Serving the general interest and ensuring the proper functioning of the public service constitute the essence of the “contractualization” policy where the public decision-maker now seeks to reduce the recourse to “unilaterality”, to improve contractual administrative action and to replace the relationship of fear and mistrust with one based on mutual trust.

« Le contrat administratif est un contrat synallagmatique, avec comme en droit privé, un jeu réciproque de droits et d’obligations. Mais il participe de la mission d’intérêt général qu’a en charge l’administration, ce qui conduit à une certaine inégalité dans les rapports contractuels ».

Le rapport contractuel qualifié « inégalitaire » est dû aux prérogatives exorbitantes dont dispose l’administration lors de l’exécution des obligations contractuelles incombant au cocontractant. La reconnaissance de certains pouvoirs au profit de la personne publique s’inscrit dans l’optique de garantir la bonne exécution du contrat administratif en particulier et le bon fonctionnement du service public en général.

Serving the general interest and ensuring the proper functioning of the public service constitute the essence of the “contractualization” policy where the public decision-maker now seeks to reduce the recourse to “unilaterality”, to improve contractual administrative action and to replace the relationship of fear and mistrust with one based on mutual trust.
The practice of contracting is reinforced by the emergence of certain legal forms of contract such as the public-private partnership contract.
Anxious to better develop the phenomenon of "contractualism" and to improve contractual administrative action, the public authorities sought to enrich the sphere of the administrative contract through the establishment of the public-private partnership contract. The Tunisian legislator endowed this contract with a special legal framework in order to determine the particularity of its legal regime.
The term public-private partnership means the arrangements by which the private sector provides infrastructure elements and services traditionally provided by the state. The PPP can be organized through concessions and operating permits. According to the European Commission, the PPP is part of a development objective where the state can "use the limited financial resources in an even more efficient way".
In order to encourage recourse to the practice of the PPP contract, the legislator has set up manifestations of a system to rebalance the relationships between public person and private partner in order to counterbalance the prerogatives of the administration. This does not mean that the PPP contract is a balanced contract, but it is one that promotes better protection of privacy rights.
The updating of the price, the right to the financial balance of the contract, the right to compensation and the rights of the private partner concretize the tendency of the legislator towards the preservation of the private interest against the administrative arbitrariness. Moreover, the expression "the rights of the contracting parties" appears among the obligatory mentions of the PPP contract. This legal instrument of contractualization is more protective of the rights of the contracting partner of the administration than the other legal forms of the administrative contract.
As part of this process, the legislator has also introduced alternative dispute resolution methods such as amicable settlement and arbitration, with the aim of eradicating the rigidity and complexity of the rules characterizing administrative disputes by implementing the requirements of speed and simplicity.
However, the multiplicity of powers granted to the administration during the execution of the PPP contract is open to criticism, insofar as the legislator always maintains the same position according to which the prerogatives of the administration are intangible.
The predominance of the idea of powers confers on the public person within the framework of a new legal instrument of contractualization that of PPP, is only a manifestation of the rigidity of the rules governing the general theory of the administrative contract. Moreover, the administration is required to exercise its powers ; it does not have the right to abandon them insofar as any act of renunciation is likely to engage its responsibility.
No legal development has been established concerning the question of the prerogatives available to the administration during the execution of the PPP contract where the legislator seeks to preserve the administrative character of the contract through the predominance of the idea of supremacy of the general interest at the expense of the private interest.
It immediately comes to mind that the public-private partnership contract has no private one except the name in which it is deprived of any particularity that distinguishes it from other legal contractual instruments. The question that arises at this level is to wonder about the usefulness of the creation of a new administrative contract that of PPP while the different contracts are similar ? What, then, is its contribution ?
The question about the contribution or even the usefulness of this type of contract seems to be legitimate insofar as public administrations have not yet resorted to the contractual form of PPP.

Amir AMMAR, Doctorant, Chercheur en droit public, faculté de droit de Sfax [->amirammarofficiel@gmail.com]