Arbitration In Administrative Contracts

503 Pages·2014·2.86 MB·French

Institut d'Etudes Politiques de Paris
ECOLE DOCTORALE DE SCIENCES PO
PhD Program of Law
Sciences Po Law School
PhD in Public Law

Arbitration In Administrative Contracts:

Comparative Law Perspective
Ching-Lang Lin
Thèse dirigée par le Professeur Jean-Bernard Auby
Soutenue le 30 Juin 2014
Jury :
Pr. Jean-Bernard AUBY, Professeur des Universités, IEP de Paris, directeur
de thèse
Pr. Mathias AUDIT, Professeur des Universités, Université de Paris Ouest -
Nanterre La Défense, rapporteur
Pr. Diego P. FERNANDEZ ARROYO, Professeur titulaire, Sciences Po, IEP
de Paris
Pr. Laurence FOLLIOT-LALLIOT, Professeur des Universités, Université de
Paris Ouest - Nanterre La Défense, rapporteur

ARBITRATION IN ADMINISTRATIVE CONTRACTS: COMPARATIVE LAW
PERSPECTIVE
SUMMARY
The detailed table of contents will be at the end of this dissertation
INTRODUCTION ................................................................................................................... 1
TITLE I: DEFINITIONS ............................................................................................................... 2
CHAPTER I: ARBITRATION ................................................................................................. 2
CHAPTER II: ADMINISTRATIVE LAW ............................................................................. 4
TITLE II: AWARENESS OF PROBLEMS ............................................................................... 10
FIRST PART: ARBITRABILITY ...................................................................................... 15
TITLE I: COMPARISION BETWEEN JURISTS AND BETWEEN PROVISIONS ........ 16
CHAPTER I: COMPARISION BETWEEN JURISTS ...................................................... 17
CHAPTER II: COMPARION BETWEEN GENERAL PROVISIONS IN THE
WORLD ..................................................................................................................................... 24
TITLE II: COMPARISON BETWEEN SYSTEMS ................................................................. 38
CHAPTER I: ADMINISTRATIVE LITIGATION SYSTEM V.S ARBITRATION ...... 38
CHAPTER II:CIVIL LITIGATION V.S ADMINISTRATIVE LITIGATION SYSTEM
..................................................................................................................................................... 51
TITLE III: COMPARASIONS BETWEEN FOUR COUNTRIES ........................................ 57
CHAPTER I: ARBITRATION IN ADMINISTRATIVE MATTERS IN FRANCE ..... 57
CHAPTER II: ARBITRATION IN ADMINISTRATIVE MATTERS IN CANADA 100
CHAPTER III: ARBITRATION IN ADMINISTRATIVE MATTERS IN CHINA ... 132
CHAPTER IV: ARBITRATION IN ADMINISTRATIVE MATTERS IN TAIWAN 146
CHAPTER V:CONCLUSION OF THIS TITLE .............................................................. 190
SECOND PART: PARTICULAR QUESTIONS OF ADMINISTRATIVE MATTERS IN
ARBITRATION PROCEDURE........................................................................................ 193
TITLE I: PROCEDURAL PERSPECTIVE: CONSTITUTION AND RESOLUTION OF
DIFFICULTIES IN CONSITUTION ...................................................................................... 193
CHAPTER I: CONSTITUTION OF COURTS AND ARBITRAL TRIBUNALS ...... 193
CHAPTER II: PROCEDURAL DIFFERENCES BETWEEN ADMINISTRATIVE
LITIGATION AND ARBITRATION PROCEDURE ..................................................... 214
TITLE II:SUBSTANTIAL PERSPECTIVE: WHAT SHOULD ARBITRATORS TAKE

