that were determined through the Algerian legislator in the civil and administrative procedures law and 09/08 and presidential decree No. 15/247 related to public deals, as for the administrative judiciary in Algeria and from through the decisions issued by the state council, we find that it included the permissibility of administrative grievance as a measure at a time when its positions regarding arbitration were mixed between rejection and support. By referring to the comparative legal systems, we find that the Moroccan legislator authorized prior administrative grievance through the judicial reform of 1974, and decree 2.75.840 related to the public procurement committee provided for amicable settlement through appeals filed before the latter, arbitration in Morocco went through two basic stages, some stage before the issuance of the law 05/08 and the stage after the issuance of the law 05/08 that authorized arbitration in administrative contracts, while the Egyptian legislator stipulated a friendly settlement before the grievance committee under Article 89 of the executive regulations of the law on the participation of the private sector in infrastructure projects, services and public utilities, as well as the general moral persons resort to arbitration in disputes of administrative contracts through Law No. 09 of 1997 amending the arbitration law in civil and commercial articles, the French legislator provided, through Article 127 of the public dealings Law, the role of advisory committees in settling public procurement disputes, and that article 128 from the same law, it provided for arbitration as a method of amicable settlement. Earlier, the arbitration banned public morale persons through the text of article 2060 of the French civil code, but soon it was amended to open the way for the exception. Arbitration was permitted, for the first time in France in 1986. The judicial systems in Algeria, Morocco, Egypt and France share one point in terms of lawsuits filed to settle disputes, whether it is a matter of urgency or the issue, but as for the criterion for the distribution of jurisdiction, if the issue is settled in both Egypt and France, the matter differs with respect to Algeria and Morocco, and this is what I confirmed Judicial decisions issued by the highest judicial authorities in both countries.