Government -to-government dispute settlement procedures

1

• Session 9 -
• Government -to-government dispute settlement
  procedures
• APPLICATION OF WTO DISPUTE SETTLEMENT PROCEDURES
  TO GOVERNMENT PROCUREMENT
• 14-17 January 2003, Dar es Salaam
• Vesile Kulaçoglu, WTO Secretariat

2
Enforcement of rules
Kulacoglu
Kulacoglu

• Two distinct systems
• Domestic bid challenge systems
• WTO Dispute Settlement Procedures

3
How the two DS systems are distinct?

• WTO DSP
• Accessibility
• open only to governments
• Grounds
• breaches of a WTO agreement
• Relief
• prospective, change of the measure breaching
  the rules

• DOMESTIC BID CHALLENGE
• Accessibility
• open to suppliers
• Grounds
• breaches of national law or GPA
• Remedies (GPA Article XX)
• rapid interim measures correction of the
  breaching measure
• compensation, suspension of the contract

4
Five DS cases under the WTO/GPA -Three Panels

• Procurement of toll collection equipment for the
  City of Trondheim in Norway (1992)
• Procurement of a Sonar Mapping System in the
  United States (1992)
• Measures affecting government procurement in the
  construction of the Inchon International Airport
  in Korea (1999-2000)

5
2 cases resolved through consultations

• Procurement of a navigation Satellite by Japan
  (1997-98)
• Massachusetts State Law prohibiting contracts
  with firms doing business in or with Myanmar
  (1997-2000)

6
Discussions in WGTGP on the application of WTO
DS Procedures

• Arguments in favour of the linkage to WTO/DSU
• Systemic
• Transparency agreement to reflect the general
  approach in other WTO agreements

7

• Questions raised regarding the linkage to WTO/DSU
• Nature of the future agreement
• Will the future agreement be part of the single
  undertaking?
• Would the agreement be in the form of
  guidelines?

8

• Substance of the future obligations
• How WTO/DSU apply to certain obligations ?
• How would WTO/DSU apply in the absence of market
  access commitments?

9

• In what circumstances, if any, should WTO dispute
  settlement apply to individual procurement
  decisions and domestic legislation ?
• How would WTO DSU and domestic review mechanisms
  interact?