CHING-LANG LIN – « ARBITRATION IN ADMINISTRATIVE CONTRACTS: COMPARATIVE LAW
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INTO CONSIDERATION ? ...................................................................................................... 223
CHAPTER I: LITIGATION CONCERNING THE CONTRACT ITSELF ................. 223
CHAPTER II:“RECOURS POUR L’EXCÈS DE POUVOIR’’ ON DETACHABLE ACTS
.................................................................................................................................................. 284
CHAPER III:URGENT PROCEDURE(“RÉFÉRÉ”) ..................................................... 323
THIRD PART: JUDICIAL REVIEW AND EXECUTION OF ARBITRATION AWARD
.............................................................................................................................................. 353
TITLE I: JUDICIAL REVIEW OF ARBITRATION AWARDS ......................................... 354
CHAPTER I: DOMESTIC ARBITRATION .................................................................... 354
CHAPTER II: INTERNATIONAL ARBITRATOIN ...................................................... 379
TITLE II: THE ISSUANCE OF EXECUTION ORDER AND THE RECOURSE AGAINST
IT ................................................................................................................................................... 399
CHAPTER I: IN CANADA .................................................................................................. 400
CHAPTER II:IN CHINA ..................................................................................................... 403
CHAPTER III:IN TAIWAN ................................................................................................ 409
CHAPTER IV:IN FRANCE ................................................................................................. 415
CONCLUSIONS .................................................................................................................. 425
TITLE I: SUMMARY OF DISSERTATION .......................................................................... 425
CHAPTER I: IN FRANCE .................................................................................................. 425
CHAPTER II: IN CANADA ................................................................................................ 426
CHAPTER III: IN CHINA ................................................................................................... 426
CHAPTER IV: IN TAIWAN ................................................................................................ 427
TITLE II: POSSIBLE FUTURE DEVELOPMENTS .......................................................... 428
CHAPTER I: DEVELOPMENT OF ADMINISTRATIVE CONTRACT CONCEPTS
.................................................................................................................................................. 428
CHAPTER II: EVOLUTION OF THE FUNCTION OF ADMINISTRATIVE
LITIGATION.......................................................................................................................... 430
TABLE OF ABBREVIATIONS IN THIS DISSERTATION .......................................... 433
TABLE OF ABBREVIATIONS IN FOOTNOTE ............................................................ 439

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INTRODUCTION

Law is a microcosm of society. Different societies evolve different legal
systems. In other words, the law reflects the diversity and development of society.
Thus, to study different laws and compare them is indeed interesting.
In most countries, there is a distinction between public law and private law.
Arbitration and administrative law appear to live on two distant planets, and
their paths do not ever seem to have to cross.
In observing administrative law, analyzing the activities of administrative
authorities is a good way to realize the core of public law. Even administrative
authorities are only “organizations” rooted in the evolution of their society and,
without doubt, they would also impact the whole society. Thus, in the
development of society, administrative authorities do seem a “living creature.”
On one side, with the requirement to well execute public mission and to
satisfy citizens’ general social needs, beside the unilateral administrative
decision, administrative agencies have much developed activities in accordance
with “commercial” (of course, in the broadest sense) targets, and not only
numerous but also multifaceted cooperation between the public and the private
sectors. The administrative contract is one of the main tools used. Thus, the
administrative contract becomes a special legal idea and it results in many
interesting questions. On the other side, we can observe that the scope of public
law extends to private actors in such situations1.
Looking back over the development of systems for resolving disputes, we
can see that conflicts and controversies have existed from the birth of human
society. They reflect the internal contradiction between individuality and
integrity. People have tried various ways to avoid conflict, but it is impossible to
avoid the occurrence of conflicts. We can say that the history of human beings is a
history of resolving conflicts.
The method of dealing with conflicts depends on the diverse requirements
of human beings. At first, in ancient epochs, people adopted the self-help method

1 On this subject in general, see Manuel Tirard, Privatization and Public Law Values: A View from
France, 15 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES, Article 12 (2008).
Available at: http://www.repository.law.indiana.edu/ijgls/vol15/iss1/12.

CHING-LANG LIN – « ARBITRATION IN ADMINISTRATIVE CONTRACTS: COMPARATIVE LAW
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to protect their own rights from harm. But the self-help approach will lead to the
collapse of social order, thus rulers hoped to establish the law system to replace
the self-help method. Thus, we can say that law is a way for rulers to situate the
“monopoly position” to deal with disputes. Thus, since rulers monopolized the
position to deal with disputes, rulers has obligations to establish legal systems to
accord with the needs of the people. Therefore, the litigation system was the
symbol of this need.
However, for a long time, the litigation system has been criticized often for
its cumbersome procedures, and high consumption of time and money. Thus,
another requirement of efficiency in the litigation system has come into being. In
reaction to this, various types of alternative dispute resolution, such as mini-trial,
informal arbitration, conciliation and mediation independently from the legal
system in question, have been properly implemented in civil, family and even
criminal matters.
In this situation, especially when public juridical persons and private
juridical persons are linked by agreements, the protection of mutual trust
between them makes it necessary that they have the right to choose the method
of alternative dispute resolution arising from their agreements. Thus, conciliation,
mediation, and arbitration offer a variety of options for public juridical persons.
Even though there are various options to settle disputes, because of public
policy, the question whether public juridical persons can submit their disputes to
arbitration with freedom has for long been a question much disputed in
arbitration law and administrative law. Thus, this is the motivation to study the
relation between them.

