Contract Disputes

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Contract Disputes

Table of Contents


Resolving disputes and procurement3

The causes of disputes and procurement5

Methods of resolving disputes7



Contract Disputes


The paper covers the contents of a contract dispute and means of resolution of such disputes. The contract dispute in the discussion is related to the GAO report. Therefore, our discussion will use this case as an example to clarify the concept of contract disputes and its resolution. Within private law, jurists distinguish the law of contract, according to the traditional view, on two grounds. First, contract law is said to deal with obligations owed to particular persons. Contracts create in personal rights, that is, rights that (in principle, anyway) are binding only on contracting parties. They attach to the object of the rights; as such, they are binding on anyone who encounters the object (Carlton, 1999). Within Western legal traditions, jurists consider contract law a part of “private law” in the sense that, like property law and tort (or “delict”), contract law is thought to deal with fundamentally private transactions. It is, of course, acknowledged that the state may enter into legally binding contracts. Nevertheless, such transactions are generally governed by the same rules that govern ordinary contracts; the state is treated as a private individual when it enters a contract. This is true even in legal systems, such as that of France, that have traditionally enforced such contracts in separate courts and on the basis (in theory anyway) of a separate body of law (Schlusberg, 1970).

Resolving disputes and procurement

The use of alternative dispute resolution in contrast to submit to the jurisdiction of courts of law, in principle, involves the conclusion of an agreement between the parties that the law is a contract. Therefore requires a response to the question of the extent to which contracts entered into in relation to any disputes shall be subject to restrictions under the Act of 29 January 2004 - Public Procurement Law (FAR subchapter A, Part 33.2).

In our case, the financial analysis and qualitative considerations were the grounds used for decision making (GAO, 1994). The purpose of the conclusion of the arbitration agreement - whether in the form of a separate arbitration agreement, whether in the form of an arbitration clause - is to determine the mode of dispute resolution, not the fulfillment of paid services. There is therefore no reason to assume that the arbitration agreement is a public contract within the meaning of 2 point 13 of the Act - Public Procurement Law - that is a contract for pecuniary interest having as its object services, supplies or works. There is therefore no basis for this, to conclude a separate arbitration agreement, to submit to arbitration a dispute arising between the parties, were subject to the procedures stipulated in the Act - Public Procurement Law (FAR, 33.206a).

Similarly, there is no basis for a possible change in the scope of the arbitration clause evaluated in the context of article 144 of the Act - Public Procurement Law, introducing the restriction of the amendments to the agreements ...
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