Breaching the Interpretative Wall between Private and Public Commercial Contracts: Scandinavian Case Law on Fundamental Labour Standard Clauses in Public Contracts

In: European review of contract law: ERCL, Band 16, Heft 4, S. 511-532

Abstract

Abstract
From a purely contractual perspective, this article reflects upon labour standard clauses with the objective to ensure that the fundamental ILO conventions and the International Bill of Human Rights are complied with throughout global value chains in respectively business-to-business (private), and public commercial contracts. The clauses are in both settings based widely on the same standards; however scholarship on the two types of contracts has been quite separate. The article reviews some Scandinavian case law concerning labour standard clauses and procurement regulation. It finds that contractual argumentation supported the outcome in these cases, isolates this argumentation, and reflects on whether contractual perspectives on the public contract might inspire current research on private contracts. It finally argues that an actual fusion is already taking place, wherefore contract lawyers may play an important role as to whether 'the interpretative wall' should be breached, or whether this is not feasible due to the distinctive characteristics of each contract.