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The intersection of public procurement law and policy, and international investment law

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  • Dominic Npoanlari Dagbanja

Abstract

There is substantial scholarship on the limitations that international investment agreements (IIAs) place on States’ authority to regulate in the public interest. An area of fundamental importance that has not received scholarly attention in connection with IIAs is public procurement regulation. Given that public procurement is about the needs of States and their citizens, States would want to retain their authority within municipal public procurement laws to decide with whom to contract to meet those needs, and to pursue socioeconomic and industrial policies through procurement. However, most States are parties to IIAs, which impose obligations on them with respect to the protection of foreign investment. This article explores this seminal issue of whether IIAs stand to limit the authority of States in the implementation of procurement legislation and policies. Based on textual analysis and arbitral case study, it argues that treaty-based standards of investment protection can limit States’ authority on the implementation of methods of procurement (such as national competitive tendering or restricted tendering) and socioeconomic policies in procurement. A question that needs fuller engagement is the extent of conflict between specific IIAs and public procurement laws and policies, either regionally or globally, and how to reconcile conflicting obligations to promote foreign investment and sustainable development. This article provides the foundation for such future research.

Suggested Citation

  • Dominic Npoanlari Dagbanja, . "The intersection of public procurement law and policy, and international investment law," UNCTAD Transnational Corporations Journal, United Nations Conference on Trade and Development.
  • Handle: RePEc:unc:tncjou:42
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    References listed on IDEAS

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    1. Schneiderman,David, 2008. "Constitutionalizing Economic Globalization," Cambridge Books, Cambridge University Press, number 9780521692038, October.
    2. Salacuse, Jeswald W., 2010. "The Law of Investment Treaties," OUP Catalogue, Oxford University Press, number 9780199206056.
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