Measures against Avoidance and Abuse of Public Procurement Regulation & Private Law Aspects of Public Procurement

This article discusses the arbitrability of disputes, which in the domestic doctrine referred as procurement disputes. These are disputes from a number of laws related to public procurement and ordering. The article provides a brief analysis of the possibility of referring such disputes to arbitration courts. An obstacle to the consideration of these disputes by arbitration courts is judicial practice, which does not accept the use of the private-law mechanism for resolving disputes in such a publicly significant sphere as procurement for public needs. In addition, the author makes the assumption that the concept of the “public element”, which prevails in domestic judicial practice, makes it difficult to enforce the decisions of the arbitration courts on such disputes, since they inevitably have “public elements”, for example, the presence of budgetary funds in the legal relationship special contracting procedures. This concept is in contradiction with the fact that the state contract is a civil contract and, generally, is arbitrable, like other types of procurement. The further possibility of applying arbitration proceedings in procurement disputes is extremely controversial and leaves a wide field for future research.

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Sanction mechanism of the register of public sector partners in context of public procurement

Bratislava Law Review ◽

10.46282/blr.2019.3.2.143 ◽

2019 ◽

Vol 3 (2) ◽

pp. 18-33

Author(s):

Zuzana Kršjaková

Keyword(s):

Public Sector ◽

Public Procurement ◽

Private Law ◽

Legal Provisions ◽

The Individual

This paper is dedicated to the comprehensive regulation of obligations related to the registration in the Register of Public Sector Partners which can be identified in a variety of legal provisions. The paper deals with all sanctions related to meeting these obligations. The introduction defines what the Register of Public Sector Partners is and with what purpose it has been established. Afterwards, the paper focuses on the identification of individual regulations which include the obligations related to the Register of Public Sector Partners, as well as the individual sanctions for not meeting them. The last part of the paper shifts attention to the private law aspects of violations of obligations related to the Register of Public Sector Partners.

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Kejanggalan Beberapa Putusan Korupsi Pengadaan dan Kaitannya dengan Konstitusi

Jurnal Konstitusi ◽

10.31078/jk13110 ◽

2016 ◽

Vol 13 (1) ◽

pp. 213

Author(s):

Richo Andi Wibowo

Keyword(s):

Criminal Law ◽

Public Procurement ◽

Reasonable Doubt ◽

Constitutional Court ◽

Court Decisions ◽

Private Law ◽

Financial Loss ◽

Standard Of Proof ◽

Lower Standard

This paper aims at highlighting some odd court decisions on corruption typed “state financial loss” in public procurement sector. It is odd because of the following reasons: (i) the nature of the case is more about administrative or private law instead of criminal law; (ii) some consider that it will be unjust to sentence guilty the accused; (iii) the cases ensnare persons who are perceived as reformist and clean. The first point will be the focus of elaboration. It will be argued that the encroachment of criminal law towards the area of administrative and private laws are caused by the lower standard of proof for the corruption typed “state financial loss”. Currently, the applied standard is “more likely than not” instead of “beyond reasonable doubt”. The situation which some people are jailed while their faults are more about administrative and private is a justice issue. As the upright of justice is the mandate of the constitution, therefore, articles that create this injustice (Article 2 section (1) and Article 3 of the Eradication Corruption Act) should be re-reviewed by the Constitutional Court. Although the court has previously reviewed the Articles and, therefore, this should be seen as a final and binding; this paper will give some arguments which explain the needs for the court to re-settle this matter.

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Prawo administracyjne prywatne. Propozycja nowego terminu w siatce pojęciowej polskiego prawa administracyjnego

Przegląd Prawa i Administracji ◽

10.19195/0137-1134.114.9 ◽

2018 ◽

Vol 114 ◽

pp. 149-165

Author(s):

Witold Małecki

Keyword(s):

Public Administration ◽

Public Procurement ◽

Legal Framework ◽

Legal Regulation ◽

Administrative Law ◽

Public Law ◽

Private Law ◽

Protective Measures ◽

Public And Private ◽

The Public

PRIVATE ADMINISTRATIVE LAW. THE PROPOSAL OF A NEWDistinction of the set of norms called ,,private administrative law” is conditioned by the recognition that the theorem on the public-law affiliation of administrative law is of typological relevance, not of classification relevance — in every branch of law also in administrative law it is possible to distinguish, in various proportions, norms of public and private law. The norms of private administrative law set the legal framework for public administration to use forms of activity that traditionally belong to private law in a way that prevents “escape to private law”, fusing private-law forms of activity and public-law protective measures. Public procurement law is presented as a model area of legal regulation within the scope of private administrative law.

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La contratación pública de las sociedades de economía mixta

Revista de Derecho de la UNED (RDUNED) ◽

10.5944/rduned.23.2018.24040 ◽

2019 ◽

pp. 707

Author(s):

Gabriel J. Vivancos Martínez

Keyword(s):

Public Administration ◽

Public Procurement ◽

Private Law ◽

Mixed Economy ◽

The Public ◽

Public Contracting ◽

Rules Set

Las Sociedades de Economía Mixta han tenido queadaptar su contratación al régimen propio de la contratación públicade la Ley de Contratos del Sector Público. La transición delderecho privado al derecho público no ha sido fácil, en gran medidapor las deficiencias legislativas que una norma redactada paralas Administraciones Públicas provoca cuando se aplica a los PoderesAdjudicadores pero no Administración Pública (PANAPS).La complejidad en la contratación de esta figura no se agota conla Ley de Contratos del Sector Público sino que alcanza la aplicaciónde otras normas originariamente destinadas para las Administraciones.La Ley 9/2017, de 8 de noviembre, destina un título a lacontratación de esta figura pero incluso antes de su entrada en vigorpresenta importantes controversias contrarias a la seguridadjurídica.The Mixed Economy Companies have had to adapttheir procurement to the public contracting rules set on the PublicSector Contracts Law. The transition from private law to thepublic sector has not been easy, largely due to the legislative deficiencies that a norm written for the Public Administrations provokeswhen applied to the Awarding Powers but not Public Administration(PANAPS for their Spanish acronym). The complexity ofthis public procurement form does not end with the Public SectorContracts Law, but reaches also to the legal application of otherrules originally destined to the Administrations. The 8th November9/2017 Law devotes a title to this contracting figure, but even beforeits entry into force presents important controversies regardinglegal security.

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