Subsidiary protection and primary rights

International and Comparative Law Quarterly

Volumn 53, Issue 1, 2004, Pages 107-138

  Piotrowicz, Ryszard ^a   Van Eck, Carina ^b  

^a ABERYSTWYTH UNIVERSITY   (United Kingdom)

^b United Nations High Commissioner for Refugees   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84964686591     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/53.1.107     Document Type: Article

References (126)

1. Uncitral refers to the United Nations Commission on International Trade Law. The Uncitral Model Law on Procurement of Goods and Construction was adopted in 1993 at the 26th session of the Commission, and the Model Law on Procurement of Goods, Construction, and Services at the 27th session in 1994. The former remains in place for states that do wish to use the rules on services. The texts are found in Annex I to the reports of Uncitral in the Official Records of the General Assembly, Forty-eighth Session, Supplement No 17 (A/48/17) and Forty-ninth Session, Supplement No.17 (A/49/17)
2. see also the texts and materials available at . Printed versions including the accompanying Guide to Enactment are also published by the Uncitral secretariat. A separate Model Law (to be considered at the 2004 session of the Commission) has been prepared on privately financed infrastructure projects, including their procurement; this is not considered in this article. On the procurement Model Law see generally, Hunja, ‘The Uncitral Model Law on Procurement of Goods, Construction and Services and its Impact on Procurement Reform’, ch 5 in Arrowsmith and Davies (eds), Public Procurement: Global Revolution (London Kluwer Law International, 1999)
3. Arrowsmith, Linarelli, and Wallace, Regulating Public Procurement: National and International Perspectives (The Hague Kluwer Law International, 2000) 88–98
4. Wallace, ‘The UN Model Law on Procurement’ 1 Public Procurement Law Review (PPLR) 406 (1992)
5. Wallace, ‘Uncitral Model Law on Procurement of Goods and Construction’ 3 Pplr CS2 (1994)
6. Westring, ‘Multilateral and Unilateral Procurement Regimes: to which Camp does the Model Law Belong?’ 3 Pplr 142 (1994)
7. Myers, ‘Uncitral Model Law on Procurement’ 21 International Business Lawyer 179 (1993)
8. Beviglia-Zampetti, ‘The Uncitral Model Law on Procurement of Goods, Construction and Services’, ch 15 in Hoekman and Mavroidis (eds) Law and Policy in Public Purchasing (Ann Arbor The University of Michigan 1997)
9. Dischendorfer, ‘The Uncitral Model Law on Procurement: How Does it Reconcile the Theoretical Goal of Total Objectivity with the Practical Requirement for some Degree of Subjectivity’ 12 Pplr 100 (2003)
10. ITC, Elements of a Modern Legal Framework for Public Procurement: the Uncitral Model Law on Procurement of Goods, Construction and Services (module from Modular Learning System on International Purchasing and Supply Management for Public Sector)
11. Mendoza, Low and Kotschwar, Trade Rules in the Making: Challenges in Regional and Multilateral Negotiations (Washington DC Brookings Institution Press 1999).
12. Information from the Uncitral secretariat, which in April 2003 was preparing a proposal for review.
13. See, eg, Bamodu, ‘Extra-National Legal Principles in the Global Village: A Conceptual Examination of Transnational Law’ 4 International Arbitration Law Review (2001) 6, whose definition of international commercial law might seem to exclude the procurement Model (although it is not discussed)
14. Herrmann, ‘The Role of Uncitral’, ch 2 in Fletcher, Mistelis, and Cremona (ed), Foundations and Perspectives of International Trade Law (London Sweet & Maxwell 2001) who mentions the Model and the similar proposed Model on privately financed infrastructure only very briefly.
15. For reasons of space the article does not attempt a detailed drafting critique. Other issues of policy that might be addressed include time limits (although provision on this subject was considered and rejected and so arguably should not be revisited); government-owned bidders; application to purchases from other government agencies; and purchases from commodity markets.
