Legislative Vacuum Manifestations in the Amicable Settlement Provisions of Administrative Contract Disputes in Iraqi law (Arbitration as a Model)

Abstract

Due to the economic developments, the administrative activity expansion, the public projects magnitude and their strategic importance and for investment encouragement purposes, countries often tend to organize alternative means of settling disputes arising from administrative contracts that are relatively more flexible and fast compared to judicial procedures and perhaps the most important of this means is arbitration. In Iraq, although it is a major destination for investment, especially in the oil, energy and reconstruction sectors. The legislator did not seek to find a comprehensive and clear organization for arbitration that may be applied to all types of contracts concluded by the General Administration. This study focuses on the most important manifestations of the legislative vacuum in the arbitration provisions of the administrative contracts, as it assumes the existence of a legislative vacuum in the Iraqi legal organization, which affects the arbitration’s validity and the legitimacy of its procedures and weakens confidence’s effectiveness in settling the dispute. The aim of this study is to present the most prominent manifestations of the legislative vacuum while proposing the necessary legislative solutions to address this vacuum in order to establish the appropriate legal environment to resolve administrative contractual disputes through alternative means.

The study’s most important findings are the absence of a law for arbitration in administrative contracts of all kinds and that what was organized regarding arbitration within the Public Contracts Law No. 87 for the year 2004. The Government Contracts Implementation Instructions No. 2 of 2014 applies exclusively to specific types of contracts due to the large exceptions contained therein. The Iraqi legislator, although expressed its willingness to adopt the means of amicable settlement through arbitration. The legislative capabilities were unable to meet them, as the legislator's vision is still inaccurate and ambiguous in this regard, which calls for the enactment of a special law on arbitration in administrative contracts that would ensure a fair mechanism for settling disputes and encourage confidence in contracting with the administration and then improve the national legal environment in line with international obligations, ensuring competitive advantages to attract investments and achieve economic development in the country in a manner that does not conflict with the privacy and purpose of administrative contracts.