On the WTO "Agreement on Government Procurement," Analysis of relief system

Paper Keywords: international trade disputes Trade Agreement on Government Procurement Dispute Settlement Mechanism of the trade remedy system non-discrimination principle
Abstract: China has been launched in December 2007 to join the WTO <<Government Procurement Agreement>> (GPA) of negotiations, to grasp the contents of both the GPA provisions Unfortunately, the premise of reducing the negotiations, but also the future revision of related Laws and regulations and the basis for integration . GPA GPA uphold the relief system is the core principle of achieving best value target GPA representatives, so as a study object, value orientation, system design and the specific content of three aspects of its detailed analysis and interpretation in order to better complete and more accurate understanding of the essence of GPA relief system for China to join the ongoing negotiations and the implementation of the future provide a useful reference for GPA.

WTO <<Government Procurement Agreement>> (GPA) from the edge of the development of new trade barriers in developed countries to catch vision, identify the institutional consolidation of the World Trade Organization, the WTO and its predecessor the GATT system is on trade liberalization requires constant the inevitable result of increase. WTO <<Government Procurement Agreement>> The Evolution and the WTO has expanded the scope of free trade, is closely related to the tireless efforts to achieve non-discriminatory, including GPA relief system design and improvement is the defense of "non-discrimination," the core principles and objectives of trade liberalization of the value of the underlying security.

A, WTO <<Government Procurement Agreement>> values Relief System
Relief system is an integral pArt of the contents of the legal system, its purpose is to protect the rights of successful implementation. Thus, the creation of a specific legal system the right value goal, already determined the values of its relief system. Value target is "possible of legislation, policies and judicial decisions and other acts for the impact of extralegal factors ", is the legal regulation of the heArt and soul. Any construction of a concrete legal system are inseparable from the choice of a certain value targets, the legal norms that people have to the pursuit and protection of certain social value creation. It embodies in the regulation of international Law was pArticularly conspicuous because of the rules of international Law who is a creation of a number of different legal backgrounds of the main interests of these different stakeholders to create a international community in the area of codes of conduct, which conduct can be an effective practice also depends on the different stakeholders of the national legislation system. can be seen, in such a vast and complex coordination process, if these stakeholders do not reach a consensus on the value of the target, then it must be the creation of complex international rules confusing, can not be effectively practice. World Trade Organization in its growth process has been painful experience, light, GPA, first pointed out in its preamble, to promote trade liberalization value of the target.

However, the value of the target as the core spirit of the legal system, not merely as the pursuit of those who look up to the castle in the air, it must be through the medium of Creation into the basis of the rule of Law, can be truly possible to become aware and appreciate the classic architecture. The principles of Law is the rule of law created in the value of the objective reality of the concrete of the intermediary, is the value of the target and the transition between the rule of law and bridges, it is both the value of implementation of the objectives, but also the specific legal system building guide. GPA to promote free trade of the value of the target can be put into three basic principles, namely non-discrimination principle, the principle of transparency and the principle of special and differential treatment of developing countries. non-discrimination principle occupy a very important position, it is the GPA of the core principles, requires members shall not on factors such as country or ownership of domestic and foreign suppliers on the differential treatment. the principle of transparency with the principle of special and differential treatment of developing countries "is a manifestation of the principle of non-discrimination and protection. Meanwhile, the non-discrimination principle is a core principle of WTO system . < > In its preamble provides that members of the conclusion of the agreement aimed at eliminating discrimination in international trade relations treatment.

GPA value of objectives and basic principles of GPA legal regulation of the value of the origin and the logical stArting point "and therefore, GPA relief system design must be reflected in GPA creation and implementation of the objectives and embodies the GPA of the fundamental purpose and basic mission. In other words, GPA relief system must reflect the content of the core principles of GPA "non-discrimination", effective relief in the process of playing to maintain fair international economic relations and order, to facilitate the "promotion of free trade," the value of the goal.

Second, WTO <<Government Procurement Agreement>> element of the relief system design
Since the GPA relief system GPA's mission is to defend the core principles of "non-discrimination", then, the design of the system is bound to the government procurement process to eliminate "discriminatory" factors as the focus.

Government Procurement of the contract before the contract award to be divided into stages and contract stage. In the contract stage, the Government was awarded the contract, the procuring entity and suppliers of a written contract signed by both pArties to exercise their rights and obligations, which do not involve "discrimination" ; and because countries in the world under the influence of an ancient concept of contract has established a relatively perfect legal system of contracts, so its natural relief system does not require special attention to GPA. And the first contract stage, procurement information from the release to the award of contracts, government procurement entity is always the dominant party, many domestic and foreign suppliers because of the limited information available but can only passively accept the selection of the procuring entity. So the selection criteria for the procuring entity is objective, fair, whether with "discrimination" to become a supplier The focus of attention, but also the pursuit of trade liberalization, the need to address the problem of GPA.