16. See Arrowsmith, Linarelli, and Wallace, n 1 above, ch 2
17. Schooner, ‘Desidarata: Objectives for a System of Government Contract Law’ 11 Pplr (2002) 103–110.
18. Guide to Enactment, para 12.
19. See further the material on the Uncitral website and for discussion Herrmann, n 3 above.
20. An exception is the Apec regime which, like Uncitral, is—significantly—non-binding. See Apec Government Procurement Experts Group, Non-binding Principles on Government Procurement: Transparency at .
21. See Arrowsmith, ‘The National and International Perspectives on the Regulation of Public Procurement: Harmony or Conflict?’ in Arrowsmith and Davies (eds), n 1 above, 1.
22. However, the Model Law is not an entirely comprehensive system: some details—such as financial thresholds for formal procedures (Art 21(1) and authorities for giving hierarchical approval of decisions—must be completed by the enacting State, and supplementary regulations are suggested for some matters: see Guide to Enactment Art 4: procurement regulations.
23. See Arrowsmith, Government Procurement in the WTO (The Hague Kluwer Law International 2002), at 8.4.1 and 8.5.1.
24. Guide to Enactment, para 4.
25. Report of the Working Group on the New International Economic Order on the work of its 10th session (Vienna, 17–25 Oct 1998) (A/CN.9/315) (hereafter Working Group 10th session), para 122, where no reasons are given for the decision reached; it is merely observed that States could choose to apply the Model Law to international contracts only.
26. See, eg, Herrmann, n 3, above, 33.
27. Hunja, n 1 above, 104–108.
28. Sahaydachny and Wallace, ‘Opening Government Procurement Markets’, ch 19 in Mendoza, Low, and Kotschwar, Trade Rules in the Making: Challenges in Regional and Multilateral Negotiations (Washingtion DC Brookings Institution Press 1999) 472.
29. Piasta, ‘The Approximation of Polish Law on Public Procurement to the European Directives’ 9 PPLR 95 (2000)
30. Glebocki, ‘An Overview of the Legal Rules Governing Public Procurement in Poland’ 10 Pplr 103 (2000)
31. Lemke, ‘The Experience of Centralised Enforcement in Poland’ in Arrowsmith and Trybus (eds) Public Procurement: the Continuing Revolution (The Hague Kluwer Law International 2003) 103.
32. Hupkes, ‘Public Procurement in Central and Eastern Europe’ 6 Pplr (1997) 49, at 59.
33. Carrier, ‘The Current State of Public Procurement in the Slovak Republic’ 12 Pplr 65 (2003) n 8.
34. Piselli, ‘The Establishment and Development of a Public Procurement System for Kosovo’ in Arrowsmith and Trybus (eds), n 18 above, 52.
35. Information from Hunja, n 1 above, and directly from Robert Hunja at the World Bank. Some of these States have in a later wave of reform harmonized their rules with the EU, as to which see the works cited above and Kanaras, ‘Enlarging the Scope of Public Procurement: the EU's Expansion into Central and Eastern Europe’ 9 Pplr 109 (2000)
36. Bruun Nielsen, ‘Access to Markets of the Future Members of the EU’ [2001] International Trade Law and Regulation 5
37. Servenay and Williams, ‘Introduction of a Regulatory Framework on Public Procurement in the Central and Eastern European Countries: the First Step on a Long Road’ 4 Pplr (1995) 237.
38. Herrmann, ‘The Uncitral Arbitration Law: a Good Model of a Model Law’ [1998] RDU 483, at 491.
39. RDU, Art 20.
40. RDU, Art 21.
41. RDU, Art 22.
42. Selection procedure without negotiations, selection procedure with simultaneous negotiations and selection procedure with consecutive negotiations: Model Law Arts 37–45.
