For many writers, contracts-law constitute a sui generis figure of the institution of the contract, it is not really a normative category, a formal source of constitutional law. Such a statement has no bearing on recognizing the binding force of the contract.
Indeed, the stipulations of a contract bind the parties that sign it, and its observance carries the possibility that such breaches are sanctioned. But it is one thing to recognize the binding force of contracts and the mandatory nature of their terms, and it is quite another to attribute primary sources or norms with the force of law.
In the first place, contracts-law cannot be recognized de facto as law, because it is not the scope of application or the general nature that can be derived from the stipulations of a legal act that converts them or allows them to be equated, to the norms with the force of law. The formal sources of the constitutional state of law, and the rank they may have, are those to which the constitutional system itself attributes this condition and rank. Such qualities are independent of the effects or erga omnes efficacy it may possess.
They are not logical, material reasons, their more or less general effects, or issues inherent to the structure of the various normative acts, which make certain sources of law can be considered as having the status of law. The rank that a source occupies in the legal system is that which the constitutional legal system itself has established as a result of a decision of an essentially political nature expressed in the constitution. And it happens that, at least in the Peruvian constitutional legal system, that rank has been conferred on the so-called contract-law.
It is important to assess whether these contracts, having been classified as law-contracts by express law, finally have the force of law. In this regard, it should be noted that in nineteenth-century constitutionalism, the notion of force of law was linked to the idea of the law as an expression of the general will, that is, as a property derived from its occupation as the highest standard of the legal system.
This in turn, recognized the expression of the popular will, through the law, two qualities, on the one hand, an active force, consisting of the unlimited capacity to innovate the legal system, and, on the other hand, a force passive, that is, the ability to resist against modifications or derogations from other sources of law that do not have the same attributes.
Obviously, a similar dimension of the motion force of law, today is not received by the constitutional state of law. In this, in effect, the supreme position is no longer occupied by the law, but by the constitution. And although the democratic legislator enjoys wide discretion to exercise the legislative function, it is clear that his capacity to innovate the legal system is conditioned by the formal, material and competences limits derived from the constitution, which is the lex legum.
Of course, it is not only the active force of a law that has had to rethink from the establishment of the constitution as the supreme norm of legal order. The same now, one could say in relation to its passive force. The multiplication of normative sources with the same rank has meant that the modification, suspension or repeal of the law does not necessarily have to come from another law in the formal sense, that is, from the one that the parliament can approve, but also from those others normative sources that, in the ordinance, have the same rank, such as the emergency decree or legislative decree, and within, of course, the limits that the constitution imposes.
The qualification of legal stability agreements as contracts with force of law does not come from the constitution, but rather from article 39 of legislative decree 757 framework law for the growth of private investment. The origin of its denomination in this case is not superfluous, since with the same expression in other sectors of the system, a completely different topic is referred to.
For example, in private law, specifically in civil law, this notion also often refers to the intensity of the nexus that binds the parties to a contract.
They have the legal stability agreements with the law contracts, a gender and species relationship respectively. As a first point, we will review its characteristics:
- One of the most important features of these lies in the commitment that the state assumes, to keep its content invariable if it is possible to use any legal norm that indirectly varies the rules that are agreed. There is therefore, via the constitutional norm, a "lock" that avoids exercising the aforementioned possibility, since the giving of any norm that may modify them, would immediately incur unconstitutionality in the properties. Regarding its denomination, we must say that it is not makes a difference with respect to naming them as legal stability agreements or as contracts for the granting of guarantees and securities to the investment or as law contracts The reservation made by the administration regarding the formation of the contractual scheme,It is another of the salient characteristics of this type of agreements and it is expressed in the approval norms of the models of stability contracts. They have been extended in different sectors, however, they maintain a uniform line and identical purposes. that for their formation, a prior administrative procedure must be followed that involves the presentation of a request to the competent body, which assesses whether the investor meets the conditions to access the legal stability regime Finally, they have a variable term of validity due to the type of investment that they are going to make, which can be between 10 or 15 years.The formality that requires that a prior administrative procedure must be followed for its formation, which involves submitting an application to the competent body, which assesses whether the investor meets the conditions to access the legal stability regime. Finally, they have a term of validity. variable due to the type of investment they are going to make, which can be between 10 or 15 years.The formality that requires that a prior administrative procedure must be followed for its formation, which involves submitting an application to the competent body, which assesses whether the investor meets the conditions to access the legal stability regime. Finally, they have a term of validity. variable due to the type of investment they are going to make, which can be between 10 or 15 years.
