ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

84 THE OTHER’S PUBLIC VALUES
AND INTERESTS IN THE HANDS
OF PRIVATE ACTORS
This panel consists of four scholars working on publicprivate
law perspectives at the Centre for Enterprise
Liability (CEVIA), the Faculty of Law, University of Copenhagen,
Denmark. At the ICON S Conference in
Berlin, the panel wishes to address the expanding interconnection
between public and private law, and the
increasing role of private actors in public tasks at all
levels: law-making, implementation and enforcement.
The panel will discuss the borders and otherness of
public law through an analysis of these interphases
in four different areas, namely: European Union common
market, outsourcing of public health services in
Scandinavia, comparative anticorruption enforcement
and climate change international governance.
Participants Vibe Garf Ulfbeck
Ole Hansen
Beatriz Martínez Romera
Alexandra Horváthová
Name of Chair Vibe Garf Ulfbeck
Room DOR24 1.606
Vibe Garf Ulfbeck: Public Law Values and
Private Governance – Transgressing the Public-
Private Divide
The distinction between public law and private
law is well known and basic in many legal systems.
However, the distinction is being challenged in several
ways. One way is by an increased use of private actors
to perform public tasks. Taking a constitutional
approach, the tendency can be seen with regard to all
three branches of lawmaking, implementation and enforcement.
The use of private actors in these roles imports
“otherness” into the public sector, since private
actors are usually driven by an incentive to maximize
profit rather than take public law values into account.
This paper argues that when private actors undertake
public tasks, there may be a need to transcend borders
and incorporate public law values into private
law. It explores the extent to which tort law liability
can incorporate such values and be used as a tool for
creating accountability of private actors performing
public tasks.
Ole Hansen: Public Law by Contract;
the Reluctant Creation of a Private Market for
Welfare Services
Privatization and outsourcing of public activities
has in Nordic welfare systems become one answer
to demographic changes and economic recession.
Social services, previously provided by public entities,
are now to a large extent performed by private
companies on the basis of long term outsourcing
contracts. The overall political aim has been to reduce
public budgets and to increase efficiency, while
continuing to implement detailed public law rules and
values into the outsourcing contracts to protect the
often marginalized groups of citizens, who receive
social service. Communities reserve themselves the
right to vary the level of service provided on an almost
day-to-day basis. As a result the outsourcing of welfare
services has met considerable challenges, and
private contractors have in many cases shown unable
to complete the contracts. This paper demonstrates
that the fundamental principles of private law are to a
large extend contradicted by public law demands for
e.g. transparency, equality and legality (the rule of law),
and that the project of outsourcing by the creation
of private markets for social services thus still faces
considerable challenges.
Beatriz Martínez Romera: The Regulation of
International Aviation’s Greenhouse Gas
Emissions: from public to private regulation in
climate change governance
Greenhouse gas emissions from international
aviation are projected to grow steeply in the 21st century
due to increasing demand for air transport. The
forecasted marginal fuel efficiency improvements are
unlikely to offset the sector’s expanding contribution
to climate change. Consequently, there is a pressing
need for regulation of sector’s emissions, i.e., mitigation
measures in line with the internalization of the
climate related environmental externalities. However,
the regulation of international aviation emissions under
the climate change regime and the International Civil
Aviation Organization has proven difficult. As a result,
and in spite of the European Union’s attempt to include
international aviation emissions in the EU Emissions
Trading Scheme, the sector’s emissions have remained
largely unregulated. This void leaves room for private
actors to take voluntary initiatives. This article provides
an examination of the aviation industry climate-related
actions to date and an analysis of the divergence from
public to private regulation, both in terms of the actors
regulating and the instruments used for regulation, in
this issue-area.
Alexandra Horváthová: Private Actors: The Need
for Private Enforcement Mechanisms in the
Fight Against Corruption
This article explores the question of international
law’s means and ends in the area of anti-corruption
regulations. The fight against corruption has been
the subject of more than fifteen multilateral conventions
and numerous national laws, adopted by those
states wishing to combat and eradicate corrupt practices
from their public and private sector. Corruption
presents a threat to social stability, economic competition
and development, as well as to the values of
democracy and human rights. Given the trend of an
increasing involvement of private actors in traditionally
public services, this article addresses the neces-
Concurring panels 126