International Construction Law Review
EXTRA-CONTRACTUAL CLAIMS AGAINST STATE ENTITIES UNDER CIVIL LAW*
CHRISTOPHER R SEPPÄLÄ**
Independent arbitrator
1. INTRODUCTION
In researching the differences between the common law and the civil law in the field of construction contracts for a book,1 I found the most striking difference to be the existence in French civil law, in the case of contracts with state entities, of the right of the contractor to make claims against a state entity on grounds having no counterpart in the common law. Moreover, the contractor’s right to claim on these grounds is mandatory law, that is, it will apply regardless of whether it is provided for in the contract.
As international construction contracts are often with state entities, and as this feature of French law can be found in many civil law countries, common law lawyers practising internationally need to be aware of this matter. It is therefore the purpose of this paper to give an account of it.
This paper will begin by describing particularities of the French civil law system as compared to the common law system, notably, the formal division between public law and private law (Section 2) and the existence of a separate body of public or administrative law in the civil law system (Section 3), including the notion of the “administrative contract” (Section 4). It will then describe three legal doctrines that give rise to extra-contractual claims against state entities under an administrative contract (Sections 5, 6 and 7), before concluding (Section 8).
2. CIVIL LAW PUBLIC LAW/PRIVATE LAW DISTINCTION
While common law countries make no formal divide between public law and private law, many civil law countries do so. In France, public law regulates the organisation of the State (constitutional law) and the
* This article is based on a paper presented to the Society of Construction Law (SCL) in London on
5 December 2023 and published in February 2024 by the SCL as its paper 245. It is republished here with the SCL’s kind permission. However, it includes additional material, principally additional footnotes and footnote references.
** Member of the New York Bar and member (emeritus) of the Paris Bar.
1 The FIDIC Red Book Contract: An International Clause-by-Clause Commentary, Wolters Kluwer, 2023.
Pt 3] Extra-Contractual Claims Against State Entities
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