Public procurement: An appraisal of the uncitral model law as a global standard

International and Comparative Law Quarterly

Volumn 53, Issue 1, 2004, Pages 17-46

  Arrowsmith, Sue ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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[No Author keywords available]

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EID: 84870966954     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/53.1.17     Document Type: Article

References (124)

1. In force 16 Nov 1994, 1833 UNTS 396.
2. LOS Convention, Art 76.
3. LOS Convention, Art 57.
4. In force 10 June 1964, 499 UNTS 311.
5. LOS Convention, Art 56.
6. See 1958 Geneva Convention on the High Seas, in force 30 Sept 1962, 450 UNTS 11, Art 2.
7. LOS Convention, Art 87.
8. See in particular LOS Convention, Art 73.
9. LOS Convention, Arts 73, 292.
10. See in particular the following five cases: (1) The M/V Saiga case (St Vincent and the Grenadines v Guinea), Case No 1, 4 Dec 1997 (1998) 37 ILM 1202
11. The Camouco case (Panama v France), Case No 5, 7 Feb 2000 (2000) 39 ILM 666
12. The Monte Confurco case (Seychelles v France), Case No 6, 18 Dec 2000, available at (28 Apr 2003)
13. The Grand Prince case (Belize v France), Case No 8, 20 Apr 2001, available at (28 Apr 2003)
14. The Volga case (Russian Federation v Australia), Case No 11, 23 Dec 2002, (2003) 42 ILM 159.
15. See W Edeson, ‘The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument’ (2001) 16 International Journal of Marine and Coastal Law 603–623
16. for the response of the FAO, see ‘International Plan of Action to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fishing Approved by the FAO Committee on Fisheries, 2 March 2001’ (2001) 16 International Journal of Marine and Coastal Law 660–678.
17. The Camouco, the Monte Confurco, the Grand Prince, and the Volga cases, above n 10.
18. Also known as ‘Chilean Sea Bass’, ‘Antarctic Sea Bass’, ‘Sea Bass’, ‘Bacalao de profundidad’, ‘Butterfish’, ‘Merluza negra’, ‘Mero’, and ‘Róbalo’: M Lack and G Sant, ‘Patagonian Toothfish: Are Conservation Measures Working?’ (2001) 19 No 1 TRAFFIC Bulletin 1, at 11.
19. Lack and Sant, above n 14 at 1.
20. In force 7 Apr 1982, 1329 UNTS 47.
21. See the discussion in EJ Molenaar, ‘Southern Ocean Fisheries and the CCAMLR Regime’, in AG Oude Elferink and DR Rothwell (eds) The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (The Hague Kluwer Law International 2001) 293–315.
22. In force 23 June 1961, 402 UNTS 71.
23. Lack and Sant, above n 14, at 1.
24. E.J. Molenaar, above n 17, at 306 has noted that ‘IUU fishing is mainly or exclusively aimed at toothfish and not at the more important target species krill, at least as regards quantity.’
25. Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 Nov 2002, 28
26. Commission for the Conservation of Antarctic Marine Living Resources, Report of the Working Group on Fish Stock Assessment, SC-CAMLR-XX/4, 17 Oct 2002, 42–43.
27. Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 Nov 2002, 38.
28. For an analysis of some of the responses see DJ Agnew, ‘The Illegal and Unreported Fishery for Toothfish in the Southern Ocean, and the CCAMLR Catch documentation Scheme’ (2000) 24 Marine Policy 361–374.
29. S. Kaye, International Fisheries Management (The Hague Kluwer Law International 2001) 433.
30. See also the discussion in D Bialek, ‘Sink or Swim: Measures Under International Law for the Conservation of the Patagonian Toothfish in the Southern Ocean’ (2003) 34 Ocean Development and International Law 105–137.
31. Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 Nov 2002, para 7.1–7.18, 8.1–8.84.
32. For discussion see P Vigni, ‘Antarctic Maritime Claims: “Frozen Sovereignty” and the New Law of the Sea’, in Oude Elferink and Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (The Hague Kluwer Law International 2001) 85–104.
33. Gillian Triggs, International Law and Australian Sovereignty in Antarctica (Sydney Legal Books 1986) 195, famously referred to this as the ‘bi-focal’ approach
34. see also discussion in Molenaar, above n 17, at 301–305.
35. See V Prescott, ‘Australia's Proclamation of an Exclusive Economic Zone (EEZ)’ (1995) 10 International Journal of Marine and Coastal Law 95–105.
36. Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twentieth Meeting of the Commission, CCAMLR-XX, 2 Nov 2001; available at (28 Apr 2003).
37. Senator the Hon Ian Macdonald and Senator the Hon Robert Hill, ‘Navy battles five metre-high seas to apprehend suspected illegal fishing vessel’, Media Release, AFFA02/5MJ, 6 Feb 2002, (28 Apr 2003)
