ABSTRACT
This chapter examines the pulse and dynamics of the new contractual mechanisms in PPPs in MENA countries. It analyses legal developments in the fields of concession contracts and privately finance projects and institutional PPPs. In particular, this chapter covers new contractual concepts in public sector transactions. It reflects the nexus of the state with the private sector and the compensatory and remunerative approach by the state in the delivery of public services which delineates the regulatory treatment of the contractual interfaces between public and private sectors. In this chapter ‘Le Contrat Administratif’ substantive theory will be developed in the light of legal globalization relevant to MENA countries. The chapter sheds the light on the innovation of the new PPP contracts’ substantive clauses.
There are many examples of the new substantive mechanisms in PPP contracts in the MENA region such as the contract price. In traditional concessions, the administration (public juristic entity) can unilaterally amend the contract price; meanwhile, in PPP contracts any amendments to the contract price must be through mutual consent of the contracting parties. Second, the theory of the change of circumstances ‘l’improvision’ in MENA countries’ civil codes stipulates that the court must maintain the financial equilibrium of the contract through judicial judgment. Pursuant to PPP legislation in Egypt, Kuwait, Dubai and Morocco, the contracting public juristic entities can maintain the financial equilibrium automatically through direct negotiations with the project company. This chapter represents a genuine innovation in the English legal text as there are no books in English that deal with this topic to cover the MENA countries. This chapter represents the deterioration of the traditional theory of ‘Le Contrat Administratif’ in PPPs transactions.
It is of fundamental importance to refer to the fact that there is an innovation in substantive rules in PPP legislation, which is remarkable in Egypt, Dubai and Kuwait as it aims to maintain financial equilibrium during contract performance and until final completion of the project. It is a new and inventive step towards the liberalization of the PPP transactions from the administrative contracts’ clauses exorbitantes.
