The Internationalization of Administrative Law : a Comparative Perspective

24-26 may 2018 - Université Panthéon-Assas
ProgramRegistration

The Internazionalization of Administrative Law

Philippe Cossalter and Gilles J. Guglielmi (Dirs.)

Assessment

French administrative law has not drawn its substance from foreign legal systems. It has developed by itself, as German administrative law, confident in its self-proficiency and influence abroad. The result of this endogenous historical process is that it allegedly requires no demonstration, and calls just for a mere description.

Its theoretical weakness set aside, this assertion is today challenged by external forces. As a field thus far protected from external influences, French administrative law is today exposed to foreign ideas and theories that belittle the belief in an exclusively national administrative law development. Internationalization of the field is growing every day to the point that it has led to a new branch of law that is precisely called after the title of this conference.

Two types of internationalization have taken place. Regarding its substance, administrative law has become global; it is no longer limited to states actors; it includes governmental, non-governmental international organizations, and individuals in their mutual relations. Regarding its structure, it has been subject to influences from external sources and theories of law.

Internationalization of administrative law has been already canvassed in numerous law journals and in an increasingly cosmopolitan literature. These pieces of scholarships usually co-exist next to each other without much connections between them (a French exception to the rule is the chair MADP at Sc. Po. aimed at establishing relations thus far barely explored between different fields and theories of law).

Defining “Internationalization”

The term “internationalization of administrative law” means, in a first place, the numerous theories, practices, and facts that expose administrative law to various extraneous elements and lead to closer ties between different national legal systems in their relations inter se, and with international law.

Internationalization must not be understood as a neologism referring to different mechanisms for a progressive submission of national legal systems to international written or unwritten law, or to an enlargement of the administrative law jurisdiction that would go as far as to include international relations. Even though these developments are of paramount importance, the exposure of national administration and national administrative law to external influences cannot be reduced to the study of international legal sources and to the reduction of the scope of governmental acts.

Factors of internationalization as understood in this conference include mainly, but not exclusively, influence of foreign scholarships on domestic systems, imitation or harmonization of European law (European administrative law), introduction of common administrative national procedures into the international legal order (global administrative law), development of procedures ensuring effective application of foreign administrative decisions on national territories (transnational administrative law).

 

Internationalization also refers to acceptance of, or resistance against territorial conflicts of laws (private international law), to submission to, or objection by states to international arbitration and arbitral sentences, whether this acceptance or resistance is seen in relation to the review of arbitral sentences and of exequatur decisions, or to the repartition of jurisdictional competences to review them (as it is the case in France in particular).


The fields of internationalization

Internationalization of administrative law in relation to comparative law will be addressed in five different chapters, organized as follows:

  1. Influences, divergences, harmonization (1. The Origins of European Administrative Laws, 2. The Difficulty of a Comparative Administrative Law);
  2. Theories of Internationalization of Comparative Law (1. Administrative International Law and International Administrative Law, 2. Global Administrative Law, 3. Transnational Administrative Law, 4. European Administrative Law);

III. Internationalization of Legal Sources (1. Relations between National Administrative Law and International Administrative Law, 2. Increasing Judicial Review of International Relations, 3. Relation to EU law, 4. Relation to the ECHR);

  1. Internationalization of Administrative Activities (1. Distinction between the State’s International and Administrative Relations, 2. Extraneous Factors in Public Contracts, 3. Foreign Elements of Unilateral Administrative Decisions);
  2. Internationalization of the Administration’s Legal Disputes (1. International Private Law and the State, 2. International Arbitration and the State, 3. The Administrative Judge and International Arbitration).

Leading Question

The complexity of these five issues calls into question the true place of internationalization within the science of administrative law.

Searching for boundaries to academic disciplines might seem trivial. However, it does represent one possible approach to the issues raised by global administrative law – though a quite dated approach in our opinion. It may be asked whether study of internationalization of administrative law belongs to international law, international administrative, or comparative law. Alternatively, would a double or multi-disciplinary approach not be a better approach?

Searching for boundaries has postponed the analysis of internationalization as a common feature of national administrative laws. In France, the delay is mostly due to the principle according to which the decision on the competent jurisdiction is determined by the decision on the merits of the case. In Germany, however, the scope of the same principle is more limited. Boundaries of administrative law therefore go less far than in France, because “private administrative law” has been conceptually accepted and identified as an autonomous discipline. On top of that, the unity of the legal system is guaranteed by a constitutional court in charge of ensuring unity of the law.

Generally speaking, internationalization of administrative law calls into question the boundaries, the contents, and the teaching of administrative law.

Internationalization theories are still in the making. They have been made thus far of highly abstract works still reserved to a closed community of experts. National and comparative administrative law scholard however can no longer ignore that internationalization of their field has become a common feature of the law applicable to administrative action.

The conference has three objectives.

In the first place, it is aimed at collecting and synthesizing leading questions and theoretical trends in the field. The various consequences of the exposure of national administrative laws to extraneous factors will be enumerated and sorted out. It will be also necessary to question the relevance or the irrelevance of rigid separations between the fields of law such as national, international, global or transnational administrative law.

A second objective is the identification of concrete influences of internationalization on the law applicable to administrative activities in relation to legal sources, instruments of administrative activities and jurisdictional competence. Four states shall be the object of in-depth analysis, France, Germany, Italy and the United States, so that the conference may result in a better understanding of the commonly shared principles of administrative procedure, judicial procedure and substantive rules of administrative law that unite or separate the four States with respect to the fields mentioned above.

The third objective is to identify the various forms of opposition against internationalization coming from politicians, law-makers, courts and even citizens. Three main areas may be identified, based on the French example: first, the relation of each national legal system (e.g. France and Germany) with international law, Germany being concerned by applicability of international rules and France more by their justiciability with national courts in both cases not always in a position to give clear guidance; second, the resistance to submission to international arbitration, either by contesting the state’s submission to such procedures within the framework of actual cases or by re-introducing rules of national law into redress or exequatur procedures for arbitral sentences; third, the alleged immiscibility of administrative law with traditional rules of conflicts of law in space.

Foreseen number of participants:  20

Confirmed participants:

Fred Aman

Jean-Bernard Auby

Sabino Cassese

Maxence Chambon

Philippe Cossalter

Pierre Delvolvé

Aurélie Duffy

Gilles J. Guglielmi

Mattias Guyomar

Jan Henrik Klement

Malik Laazouzi

Elie Lenglart

Giulio Napolitano

Christiana Ochoa

Jaime Rodriguez-Arana Muñoz

Aldo Sandulli

Ulrich Stelkens

Bernard Stirn

Anne-Marie Thévenot-Werner