43. On reasons for negotiating see, eg, Holmes, ‘To Tender or to Negotiate? The Buyer's Dilemma’ (1995) 1(3) Journal of Marketing Practice: Applied Marketing Science 7
44. Arrowsmith, ‘The Problem of Discussions with Tenderers under the EC Procurement Directives’ 7 Pplr (1998) 65.
45. See, eg, Working Group 10th session, n 13 above, paras 9 and 12
46. Report of Unci-Tral on the work of its 26th session (A/41/17) (hereafter Uncitral 26th session), para 217, referring to the view that the Model Law will ‘significantly assist all States, including developing countries and states whose economies are in transition’.
47. Guide to Enactment, Introduction, para 3
48. Uncitral 26th session, n 34 above, para 217. Westring, n 1 above, in n 13 highlights the limited participation of developed countries at the commentary phase.
49. Hermman, n 3 above 29.
50. Uncitral 26th session, n 34 above, paras 17–18, on the decision to retain the general exclusion of defence procurement because of its ‘sensitive nature’ and the need to foster the widest possible acceptance of the Model Law.
51. On sources of harmonization measures generally see Mistelis, ‘Is harmonization a necessary evil: the future of harmonization and new sources of international trade law’, ch 1 in Fletcher, Mistelis and Cremona, n 3 above.
52. On Uncitral processes see generally Farnsworth, ‘Unification and Harmonization of Private Law’ 27 Canadian Business Law Journal (1996) 48.
53. See Arrowsmith, Government Procurement in the WTO (The Hague Kluwer Law International 2002), chs 4–15 and the works cited there. The current GPA was negotiated mainly at the same time as the Model Law.
54. There were many general statements in the background discussions on the Model Law on the need to coordinate with GATT/GPA and the institutions collaborated to a degree: see, eg, Working Group 10th session, n 13 above, para 12
55. Report of Uncitral on the work of its 22nd session (A/44/17) para 233. Whilst the underlying principles are similar, however, there was no systematic attempt to harmonize detail and terminology. Some proposals were rejected that would have involved greater harmonization either of substance (eg, on supplier lists: see below) or terminology (such as use of the GATT/GPA ‘most advantageous tender’ term in Uncitral)
56. see Report of the Working Group on the New International Economic Order on the work of its 11th session (New York, 5–16 Feb 1990) (A/CN.9/331) para 166).
57. In the Working Group 10th session, n 13 above, the trend of discussion seems to assume (without, however, debate of the issues) that such policies are acceptable and unproblematic: see para 93.
58. For a summary and references see Arrowsmith, n 11 above, ch 1.
59. See Arrowsmith, ‘Reviewing the GPA: The Role and Development of the Plurilateral Agreement After Doha’ 5 Journal of International Economic Law (2002) 761. The timetable for finishing work on award procedures is the Fifth WTO Ministerial Conference in 2003, with January 2005 the overall deadline.
60. In particular, the GPA contains some rules that should not be included in the Model Law, such as detailed time limits and a general requirement to give adequate time to foreign suppliers (Art XI). See also the next paragraph.
61. For a contrary view, however, see Hunja, n 1 above, 102.
62. See also the list given in Westring, n 1 above, although the author would not include all the provisions he lists in this category.
63. Working Group 10th session, n 13 above, para 9
64. Uncitral 22nd session, above, para 234.
65. WTO, Ministerial Declaration, Ministerial Conference Fourth Session, 14 Nov 2001, WT/MIN(01)/DEC/W/1, para 26.
66. Arrowsmith, ‘Transparency in Government Procurement: the Objectives of Regulation and the Boundaries of the WTO’ 37 Journal of World Trade (2003) 284.
67. Journal of World Trade.
68. Journal of World Trade (and also the other literature cited there).
69. See, in particular, the material on the transition economies in nn 19–22, some of which adapted their original laws (often based on Uncitral) to EU requirements in a second wave of reforms. The OECD has published a guide to help countries in this position: see OECD, Comparison between the EC Procurement Directives and the Uncitral Model Law SIGMA Paper No 28, CNNM/SIGMA/PUMA (2000) 32, OECD. Croatia, FYROM and Albania are in the process of concluding Stabilization and Association Agreements with the EC which may involve commitments to align their legislation with aspects of EU procurement law and Turkey has also made some commitments in this area under its Association Agreement with the EU, which may be extended as a result of current negotiations. EU influence through funding is more indirect but has been seen, for example, by the author in her own involvement in the on-going reform of the Russian procurement law.
