Dispute Settlement Body to adjudicate the responsibility of the United
States for noncompliance with the Government Procurement Agreement.
Request for Establishment of a Panel by the European Communities
www.wto.org
The [Massachusetts] Law forbids State agencies, State authorities and
other State entities from procuring goods and services from any person
currently doing business with the Union of Myanmar …. In practice, this is
achieved by applying an automatic price penalty of 10% on bids from
companies which are deemed to be doing business in or with the Union of
Myanmar….
In doing so, the Law attaches conditions for the participation of
suppliers in tendering procedures which violate the requirement set out in
Article VIII(b) of the GPA [which requires government entities engaged in
procurement to limit any conditions on participation in procurement to
those “essential to ensure the firm’s capability to fulfil the contract in
question”]. Furthermore, by imposing a 10% price increase on the basis of
whether or not a company does business in or with Myanmar, the Law
violates the basic GPA requirement embodied inter alia in Article XIII.4(b)
[which generally requires procuring entities to award contracts to the
qualified bidder with the lowest offer]….
On October 21, 1988, the WTO’s Dispute Settlement Body established a
panel to consider the EU’s complaint and a similar complaint filed by Japan.
Notes and Questions
1. The above petition assumes, correctly, that the United States is
legally responsible for the actions of U.S. states. Is there some way by
which the United States might distance itself from the activities of its
states? In 1994, the UN’s Human Rights Committee, which monitors
compliance with the International Covenant on Civil and Political Rights
(ICCPR),197 considered a complaint brought against Australia by Nicholas Toonen, a
gay rights advocate from the state of Tasmania. Toonen asserted that a
Tasmanian law criminalizing male homosexual sex violated the ICCPR’s
prohibition against “arbitrary or unlawful interference with … privacy,
family, home or correspondence.” Australia appeared before the Committee
to respond to the complaint but essentially conceded that the Tasmanian law
violated the ICCPR. The Committee ruled for Toonen and requested that
Australia rescind the Tasmanian law, but Tasmanian authorities refused to
comply. In response, the federal government enacted a new privacy law in
1994 meant to override the Tasmanian law. After Tasmanian advocates sued
Tasmania in Australia’s High Court to enforce the new law, the Tasmanian
legislature finally repealed the offending law in 1997.
2. Why do you think U.S. states would have an interest in becoming
party to the GPA?
3. What should the federal government do vis-à-vis Massachusetts in
response to a claim of illegal action by foreign governments? Should it
matter that the complaining states are political or military allies of the
United States or major economic partners?
States for noncompliance with the Government Procurement Agreement.
Request for Establishment of a Panel by the European Communities
www.wto.org
The [Massachusetts] Law forbids State agencies, State authorities and
other State entities from procuring goods and services from any person
currently doing business with the Union of Myanmar …. In practice, this is
achieved by applying an automatic price penalty of 10% on bids from
companies which are deemed to be doing business in or with the Union of
Myanmar….
In doing so, the Law attaches conditions for the participation of
suppliers in tendering procedures which violate the requirement set out in
Article VIII(b) of the GPA [which requires government entities engaged in
procurement to limit any conditions on participation in procurement to
those “essential to ensure the firm’s capability to fulfil the contract in
question”]. Furthermore, by imposing a 10% price increase on the basis of
whether or not a company does business in or with Myanmar, the Law
violates the basic GPA requirement embodied inter alia in Article XIII.4(b)
[which generally requires procuring entities to award contracts to the
qualified bidder with the lowest offer]….
On October 21, 1988, the WTO’s Dispute Settlement Body established a
panel to consider the EU’s complaint and a similar complaint filed by Japan.
Notes and Questions
1. The above petition assumes, correctly, that the United States is
legally responsible for the actions of U.S. states. Is there some way by
which the United States might distance itself from the activities of its
states? In 1994, the UN’s Human Rights Committee, which monitors
compliance with the International Covenant on Civil and Political Rights
(ICCPR),197 considered a complaint brought against Australia by Nicholas Toonen, a
gay rights advocate from the state of Tasmania. Toonen asserted that a
Tasmanian law criminalizing male homosexual sex violated the ICCPR’s
prohibition against “arbitrary or unlawful interference with … privacy,
family, home or correspondence.” Australia appeared before the Committee
to respond to the complaint but essentially conceded that the Tasmanian law
violated the ICCPR. The Committee ruled for Toonen and requested that
Australia rescind the Tasmanian law, but Tasmanian authorities refused to
comply. In response, the federal government enacted a new privacy law in
1994 meant to override the Tasmanian law. After Tasmanian advocates sued
Tasmania in Australia’s High Court to enforce the new law, the Tasmanian
legislature finally repealed the offending law in 1997.
2. Why do you think U.S. states would have an interest in becoming
party to the GPA?
3. What should the federal government do vis-à-vis Massachusetts in
response to a claim of illegal action by foreign governments? Should it
matter that the complaining states are political or military allies of the
United States or major economic partners?
