Contractual Questions in Relation to Concession and Procurement Agreements

Abstract

There is an ongoing debate related to contracts involving a state party whether these agreements belong to the regime of private or public law. While, in many cases, legislation in civil law legal systems focuses on establishing a separate column of rules for such agreements, disputes may lead to the application of classic private law contract institutions. In cases of concession and procurement contracts, legislation does not deal with obvious questions of contract law (e.g. formation, validity, performance, breach), therefore, the contracting parties and the courts have to examine whether the contract rules of the Civil Code apply to the special borderline transactions made between a business party and the state. The study aims to examine government and local government contracts focusing on classic questions of contract law and proposes the application of the contract law institutions enacted by the Civil Code. While the study admits the special nature of government contracts, it suggests no special regime for the settlement of disputes under such agreements, instead, the contract law institutions should apply.