Transnational Law of Public Contracts: An Introduction

Abstract

Public contracting has become an increasingly important form of administrative action, so much that the modern state has been characterized as a ‘contracting state.’ Yet, while public contracting increasingly takes place in globalized markets, the law governing it has been understood traditionally as a purely domestic matter. Conceptual approaches to understanding how public contracts law is transforming in globalized markets are still largely missing. This is particularly important as rules for public contracting in global markets emerge very differently from the domestic context. There is no uniform law-maker, nor are the modes of law-making, and the instruments used, as formalized as in the domestic context. Instead, rule-making in the global context is characterized by a multiplicity of legal instruments and sources, including international treaties, model contracts, and model contracts, and a multiplicity of actors, including international organizations, industry associations, financiers, and arbitrators. The present paper suggests to capture the transformation public contracting is undergoing in times of globalization by putting the processes, instruments and actors that bring about change into the center of attention. Understanding processes of ‘internationalization’ or ‘transnationalization’ of public contracts law is argued to be the most sensible way of understanding how ‘transnational law of public contracts’ emerges and what pressure it exerts on domestic public contracts law.

Keywords: Public Contracts, Transnational Law, International Law, Transformation of Domestic Law, Soft Law, Informalization, Private-Public Divide, New Actors, New Instruments

JEL Classification: K33