Δημόσιες συμβάσεις και διαιτησία
Public procurements and abritration
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Δημόσιες συμβάσεις ; ΔιαιτησίαAbstract
The modern era of globalization, the free market and the international trade have shaped new conditions and needs that the state is called upon to implement. Economic needs and social changes require the state to cooperate with the free economy and the market. The "internal market" as outlined in the European Union's constitutional treaty is not only an aim of the Union but also the "tool" to maximize the benefits of the administered throughout the European Union. The state ceases to speak only unilaterally with its sovereign character, but it also co-operates and deals with individuals in the framework of the free market by concluding contracts. State contracting is necessary to provide basic services to citizens, particularly in key areas such as public transport, energy, and so on. Thus the state must, for the benefit of its citizens, contractually negotiate with private individuals by concluding public contracts. The concept of a public contract will be explained in detail in the first part of the paper, which will include the necessary definitions and types of public contracts. The legal basis for the above analysis is Law 4412/2016, which incorporates European Union directives on public procurement. The European directives aim to consolidate the legal orders in relation to the public procurement regime. The vision of the common market requires coordination of the institutional framework on such an important issue, which has a strong economic impact. This vision finally became reality with the aforementioned law, which was incorporated into the Greek legal order. The European directives did not suffice for a mere description of the features and for a simple disclosure of definitions, but also delineated the possibilities for the administrator to seek legal protection. Although the procedural unification of the legal systems is a very complex and difficult procedure, the European legislator has provided the possibility for the person in charge to bring an action before an administrative authority responsible for the organization of public contracts. The Greek legislator, incorporating the European directives, recommended the Preliminary Appeal Review Authority, where the complainant could appeal to this authority by invoking anyirregularity in the competition. This Authority will be extensively analyzed in this paper. The purpose of its creation, the needs it covers, and the innovations that are first introduced into the domestic legal order will be analysed. Apart from the analysis of the types and nature of the contracts, the procedures for their conclusion and the presentation of the legal remedy at the pre-contractual stage, the legal status governing the stage of performance of the contract will be set out. The distinction between the pre-contractual and the contractual stage is important in terms of the legal protection that the person concerned will receive. It should be emphasized that this legal protection is controlled on the basis of the Administration's control, that is to say, the maintenance of the legitimacy and all the principles that work to protect and defend the individual rights of the administrators. The contractual action of the Administration does not automatically mean the cessation of its obligations, such as the maintenance of good administration, the principles of transparency.
The innovations of Law 4412/2016 extend to the legal protection regime in the performance of the contract. The new law allows for arbitration to resolve disputes arising from public works contracts. The possibility of resorting to arbitration is the reason for the further development and analysis of the arbitration institution. The institution of arbitration as a dispute settlement mechanism has been growing rapidly in recent years. The increase does not only concern private disputes, but also differences arising from public procurement. The issue of the possibility of the State being a party to international arbitration refers to work and is the basis for the arbitration of disputes arising from public contracts. Already in several cases, the arbitral process is implemented with impressively positive results. Before making this conclusion, an extensive reference is made to the specific features of arbitration, differences, the applicable law governing each form of arbitration. Particular reference will be made to international conventions which have shaped and established international arbitration, in particular commercial international arbitration. This point is the point of connection between public procurement and arbitration, an institution that tends to be established as a mechanism for resolving international disputes. The advantages of speed, confidentiality and specialization of judges make arbitration the ideal way to settle disputes immediately. Finally, through the examples and cases cited in this paper and in cases settled through arbitration, the utility and necessity of arbitration will be ascertained. The latter is particularly evident in our country and in several cases of dispute settlement where resorting to ordinary courts proved to be a factor in delay whereas resorting to the arbitral tribunal led to the immediate settlement of disputes and to the gradual completion of public works that were incomplete.
Postgraduate Studies Programme
Δίκαιο και ΟικονομίαDepartment
Σχολή Οικονομικών, Επιχειρηματικών και Διεθνών Σπουδών. Τμήμα Οργάνωσης και Διοίκησης ΕπιχειρήσεωνNumber of pages
168Language
GreekCollections
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Αναφορά Δημιουργού-Μη Εμπορική Χρήση-Όχι Παράγωγα Έργα 3.0 Ελλάδα
Αναφορά Δημιουργού-Μη Εμπορική Χρήση-Όχι Παράγωγα Έργα 3.0 Ελλάδα