Government procurement process to eliminate the "discrimination" factors to the efforts of two: one to resolutely implement the principle of transparency, to reduce by continuously enhancing the transparency of the procurement entity and a supplier of asymmetric information between the proportion of Compression "discrimination" penetration factors space; the other is to design a scientific and reasonable relief system, so that may be due to "discrimination" and lead to prejudice the interests of suppliers expect timely and effective remedy, to better address the deterioration due to inability to remedy trade disputes.

Based on the analysis above, I believe that, GPA relief system should be designed in the following three elements to support: First phase of relief before the government procurement contract stage, the stage of the procurement entity is a party as the leading suppliers in the passive position, the procuring entity may have contaminated all acts of "discrimination," leaving the final result of the fairness of the procurement damage; second is the object of relief to focus on procuring entity does not enter into procurement contracts with suppliers, need to give suppliers the behavior of the procuring entity the right to challenge, or could have been awarded contracts to suppliers outside of the contractual relationship will become the third person; Third, to reflect the level of relief with the WTO dispute settlement mechanism of the docking. precisely because of the GPA Parties recognize the importance of these three elements, which makes the GPA program created to challenge the core of the double relief system.


Third, WTO <<Government Procurement Agreement>> the specific content of the relief system
GPA relief system in the main provisions of the specific content of 8 December 2006 to modify the [f} l (hereinafter referred to modify the GPA) of article 18 of the "supplier of the domestic review process questions" and 20 "consultation and dispute settlement ", it reflects the challenge procedure and the WTO dispute settlement mechanism work together to build the double-relief system.

(A) the challenge procedure
1. Consultations - the pre-form challenge procedure
GPA modification of Article 18, paragraph 2, states: "If a vendor has on its own or with an interest in the procurement process include the existence of a violation of the agreements, or in a vendor to participate in party Guonei method based on a right to direct questioned the case of breach of this Agreement, there is a participating party fails to comply with the measures of this Agreement to appeal the case, each Party shall encourage the procuring entity and the supplier to resolve their complaints through consultation. procuring entity shall any such complaint that the fair and timely consideration, and without prejudice to the suppliers to participate in ongoing or future procurement or administrative or judicial review under the corrective action program for the right way. "

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Terms of statements we can see from the above, "consultation" took place in doubt the suppliers start the complaint process, and the GPA does not require the participants as a mandatory legal remedies, but only challenged the agency received prior to consideration of question general requirements. which WTO dispute settlement mechanism in the "consultation" is completely different. WTO dispute settlement mechanism "in consultation" is the first stage of dispute settlement, is to start other remedies to go through procedures. The GPA did not " consultation "is set to a relief system in the stand-alone program, but the terms Quedui" consultation "of the conditions, procedures and requirements of specific provisions, therefore," consultation "challenge procedures can be called a" pre-forms. "Although GPA question the consultation process has its own unique attributes, but it still reflects the fundamental purpose of WTO dispute settlement: "When a trade dispute occurs, the WTO as a solution to friendly consultations initiated and vigorously advocated peaceful settlement of disputes, requires the dispute as the parties reach a mutual agreement on a mutually acceptable and in accordance with legal principles of WTO dispute settlement.

However, GPA relief system did not discuss the remedies set to mandatory, but only requires Parties to encourage it as a challenge procedure in the relief measures, why? This is because the negotiations for resolving disputes, the effectiveness of government procurement is very limited and consultation efficiency improvement must be based on suppliers and procurement entities, not to their own interests as a starting point to deal with the objective of procurement activities, based on the reality of the procurement activities in the interests of the dominated or a different way of thinking dominated the subjective position is difficult to avoid. So Instead of rigidly the consultations as necessary procedure which may result in reduced efficiency of government procurement, better make it a question of flexibility in procedures at the "control valve", effective relief to play an active role in the interests of a third party. Therefore, consultation should not be questioned as necessary step in the program, the program can only be questioned "pre-forms."
2. Review - the main content of the challenge procedure
GPA amend Article 18 of the "supplier of the domestic review process questioned" the provisions of paragraph 8, in addition to the above-mentioned Paragraph 2 is provided on the consultations, the other 7 are on the review of questionable provisions, including questions program design, content and scope of questioning, questioning the form and duration of the review bodies set up question, the review of specific cases dealt with procedural requirements, and questioned the contents.

GPA modify the design of the various participants questioned the overall program requirements, each Party shall provide timely, effective, transparent and non-discriminatory administrative or judicial review procedures to enable suppliers exist or have existed on its interest in the violations of the procurement process appears to challenge the situation GPA. GPA of the participants to the provisions in its legal challenge procedures within the framework of the specific requirements are:
(1) set specific institutions dealing with questions. GPA modification of Article 18, paragraph 4, states: "Each Party shall establish or designate at least one purchasing entity independent of its impartial administrative or judicial review of a supplier to receive and covered in a question arising in the procurement process. "entity that is not challenged by the interest in the procurement of independent review bodies for consideration, the consideration of the executive body can also be a court, by the participants to determine the domestic law. Meanwhile, GPA modification of Article 18, paragraph 5, states: "If, paragraph 4, the competent authority mentioned in the initial review of an institution other than a question, the participants shall ensure that suppliers may question the object of a separate procurement as entities impartial administrative or judicial authorities to appeal the initial decision. "that is, if the domestic law of a Participant will be the procuring entity or entities have some connection with the procurement agency is set to challenge the agency initially accepted, then the participants must be questioned separately identified for review of an institution, and the organization must be involved in determining the procurement entity does not interest.


