TITLE:
Articulation between Soft Law and Hard Law in the Award of Public-Private Partnership Contracts through Unsolicited Bids in Burundi: Towards Harmonization with International Practice
AUTHORS:
Amani Jean Pierre
KEYWORDS:
Spontaneous Offer, Soft Law, Hard Law, Articulation of Law, Mutation of Law, Legal Certainty, Competition and Harmonization Principles
JOURNAL NAME:
Open Journal of Social Sciences,
Vol.12 No.1,
January
22,
2024
ABSTRACT: The awarding of public-private partnership (PPP) contracts through
unsolicited bids is characterized by flexible domestic law, with the
involvement of public and private players aiming to achieve the general
interest objective of public infrastructure development and, by extension,
national development. These players are helping to build the normative
framework for PPP project activities by spontaneous offer, given their
increasingly widespread use on the bangs of positive law, while their standards
are classically deprived of the binding force attached to hard law. Marked by
its normative guarantee, the flexible law of unsolicited bids is situated at
the threshold of the mandatory, and is essential to PPP law. It produces legal
effects by linking up with the hard law of PPP contracts, which is the law of
the parties. This link between soft law and hard law has a major legal impact
on the transformation of the law and legal certainty, for the benefit of
investment confidence, especially international investment confidence. Faced
with the limitations of positive law on the award of PPP contracts in
unsolicited bids, and the difficulties of interpreting soft law and hard law
standards, there is a need for harmonization with international practice. To
this end, the instruments of the United Nations Commission on International
Trade Law (UNCITRAL) on PPPs are being used to link up with Burundian hard law
through a transposition mechanism. It is therefore possible that our positive
approach to PPP contracting could be improved, highlighting the principle of
competition and the exception of non-competition, while taking into account the
win-win principle, risk sharing and performance. Finally, the article considers
the adjustments to the hard law that would be necessary if Burundi were to
decide to revisit the legal framework to make it more attractive to investment,
and thus ensure the completion and financing of PPP contracts by spontaneous
bidding.