الفهرس 
الباب الأول: تطور مفهوم العقد فى معاملات التجارة الدولية.يوجد فقط 14 صفحة متاحة للعرض العام
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المستخلص
It’s supposed that the satisfaction clause shall be existed in each contract. Such satisfaction clause shall be achieved through the meeting of two free wills or more with intent to cause a legal effect. This effect shall include many of mutual financial obligations incurred by both parties. It’s known that the autonomy of will principle has prevailed on the contractual relations in all national legal systems and has become the basis of every contractual obligation.
It’s supposed, according to this principal, that the will of each party shall not fail to achieve justice or contractual balance. The will, which embarked on contracting, has achieved justice through a personal standard that contradict with any attempt to measure or modify it thereafter. All acts that are done by the free will of a human shall be balanced and fair. If the contract is a tool to reconcile between two opposite benefits, as each one of them is seeking to achieve the greatest benefit and endurance at the same time with less commitment. Therefore, the performances of said contract will be balanced, as any parties thereof shall not accept to oppress on its interests, and there is nothing impose this thereon.
As a result to this principle, the contractors shall comply with the obligations established by the contract, as the contracts may not be revoked or amended except by the agreement of the parties or the reasons specified by law in accordance with the principle of ”pacta sunt servanda”.
The evolution of contractual concept in international trade transactions: By collaboration of aforementioned principles and with help of international arbitration system, the autonomy of will principle has acquired the full sanctity in the scope of international contracts. At the mean time, the parties of such international contracts enjoy a freedom that is almost full in this scope. Therefore, some professionals emphasize that the international contract can be liberated from the autonomy of law to be a free contract which not subject to a specific law or a number of laws. The said thought has become not matching with the current contracts; especially such contracts that are concluded on at the international level. The theorem of” embracement of the autonomy of will principle allows achieving the contractual freedom and establishing the contractual balance” which was said by the court, has become imagination rather than truth, whereas, the will of one of the parties prevailed and dominated on the overall contractual process, and the will of the other party became weak.
The effects of evolution of contractual concept in international trade transactions: As a result to the abovementioned, a serious imbalance and clear inequality has resulted in the contractual process, weather at the level of parties or performances. Therefore, disproportion between the parties of the contract is not new, but at the mean time the methods of this disproportion has been increased.
It’s important to emphasize that supporting the autonomy of will principle absolutely and drawing consequences in the field of international contracts, will lead necessarily to make the idea of contractual balance based on a personal standard which is difficult to be evaluated by third parties. This will make the weak party in the contract an easy prey in front of strong party, as the strong party will impose its terms and the weak party will accept as a whole or reject it as a whole. It’s established from another side that there is no objective controls to limit the will of the strong party in the contract or to make such strong party to create an objective balance between its interests and the other party’s interests. The patterns of international contracts at the mean time confirm without doubt that the essence and content of the autonomy of will principle are only the will of the strong party.
The reasons of evolution of contractual concept in international trade transactions: The study of contractual imbalance in the scope of international contracts shall refer to the start of many factors that must be taken into consideration as it considered as a fundamental data that contribute in this phenomenon.
First: The philosophy and foundations of the current international system, weather political, economic, legal, or technological, as well as its historical development, shall be considered key approaches to this problem. It is not possible to deal with such problem scientifically without regard to these approaches. The problem of imbalance shall be considered as a real result to the fusion of these approaches through different historical phases, whereas each of them contributed in the formation of contractual imbalance phenomenon in the way that it has become today.
Second: The multiplicity of images and forms of international trade contracts: in addition to the well-known contracts, there were other contracts that adapt with the evolution of modern international economic life, which shall be based on the capital concentration principle and the division of labor principle, and the internationalization of the production process.
Third: The dominance of multinational corporations on the international trade operations, weather in the field of production, extraction or services exchange, which mean the subordination of these process to the overall strategy of these companies that based on the idea of maximizing profit, achieve control, and dedicate the economic dependency.
Fourth: The technical disparity between the parties of these contracts, because of the disparity in the specialization and information, whereas one of the parties is professional and the other party is non-professional and non-specialized.
Research Problem: In fact, we note that the problems which rose by the contractual imbalance phenomenon impose themselves on all those who are interested in legal studies in this field at the internal and international levels. Such problem shall be considered as a fundamental problem in terms of the choice between the fairness of each particular case and the duty to maintain the safety and legal stability in general. Therefore, this problem shall take a special character in the scope of international contracts in consideration of the multiplicity of legal systems, which are likely to be applied in order to organize thereof.
