The Execution of the International Public Contract at the Era of the COVID-19 Pandemic

• Author: Mohamed Gomaa
• Position: Judge, Council of state of Egypt, LLM, Ph.D., YICC and Arbitration Academy member
• Pages: 58-72

58

The Execution of the International Public Contract at the

Era of the COVID-19 Pandemic

Mohamed Gomaa1

Abstract: Confirmed cases of COVID-19 have soared over 118,000 worldwide

with fatalities crossing the threshold of 4291, which has led the World Health

Organization to upgrade the COVID-19 outbreak from a “public health emergency of

international concern” to a “pandemic” (hereinafter referred to as “the COVID-19

Pandemic”) on 11 March, 2020. Different industries have been hard hit by the

aggressive measures imposed by the authorities worldwide, and working from home is

not an option for labor, except for certain activities. These measures have disrupted

many businesses, supply chains, operations, and different contractual relationships.

Therefore, there are many voices calling for the necessity of declaring the COVID-19

Pandemic as a “Force Majeure”. Many questions arose about the impact of the COVID-

19 Pandemic on contracts and legal agreements. Additionally, there is a responsibility

on the legislator, on the one hand, to insert explicit provisions that can deal with those

cases in the national legislation, and on the other hand, there is also a responsibility on

the contractual parties to include in a contract some articles which could deal with

disaster and Force Majeure cases, and other articles to define the rights and obligations

of each party in these cases. In all cases, the political considerations and the

circumstances surrounding each contract must be taken into account separately.

Therefore, it becomes necessary to clarify the effect of the pandemic on the execution

of the international administrative contract. Is it considered a Force Majeure? What are

the rights of each party during the period of the pandemic?

Keywords: COVID-19 Pandemic; Force Majeure; Contract; Right; Obligation

1. Introduction

In fact, most civil law jurisdictions apply a different regime and rules to public or

administrative contracts entered into with the state or a public agency and private

contracts between private parties. Moreover, disputes are resolved by administrative

courts for public contracts, and civil or commercial courts for private contracts.

International public contracts or the state contracts are considered administrative

contracts. Those types of contracts can be defined as “contracts where one of the parties

is a public person”. Administrative contracts are qualified as such either by virtue of a

specific legal attribution, or because they concern a public service or contain a highly

unusual clause (clause exorbitant). They are examined by the administrative court unless

otherwise agreed upon.

In order for a contract to be considered as an “administrative” one, it must fulfill

the following conditions:

1) One of the parties thereto must be a public authority.

2) The administrative judicial authorities must have jurisdiction to look into such

contracts.

3) It must be related to public service or be classified by the law as an administrative

contract.

1 Mohamed Gomaa, Judge, Council of state of Egypt, LLM, Ph.D., YICC and Arbitration Academy

member. Email: muhgomaa71@gmail.com.