70. Obviously a detailed critique is not possible here, but some of the points are elaborated in Arrowsmith, The Law of Public and Utilities Procurement (London Sweet & Maxwell 1996).
71. Particularly interpretation of the EC Treaty rules as imposing positive obligations and the implication of a general transparency principle, importing new obligations, into the directives: see Case C-324/98, Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria and Herold Business Data AG [2000] ECR I-10745
72. Case T-203/96, Embassy Limousine and Services v European Parliament [1998] ECR II-4239.
73. See generally Arrowsmith, Linarelli, and Wallace, n 1 above, ch 3. Model Law Art 3 itself provides for the non-application of the usual law to the extent of conflict with obligations in a treaty or an agreement with an intergovernmental financing institution.
74. This is acknowledged, eg, in Hunja, ‘Obstacles to Public Procurement Reform in Developing Countries’, ch 2 in Arrowsmith and Trybus (eds), n 64 above
75. OECD/DAC World Bank Roundtable, Paris 22–23 Jan 2003, Strengthening Procurement Capacity in Developing Countries,International Benchmarks and Standards for Public Procurement Systems, available at , para 12.
76. Herrmann, n 3 above, 33, has highlighted some of these as more general problems for Uncitral's work.
77. The particular problem of foreign consultants seeking to impose their own systems has been emphasized by, eg, Mistelis, n 39 above, 1063–1065 (in the general context of regulatory reform in transition countries).
78. Herrman, n 3, above.
79. This was noted as a problem by Piselli, n 21 above, 56, writing about reform in Kosovo.
80. OECD/DAC-World Bank Roundtable, n 64 above, para 3 (referring to an initiative begun in 1997).
81. OECD/DAC-World Bank Roundtable, n 64 above, Annex, Requirements for Local Procurement in Borrowing Countries, setting out requirements agreed by the Heads of the Multilateral Development Banks in Manila Oct 2002 for national regulatory frameworks.
82. Information from Robert Hunja, World Bank. The Bank's Country Procurement Assessment Reports (CPARs) (found at ) generally assess standards and propose reforms by the reference to the Model Law.
83. Eg, Westring, n 1 above, 15 criticizes the availability of six alternatives to basic tendering.
84. See, in particular, Working Group 10th session, n 13 above, para 41
85. Report of the Working Group on the New International Economic Order on the work of its 12th session (Vienna, 8–19 Oct 1990) (A/CN.9/343), para 69
86. Report of the Working Group on the New International Economic Order on the work of its 13th session (New York 12–16 July 1991) (A/CN 9/356) (hereafter Working Group 13th session), paras 106–8
87. Report of the Working Group on the New International Economic Order on the work of its 15th session (New York, 22 June-2 July 1992) (A/CN 9/371), paras 43–4 (hereafter Working Group 15th session).
88. Model Law, Art 18(3).
89. See also the general comments of Wallace, n 1 above, at CS219 criticizing the sharp distinction between goods/works and services, which arose from their separate consideration. These issues were discussed in the Working Group but only briefly. It would be useful to collect more actual data on use of these methods.
90. See Heijboer and Telgen, ‘Choosing the Open or Restricted Procedure: a Big Deal or a Big Deal?’ 2 Journal of Public Procurement (2002) 187
91. the data in European Commission The Single Market Review subseries III, Dismantling of Barriers, vol 2, Public Procurement (1997).
92. Art 48(2).
93. Art 47(3), permitting entities to depart from Art 24 on advertising.
94. Art 49.
95. See further Arrowsmith, ‘Framework Purchasing and Qualification Lists under the European Procurement Directives’ 8 Pplr (1999) 115 and 168.
