PPP Research Center

 Romanian Public-Private Partnership Law Review

No. 15 / 2016

TABLE OF CONTENTS: 

Which is the procedure applicable in case of an arbitration organized by the International Centre On The Settlement Of Investment Disputes (ICSID)?
by Claudiu-Paul Buglea, PhD, Associate Professor, Faculty of Law, University of Bucharest

The exclusion of participants from the award procedure for reasons linked to competition distortion
by Adriana Almășan, PhD, Associate Professor, Lawyer in the Bucharest Bar and Andreea Asavei, LLM student, Private Law LLM, Faculty of Law, University of Bucharest

The cooperation of the contracting authority with the potential tenderers for the drafting of the contract attribution documents
by Monica Amalia Rațiu, PhD, Associate Professor, Faculty of Law, University of Bucharest

New Rules, Old Stories: Modification of Public Contracts - 1st part -
by Simona Gherghina, PhD, Associate Professor, Faculty of Law, University of Bucharest

Suspension of the award procedure until the resolution of the dispute
by Florentina Drăgan, PhD


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Which Is The Procedure Applicable In Case Of An Arbitration Organized by the
International Centre On The Settlement Of Investment Disputes (ICSID)?

Claudiu-Paul Buglea, PhD
Associate Professor
Faculty of Law
University of Bucharest

Summary:

This article presents the most important aspects of the proceedings held before the ICSID arbitration tribunals, in order to solve disputes between foreign investors and the host state of their investment. Regarding the proceedings, the analysis must start, naturally, with the presentation of the trigger event, the request before the court, which is, in our case, the arbitration request. Once the request introduced, the next important step represents the constitution of the arbitral tribunal. Once the latter is constituted, it is important to know its powers and attributions. When speaking of the tribunal's attributions, its main objective is the resolution of the dispute. This is inevitable, through the application of the law to the given situation. This is the reason why the analysis of the applicable law cannot be forgone, given that it is a dispute with an element of extraneity.

The last part of the article is dedicated to the effective debates, which must be concluded with the pronunciation of the arbitral award, which is also analysed. After I tried to present an essential aspect regarding ICSID competence in a previous article, in the present material I shall write about an aspect which interests any practitioner, which is the procedure before an Arbitral Tribunal, formed within the ICSID, in order to solve a dispute between a State hosting an investment and an investor, a national of another State party to the Washington Convention.

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The exclusion of participants from the award procedure
for reasons linked to competition distortion

Adriana Almășan,
Associate professor, PhD
Lawyer in the Bucharest Bar

Andreea Asavei
LLM student, Private Law LLM
Law Faculty of the University of Bucharest
Lawyer in the Bucharest Bar

Summary:

Bid-rigging is a real problem in the present socio-economic context, not only in Romania, but also in other European Union Member States. Thus, Directive 2014/24/EU on public procurement (transposed by Law nr. 98/2016) is issued from the EU legislator's effort to regulate, through public procurement legislation, the stringent problems regarding private corruption, problems that the Court of Justice of the European Union was concerned with. Thus, Directive 2014/14/EU incorporates the solutions of the European Court which has traced the principles for settling certain problems regarding public procurement and competition distortion by participants, solutions which should be respected also by the Romanian courts called upon to interpret and to apply Law nr. 98/2016 in a pan-European spirit.

Keywords: Directive nr. 2014/24, private corruption, bid-rigging by distorting competition, case-law of the Court of Justice of the European Union.


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The cooperation of the contracting authority with the potential tenderers for the
drafting of the contract attribution documents
- 1st part

Monica Amalia Rațiu
Associate professor, PhD
Law Faculty, University of Bucharest

Summary:

Drafting the documents for the award of public procurement contracts is sometimes a complex process during which the contracting authority must identify as accurate as possible the general needs that shall be satisfied through the execution of the contract and the key to the selection of the most suitable contracting partner. Even if, after a preliminary evaluation, the two elements seem easy to determine, practice has, in time, consolidated the conclusion that, in many situations, without a certain cooperation between the contracting authority and the economic operators prior to the commencement of the procedure, as well as during the procurement procedure, respectively, not the best results are obtained from a quality point of view, nor from the perspective of the costs of the products, services and works that shall be contracted.

The necessity of certain cooperation between the contracting authority and the tenderers during the contract procurement procedure has been legally enshrined with the adoption of the Directive 92/50/EEC regarding the coordination of procedures for the award of public service contracts, directive which at paragraphs (26) and (27) of the preamble explained the use of resorting also to other procurement procedures than the open and the restricted tender:

  • „Whereas the rules for the award of public service contracts should be as close as possible to those concerning public supply contracts and public works contracts"
  • „Whereas the procurement rules contained in Directives 71/305/EEC and 77/62/EEC can be appropriate, with necessary adaptations so as to take into account special aspects of procurement of services such as the choice of the negotiated procedure, design contests, variants, the legal form under which the service providers operate, the reservation of certain activities to certain professions, registration and quality assurance ..."

Thus, the generation of directives issued in the 90s also regulated procurement procedures with allow negotiations prior to the award and conclusion of the public procurement contract, underlining that the respective negotiations could unfold in the interval between the moment of the opening of the tenders and the moment of the award of the contract.

Regarding the necessity of certain discussions and consultation also prior to the moment of drafting of the award documents and the publishing of the announcement, it can be observed that the issue has become, first, a clarification subject for case-law and only later has it benefitted from increasing detailed regulations in the directives.

The current classic directive as well as the utility directive, regulate in detail the terms of the prior interaction between the contracting authority and the potential tenderers to the procurement procedure, legal mechanisms taken as such by Law nr. 98/2016 on public procurement, respectively Law nr. 99/2016 on sectorial public procurement.

Keywords: public procurement, negotiations, advice for drafting of the award documents, precluding competition, exclusion from the procurement procedure.

 

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New Rules, Old Stories: Modification of Public Contracts
- 1st part -

Simona Gherghina
Associate Professor, PhD
Faculty of Law
University of Bucharest

Summary:

The regulation in Directive 2014/24 of the modification of public contracts transposes a significant jurisprudence of the European Court of Justice, which further maintains its relevance for the interpretation of the new rules, building a complex structure of principles and rules. Such complexity is augmented in the national regulations transposing the Directive, as additional rules are provided. The modification of public contracts may thus be seen as one of the most complex legal institutions of the European law. Consequently, the analysis of its legal structure and of its potential implications in practice is likely to determine lines of interpretation that may be able to offer guidance and solutions.

Keywords: public procurement, contract changes, transparency, equal treatment

 

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Suspension of the award procedure
until the resolution of the dispute

Florentina Drăgan, PhD

„A review procedure should be available at least to any person having
or having had an interest in obtaining a particular contract and who
has been or risks being harmed by an alleged infringement.”

Summary:

The suspension of the award procedure is an interim measure until an administrative or judicial decision is given. The purpose of this measure is to avoid or to relieve harm in justified cases, which could intervene during an award procedure.

Keywords: public procurement, suspension of the award procedure, Directive 2007/66/EC, Directive 89/665/EEC, litigation, harm, procurement contract.