Convergence in Public and Private Law Doctrines - The Case of Public Contracts

Abstract

Is it possible for public and private law doctrines to converge in response to contemporary modes of mixed public-private governance? Such an approach has certain attractions. It side-steps difficult and often circular a priori assessments of whether a transaction or body is sufficiently “public” or “commercial”, and it sometimes provides a space in which the countervailing threats of public corruption and private coercion can be weighed. Three examples of modern convergence are identified in relation to public contracts: the law of public tendering; controls on contractual discretion; and the concept of non-delegable duties in tort law which impacts on contracting out.