The problem that are addressed by this research is not only the pursuing of the evolution of contractual concept in the international trade transactions, but lies in the treatment of effects that are resulted from this evolution. This evolution led to create new type of economic colonialism that depends essentially on international trade contracts. These contracts became an effective way to dominate the proceedings of international trade as a whole, and a method to plundering the resources of the weak party in such contracts, which is often one of the developing countries.
This contractual economic colonialism shall be clear when we find that one of the parties of international commercial contract is obliged to continue to perform its contractual obligations, even if such contractual obligations are unfair or not balanced with the obligations of the other party. Therefore, we had to research for guarantees that can be held by the weak party in the contract to protect himself against the dominance of the strong party, or even to reduce the size of the losses resulting from its continuation of performing the contract.
Solutions and proposals to tackle the problem of research: The duty of all legal professionals is to search for effective solutions for the problem of imbalance between mutual obligations in the international trade contracts, because the goal of law is justice. The summary of what I learnt from my esteemed professors is that the law is a set of rules governing the human behavior in a specific society and specific time, in order to achieve justice between individuals of society. We cannot accept that the law prevailing in international trade transactions is a law that does not achieve justice, but impose oppression and codifies the plundering of nation’s wealth. Therefore, we had to strive to reach the proposals that reside justice among people.
As a beginning there is an important and vital reason which shall be considered one of the most important reasons to dedicate and impose the hegemony of the strong party on the weak party in the international trade transactions. This reason lies in the approach of international commercial arbitration, as the international commercial arbitration show its loyalty and gratitude of contractual terms; that are imposed by the strong party contrary to what must have been. The arbitrator is a judge who shall achieve justice and search for what enables him to perform such duty. It is established that it will be unfair and a dedication to the law of jungle which is based on the survival for the strongest, when such loyalty of this arbitrator turn to perform the contractual obligations as it is. This confirms the fail of international commercial arbitration to achieve its real function that is based on justice not on prevail of contractual terms.
Therefore, we will not depend on the approach of commercial arbitration in the proposed solutions. We will try to put solutions rely on that prevention is better than cure. Accordingly, the problem of imbalance of the mutual obligations in the international trade contracts may arise in two different cases and we must distinguish between the two cases: the first case is the case of establishment the contract by obligations that are not mutual or by imbalanced obligations, and the problem of imbalance will appear only during the performing of the contract. The second case is the case of establishment of the contract by mutual and balanced obligations but the associated circumstances are changed with performance of the contract, and the continuation in performing the contract make imbalance between the obligations of the parties or imposed on one of the parties to continue the implementation of contractual obligations unfairly against him, and we will bring the proposed treatment for each individual case as follows:
First: the case of the establishment of the contract balanced obligations: As we explained the contract in this case may arise balanced, but circumstances arise a result of which amendment in the amount of mutual obligations, so that there is an imbalance in the contract leading to the establishment of one of the parties to perform the obligations without obtaining rights paralleled. Such circumstances in any circumstance would modify the amount of the obligations of contractors. There are two conditions affecting the contract , first type which is easy for contractors to expect at the conclusion of their contract, and therefore they need to do by covering it through a condition or conditions allow them to re-negotiate to modify the contract in accordance with to change the incident in the amount of obligations due to conditions expected to occur during the execution of the contract, they are in the case of non- coverage of these emergency conditions expected through the terms of renegotiation will not be able to edit their obligations before the International Commercial Arbitration, which enforces the sanctity of the terms of Streptococcus including it does not accept the contract amendment only in the case of a clause allowing him to do so.
The second type of conditions that may affect the process of execution of the contract , which arises commitments balanced: It is the circumstances of unexpected or that no person can normally be expected , conditions that afflict the contract during execution , and either leads to the impossibility of the College’s implementation or lead to great difficulty in implementation represented in the lack of balance of mutual obligations in the contract, that lead to maximizing the cost of implementation of the obligations of one of the parties before the obligations of the other party , this second type of circumstances, contractors can avoid danger by including their contract requirement -year-old allowed to re- negotiate the contract the event of unforeseen circumstances ridden marched contract or lead to a mismatch between the obligations of the parties, as well as the contractors can at their choice of substantive law governing the contract be careful to choose a law recognizing the application of the provisions of the theory of force majeure and emergency conditions, which must be the arbitrator of which work on the contract amendment allowing re- balance contractors . The best of my point of view is to put a clause in the contract allows the re- negotiation of the event of force majeure or unforeseen circumstances with a clear expressions explain the case of force majeure and emergency conditions.