38. Senator the Hon Ian Macdonald and Senator the Hon Robert Hill, ‘Navy apprehends second suspected illegal fishing vessel’ Media Release, AFFA02/8MJ, 12 Feb 2002, (28 Apr 2003).
39. As was illustrated in 2001 by the 4,100 km hot pursuit of the South Tomi by Australian authorities from the Heard and McDonald Island EEZ across the Indian Ocean until arrest was completed with the assistance of the South African Defence Force 390 km south of Cape Town: The Hon. Peter Reith, MP Minister for Defence—Media Release ‘Minister Congratulates ADF and AFMA on Successful Mission’ available at (12 Apr 2001).
40. LOS Convention, Art 73(2).
41. See discussion in A Yankov, ‘The International Tribunal for the Law of the Sea and the Comprehensive Dispute Settlement System of the Law of the Sea’, in P Chandrasekhara Rao and R Khan (eds) The International Tribunal for the Law of the Sea: Law and Practice (The Hague Kluwer Law International 2001) 33 at 45–46.
42. LOS Convention, Art 292(2).
43. LOS Convention, Art 292(3).
44. LOS Convention, Art 292(4).
45. S. Oda, ‘Dispute Settlement Prospects in the Law of the Sea’ (1995) 44 ICLQ 863, at 866–7.
46. In 1995 a workshop was convened to discuss these issues in Hamburg, resulting in a special issue of the International Journal of Marine and Coastal Law, see R Lagoni, H Heinrich-Noll, and H Vogel, ‘The International Tribunal for the Law of the Sea: Establishment and “Prompt Release” Procedures’ (1996) 11 International Journal of Marine and Coastal Law 137, at 137.
47. These are the Southern Bluefin Tuna cases (Australia v Japan; New Zealand v Japan) Provisional Measures, Cases No 3 & 4, 17 Aug 1999
48. case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community) Case No 7, 15 Mar 2001
49. the MOX Plant case (Ireland v United Kingdom) Provisional Measures, Case No 10, 3 Dec 2001; all available at (28 July 2003).
50. The Volga case, above n 10, paras 32 and 33.
51. The Volga case, Statement in Response of Australia, (hereafter ‘Australian Statement in Response’), 6. The judgment, Application by the Russian Federation, Memorial of the Russian Federation (hereafter ‘Russian Memorial’) and the Australian Statement in Response are available at (28 Apr 2003).
52. The Volga case, Australian Statement in Response, Statement in Response of Australia, 5–6.
53. Following later recalculations Australia conceded that at the time of this first broadcast, the Volga was in fact just beyond the AEEZ: Oral submissions by Mr Henry Burmester QC, counsel for Australia, 12 Dec 2002, 3 pm (28 Apr 2003), 10.
54. For its part the Russian Federation submitted that no communication was received prior to the boarding (Memorial of the Russian Federation, counsel for Australia, 4). On this basis Russia argued that the Volga was not arrested in conformity with the rules of hot pursuit set out in Art 111 of the LOS Convention.
55. The Volga case, Australian Statement in Response, counsel for Australia 7.
56. The Volga case, above n 10, para 34.
57. Macdonald and Hill, above n 33.
58. The Lena was subsequently forfeited: Senator the Hon Ian Macdonald ‘WA seabed to be final home for pirate fishing boat’, Media Release, AFFA02/258M, 20 Dec 2002 (28 Apr 2003).
59. Australian Statement in Response, above n 44, 6. The master, a Russian national, died after he consumed a bottle of cleaning fluid in the mistaken belief that it was alcohol. The three other crew members detained were the chief mate, the fishing master and the fishing pilot, all Spanish nationals.
60. The Volga case, above n 10, para 36.
61. Australian Statement in Response, Volga case, above n 44, p 7.
62. The Volga case, above n 10, paras 54, 72.
63. The Volga case, above n 10, para 72.
64. The Volga case, oral submissions by David Bennett QC counsel for Australia, Verbatim Record of Oral Submissions, 13 Dec 2002, 10 am, 11 (28 Apr 2003).
65. On 6 March 2002 the three crew members were charged under s 100 of the FMA and were granted bail on a number of conditions, including that they each deposit amounts of AU$75,000 and that they not leave Perth, Western Australia (Volga case, above n 10, para 41).
66. On 23 March 2002 the Volga's owner deposited these amounts (Australian Statement in Response, above n 44).
67. Seeking to return to Spain pending the trial, the crew successfully applied for variation of their bail conditions on 30 May 2002 (Volga case, above n 10, paras 42 and 43)
68. see appeal of this variation by the Australian government: Director of Public Prosecutions (Cth) v Lijo [2002] WASC 154.
69. The Volga case, above n 10, para 95(3) (Judge Anderson and Judge ad hoc Shearer dissenting).
70. The Volga case, above n 10, para 95(4), (5) & (6) (Judge Anderson and Judge ad hoc Shearer dissenting).