(2) provides the content and scope of the challenge. GPA modification of Article 18, paragraph 1, the content and scope of the challenge, that challenge with suppliers exist or have existed between the interests of the procurement process for all violations arising GPA situation, or when participants under the domestic law of a right to directly question the violation of GPA, all breaches of the GPA implementation of measures to participants. According to the provisions of GPA, the general scope of their legal obligations, including the procuring entity; purchasing, tender documents , tendering procedures, tender evaluation process, the successful supplier or other invitation to tender, tender documents and other content does not meet legal requirements.

(3) provides the form and duration of challenge. In question form, requires the procedural provisions of all questions must be in writing. Time limit on questioning, GPA modify the text of Article 18, paragraph 3: "Each supplier should be given sufficient time to prepare and submit queries from the query in any case of known or should have known the basis of not less than 10 days from the time. "But the main challenge is not challenging the admissibility of the time limit to respond to specific provisions, see GPA in each of the members to give greater discretion.

(4) the challenge procedure provided for under certain circumstances. If the participants set up a independent review organization is not questioning the court, then you need to challenge the provisions include the following procedures: �� a written reply to the procurement entity shall disclose all questions to the review body relevant documents; �� appeals process to participate in the review body shall have the right to challenge their views before a decision is the opportunity to be heard; �� participants have the right to be represented and accompanied; �� participants should be able to participate in all grievance procedures; �� the right to participate in request for the appeals process open to the public and request the attendance of witnesses; �� promptly provided in writing with the suppliers questioned the decision or recommendation, together with the basis for each decision or recommendation.

(5) provides that questions dealing with the contents of the. GPA is set to challenge the program can protect the "third person" rights, to take into account the interests of other stakeholders, requiring participants in the decision in question includes two aspects : First, in the challenge to ensure procurement opportunities for suppliers to participate in the premise of taking temporary measures to quickly act to correct violations of GPA, despite this temporary measure will lead to the suspension of the procurement process, but if the suspension would take into account procurement interests of all parties including the public interest to have significant adverse consequences in a written statement to the premise of legitimate reasons not to take such interim measures; Second, interest in the procurement process for damage or loss of suppliers should provide compensation measures, but compensation shall not exceed the bid and tender for the sum of expenses questioned.

3. Judicial review - judicial form of challenge procedure
GPA modification of Article 18, paragraph 6 states: "If a review body is not a court, then the institution should be subject to judicial review, or shall establish procedures for the provisions of the following ... ...." Visible, GPA relief system is a kind of judicial review optional requirement that the participants only when the GPA review set and did not question the authorities are not the court rules of procedure of the protection provisions, the judicial review before they can apply. and many other WTO agreements under the framework of the provisions of judicial review as a necessary procedures. Therefore, the question of judicial review is only form of justice program.

(B) dispute settlement mechanism
GPA to fall within the scope of protection of the main objectives set to follow GPA to fulfill obligations under the Agreement, need to safeguard and promote the relevant norms of the main Zijue an agreed code of conduct institutional arrangements. This system is the GPA challenge procedure and dispute settlement mechanism constitute a double relief system.

Although the challenge procedure GPA relief system as the core of a strong independence, however, WTO dispute settlement mechanism is a general security agreement mechanism, its role is still not be ignored. Although the formal dispute settlement mechanism to resolve to participate in local government between trade disputes in a field, but in a way the party was able to play the role of specific relief. particularly in the legally binding dispute settlement reports growing today, the participants taking into account their long-term trade interests, will be more consciously safeguard the fairness of international economic exchanges and order.

GPA in the application of WTO dispute settlement mechanism has a unique position on the progress of the Department is that the GPA abandoned the cross-retaliation measures, recognize the economic power to use their dominant position on the unilateral weak economic reprisals, threats of the sovereign state into submission the legality of the practice is legal and political dispute settlement mechanism of the performance, but also to make provisions for developing countries which should be taken into account the interests of the authenticity and validity of damning with faint praise. GPA more respect for this freedom of trade of the value of the target, the system design easier to get international recognition.

IV: Conclusion
China was launched in December 2007 to join the GPA negotiations, is facing numerous and the Law Amendment and integration. Do this work on the premise that the provisions of GPA to master the content, a clear understanding of the provisions of existing laws and regulations and the GPA differences, to find out in our legal systems the best way to implement GPA. Given the important position of GPA relief system, its detailed analysis and interpretation of more help to master the core spirit of the GPA and its integration into the China's government procurement into the legal system to promote the GPA value goal. Links http://www.hi138.com Research Papers Download