The Subject Matter of the Administrative Reconciliation Contract: A Comparative Study
Prof. Mouhannad Moukhtar Nouh
Professor of Public Law
College of Law – Qatar University
Each administrative contract must have a subject matter that should be both possible and legitimate. The idea of the possibility of a subject matter in the reconciliation contract is manifested by the need for the reconciliation to be an exchange of waiver between the two parties to the reconciliation, whether this was a mutual waiver of claims, allegations or rights. Apart from a few exceptional cases, the rule here is that waivers under civil reconciliation contracts are not to be balanced. However, when it comes to the notion of mutual waivers in the administrative contract of reconciliation, the balance of waivers is one of its distinguishing features, so that the concession of the administration does not lead to the payment of what is not required. This mechanism was provided by the French Council of State (Conseil d’État) and was called the “control of generosity”.
The legitimacy of the subject matter in administrative reconciliation contracts is reflected in the fact that some issues are not suitable for reconciliation, such as administrative competences, public property and contractual liability. On the other hand, the subject of reconciliation cannot be a waiver of legality. Therefore, the main impetus for research in this area is to prove the existence of particularity subject in the administrative reconciliation contract, making it different from the subject matter in the civil reconciliation contract, and identify the reasons that led to this subjectivity and its various applications.
The topic was tackled from two perspectives. Whereas the first explored the concept of the existence and possibility of a subject matter for an administrative reconciliation contract, the second examined the idea of the legitimacy of the subject itself in the contract. The researcher adopted a comparative approach to draw a comparison between the French legal system and the legal system in two Arab states, namely Syria and Qatar. The French legal system introduced a sophisticated treatment of the subject matter in administrative reconciliation contracts, a matter that was lacking in the Syrian and Qatari legal systems.
The most important conclusion drawn in this study was the lack of effective judicial control in both Qatar and Syria over the subject of administrative reconciliation, the activation of which this research recommended. The study also recommended that administrative reconciliation should never be a means of wasting public funds. Moreover, it called for total accuracy with adapting contracts of reconciliation when handled by the judiciary in Syria and Qatar, especially with the existence of modern trends in France permitting reconciliation in the context of abolition cases, within a limited scope, for which the administrative judiciary in both Syria and Qatar had not established clear principles of such trends.
Keywords: Administrative Contract, Mutual Waivers, Administrative Justice, Dispute Resolution, Public Funds.