The law contract is an institution that arises from the state's need to provide legal security to private investors. Its origin is related both to the power of the state to modify the legal framework applicable to its with individuals, as well as to alleviate the non-commercial risk that arises from the doctrine of exorbitant clauses in administrative law.
International experience in investment matters, particularly in the case of foreign investment, has resulted in the need to seek mechanisms to alleviate or eliminate non-commercial risk in contracting with the state.
This contract probably presents the most advanced way to achieve this objective, insofar as it constitutes a means by which the state undertakes not to modify the legal framework in force at the time of the investment and immediately chooses to govern a patrimonial legal relationship through the rules of private law.
In our legal system, Art. 1357 of the civil code represents the origin of this important institution. Although its normative hierarchy offered only relative legal certainty, subsequent general and sectoral provisions, including the rules on legal stability agreements, have developed the concept generating a very important contractual practice.
The answer to the problem of legal instability will be, according to our work, the search for legal security, but what security are we talking about? The authentic security that the law wants to achieve requires the guarantee of certain demands of freedom of equality, therefore, legal security refers to a value concept, to a content of justice expressed in terms of rights and freedoms.
In short, there is legal certainty where there is a rigorous delimitation of legal spheres and, above all, in the field of public law, as a solid pillar of private subjective rights, they cannot but be supported by a principle that confers stability to the spheres thus delimited, subtracting the activity of citizens from the continent and arbitrary areas.
It is undeniable that the constitutionalization of the principle of legal security would have been expected, but the constitutional legislator, being bound by the liberal conception, looked for a practical text rather than a principled one, one in which the substantive can easily be apprehended and more than a statement, is an explanation of the rights it contains and how they operate.
So that free initiative, (principle of freedom of business) and the right to act in the economy are not mere rhetorical figures, without any practical consequences, it is precious that there exists this climate of security and predictability of government decisions. to imply a legal system founded on an absolute reservation of the law, which confers on economic subjects the ability to objectively provide their legal burdens, thus granting the indispensable guarantees required for a free and responsible economic initiative.
Our entry into the study of the economic regime of the constitution, has been oriented towards the establishment of the constitutional bases of legal stability contracts, allowing us to establish the scope of basic norms destined to provide the fundamental legal framework for the structure and operation of the economic activity, within which the state's intervening role will develop, the same one that will have a role of guarantor in the effectiveness of the economic system, projected towards maintaining the capacity of competition in the market, the distribution process, the constancy of economic processes and the realization of a social policy.
It seems to us that it is not interesting to qualify that if the contract is civil, but the important thing is to deduce that it is a contract that creates legal relationships between the parties and is binding on them. It is essential to collect here the idea that the contract in both rights is a source of obligations and that its genesis is not proper or exclusive to civil law, but belongs to the general theory of law and the legislator can use it to create a contractual mechanism as special as that of stability contracts. In a strict sense, the guarantees and securities for investments have been instrumentalized through a contract based on the contracting scheme.
Our thesis is that of the existence of a public contract, one in which elements of administrative law and civil law converge to produce consequences framed within the plans or state policies to promote the growth and development of the economic apparatus.
A first statement that opens the way towards the elaboration of the conceptual framework is one that raises the existence of the phenomenon of legal instability in our legal system and the consequences, which from the economic point of view, have been generated in the field of investments and development of the productive apparatus of our country. That is why studying the issue of legal stability contracts has not been a task that has implied turning ourselves into a specific field of law, or staying only in the cold legal analysis of the institutions that are the basis of training.
