The proposed contract between the UK government and Electricité de France, backed by the Chinese government, contains a number of clauses purporting to constrain over a period of 35 years the ability of future UK governments to change policy on nuclear power, including changes in taxation. The practical question these clauses present is whether they are in fact enforceable, either as a matter of contract law or as a matter of business judgment. Behind those immediate concerns, however, lie a number of sharp theoretical questions about the sovereignty of Parliament, the effects of international law and EU law, the relationship between public law and private law, and the relationship between all of those and the democratic legitimacy of governments through time. To what extent is the practice of outsourcing very long-term infrastructure projects to the private sector compatible with democratic government? And if it is not compatible, to what extent can the law restrain governments’ claims to alienate their ability and the ability of their successors to make public policy in what they perceive to be the public interest? From the point of view of the companies concerned, the same questions arise in a different guise: does it make sense to negotiate such clauses? To what extent do they really change the distribution of risks in the deal? Does the involvement of foreign sovereigns make a difference? What can we learn from previous contractual failures (for example the Metronet public-private partnership)?
The project brings together academics with relevant expertise in law, economic, politics and management, and who have published in the relevant areas (contract and commercial law, international and EU law, public, constitutional law and political economy) to provide an assessment both of this particular contract and more generally of the techniques it uses, and to disseminate their work to policy makers including MPs, ministers, civil servants, NGOs, and potential business users of research based in energy and construction companies.
- Simon Deakin (CBR and the Faculty of Law)
- David Howarth (Land Economy, POLIS and CBR)
- David Feldman (Faculty of Law)
- Angus Johnston (University of Oxford)
- Oke Odudu (Faculty of Law)
- Michael Pollitt (Cambridge Judge Business School)
- Pippa Rogerrson (Faculty of Law)