Modern legislative treatment of emergency conditions in investment contracts
mohamed elmshad
Civil Law Department - The Egyptian Higher Institute for Trade and Computers in Mansoura - The Egyptian Higher Institute for Trade and Computers in Mansoura
Abstract
Summary Most countries need investment contracts, because they play an important role in the economic development process of the countries hosting it, as it enables them to exploit their resources, but investment contracts are slack implementation contracts that may change the conditions of their conclusion from the conditions of their implementation, so they need mechanisms that govern the stability of the contract as the principle of stability Legislative and not prejudice. Consequently, investment contracts are considered to be one of indecent contracts in which the state enters a party with the other party, and he is generally the investor, whether he is a natural or juristic person, and in reality this requires that the contracts be of a different nature from the regular contracts, as the legal centers of the two parties in These contracts are different and not parallel. There is a party that has economic and technological strength, which is the foreign investor, and another party that enjoys sovereignty and authority, which is the state. There is no argument that as long as the contract is extended over time, it will be vulnerable to change due to the changing circumstances surrounding it. The circumstances surrounding the conclusion of a contract spanning dozens of years cannot remain the same throughout this period. If the conditions accompanying the formation of the contract change, this will undoubtedly affect some elements of the contract and will accordingly be affected by the obligations of the contractors. It is recognized that changes in the circumstances surrounding the implementation of the contract can affect two different ways on the life of this contract. Either it makes the contract’s implementation burdensome and costly to the debtor, or it impedes the implementation of this contract, either in whole or in part. In the first case, the implementation of this contract remains possible, and therefore the parties are always trying to find an appropriate remedy for the effects resulting from this change and to overcome the problems that collide with the implementation of this contract, and this is the field that I mean, but in the second case, it is about the impossibility of implementation, and the impact The natural consequence of this impossibility is to suspend the contract in the event of a temporary impossibility, and to abrogate it in the event that it is final. The importance of legislative guarantees for investment emerged, and if the legislative protection is important for the investor in preserving his property and money from nationalization, confiscation, expropriation, etc., it is also equally important for the host country, as it relies on the contribution of investments in building or reforming its structure to advance production and development It out. The legislative and judicial treatment of the idea of changing circumstances became important after the intervention of the parties to the contract. This importance is evident if it comes to treatment with a foreign element, where the interest of the parties becomes clear in protecting themselves against the effects of fluctuations in the circumstances surrounding the implementation of their contract, whatever their nature, and contractual art has created more than one solution to confront these changes. Legislative solutions varied to prevent the risks of emergency conditions, and therefore these legislations can be divided into three groups. The first: laws that refuse to fully adopt the theory, and fall into the second group, laws that legally recognize the theory without the presence of a legislative text, and the third group includes countries whose legislation is regulated This theory. And he praises the French legislator that he mentioned a new text according to the amendment of the tenth of February 2016, which dealt in a new way with the theory of emergency conditions in Article (1195) a French civil, which decided the following: “If conditions had not been foreseen at the time of the conclusion of the contract, that would make the implementation burdensome To a large extent for one of the parties, who had not accepted the risk tolerance, the latter can demand a renegotiation of the contract with the other contractor, and continues to implement its obligations throughout the period of renegotiation. Accordingly, we are trying to reveal, according to this research, the modern and different legislative mechanisms to avoid the risks of emergency conditions in investment contracts, the extent of the investment environment’s response to these solutions, and their adequacy and efficiency.
Keywords
" To ward off the risks of emergency conditions" "Solutions to counter"