It has not fundamentally implied combining elements of the economic reality of our environment with those legal elements directly linked to the design of policies and guidelines that project economic development in the different sectors of production.
The design of a conceptual framework has been developed from different fields of law, since the figure of legal stability contracts is a mechanism product of the relationship between the general theory of law and civil law, hence it has not been easy configure the nature of this special type of contracts due to the implications of both state participation and the possibility of projecting the mechanism towards individuals with a view to obtaining an economic result.
The role of the state within the approach is characterized by the determination of plans or guidelines of a political-economic nature in order to the public interest and the effort of the state to stimulate in different ways people directly linked to the specific economic activity. It will then be the combination of both activities - planning and promotion, - that will promote the promotion and signing of legal stability contracts.
After going through the stages of the economic constitution, bringing together the legal analysis with the economic and political process of our country, an original convention was reached, according to which, the existence of legal stability contracts respond to the need that our country has. country to seek stability in its legal system, faced with the vicissitudes of continuous shifts between democracy and militarism, or between privatism and statism, which means economic isolation and an asserted economic crisis aggravated in the last two decades by the emergence of terrorist subversion.
A second gateway for the analysis of stability contracts is the one that gave us the study of state contracts, since here we find the typology and the characteristics of formation of a contract in which the state intervenes as a contracting party and which is projected towards individuals to promote their participation in the economic process.
In this part of the investigation we were able to have evidence of the error in which many legal scholars have made, having faced the idea of the civil contract, giving it permanent and absolute category. In this line, the work focused on the characterization of the state contract and an analysis of the elements of its formation process, making a permanent contrast with the idea of the civil law contract.
As a way of complementing the study, we are of the idea that legal certainty, within the development of the relations between the public interest and the private interest, will be fundamental to insert it in the public contracting process, since the greater interest of the individual contracting party, is that the value that the aforementioned process signifies is projected in the legal system, giving it consistency, so that its rules do not contract with each other and are applied in the cases for which they have provided, without being singularly repealed.
After the analysis of the general theory of state contracts, the figure of stability contracts, in our concept, should stop being labeled as an administrative contract or a civil law contract, since its design has been made by taking elements belonging to both fields.
The stability contract will accept mutual consent from private law as the main idea, but it deduces a legal consequence completely outside of private mechanics. Regarding its legal nature, we must state that, in the end, it is not interesting to say that it is a civil or administrative contract, but rather to emphasize that it is one that creates legal relationships between the parties and that the parties are mandatory and mandatory for them..
In summary, we must express that when speaking of a legal stability contract we are going to refer to a public contract, in which elements of administrative law and civil law converge to produce consequences framed within the plans or state policies in an attempt to promote the growth and development of the economic apparatus.
The basic model of stability contracts is none other than adhesion contracts, in which the contractual content has been determined with priority, by only one of the contracting parties, the state, to which the co-contracting party must adhere. you want to formalize a mandatory legal relationship.
The feature that marks the originality of the contractual mechanism is the commitment that the state assumes to keep its content invariable, without perhaps being able to use a legal norm to indirectly vary the rules that are agreed.
In this way, it has a lock that avoids exercising the aforementioned possibility, therefore in our legislation, stability contracts have been extended in different sectors, maintaining a uniform line and identical purposes.
Projecting ourselves towards the end of the stability contract, we will see that this will be one of a legal-economic nature: from the legal point of view it seeks to give the investor legal security, based on the principles of certainty, trust, authorization, predictability and legality. in state action; and on the economic side, its purpose is to become an instrument that enables the greatest number of investments in the different sectors of the economy so that the macroeconomic structure set up by the state, with a view to economic reactivation and growth, is fueled by long-term and productive capitals that lead us to collective development.
A final check that summarizes the analysis of this study has been to visualize what the political decision of the state has weighed as the predominant national economic general interest through investments, mediating the firm conviction that with this it will be possible to encourage the process of economic reactivation.
