Though international investment treaties may supplant domestic contract law in cross-border government contracts, their limited use in Southeast Asia informs the continued importance of clear remedies for a government breach of contract under domestic law. As investment from China’s Belt and Road Initiative continues to flow into the region, private parties require clear rules and remedies when a government breaches a contract. This note argues that the lack of clear and codified public contract law in Southeast Asia presents a substantial risk to private contractors and that the extreme variance in public contract law is detrimental to both parties involved. By utilizing the auspices of the Association of Southeast Asian Nations, Southeast Asian countries should seek the codification of public contract laws and a certain degree of harmonization within a zone of remedies that is appealable to all parties in the event of a government breach. After consulting the learned and unlearned lessons of the United States’ treatment of sovereign immunity and government breach of contract, this note recommends that ASEAN nations enact laws that provide, at the very least, restitution or compensatory damages, but not go as far as to allow an award of specific performance against the government.
Benjamin D. Black,
Remedies for Government Breach: Lessons from The United States and a Zone of Appealable Remedies for Southeast Asia,
86 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol86/iss3/6
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