Christina D. Tvarnø

Law and Regulatory Aspects of Public Private Partnerships: Contract Law and Public Procurement Law

The aim of this chapter is to present a number of rules and legal principles in regard to contractual public-private partnerships (PPPs), which are typically used in infrastructure projects. The chapter concerns PPPs in a contract law and public procurement law context, with special focus on the European Commission (EC) public procurement rules and an introduction to the legal PPP principles in the World Trade Organization and United Nations Commission on International Trade Law. It is not the intent of the analysis in this chapter to cover different national legal rules and regulations, but instead to analyze and describe some more general principles in regard to PPPs.

To bind or not to bind It’s in the contract Formalizing collaboration through partnering contracts in the US, British and Danish construction industries

This article discusses the formalization of collaboration through partnering contracts in the construction industry in the USA, Great Britain and Denmark. The article compares the different types of collaborative partnering contracts in the three countries, and provides a conclusion on whether the collaborative partnering contract should be binding or non-binding, based on the three empirical contracts analyzed in this article. The partnering contracts in Great Britain and Denmark are legally binding, while in the USA the partnering agreements are non-binding charters or letters of intent. This article discusses, in a theoretical perspective, the legal reasoning behind the different partnering approaches, both from a historical and contract law perspective, and furthermore applies a game theoretical approach in evaluating binding versus non-binding partnering contracts. The analysis focuses on private collaborative multi-partner partnering contracts in the construction industry and compares contractual clauses from US, British and Danish partnering contracts. The article argues that from a legal and a game theoretical perspective, the collaborative partnering contract should be legally binding in order to minimize the risk of self-optimization and improve joint utility through the contract, and thus recommends that the US partnering regime should shift from a non-binding partnering agreement to a legally binding partnering contract.