further section 2.2.3 on bilaterals) whereas public-procurement-relevant commitments
within the ASEAN have been very limited and unclear (see further section 2.2.4) and
14
See: North American Free Trade Agreement (signed 17 December 1992, in force 1 January 1994) 32
I.L.M. 289 (1993) (chs. 1-9), 32 I.L.M. 605 (1993) (chs. 10-22), Chapter 10.
15
See: Economic Partnership, Political Coordination and Cooperation Agreement between the
European Community and its Member States, of the one part, and the United Mexican States, of the
other part (signed 8 December 1997, in force 1 October 2000) 2165 UNTS 37818, Article 10.
16
See: note 4.
11
procurement rules agreed by members of the APEC have been non-binding only (see
further section 2.2.5).
2.1.
GPA
The GPA is the only agreement in the WTO which addresses the problem of the
international liberalisation of public procurement markets and only partly cures the
original sin of the General Agreement on Tariffs and Trade of 1947 (GATT 47),
17
(integrated into the WTO Agreement
18
) which determines the unique position of
public procurement in the multilateral trading system by excluding this matter from
its scope of application, stipulating in its Article III:8 and Article XVII:2, GATT 47
that:
GATT 47 Article III:8:
“
The provisions of this Article shall not apply to laws, regulations or
requirements governing the procurement by governmental agencies of
products purchased for governmental purposes and not with a view to
commercial resale or with a view to use in the production of goods for
commercial sale.”
[GATT47 article III pertains to the rule of ‘National Treatment on Internal
Taxation and Regulation’ and covers a NT clause in section 1 and MNF
clause in section 4]
GATT 47 Article XVII:2:
“
The provisions of paragraph 1 of this Article shall not apply to imports of
products for immediate or ultimate consumption in governmental use and
not otherwise for resale or use in the production of goods for sale. With
respect to such imports, each contracting party shall accord to the trade of
the other contracting parties fair and equitable treatment.
”
[GATT 47 Article XVII pertains to ‘State Trading Enterprises’, meaning
(i)
a state enterprises, wherever located, established or maintained by a
contracting party, or (
ii
) any enterprise to which a contracting party grants,
formally or in effect, special privileges – - as defined in section 1 of GATT
47 article XVII]
The GPA was first adopted in 1979 (‘GPA79’) as the product of the GATT Tokyo
Round,
19
and was subsequently revised a number of times (‘GPA87,’
20
‘GPA94’
21
17
See: General Agreement on Tariffs and Trade, 1947 (signed in Geneva on 30 October 1947,
provisionally applied since 1 January 1948) 55 UNTS 194.
18
See: Marrakesh Agreement Establishing the World Trade Organization (signed at Marrakesh on 15
April 1994, in force 1 January 1995) 1867 UNTS 154.
19
See: the Agreement on Government Procurement 1979 (signed in Tokyo on 12 April 1979, in force 1
January 1981) GATT Secretariat (1979) LT/TR/PLURI/2.
