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Barak-Erez, Daphne --- "Three Questions of Privatization" [2010] ELECD 832; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 29

Section Title: Three Questions of Privatization

Author(s): Barak-Erez, Daphne

Number of pages: 18

Extract:

29 Three questions of privatization
Daphne Barak-Erez*


Privatization cuts through borders and cultures and is driven by a complex set of factors,
partly ideological and partly economic. It can lead to new forms of government action
and should therefore be a major focus of public law, both constitutional and adminis-
trative.1 Privatization decisions are policy choices, but these choices also have legal rel-
evance. Its opposite, nationalization, has always been discussed not only as a matter of
public policy but also as a matter of law, due to its impact on property rights. This under-
standing should serve as a catalyst for further study of the public law of privatization.
The current financial crisis has reinvigorated discussion of nationalization initiatives
in the form of bailout programs or partial government takeovers. Nevertheless, nation-
alization is still perceived as an exception, which retains as its long-term goal a return to
private ownership. The current crisis is yet another illuminating example of the impor-
tance of regulating private activities, a central issue to any discussion of the public law
of privatization.
Legal scholarship has already begun discussing the implications of privatization for
public law but, so far, without offering a general framework for analysis. By contrast,
I argue that, rather than meriting some merely doctrinal adjustments, privatization is a
fundamental process that calls for the re-evaluation of public law, leading to the develop-
ment of a new sub-area focusing on the public law of privatization.2 This chapter ...