• <i>Contrat administratif</i>

'10.1.3 The Claimant submits, in the first instance, that no such penalty [for delay in performing work under the contract] can be assessed under applicable [State X] law because Defendant (i) did not give formal advance notice in writing and (ii) did not suffer any actual damages. Both of these, according to Claimant, are necessary pre-conditions for the imposition of any penalties or liquidated damages.

10.1.3.1 The Defendant responds that this is an administrative contract, involving a state entity and works of a public service nature (in particular work for public safety) and that [State X] administrative law must be applied. In the case of an administrative contract, under [State X] administrative law, a public entity (here [Defendant]) is entitled to apply contractual penalties without either of the above conditions. The Defendant relies on the opinion of Dr. . . ., which it has submitted, and on various court decisions . . .

10.1.3.2 The Claimant argues that concepts of administrative law should not apply, because there has been no established system of administrative law or administrative courts in [State X], at least until very recently, and because this particular contract is of a commercial nature, without the necessary element of unusual, burdensome, and unilateral powers on the part of the State entity. The Claimant also notes that many of the decisions cited by the Defendant are decisions of Egyptian law, not directly applicable.

10.1.3.3 Having considered the presentations of the Parties, the Arbitral Tribunal concludes that the Contract must be deemed an administrative contract, and that the principles of [State X] administrative law must control. While administrative law concepts have not yet been fully developed in [State X] jurisprudence, the administrative jurisdiction of [State X] courts has been established, and the principles of administrative law are recognized. Egyptian and French jurisprudence, and legal commentary . . . serve as a reliable guide in this as in other areas of [State X] law. The Contract in the instant case is with a public entity, unquestionably involves a public service function, and contains some burdensome, and unilateral provisions in favour of the State (see, e.g. Arts. 8 (approval of supplier), 12 (penalties) of the Contract).

10.1.3.4 Thus, the failure of the Defendant to have served a formal, advance notice, and the fact that the Defendant may not have suffered any actual damages, do not by themselves bar the Defendant from imposing the delay penalties (or liquidated damages) of Art. 12.'