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A study of the legal problems of state contracts

par Odilon Evrard NGOUNDOU
Institute of International Law of Wuhan University
Traductions: Original: fr Source:

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2-State contract, different from contracts between States

Normally in the framework of international law and according to the Vienna Convention15, otherwise call in French by «la Convention de Vienne» (art.2 § 1 a) a treaty between States is considered as an international written agreement between two or more countries formally approved and signed by their leaders and governed by international law. If the treaty can be seen as an international agreement, it should be noted that it concerns directly the international law such that its legal status determines it. But in the words of professors Jean Combacau and Serge Sur16, these kinds of agreements can not of this fact being seen like treaties but rather like instruments of a contractual nature. This leads us to understand that the contracts between States can not be assimilated to state contracts because it is not a question of a contract between a state and a private foreign and that these contracts do not have the specific terms of state contracts. Within the framework of the commercial transactions concluded between States for example, although the co-contractors have the required personality and the international capacity required, they voluntarily submit their relationships to a domestic law or to a whole of rules of their choice17.

3- State contract, different from other contracts between State and the foreign private party: case of the trade agreements, sale agreements, etc.

Commercial contracts, sale contracts, etc., to mention for example only these two cases can not be assimilated to the state contracts. Although some types of sale contracts are in reality seen as a new form of investment resembling more like investment contracts than ordinary commercial contracts such as the ICSID arbitration tribunal has nevertheless recognized as competent18; Even if those sale contracts of sophisticated goods of industrial equipment, contracts for the markets of civil engineering, is used in order to deliver to a state some factories, power stations of the hydroelectric dams, supervision of local staff, the transfer of technology, these Contracts may not be classed as state contracts and these contracts are not international investments. Although these ordinary commercial contracts (such as contracts for the sale of goods) between the states and foreign private persons may include arbitration clauses, it should be noted that these contracts lack specific clauses to the state contracts,

15 Vienna convention on the Law of Treaties

16 In their book, « Droit International Public », 5è éd. Montchretien, année 2001, pages 77-78.

17 On the question of principle, J.VERHOEVEN : Traités ou contrats entre Etats ? Sur les conflits de lois en droit de gens », J.D.I. 1984, p.536s.

18 See Either implicitly these case law Klöckner v / United Republic of Cameroon and Socame, (the award of October 21, 1983, JDI, 1984, p. 409-440; J. Paulsson, «Les obligations des partenaires dans un accord de développement économique : la sentence arbitrale Klöckner c/ Cameroun», Rev. arb., 1984.19) the dispute appeared in connection with a sale contract of a manufacturing plant fertilizer. there was an arbitration clause referring to the ICSID and nobody disputed the competence of the Center; or explicitly the case law Salini Costruttori SpA and Italstrade SpA v / Kingdom of Morocco, decision on the competence of July 23, 2001, JDI, 2002, p. 196-216, with the comment of Mr. E. Gaillard. Morocco disputed the competence of ICSID while asserting that civil engineering contract did not fall into the category of investment aimed to article 25 of the Washington Convention.

namely Stabilization clauses and applicable law referring, in one form or another, to the international law or to the general principles of law.

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