TITLE I: DEFINITIONS
As for the question about arbitration in administrative matters it is
necessary to begin by remarking on the scope of some legal terms, such as what
is “arbitration” and what is “administrative law”? Or better, the sense in which we
use them in this thesis.
CHAPTER I: ARBITRATION
“Arbitration” is a business technique initiated by many merchants to meet

CHING-LANG LIN – « ARBITRATION IN ADMINISTRATIVE CONTRACTS: COMPARATIVE LAW
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their economic needs, such as the facilitation of financial operations.2 However,
“arbitration” remains undefined. Thus, we would observe “arbitration” from
different perspectives in order to paint its outline. First, we want to observe it by
its history.
The source of arbitration is the requirements of merchants. In commerce,
some merchants take notice of rapidity and secrecy, and one advantage of
arbitration is to keep secret the disputes which concern them. It is also one
motive for the merchants. The progressive complexity of commercial disputes
also brings the need for arbitration. That is, some commercial transactions based
on enduring business activities and the whole legal relation between parties
cannot be evaluated as individual contracts. The individual contracts have their
common business target but they are relevant each other. Thus, it is difficult to
resolve their disputes by the simple contractual interpretation. They need some
flexible methods for resolution.
Besides, sometimes merchants do not know the applicable contract law well,
or they insist on their own positions and then it is hard to reach a compromise.
Thus, in such situations, they must rely on a neutral third person to deal with
their dispute.
Thus, these considerations have pushed the commercial community to set
up a special system to resolve their commercial disputes.
Traditionally, in many European countries, there were special jurisdictions
such as “consular tribunals”3. However, even in such special tribunals, the
merchants could not avoid the State taking over commercial jurisdiction. In
nature, the special tribunals still belong to one part of the jurisdiction of the State.
Thus the merchants aspired to divest the control of the State tribunals. In
practice, merchants developed and introduced an agreement in their contracts –
the arbitration agreement. In brief, from a historical perspective, we can define
“arbitration” as “the agreement between parties in their contracts to divest the
jurisdiction of State”.
However, we cannot ignore the superordinate concept of “alternative
dispute resolution”, often called ADR for short. By “alternative dispute
resolution”, we mean “a procedure that makes use of mechanisms such as
mediation, conciliation, and arbitration to facilitate the resolution of issues in a

2 See AMOR ZAHI, L’ETAT ET L’ARBITRAGE 18 (1980).
3 JOSEPH HAMEL & GASTON LAGARDE, TRAITÉ DE DROIT COMMERCIAL, 59-60 (Dalloz,1954); Marcel
Belaich, Conseil du Commerce, Chambre de Commerce et Tribunal de Commerce, 167-242 (thèse
Alger 1931), cited in Zahi, 18, supra.

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dispute without recourse to a hearing before a tribunal”4. As jurist Dominique
VIDAL has stated, the legal term ‘’alnternatif’’(in French) refers to conduct a
dispute by the recourse out of national courts5.
There is one point that is worthy of notice. That is, in Canada the jurisdiction
of administrative litigation belongs to the “ordinary court.” Here the reason we
use the quotation marks is that in the legal system of Canada there is no need to
distinguish “ordinary court“ from “administrative court.” In Canada, the
importance of the administrative litigation revolution would focus on the
administrative process especially in the process of the so-called “hearing”. John
Swaigen, a scholar of administrative law in Canada, uses the phrase “… without
recourse to a hearing before a tribunal.” In brief, the definition above is from the
historical element.
Beside the historical perspective, we can observe it from the perspective of
the features of arbitration. The jurist Jean-Marie Auby summed it up in three
elements. One is that arbitration supposes the existence of a legal dispute. The
second is that arbitration is operated by an arbitrator or an arbitral organ. In
practice, these are called arbitral tribunals. The third is that the arbitration
would result in an obligatory judicial act for the parties6. In this thesis, we will
discuss these three elements.
CHAPTER II: ADMINISTRATIVE LAW
Trying to define “administrative law” is difficult. Administrative law comes
from the different cultures of the political and legal systems. In addition, it is also
about the development of human rights. Therefore, in this thesis, we will define
administrative law in four dimensions. The first dimension is a discussion of
what comprises administrative law. The second dimension is a discussion of
what functions are assigned to administrative law. The third dimension is an
analysis of the way in which it operates. The fourth dimension observes its
principal contemporary and future development.

