Arbitrating administrative disputes in France in defiance of the Conseil D’État: public international law or substantive rules?

Abstract In France, the use of arbitration by public legal entities in international disputes has long been the subject of intense debate. While French judicial courts and arbitration tribunals have endorsed this practice, the Conseil d’État historically treated administrative contracts as an exception, considering that such contracts fell within the scope of French domestic law. However, public international law on state immunity has compelled the Conseil d’État to acknowledge its international character, even though it still rejects the use of arbitration by French PLEs in administrative disputes. In response to this reluctance, it has been argued that a substantive rule permitting recourse to arbitration in disputes arising from administrative contracts should be codified in France. This article examines the role of public international law in the arbitrability of such contracts and challenges the view that arbitrability may be founded on a substantive rule proposed for codification.