- within Real Estate and Construction topic(s)
I. Introduction
The globalization and transnationalization of commercial law have been central themes in legal scholarship for over five decades, reflecting the increasing interconnectedness of global economies and the need for harmonized legal frameworks to govern commercial activities.2 Within this broader context, the new lex mercatoria—a body of transnational commercial law derived from non-State sources such as trade customs, arbitral decisions, and model laws—has emerged as a significant area of study. However, while much attention has been devoted to the transnationalization of commercial law generally, the specific field of public-private partnerships (PPPs) has received limited scholarly attention. PPPs, which involve contractual arrangements between public authorities and private entities to deliver public infrastructure or services, have become one of the cornerstones of modern economic development. Yet the transnational legal orders3 governing PPPs remain underexplored, despite their growing importance in both developed and developing economies.
The recent introduction of the United Nations Commission on International Trade Law (UNCITRAL) Model Legislative Provisions on PPPs (UNCITRAL Model Provisions)4 highlights the significance of this topic. These provisions serve as a de facto universal model law for PPPs, reflecting the need for standardized legal principles to address the complexities of both transnational and domestic PPP arrangements. Despite this development, the academic discourse on the transnationalization of the laws on PPPs remains in its infancy. While scholars have extensively examined the new lex mercatoria and its implications for international commercial law, the emergence of a universal transnational legal order for PPPs under the auspices of UNCITRAL—referred to here as the lex PPP —has yet to be thoroughly investigated. To date, only Svetlana Maslova's work remains notable as the first to introduce the concept of the lex PPPs into scholarly discourse.5 However, her interpretation of the phenomenon is arguably too narrow, as this article will demonstrate.
This article seeks to address this gap by exploring the fundamental question: What is a transnational legal order on PPPs, and how does it function within the broader framework of international commercial law? To answer this question, the author employs transnational law as a methodological framework,6 focusing on the interplay of actors, norms, and processes in the formation and application of the lex PPP. The article begins by arguing that PPP, as a legal concept, is at the forefront of the transnationalization and harmonization of commercial law. It then examines three contemporary interpretations of international commercial law: (i) as a new branch of legal science; (ii) as a methodological tool; and (iii) as an autonomous legal system—the new lex mercatoria. Building on this foundation, the article explores the emergence of the lex PPP as a specialized sub-branch of the new lex mercatoria, supported by the formation of a global PPP community characterized by a shared transnational legal culture.
The thesis of this article is that the lex PPP represents a burgeoning transnational legal order for PPPs, rooted in social reality and reinforced by the psychological impact of non-State-created norms on stakeholder behaviour. This phenomenon is illustrated through a case study of Kazakhstan, which provides compelling evidence for the existence of the lex PPP. Furthermore, the article argues that the emergence of the lex PPP reflects the further development and sophistication of the new lex mercatoria as an autonomous legal system.
Source: https://academic.oup.com/
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