Subjective Legal Problems arising from the State Arbitration Agreement

Abstract

The state’s conduct of commercial activity and taking a rule as a party in international trade contacts may lead to/ may result in many legal problems/issues with regards to the arbitration agreement contained in its contracts, whether with individuals or private foreign projects.

Therefore, subjective (personal) legal problems, which are related to the status of the state or the public moral person as a party to the agreement, and other problems such as objective legal problems, which are those related to a certain group of contracts in which public moral persons intervene to establish or run a public facility or satisfy needs of public benefit. These are the contracts known as administrative contracts which are conducted by the state as a subject of law.

The concept of this research is the subjective effects resulting from the intervention of the state as a party to the international arbitration agreement, as this poses many subjective legal problems, whether with regard to concluding this agreement or when taking arbitration procedures or when implementing the judgment issued by the arbitrators. In each of these stages, the state may adhere to its certain privileges, such as judicial immunity and immunity from execution, in order to prevent being subject to arbitration.

The issue of the state's inability to conclude this agreement may also arise, especially if its national legislation prohibits it from resorting to arbitration. There is no doubt that all of this affects the effectiveness of the international arbitration agreement and prevents the achievement of its desired goal in settling disputes in international trade contracts.