Abstract

Arbitration is often viewed as one of the most powerful guarantees, establishing a business climate with the attractiveness necessary to attract private capital, due to the possibilities it provides to build confidence among investors, based on providing the terms of the contract based on the will of the parties, and deciding to enforce what they decide within the scope of what the law allows in the event of a dispute. If arbitration in the commercial field is based, in its origin and absolutely, on the will of the parties, when it comes to a contract between persons of private law, then the issue has always remained – when one of the parties is a public person – surrounded by a set of requirements that limit the authority of the will of the parties, as this appears in particular in the approval of a special procedure at the level of the enforcement of the arbitral award Also at the level of setting qualitative requirements related to the formalities of the agreement to resort to arbitration, as well as concluding the resulting agreement. However, these restrictions have always appeared in the discordant ruling that contradicts the nature and idea of arbitration, which has made it – within comparative legislation without exception – the subject of continuous reconsideration, in the direction of harmony with the reality and essence of arbitration as a dispute resolution system. Here, the legislative framework for the issue at the national level does not deviate from this system of flexibility and the continuous effort to reconsider, which is what we are trying within this study to stand on and evaluate its degree, by identifying the set of transformations that have occurred at this level, based on a comparative monitoring, between the repealed Law No. 08.05 of 2007, and the new Law No. 95.17 of 2022, by focusing in particular on a type of contract in which public persons are present. It is general contracting contracts.

Keywords

arbitration; arbitration in public contracting contracts; private sector; judicial immunity; public order; legal security.