Good Governance as a Conceptual Framework to Address the Discussion of Public Private Distinction in Public Procurement

Abstract

Legal developments happen in EU member states can be inspirations for other countries to conduct their legal amendments. The amendments can be meant broadly, but also narrowly, for instance in public procurement, an area that will be discussed further in this paper. Related to that, countries which have desire to develop their legal system may be in doubt in relation to which model that should be adopted: public law model as in France, private law model as in the United Kingdom (UK), or mix law model as in the Netherlands? To seek the answer, it is relevant to discuss on public private distinction matters. So that, this paper will elaborate three meanings of public private distinction, from the perspective of: (i) legal history, to what extend the state has been regulating the market; (ii) practical matters; and (iii) legal traditions. From the first perspective, it is found that contestation of powers between public and private law in relation to “state regulates market” has been happening from centuries ago, and there is no indication that the contestation will be ended soon. From the second perspective, no relevant matter is found. From the third perspective, it is found that each country in different legal traditions has its own mechanism to give protection on public and private interest (has certain mechanism for accountability). Each county also has embodied principle of good governance. Based on the findings above, this paper argues that, conceptually speaking, countries which have desire to develop their legal systems can adopt any approach considered suitably for them. It is because the point of adoption is not laid in the approach, but more on the principle of good governance.