Comparative Defense Procurement in Law & Development Context

Professor Joshua Schwartz’s theory can be a useful tool for integrating law & development (L&D) and comparative law, despite its limitations. He argues that exceptionalism tendency can be found in contract performance phase in US, which can be explained by the central role of the military procurement in the US public procurement law. He further suggests that developing countries should learn flexibility in contract performance phase. When reflecting on the Korean experience from this theory, we can learn the following lessons. First, in spite of comprehensive regulation of defense & civil procurement, Korea has limited flexibility in contract performance phase. This is not so much from the fact that defense procurement did not take a pivotal role in public procurement but from its legal nature. The Supreme court of Korea deems procurement contract (including defense procurement contract) as a private law contract, which shows the influence of Germany rather than France. This decision is heavily criticized as it did not consider public law peculiarity of procurement contract. Second, Korean defense procurement law is making efforts to achieve three main objectives, namely transparency, efficiency, and promoting defense industry. In the developmental perspective, there were shifts of emphasis from promoting defense industry to transparency, and then finally to efficiency (value for money). But we should not understand this flow as a linear process, but dynamic developmental process among these objectives.