Harmonising liquidated damages in private and public contracts in the MENA countries: is UPICC a necessity? A comparative perspective with English case law

Abstract Liquidated damages (LDs) lie at the heart of every transaction and dispute, whether private–public, involving a State or a State-owned entity, or purely commercial, a private–private nature. This article tackles this theme in the specific context of the Middle East and North Africa (MENA) region, where the influence of Egyptian law—a civil law legal system—cannot be overstated. The article offers useful insights and analysis of some of the challenges that plague ‘dualist’ systems of law that distinguish between public law and private law, administrative courts and civil and commercial courts, and administrative contracts and private law contracts. The article is divided into four parts. Following an introductory section, the article is divided into four parts. The second section deals with the doctrine of penalty clauses in LDs in comparative approaches. The third offers the main objectives of harmonization of contract law principles and provides an analysis to the UNIDROIT Principles of International Commercial Contracts (UPICC) in LDs. The fourth provides an analysis to convergences and divergences between administrative and private contracts in Egypt and the English doctrine of LDs. Finally, the article offers concluding remarks and suggestions showing the necessity of UPICC in Egypt and the MENA region in light of punitive nature of LDs, given the reality of a clear lack of coherent uniform standards in awarding LDs in the region.