20 May 2013
MILE 09, Maria Anna Corvaglia
The Complementarity of Soft and Hard Law in Public Procurement: between Harmonization and Resiliance
Maria Anna Corvaglia (World Trade Institute) and Laura Maschner (University of Zurich) Paper prepared for the biennial conference of the American Society of International Law International Economic Law Interest Group, November 29-December 1, 2012, George Washington University School of Law.
Increasing complexity and fragmentation challenge the traditional ‘rulebook’ of international law, including the perception and the relationship of hard and soft law. In this context, by combining normative and governance considerations, the aim of the proposed paper is to analyze the interactions and dynamics of soft and hard law in public procurement, an area where the potential of these regulatory developments has not yet been fully explored.
The research will focus on the analysis of the parallel interactions between hard and soft law instruments of international procurement governance, namely the UNCITRAL Model Law of Procurement of Goods and Services and the Revised Text of the WTO Government Procurement Agreement. The complementary actions of hard and soft law will then be explored in the specific case study of the complex regulatory challenges of addressing corruption in public procurement procurement. Based on these considerations, it is argued that soft law instruments, as complements to hard law agreements, can act as viable regulatory solutions to strike a balance between nondiscrimination and legitimate political concerns in light of the intrusive features of international public procurement regulations.