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The World Trade Organisation (WTO) and public contracts

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  1. Introduction.
  2. WTO regulation over domestic rules.
    1. The legitimacy of this regulation.
    2. The role of GATT.
    3. Central government entities and local administrations.
  3. The enforcement of the agreement.
    1. The report of the panel.
  4. The WTO principles.
  5. Promoting fair competition.
  6. The Government Procurement Agreement.
    1. The coverage of the agreement.
  7. Requirements about the procedural aspects of public contracting.
  8. Modalities of transmission.
  9. The non-economic exclusions.
  10. Regulation of public contracts.
  11. The enforcement provisions: Analysis.
  12. Conclusion.
  13. Bibliography.

The World Trade Organization aims at ensuring ?harmony, freedom, equity and security? in trading activities. The organization has the institutional means to control the compatibility of national policies to its requirements. From financial to commercial items, all fields of legislation that are linked with economic openness are being watched by the WTO. Thus it is not surprising that the organization produces some rules that target administrative law. Among it, public procurements regulation offers an interesting example of the penetration of domestic rule by international standards. A contract is public when a public authority contracts with a private actor or with another public authority. Traditionally, countries have tended to defend national interests by adopting attitudes of protection against foreign participation into public contracts. Whether it be through legislation or de facto practice, administrations have managed to limit the access to procurements or to choose arbitrarily among competitors. Nowadays such national reflexes are relatively inefficient. Globalization, which can be defined as the process of greater inter-connection of international actors on a global scale, clearly changes the way contracts are passed.

[...] In parallel to the principles of equity and non-discrimination, the Government Procurement Agreement sets some requirements about the procedural aspects of public contracting. The entities shall respect detailed rules concerning the tendering procedure. They aim at assuring ?that the access to procurement is effectively open and that an equal opportunity is given to foreign supplies and suppliers in competing for government contracts?. Three sorts of procedures are defined, in respect to their degree of openness to suppliers: open procedures, selective tendering procedures and limited tendering procedures. [...]

[...] The way the World Trade Organization regulates the delicate and tightly national matter of public contracts reveals some characteristics of the current globalization of law. The institutional frame settled by the Organization, as well as the ideas it promotes could make it appear legitimate to both private and public actors. Then the legal content of the Agreement, which sets rules for the procedure of public procurement, is enforced. The norms are adopted on different institutional level: communitarian, national, regional. That is why the authority of the states is contested, on a field were it was unquestioned only two decades ago. [...]

[...] Indeed, the principle of ?National Treatment? shall be applied to public contracts: ?each Party shall provide immediately and unconditionally to the products, services and suppliers of other Parties offering products or services of the Parties, treatment no less favourable than: that accorded to domestic products, services and suppliers; and that accorded to products, services and suppliers of any other Party.? (Article III:1) Indeed, the idea of equality between national and foreign parties is the same as in the National Treatment, which is defined, among other texts, in the Article XVII of the General Agreement on Trade in Services. [...]

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