4 See JOHN SWAIGEN, ADMINISTRATIVE LAW: PRINCIPLES AND ADVOCACY 138 (2005).
5 Dominique Vidal, Notions De Base De L’Arbitrage, in YVES STRICKLER, L’ARBITRAGE QUESTIONS
CONTEMPORAINES, 13,13-28 (L’HARMATTAN ed.,2012)
6 See JEAN-MARIE AUBY & R. DRAGO, 1 TRAITÉ DE CONTENTIEUX ADMINISTRATIF, 19 (1962).

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SECTION I: WHAT COMPRISES ADMINISTRATIVE LAW?
First, traditionally speaking, we often think of administrative law as a subset
of public law.
Public law can be technically divided into two sections. One is the
international pubic law. The other is the internal public law, including
constitutional law and administrative law.
Besides, in the modern Law School curriculum, administrative law has the
closest relationship with constitutional law. Thus, to understand many legal
questions about administrative law, we cannot ignore the legal system and some
questions about constitutional law. In short, the concern of administrative law is
to deal with the legal regulation of governmental power, both in the state’s
relations with citizens, and the allocation of public authority among various
constitutional institutions.
As for the relationship between constitutional law and administrative law,
we can say that while administrative law shares many of the characters of
constitutional law. (In most cases, it also shares the characters of criminal law.
And in administrative law, there is some penalty on the violation against
administrative obligation. However, in Taiwan, criminal law has been regarded as
a form of public law, but in France, criminal law belongs to a form of private law.)
But relative to constitutional law, administrative law is nonetheless conceptually
separate.
The composition of administrative law can be observed technically using
two conceptions: the concept of its organization (vision organique)(1.THE
CONCEPT OF ITS ORGANIZATION) or by the concept of its function (vision
fonctionnelle)(2.THE CONCEPT OF ITS FUNCTION).
1.THE CONCEPT OF ITS ORGANIZATION
The object of administrative law is to regulate the relationships between the
government and the governed, that is the population7. Under this vision of
organization, administrative law is the law which regulates the administration,
government or the executive power (le pouvoir exécutif).
In France, the principle of prohibition of arbitration is applied to state, local

7 E.g. GUY RÉGIMBALD, CANADIAN ADMINISTRATIVE LAW (1st ed. 2008).

CHING-LANG LIN – « ARBITRATION IN ADMINISTRATIVE CONTRACTS: COMPARATIVE LAW
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authorizes and public legal persons. However, in some situations, contracts
concluded by two private persons would not be authorized to arbitration.(see II.
ENLARGEMENT OF THE PRINCIPLE TO ADMINISTRATIVE CONTRACTS MADE
BETWEEN PRIVATE PERSONS).
2.THE CONCEPT OF ITS FUNCTION
Under another concept of function, administrative law is law that regulates
administrative activities, including public service activities.
Administrative law regulates the function of execution by administrative
bodies (or in French, “l’appareil public’’). It also regulates the rules of the
quotidian management that is applicable to the relationship between a public
authority and the citizens (au règlement des guestions quotidiennement dans
les rapports entre l’authoirté publiques et les citoyens).8
In addition, administrative law also regulates the satisfaction of the needs of
citizens and it generally is linked to the public services provided by
administrative bodies.
More precisely, administrative law is comprised of many legal principles,
especially about public law, which govern all the delegation, implementation and
oversight of a wide array of governmental functions. Another subset of public law
is constitutional law. Constitutional considerations often figure prominently in
the theory and jurisprudence of administrative law in many countries.
In Canada, there are some specific statutes to regulate certain fields of
administrative law: labor relations, workers’ compensation, parole, employment
insurance, and radio-television communications9.
Thus, fundamentally, administrative law concerns the relationship between
the state and the individual citizens. In Canada, legal scholars Dussault and
Borgeat have defined administrative law as follows:

Administrative law has been termed the “law of the public authority in its
relations with ordinary citizens”, “the day-to-day public law”, the essential
incarnation of public law outside of the constitutional sphere”. It may be
defined as the entire set of rules relating to the organization, operation, and

8 Mohammed Amine Benabdallah, Les rapports entre l’administration et les citoyens, available at
http://aminebenabdallah.hautetfort.com/list/droit_administratif/les_rapports_entre_l.pdf, last
visited 20 April 2014.
9 NEIL BOYD, CANADIAN LAW 263 (Nelson College Indigenous 5th ed.2010).

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