96. Art 50.
97. Art 51.
98. For a more detailed analysis see Arrowsmith, n 82 above.
99. See the draft Model Law (A/CN.9/WG.V/WP.24) and commentary by the secretariat (A/CN.9/WG.V/WP.25) annexed to the Report of the Working Group on the New International Economic Order on the work of its 11th session.
100. Report on 11th session, paras 62–3 (although the Group had previously agreed in principle to include a provision: see Report of 10th session, n 13 above, para 44.
101. See also Beviglia-Zampetti, n 1 above, at 281.
102. See further Arrowsmith, n 11 above and ead n 82 above, at 9.3.
103. For (open) tendering and two-stage tendering, eg, Uncitral Art 24 requires entities to advertise to ‘solicit tenders’ or ‘applications to prequalify’, indicating that an advertisement is necessary for each procurement (although it could be divided into lots). See also Uncitral Art 48(2).
104. The development banks in OECD/DAC-World Bank Roundtable, n 64 above, Annex, Requirements for Local Procurement in Borrowing Countries, state that advertisement of a list should not be sufficient for open competition, which may imply this is acceptable for non-open procedures.
105. See further Arrowsmith, n 82 above and ead n 11 above, at 9.3.
106. These should not be confined, as under the GPA, to non-open procedures only: see Arrowsmith, n 11 above, at 9.3.
107. See further Arrowsmith, n 82 above. They are often used by central buying agencies.
108. There are also other reasons for using these arrangements—eg, to give better opportunities for smaller suppliers. See further Arrowsmith, n 82 above.
109. See also Westring, n 1 above, 146.
110. The possibility of contracts divided into lots is contemplated in, eg, Art 27(h).
111. The EU has included provisions on frameworks in the proposal for a new Directive: see Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of public supply contracts, public service contracts and public works contracts, Common Position of the Council, 20 Mar 2003 (hereafter public sector proposal), Art 32.
112. This provides useful ideas, but all framework suppliers must be invited for each second-phase tender, which, arguably, is unreasonably bureaucratic. On the US approach and problems encountered there see, most recently, Schooner and Yukins, ‘Model Behaviour? Anecdotal Evidence of Evolving Commercial Public Procurement Practices and Trade Policy’ [2003] Int TLR 4. The GPA contains no explicit provisions
113. See Arrowsmith, n 11 above, at 15.2
114. ead, ‘E-commerce policy and the EC procurement rules: The chasm between rhetoric and reality’ 38 CMLRev (2001) 1447.
115. Requirements for Local procurement, n 68 above, Specific Aspects s 2(13).
116. National legislators may want to reduce minimum national time limits for tendering etc as a result, but this issue does not arise with the Model Law, which does not include such limits.
117. See, eg, Levy and Correia, ‘Electronic Procurement of Goods and Services in Brazil under the Electronic Auction Procedure’ 12 Pplr 21 (2003)
118. Public sector proposal, n 108 above, Art 53a.
119. On EU law see ‘Electronic Reverse Auctions under the EC Public Procurement Rules’ 11 PPLR (2002) 299.
120. For an overview see Arrowsmith, Linarelli, and Wallace, n 1 above, ch 12. An alternative suggestion of stronger standards (based on EU law) taking the form only of a recommendation was rejected early on.
121. See, in particular, Working Group 13th session, n 71 above, para 153
122. Working Group 15th session, n 71 above, para 205. This is also couched as distinction between private rights and public interest provisions.
123. Report of the Working Group on the New International Economic Order on the work of its 14th session (Vienna, 2–13 Dec 1991) (A/CN.9/359), para 216.
124. Another useful possibility rejected first time round was a suggestion for a public notice when an entity undertakes a single source procurement: Report of Uncitral on the work of its 27th session (New York, 31 May-7 June 1994) (A/49/17), para 34.
125. Guide to Enactment, s I, para 26.
126. See generally Arrowsmith, Linarelli, and Wallace, n 1 above, ch 4.