Sommario: 

1. Introduzione.

2. Il caso Telkom. 

3. Gli argomenti a favore e contro l’arbitrato: la teoria del doppio contratto e l’efficienza amministrativa. 

4. Vecchie e nuove tendenze nel diritto sudafricano degli appalti pubblici: dalla
amministrativizzazione delle decisioni alla giurisdizionalizzazione dei rimedi. 

5. Una prospettiva comparata sull’arbitrato negli appalti pubblici. 

6. Divergenze e convergenze tra ordinamenti.

Abstract:

Taking a comparative perspective, the article explores the evolution of the
approach to arbitration by public administrations, in particular to solve disputes arising in public procurement, but outside the contract. The South African system is taken as
a privileged standpoint from which to observe this evolution: the shift in the political
priorities witnessed within the country during the 90s, following the abolition of
apartheid, has affected the law of public procurement under several respects, including the use of arbitration for solving disputes arisen in the vendor selection phase. Thus, the first part of the article focuses on a leading case taken from South African case law, the Telkom case, which clearly shows a transition from the recognition of the possibility of resort to arbitration for extra-contractual issues to a more restrictive approach to arbitration, which instead gives priority to judicial remedies over arbitration. The article, then, argues that a similar evolution can be traced also in other common law systems, such as United Kingdom. At the same time, it shows that common law countries, which do not follow this trend and keep allowing arbitration as a preferred method of disputes resolution also in the precontractual phase, such as United States, create anyway a regulatory net to govern the arbitral proceedings which are subject to a high degree of proceduralization set by the legislator. On the other side, civil law systems, although being traditionally reluctant to allowing arbitration for extra-contractual disputes involving public administrations, are opening up to mixed solutions, including also this option among the disputes resolution mechanisms available in a relationship, also non-contractual, between a public administration and a private subject. Italy is an example of such evolution, but also France, although does not yet permit arbitration for non-contractual disputes, has progressively allowed arbitration in disputes arising from contracts concluded by bodies governed by public law and there is an ongoing internal debate on whether to extend arbitration also to extra-contractual disputes in which a public administration is involved. Thus, far from arguing in favor of too simplistic analogies, the analysis shows that some common law systems and some civil law systems, although traditionally starting from different approaches to arbitration involving public administrations, are increasingly moving in opposite directions to converge on similar options consisting of mixed (jurisdiction and arbitration) and proceduralized solutions.