Deviating From The GPA In Bilateral Or Multilateral FTAs — How Good Or Effective Is That Regulatory Strategy?

By: Albert Sánchez-Graells (How To Crack A Nut)

One of the issues procurement lawyers may be unlikely to think much about (at least going by my own experience) is the interaction of the several (and growing number of) pieces of international regulation of procurement-related trade liberalisation. And, in particular, the interaction between the World trade Organisation Government Procurement Agreement (GPA) and the procurement chapters in the multilateral and bilateral free trade agreements (FTAs) that have been mushrooming for a while now.

This is an issue I encountered for the first time when looking at the procurement chapter of the UK-Australia FTA (UK-AUS FTA, see here and here), and on which I will be submitting evidence to the International Trade Committee of the House of Lords tomorrow. In case of interest, here are my thoughts on the matter.

**Warning**, tackling this issue requires a bit of a deep dive into the 1969 Vienna Convention on the Law of Treaties, so this post may be niche (or even more niche than usual). TLDR: despite (intentionally?) deviating from the text of the GPA, FTAs are unlikely to generate practical effects where they vary or reduce GPA-based obligations, except in limited cases where the effects are only for the economic operators of the two jurisdictions signing the FTA, which is both counterintuitive and prone to litigation, especially where GPA- situations concern access to procurement remedies.