Abstract
The preceding chapter traced the institutional evolution of the GPA’s formalized procedural disciplines to contain discrimination in covered public procurement markets, mapping the progression of the WTO rules from their OECD origins and concluding with what has been described as a ‘synergistic transatlantic process’ between rules developed primarily in a European or North American regional context and those stemming from negotiations within the WTO regime itself (Woolcock, 2006). As suggested at the outset of Chapter 1, the USA was virtually the sole proponent of including provisions on government procurement in the ITO. This perspective gradually changed — especially among the industrialized countries in Europe as the process of European integration progressed and, specifically, the economic costs of non-integration were recognized (Cecchini, Catinat et al., 1988) — although the extent of public ownership in economically strategic sectors has routinely played a countervailing role.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Notes
This expression, according to Edwards Corwin, was that of James Harrington. See the discussion in The ‘higher law’ background of American constitutional law. (Ithaca: Cornell University Press, 1955).
As suggested previously, this may not be the case if the policies in question are driven by regional or bilateral integration. Indeed, the procedurally intensive procurement rules that evolved from the lengthy OECD discussions described earlier in this paper served as a model for the regional agreements that emerged in Europe and North America during the 1970s. These later developments, however, did not affect the genesis of the original OECD rules. See S. Woolcock, ‘The Interaction between Levels of Rule-making in Public Procurement’, in S. Woolcock (ed.), Trade and investment rule-making: the role of regional and bilateral agreements (Tokyo: United Nations University Press, 2006).
For a discussion of the respective roles of law in the Continental and Anglo-American Administrative Law traditions, see section 6 of B. Guy Peters and Jon Pierre’s Handbook of public administration (London: Sage Publications, 2003).
Herein, mention should be made of a debate amongst the lawyers relating to whether the duties of non-discrimination the GPA engenders under Article III are negative or positive. That is, whether parties to the Agreement are bound not to discriminate between the goods and services of various suppliers participating in covered tenders on the basis of their nationality, or if they are positively obligated to ensure that the behaviour of their covered administrative entities is in conformity with the Agreement’s nondiscriminatory principles. Although the wording of the legal text would appear to be consistent with the latter, or ‘obligations of result’ (the Parties shall provide…), states party to the GPA have assumed what are ‘traditionally understood’ to be negative duties. See the discussion in B. Hoekman and P. Mavroidis, The WTO’s Agreement on Government Procurement: Expanding Disciplines, Declining Membership?, Working Paper No. 1112 (CEPR, 1995).
So, too, of course, are the structures that a society introduces to take fundamental political decisions of this nature, another area in which considerable research has recently been undertaken by political scientists. For a discussion of the challenges associated with maintaining the legitimacy of decisions taken in an extra-national context, see: R. Howse and K. Nicolaidis, ‘Enhancing WTO legitimacy: constitutionalization or global subsidiarity?’, Governance, vol. 16 (2003).
Robert Klitgaard has described corruption on the basis of the following formula: ‘c= m+d-a’, or corruption is equal to monopoly power plus discretion minus accountability. See R. Klitgaard, ‘International cooperation against corruption’, Finance and Development vol. 35 (1997).
The WTO Secretariat has recently suggested that the GPA–because it is ‘consistent with and reinforces the objectives of national reforms aimed at promoting competition, transparency and enhanced value for money in national procurement regimes’–should not be seen ‘solely in terms of facilitating international market access’. The WTO’s work ‘also reinforces the values and objectives of other important international instruments and work in this area such as the United Nations Convention Against Corruption, the UNCITRAL Model Law on Procurement, relevant guidelines of the World Bank and the OECD’s work on prevention of corruption’. See the discussion in R. D. Anderson, ‘Renewing the WTO agreement on government procurement: progress to date and ongoing negotiations’, Public Procurement Law Review (2007)[AQ: Please provide volume number]. Herein, it is interesting to note, too, how the GPA diverges from both the UNCAC and the OECD’s Anti-bribery Convention, specifically in not mandating parties’ adoption of legislative and other measures criminalizing both the intentional bribery of national public officials, as well as the solicitation of such bribes by these officials.
This is because the treaty in question is not, as the lawyers would say, ‘self-executing’; national implementing legislation is required in order to accept the treaty’s obligations as binding and to apply them. See the discussion in J. H. Jackson, ‘Status of treaties in domestic legal systems: a policy analysis’, American Journal of International Law, vol. 86 (1992a).
and C. M. Vasquez, ‘The four doctrines of self-executing treaties’, American Journal of International Law, vol. 89 (1995).
Also known as the ‘Bentham-Austin-Kelston position’, this view was quoted and discussed in Thomas Grey’s ‘Constitutionalism: An Analytic Framework’ in J. R. E. Pennock and J. W. Chapman (eds), Constitutionalism (NY: New York University Press, 1979).
In describing the origins of her thinking on the schema, deLeon credits the work of James Thompson, a well-known organizational theorist. See the discussion in L. deLeon, ‘On Acting Responsibly in a Disorderly World: Individual Ethics and Administrative Responsibility’, in B. G. Peters and J. Pierre (eds), Handbook of public administration (London: Sage Publications, 2003), p. 470.
See the discussion in B. S. Romzek and M. J. Dubnick, ‘Accountability in the public sector: lessons from the challenger tragedy’, Public Administration Review, vol. 47 (1987), p. 230.
Some countries, adherents to the so-called school of ‘New Public Management’, have lines of official accountability that are more ‘professional’ in nature. See the discussion in J.-E. Lane, The public sector: concepts, models and approaches, 3rd edn (London: Sage, 2000). New Zealand’s public procurement regime is a prime example in this respect.
C. B. MacPherson has termed the Hobbesian notion of sovereignty’s being a conscious institutional creation as a ‘logical hypothesis’, designed to rationalize the democratic imperfections of the early sovereign entities. The reality was that such entities were the products of conquest; that is, war, rather than consent, provided the basis for state formation. See p. 20 in C. B. Macpherson, The political theory of possessive individualism: Hobbes to Locke (Oxford University Press, 1979).
Initially, the authority of the confederal government was only legitimate to the extent that it enabled cooperating sub-federal entities to achieve their independent ends. See the discussion in Chapter 7 of M. Jensen, The Articles of confederation: an interpretation of the social-constitutional history of the American Revolution 1774–1781 (Madison: University of Wisconsin Press, 1970).
Author information
Authors and Affiliations
Copyright information
© 2011 Susan Brown-Shafii
About this chapter
Cite this chapter
Brown-Shafii, S. (2011). The GPA’s International Administrative Disciplines: Distilling the Underlying Political Structures. In: Promoting Good Governance, Development and Accountability. International Political Economy Series. Palgrave Macmillan, London. https://doi.org/10.1057/9780230309111_3
Download citation
DOI: https://doi.org/10.1057/9780230309111_3
Publisher Name: Palgrave Macmillan, London
Print ISBN: 978-1-349-36078-9
Online ISBN: 978-0-230-30911-1
eBook Packages: Palgrave Political & Intern. Studies CollectionPolitical Science and International Studies (R0)