71. The Volga case above n 10, para 60.
72. Russian Memorial, above n 44, 13.
73. Russian Memorial, 15.
74. Russian Memorial, 16.
75. Russian Memorial.
76. Australian Statement in Response, above n 44, 10, para 9.
77. Australian Statement in Response, 11, para 12.
78. Australian Statement in Response, above n 44, p 13, paras 22 and 26; 17, para 42; and 19, para 54.
79. Australian Statement in Response, 18, para 45.
80. Oral submissions by David Bennett QC, counsel for Australia, Verbatim Record of Oral Submissions 12 Dec 2002, 3 pm (19 Dec 2002) 26.
81. Verbatim Record of Oral Submissions, 18–19, para 50.
82. The Volga case, above n 10, para 63.
83. See the Camouco case, above n 10, para 67.
84. The Volga case, above n 10, para 64.
85. See the Monte Confurco case, above n 10, para 76.
86. The Volga case, above n 10, para 65.
87. See the Monte Confurco case, above n 10, para 72.
88. The Volga case, above n 10, para 68.
89. The Volga case, above n 10, para 69.
90. The Volga case, Dissenting Opinion of Judge Anderson, para 2.
91. The Volga case, above n 10, Dissenting Opinion of Judge ad hoc Shearer, para 7.
92. The Volga case.
93. The Volga case.
94. The Volga case, above n 10, paras 71 and 72.
95. The Volga case, para 73.
96. The Volga case, para 74.
97. The Volga case, para 76.
98. The Volga case, para 77. Emphasis added.
99. The Volga case, para 77.
100. The Volga case, para 80.
101. The Volga case, above n 10
102. Dissenting Opinion of Judge Anderson, para 7.
103. Dissenting Opinion of Judge Anderson, para 13.
104. Dissenting Opinion of Judge Anderson, para 14.
105. Dissenting Opinion of Judge Anderson, para 23.
106. Dissenting Opinion of Judge Anderson, above n 10
107. Dissenting Opinion of Judge ad hoc Shearer, para 17.
108. Dissenting Opinion of Judge ad hoc Shearer, para 18.
109. Dissenting Opinion of Judge ad hoc Shearer, above n 10, para 86.
110. Dissenting Opinion of Judge ad hoc Shearer.
111. See comments by E Franckx, ‘“Reasonable Bond” in the Practice of the International Tribunal for the Law of the Sea’ (2002) 32 California Western International Law Journal 303, at 330–1.
112. V. Lowe, ‘The International Tribunal for the Law of the Sea: Survey for 2000’ (2001) 16 International Journal of Marine and Coastal Law 549, at 570.
113. Volga case, above n 10, Declaration of Judge Marsit, para 4 noting: ‘Furthermore, it would be desirable for the Tribunal to pronounce clearly and explicitly at some stage or other on the meaning and significance of the expression “reasonable bond”.’
114. The Tribunal's response to the Russian contention that the Volga was arrested in breach of Art 111 of the LOS Convention which provides for a right of hot pursuit, is illustrative of this point. Instead (and without explaining its reasoning) the Tribunal held that the circumstances surrounding the arrest of the Volga were irrelevant to prompt release proceedings under Art 292. Accordingly it declined to consider the alleged illegality of the arrest in its assessment of the reasonableness of the bond: Volga case, above n 10, para. 83.
115. Lowe, above n 97, at 561.
116. In particular LOS Convention, Arts 287 and 297 conferring jurisdiction with respect to fisheries disputes.
117. Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 Nov 2002, paras 8.62–8.84, 10.1–10.75.
118. In force 1 July 1975, 993 UNTS 243.
119. Senator the Hon Ian Macdonald, ‘French Navy Seizes Illegal Fishing Vessel Near Australian Waters’, Media Release AFFA 03/002M, 16 Jan 2003 (28 Apr 2003).
120. Senator The Hon Ian Macdonald ‘Australia steps up the battle on illegal fishing’ Media Release AFFA03/017M (9 Feb 2003); available at (28 Apr 2003).
121. Macdonald, above n 104.
122. In Feb 2003, Australia made a submission to the FAO Committee on Fisheries arguing that IUU fishing was a form of ‘international criminal activity’ which is ‘targeted against countries, the environment and the sustainability of the world's fisheries resources’: Senator The Hon Ian Macdonald ‘Australia calls on peak UN fisheries body to take action on illegal fishing’ Media Release AFFA03/026M (26 Feb 2003); available at (28 Apr 2003).
123. The United Nations Open-ended Informal Consultative Process on Ocean Affairs has in recent years given attention to IUU fishing; see ‘Illegal, unreported and unregulated fishing’ Submission by the Food and Agricultural Organization of the United Nations to United Nations Open-ended Informal Consultative Process on Oceans Affairs, First meeting, 30 May-2 June 2000, UN Doc A/AC.259/1.
124. See E Franckx, above n 96, at 335 and the references in n 207.