Transnational Legal Approaches to Administrative Law: Conceptualizing Public Contracts in Globalization

Globalization poses challenges to the theory of administrative law. These consist in the growing disconnect between administrative law and the nation-state, the continuous close interaction, and at times fusion, of domestic and international administrative law and action, the migration of administrative law ideas across legal orders, and the incremental dissolution of the public-private divide. With the increasing detachment of its object from domestic legal sources and domestic public institutions, administrative law becomes part of a transnational legal space. This has repercussions on the theory of administrative law, if the goal of such a theory is to provide an overarching framework for thinking about administrative law whenever and wherever administrative action occurs. Such a theory, this article argues, should take a transnational approach that overarches domestic and international law and encompasses the idea that both public and private actors and instruments contribute to administrative law-making. The article illustrates the idea of a transnational administrative law, by examining the law governing, and emerging from, contractual cooperation between administrations and private actors, such as public-private partnerships, concession agreements, or state contracts.