Recent judicial developments in appealing the State contracts ” Comparative Study ”
Dr.Yehia Mohamed Morsi Al Nemr
Assistant Professor – Public Law – KILAW
The research aims to study the recent judicial developments to appeal the State contracts in France, Egypt and Kuwait. The study has reached to the French Council of State after having applied for a long time the principle of relativity of the impacts of the contract, and apply the «Theory of Incorporation» in respect of administrative decisionsWhich was incorporated into the composition of the contract; he abandoned it and applied «the theory of Detachable acts». The French Legislator has provided in the law of «rights and liberties of municipalities, departments and regions», issued on 2 March 1982, stated that the representative of the central authority had the right to appeal, to cancel the contracts concluded by the public bodies, then the French Council of State established a new principle, which accepted the appeal the contract itself from the third party to the judge of contract with full jurisdiction.
The Egyptian Council of State expanded the acceptance of the appeals of the contracts concluded by the state to nullify the contracts that tainted by the waste of public funds. It began by adopting the «Theory of detachable acts» since its inception, and then adopted the ancestral claims in the field of protection of public funds. And confirmed that he adopted «Theory of detachable acts from acts of sovereignty»in the field of appealing that contracts; The impact of that expansion has restricted its role in the control of contracts concluded by the State on the part of the legislature.
The administrative circuit in Kuwait did not expand the acceptance of the contracts appealing concluded by the State. Prior its inception by decree by law No. 20/1981, the ordinary jurisdiction was competent of all disputes relating to contracts concluded by the State. And applied the theories and rules of administrative law in the field of administrative contracts, the administrative circuit adopted the «Theory of detachable acts» since its inception, the law No. 49/2016 regarding public tenders stated that the plenary court shall decide one chamber or more of the Administrative Circuit chamber that shall have the competency to hear appealing the contracts concluded by the State. which we hope if it adopts the modern principles which established by French Council of State, without adopting the ancestral claims as the Egyptian Council did.