Making the Anti-Corruption Provisions in the New Government Procurement Agreement Under the WTO Operable

Abstract

Corruption is a serious problem in almost all jurisdictions and has become an issue of global concern. Accordingly, it needs to be addressed at an international level. The anti-corruption provisions in the revised Government Procurement Agreement (“new GPA”) under the WTO, which came into force in April 2014, emphasize on recognizing the importance of preventing corruption. This is reflected in the Preamble coupled with the requirement of prevention of the corrupt practices in the conduct of procurement as provided in Article IV:4. This points to the seriousness of corruption issues and the importance of coping with the problem even under a trade agreement. Although the anti-corruption provisions themselves are either soft or not clear enough, they serve as a good foundation for further development of a workable mechanism to implement the main theme of anti- corruption in connection with government procurement activities. This paper argues that additional mechanisms could be established through treaty interpretation based on the VCLT to ensure that these provisions are made operable in reducing, eliminating or preventing procurement-related corruption. This paper further suggests that the non-binding provision in the Preamble of the new GPA can help interpret the binding provisions in Article IV:4 so as to bring the United Nations Convention against Corruption and the OECD Anti-Corruption Convention under the ambit of operation of the new GPA, thereby allowing a breach of a requirement under the conventions to be considered as a violation of the new GPA. This paper additionally argues that such obligations can be enforced through the domestic challenge procedures established under GPA Article XVIII:1 and through the dispute settlement procedures under GPA Article XX:2 (a).