Arbitration In Administrative Contracts:Comparative Law Perspective
Arbitration In Administrative Contracts:
Comparative Law Perspective
While arbitration has traditionally been considered as a means to resolve private disputes, its role in disputes involving administrative contracts is a crucial question in administrative law. In brief, the three specific questions are (1) Can arbitrators or arbitral tribunals decide issues involving administrative law? and (2) Is there, or should there be, any limitation on the authority of arbitrators or arbitral tribunals? (3) Moreover, after the issue of an arbitration award, what role should the State play in the judicial review phase? The first question, the issue of arbitrability, is discussed in part 1 (FIRST PART: ARBITRABILITY). The second question will be discussed in part2 (SECOND PART: PARTICULAR QUESTIONS OF ADMINISTRATIVE MATTERS IN ARBITRATION PROCEDURE).
Finally, on the question of what happens after the arbitration award, we will discuss judicial review in part 3 (THIRD PART: JUDICIAL REVIEW AND EXECUTION OF ARBITRATION AWARD).
We compare legal systems between the four countries: in France, in Canada, in China and in Taiwan.
We believe that an administrative contract, at least in its function and conception, is gradually becoming different from a private contract.
Innovation with respect to administrative contracts will also reflect the concentration and function of the administrative litigation systems in each country. In addition, the “objective” or “subjective” function of administrative litigation will also affect the degree of arbitrability, as well as arbitration procedures.
Taken together, arbitration will be more acceptable in systems whose function is more “subjectively oriented” than in those whose function is “objectively oriented ».
Finally, “the arbitration of administrative matters” traditionally has been an important question in administrative and arbitration law. In the future, we will continue to see it shine in the doctrine and jurisprudence of both the administrative and arbitration law fields.
