At the invitation of unyer, several public law and arbitration specialists gathered in Paris to explore a question that remains highly topical: what role can (or should) arbitration play in disputes involving public entities?

Despite recent developments, recourse to arbitration remains very limited when a public entity is involved. The speakers analyzed the persistent legal, institutional, and cultural barriers that hinder its spread in France.

An administrative culture historically distant from arbitration

Pierre-Mathieu Duhamel, former French Budget Director and Chairman of the Interministerial Audit and Control Committee, pointed out that public entities rarely resort to arbitration. This reluctance can be explained by a lack of understanding of arbitration mechanisms, combined with a historical attachment to administrative courts. The French administration appears to be still steeped in a legal culture shaped by its proximity to administrative judges, fostered by common educational backgrounds and a high degree of career permeability.

A structured case law that protects the public interest

For Christophe Lapp, partner at Fidal, the roots of this reluctance can also be found in the French Council of State. Since the 19th century, the Council has remained reserved about the idea that a dispute involving a public entity can be settled by an arbitrator, who is perceived as a private judge. Even though the legal framework now allows for some openings (particularly in international contracts or in the case of explicit legislation), administrative case law remains grounded on a principle of legal precaution, aimed at protecting the public interest and the prerogatives of public authorities.

Mr. Lapp also pointed out that administrative litigation is based on an accepted imbalance, in which the judge considers himself the sole guarantor of the public interest. This logic may appear difficult to reconcile with the principles of arbitration, which are based on procedural equality between the parties, transparency, and autonomy.

A reservation shared beyond the French borders

Eduardo Silva Romero, founder of Wordstone Dispute Resolution AARPI, broadened the perspective by referring to the tensions encountered in investment arbitration in other parts of the world. In Latin America, several states have shown strong mistrust of international arbitral tribunals, sometimes to the point of calling into question their adhesion to certain treaties. In his view, this fear of relinquishing sovereignty remains a powerful obstacle, which can also be found in certain European disputes.

Two contrasting visions of the law

To conclude the discussions, Professor Jean-Baptiste Racine, who moderated the conference, highlighted the tensions between two visions of law: that of arbitration, based on contractual good faith, autonomy, and procedural flexibility, and that of administrative law, which is attached to the defense of the general interest, with a more vertical and codified tradition.

A dialogue to be continued

All speakers agreed that informed debate remains essential to overcoming mutual mistrust. Far from pitting administrative litigation and arbitration against each other, the conference highlighted the complexity of the issues at stake and the conditions for a possible rapprochement, both legally and culturally, which will be the subject of articles to be published shortly in the international law journal Clunet (JDI).