Second: the case of the establishment of the contract imbalanced obligations: in view of the side mostly of international trade contracts were the developing countries to sign contracts unbalanced in its obligations and unfair right, without that it is because the urgent need for the subject of the contract, but this is because of two things is, it the first is a disadvantage will, which was marred by the representative of the will of the developing country (the person authorized to sign the contract) which is expected to contract, and the second thing is the corruption of representative of the will of the developing country in the signing of the contract, and accepted a contract unfair to his state counterpart advantages benefit by it personally. And we will divide both cases as follows:
First case : namely, that the developing country to sign a contract international trading unfairly right , so that there is a clear imbalance of the balance between the obligations of the parties to the contract objectivity and Finance , and this imbalance resulted from a defects which marred the satisfaction of a developing country has shown signing the contract, and do not discover this imbalance only during the execution of the contract, and then resort to the international Commercial Arbitration at the request modification of its obligations , the response to natural and frequent for international Commercial Arbitration, he refused to invalidate the contract or amended depending on the presumption used arbitration to the effect that the parties to international commercial contracts are from the merchants professionals experienced professionals who may not have order invalidate the contract because of the occurrence of their will in the wrong or exploitation , and our part, we see that the context used by international commercial arbitration is the presumption flimsy and accept prove reversible, because the international commercial contracts and whatever the peripheries countries or companies , it is a sign the contracts on behalf of those Parties is ultimately humans, humans can be infected or mistake can be disgracing his will, but perhaps this man is a developing country in the signing of the contract in the field of Technology unprecedented for a state to enter into it, including not give him the technical capability to study the conditions of Streptococcus and the formation of genuine satisfaction before signing of the contract, to ask invalidate or amend the contract to defect from defects in the will, which was marred by the will of the person who signed the contract, and to say otherwise impose on the people of a developing country to accept the contract unfairly their rights because of defective young man ’s will their legal representative.
Here collide with the desire of developing country request revocation of the contract or to modify International Commercial Arbitration, which refuses to activate the theory of defects will on the international trade contracts, and here will not stay in front of student invalidate the contract but to stick to the provisions of public order in the state whose law governs the contract or the laws of the police, which baptizes through which lawmakers States to impose special provisions to regulate certain types of contracts, giving them the protection of a special type, so we emphasize the need for reservists and contractors accuracy when choosing a law governing the contract , but the need to identify and select the peremptory character of contract law. This imposes on the arbitrator presumably invoke the provisions of the theory of defects will. And do not forget in this place to emphasize that the goodwill and commitment to the media, from the most basic safeguards, which are entitled to the parties to the contract adhered to by the other party, in the case of disgracing the will, and if it is proved to mislead or deceive or cheat one of the parties, in which case the right of the injured party to resort to arbitration request revocation the decade of the contract, the intention is good in previous negotiations on the principles of contracting stable internationally.
Second case: namely, that the developing country to sign a contract international trading unfairly right, so that there is a clear imbalance of the balance between the obligations of the parties to the contract objectivity and Finance, and this imbalance caused by corruption : Do not expect countries or companies on contracts themselves are people moral, but that of doing so is a natural person, ” man”, it is assumed that countries and companies choose people with competence and integrity to represent them, but since the error Ward has often happens in developing countries, especially to assume representation of the State people of weak people, accept to get a bribe or special benefit versus sign a contract detrimental to the interests represented by the state, or at least does not guarantee them the necessary protection.
And here and do not even find people in developing countries themselves trapped in the contractual economic colonialism, because of the corruption of their representatives, should the people of those countries: work on the revision of contracts and expose corruption through Parliament represents the people , then the actor rotten to trial judicial fair, and after the verdict, entitled State asylum for International Commercial Arbitration at the request invalidate the contract because of corruption, which may have allowed the dissolution of this decade, and gives it the right to discontinue unfair to hold people, and may be issued by the International Commercial Arbitration some of the provisions that eliminate annul the contract because of bribery .