Toward free trade in the public sector: A comparative study of international agreements on government procurement

This is a study of the numerous international attempts to grapple with the problem of protectionism in government procurement, which has long been recognized as a major barrier to international trade.;The thesis first presents the problem, its roots and manifestations, and suggests a new effect-based classification of the various forms of domestic preference policies commonly employed by governmental procurement agencies. It then proceeds to conduct a normative analysis of these policies, both from an economic, efficiency-based, perspective--supported by empirical evidence--as well as from the perspective of some major ethical paradigms. A compelling case emerges from this analysis in favour of eliminating the vast majority of domestic preference policies--with only a few clearly defined exceptions--even on a unilateral basis.;The study then proceeds to examine the various international agreements aimed at eliminating or reducing such policies on a reciprocal basis. The procurement regimes of EFTA, the European Community, the GATT Code, the Israel-U.S. and Canada-U.S. Free Trade Agreements, and NAFTA are thoroughly described, analyzed and assessed throughout the following chapters. The study points to various legal and procedural flaws as the main reason for the failure of most of the regimes. The tendering procedures prescribed by such regimes must ensure equal opportunity to all potential suppliers, true competition, and transparency of the system. Effective surveillance and enforcement schemes are also indispensable. Having studied various mechanisms, the thesis strongly recommends an independent judicial or quasi-judicial bid challenge mechanism, such as Canada's Procurement Review Board established pursuant to the FTA.;Attention is also given to methods of implementation, with particular emphasis on the human factor. A field study conducted by the author among Canadian procurement officers regarding the implementation of the FTA procurement regime reveals some important insights in this field.;Finally, the relationship between the various regimes and the international institutional frameworks within which they were conceived is examined. The thesis concludes that public procurement is a distinct area in international trade law with a great potential for specialized surveillance and enforcement arrangements independent of more general international trade regimes.