LEGAL CHECK OF THE PROVISIONALLY AGREED REVISED Agreement
on Government Procurement: points FOR CONSIDERATION
BY DELEGATIONS*

Note by the Secretariat

Revision

In the informal closing session held on 15 February 2007, the Secretariat was asked to identify, by mid-March, any issues regarding the legal drafting of the text of the provisionally agreed revised Agreement on Government Procurement (GPA/W/297) and legal issues in relation to the Final Provisions that might merit consideration by delegations (Chairman's statement in the informal closing session, Job No. 1058 of 16 February 2007, paragraph 7).

Attached is a list of such issues. As envisioned in the informal closing session, the list has been prepared by the Secretariat to the Committee on Government Procurement in consultation with the Secretariat's Legal Affairs Division.

The attention of delegations is drawn to two "horizontal" drafting issues. First, in some but not all places in the text, commas have been placed before "and" or "or" at the end of a sequence of items. To avoid the risk of unintended meaning being given to this difference, a single approach might be considered. The practice in other WTO agreements, as reflected in the WTO style guidelines[1], is not to place such commas unless necessary for purposes of clarity. It might also be noted that in some places where language has been modelled on other WTO legal provisions commas have been added, even though no difference in meaning may be intended. Examples are the definitions of "standard" and "technical specification" in Articles I(r) and (t)(ii). These appear to be modelled on Articles 1 and 2 of Annex 1 of the WTO Agreement on Technical Barriers to Trade. However, in both instances, the new GPA provisions contain commas after the word "marking" which are not found in the TBT provisions.

Second, the new Agreement at several places refers to "each Party's Appendix I" or "a Party's Appendix I". However, under the present (1994) Agreement, there is only one Appendix which is common to all the Parties. If it is the intention to keep the same structure of the Appendices, one solution might be to refer to "a Party's Appendix I Annexes" or similar in the relevant places, especially now that each Party's General Notes will be put in an Annex.[2]

It should also be noted that the Secretariat has not provided any comments in regard to Article XXII:16-18, as these paragraphs appear to set out options that are still under active consideration by delegations.

As outlined in the Chairman's statement in the informal closing session, delegations are invited to reflect on the points in this Note and to identify any other points meriting consideration, if possible by end-March. Any points submitted by delegations will be circulated by the Secretariat to all participants in the negotiations. The points raised by the Secretariat and by delegations will then be discussed and any consequential rectifications agreed (or otherwise) by delegations in a plurilateral format, in the course of the planned meetings in the week of 16-20 April.