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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