Transparency in the WTO's Agreement on Government Procurement (1994) : a comparison between the effects on the EU & developing and least developed countries

Abstract

Government Procurement within both the national and the international sphere involves controversial issues. Within the national sphere it consists of a large section of public spending, and hence can have serious welfare and economic aspects. On the international plane, there are increasing efforts to bring public procurement within the liberalised global trading system. When these two systems meet a series of implications arise. This work will focus on the transparency issues that arise in public procurement negotiations within the WTO, with an emphasis on the repercussions on developing and least developed countries. The EU, and its 25 Member States are both signatories to the WTO's plurilateral Government Procurement Agreement, and they participate in a separate Working Group on Transparency in Government Procurement. The GPA, although it does not have direct effect, was transposed into EU law by means of Council Decision (94/800/EC) and now is an integral part of the EU legal system. This dissertation is divided into three parts. The first two parts delve into the subject of transparency and the development aspect of the WTO's Government Procurement Agreement. The last part examines the unique challenge procedures found in the GPA in respect of transparency and developing and least developed countries. Chapter One analyses the concept of transparency, including its multifaceted objectives within various international organisations, agreements and regional trade agreements. Importantly within these various organisations and agreements the objectives differ, from market access, to non-discrimination to anti-corruption measures. The transparency provisions within the GPA will be examined against other transparency rules in international agreements. Finally, the discussion moves onto the negotiations within the WTO Working Group, on a future multilateral Agreement on Transparency in Government Procurement. Here the proposed contents of the agreement will be examined in detail, as the work done within the Working Group brings out the recent diversities and controversies in the field of transparency in procurement, in particular on the part of developing countries. Subsequently, Chapter Two focuses on the development aspect of the GPA and its relationship with transparency. Initially, the provisions in the GPA in relation to development are explained, in particular those relating to Special and Differential Treatment and technical assistance afforded to developing and least developed countries. A connection will then be made with transparency and development - the problems developing countries come across with implementation and the possible benefits they could reap with a more transparent procurement system. At this point the potential Agreement on Transparency in Government Procurement is studied, this time in relation to development aspects such as technical cooperation and support for capacity building. Lastly, this Chapter takes a look at the EU's experience with government procurement within the WTO, both in relation to transparency and development. For reasons both of space and of the fact that the subject has been exhausted by previous works, a detailed examination of the EU's procurement regime would not be given. However, reference will be made to the Directives and Decisions relevant to the discussion. Finally, a look at the innovative challenge procedures in domestic courts that were introduced within the GPA and the Dispute Settlement procedures will be taken. A comparison will be made to the Working Group documents on the Agreement on Transparency in Government Procurement and the discussions held in that forum relating to review procedures and dispute settlement. A nexus will be made with the review procedures and the issues of transparency and development. In conclusion, an assessment of the small number of dispute settlement cases and requests will be made.