Transparence dans les marchés publics:. Options après la cinquième conférence ministérielle de l'OMC à cancún

Philippe G. Nell

Revue internationale de droit économique, 2004, vol. t. XVIII, 3, issue 3, 355-379

Abstract: At the second ministerial Conference of the WTO in Singapore (1996), a Working Group on Transparency in Government Procurement was established to elaborate possible elements for an agreement. Its mandate was reinforced at the fourth ministerial Conference in Doha (2001) in view of launching negotiations on transparency at the next ministerial Conference by explicit consensus. Aspects referring to market access would not be covered, each Member being able to keep its own regimes to grant preferences to local suppliers. This article analyses first the major results of the Working Group on Transparency in Government Procurement in order to identify areas of convergence and divergence. Common views are registered for the key transparency procedures linked to tenders. Major difficulties refer to coverage, national remedies and WTO Dispute Settlement Mechanism. Without such rules, the effectiveness of transparency risks to be seriously limited. Positions differ also significantly regarding the scope of the rules ? transparency only or transparency and implementation of the rules ? as well as the treatment of the linkages between government procurement and other policy areas. Second, the preliminary results of the full revision of the WTO plurilateral Agreement on Government Procurement are reviewed. The negotiations aim at simplifying, clarifying, updating the present GPA as well as improving developing countries? access. Particular emphasis is set on shortening the tender procedures as well as devising new provisions referring to withdrawal of entities from the coverage of the Agreement. Market access negotiations and abolition of discriminatory measures should lead to further liberalisation. Third, the options for the future are reviewed. Following the Decision of the WTO General Council of August 1, 2004 re-launching the Doha Round, negotiations of an agreement on transparency in government procurement will not take place under the Doha Programme due to strong opposition by several developing countries. They do not want their policy flexibility to be restrained by WTO rules. For the after-Doha era, an agreement lacking a national remedy system or the WTO dispute settlement mechanism would run the risk of not bearing much result. Various authors emphasize that without a strong commitment from national authorities to apply rigorously rules and fight corruption, it may be difficult to achieve significant practical results. The article concludes that, at present, accession to the new GPA may be the best option for developing countries favourable to multilateral rules on transparency because it would include a national remedy system, the WTO dispute settlement mechanism and a progressive liberalisation at the international level.

Date: 2004
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