The result, then, has been to raise to the constitutional level the power of the state of signing of these contracts, preserving that any act that goes against the content and execution of the same, is placed on the level of the unconstitutional by the contravention of that norm of straight rank in our ranking.
Contracting with the state is particularly important in the current economic context, because the scarcity of internal resources makes the participation of foreign investor necessary for the development of large-scale projects. Indeed, the increasing number of foreign investors involved in privatization processes or in development projects - in sectors such as mining, hydrocarbons or services - has motivated a boom in contracting with the state.
However, those who contract with the state must face non-existent risks in any contractual relationship under private law, since the state enjoys a privileged situation thanks to its power of imperium; This is the case of administrative contracts that grant the state exorbitant clauses by virtue of which it can modify or terminate the legal patrimonial relationships that result from said contract.
It should not surprise us, then, that on certain occasions the state itself detaches itself from its privileges in order to provide legal security to its relationships with individuals, thus attracting potential investors.
Security means that a legal state that protects the goods of life in the most perfect and effective way, carries out such protection in an impartial and fair way; he has the necessary institutions for said protection and enjoys the confidence, in those who seek the right, that it will be fairly applied.
Contracting with the state must often deal with inequitable situations resulting from the fact that, in its legal relationships with persons and entities, contracted in use of its imperium powers, the state holds a privileged situation. This is the case of those contracts related to the granting of concessions for the use of natural resources, the development of public infrastructure or the exploitation of public services.
The issue is of particular relevance in an economic context in which internal, economic or technological resources are insufficient to carry out large-scale development projects, so foreign investors must provide such resources and contract with the state, submitting at the same time to its jurisdiction.
It is not strange, then, that, over the last decades, international economic law has been busy developing new concepts and institutions whose purpose is to provide legal security to those contractual relationships in which the state itself considers it justifiable to eliminate the greatest risk non-commercial resulting from your particular situation as a contractor
Some of these concepts and institutions are limited to the legal relationships between states and nationals of other states, as is the case with international treaties relating to the protection of foreign investment.
On the other hand, there are other concepts and institutions that have been developed in the domestic law of each country, in order to prevent the legislative power of the state or its jurisdiction over the co-contracting party, representing a dissuasive element for the celebration of a contract considered to be of national interest or an additional non-commercial risk factor that said co-contractor must consider in his economic model when negotiating the terms and conditions of the contract.
The need to provide legal security to the relationships of individuals with the state, when it acts in use of its imperium powers, is the raison d'être of law contracts. The contract law then fulfills the purpose of providing legal security to the investor in two different ways: by stabilizing the legal framework applicable to the legal patrimonial relationship created by the contract and by modifying the legal framework applicable to a contract with the state of the administrative law to civil law.
Whether or not the state can detach itself from its powers of impremium, which are certainly inherent to it, is not in dispute. What happens when the state voluntarily submits to the sphere of private law, is not that here it detaches itself from its powers of impremium, but rather that by virtue of them it waives the power to exercise them to submit to another legal statute, private law, in certain specific cases where the public interest justifies it.
Legal security in contracting with the Peruvian state has reached its maximum development with the inclusion of the institution of the contract law in the current political constitution. It is probably one of the most advanced legal provisions in comparative law on the matter, whose repercussions on attracting new investments in the different sectors of economic activity that, although it is in the process of its real dimension, we consider that the Law contracts or legal security agreements should not exist, because in Peru a true rule of law must reign that does not require contracts of this nature. In any case, we would only justify it as an initial-transitory measure,until citizens mature and internalize that they must and must act correctly without the need for the law to sanction it.
In this sense, we also point out that this is indeed the true legal security that we should aspire to have. The fact that we have a contractual legal security between the state and the individuals only reflects the clamorous lack of legal security in that area in our country and aspiring to preserve - preserve this type of contracts, would be to deny our own internal and external development and acceptance, it would be like denying or disapproving of ourselves, it would be the last thing that could happen to us. No to the permanent - perennial validity of the law contract or the legal security agreement in Peru!
