Interplay between contract and public law: Implications for major construction contracts and transparency

Abstract

The relationship between infrastructure project owners and their contractors is generally governed by contract law. However, where the project owner is a State, there are often additional requirements from public law to be complied with. The challenges posed by the interplay between public law and private contractual relationships in such context have been highlighted by litigation concerning the effect of a constitutional requirement that any international business and economic transaction to which the Government of Ghana (GoG) is a party is not to become operational without parliamentary approval. Through analysis of five decisions of the Supreme Court of Ghana on the interpretation of this constitutional provision, this piece highlights the devastating consequences that inattention to public law could have on parties who contract with the GoG and its agencies. It also examines the extent to which the judicial interpretation of the constitutional requirement really furthers the interests of transparency and openness that it was intended to promote.