Using Private‐Public Linkages to Regulate Environmental Conflicts: The Case of International Construction Contracts

Abstract

The article takes a pluralistic view of the ‘trade‐environment’ conflict by exploring one of the settings of this conflict: the lex constructionis– international construction law. It seeks to unravel the way in which the unique structural‐cultural attributes of this legal domain have affected its environmental (in)sensitivity. The article's main argument in that context is that the contractual tradition of the lex constructionis (as manifested in the standard contracts that dominate this field) and its unique institutional structure, have created a culture of ecological indifference. This culture has important practical consequences because of the deep ecological problematic of international construction projects. The article develops an alternative contractual model, which depicts the construction contract as a semi‐political mechanism, rather than a private tool. This conceptual change seeks to break the public/private separation that characterizes the contractual discourse in the international construction market. The article explores, further, whether this alternative contractual vision could be realized in practice, and proposes several implementing modules which could further this goal. While the article explores a particular international regime, its methodology and conclusions – in particular, the political‐constitutional interpretation of the contract and the critique of the public/private dichotomy (see sections III.3 and III.4) – should be relevant to the regulation of many other (national or international) environmental dilemmas.