1. Survey of States’ practices regarding the access to justice in the context of Public Procurement/PPPs Dr. Michael Fruhmann UNCITRAL Rule of Law Panel 16th July 2014

2. © Michael Fruhmann 2014 Reviewed legislation Argentina, Australia, Brazil, EU (Directives), EU- MS (national legislations), India, Israel, Japan, Peru, Turkey  survey limited to some basic aspects or aspects of current interest

3. © Michael Fruhmann 2014 Who can challenge? Large majority – no restriction = 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 Emerging idea: independent body who can challenge procedures ex officio (“Public Procurement State Attorney”, IEM – Independent External Monitor) or challenges by “interested citizens”

4. © Michael Fruhmann 2014 What can be challenged? Large majority – no restriction = any decision in Public Procurement procedure Tendency: possibility to annul concluded contracts (in specific circumstances)

5. © Michael Fruhmann 2014 Where? Slight Majority: (civil/administrative) courts (judicial bodies) often: requirement to exhaust challenge mechanism at the procuring entity or administrative bodies before filing an application in court concurs with a general tendency in (western) states towards a “judicial state” - system

6. © Michael Fruhmann 2014 Deadlines for submission generally (very) short: between 5 days and 45 days Literature/legal practice often criticizes length of period (argument: no effective challenge possible)

7. © Michael Fruhmann 2014 Deadlines for final decision (intermediary action excl.) Background: (new) GPA 2 basic approaches depending on institutional set up of Public Procurement remedy system -Administrative approach – often maximum deadlines (varying between 10 days and 8 months) -“traditional” court systems – generally no maximum deadlines (but Public Procurement procedures often submitted to “urgency”/”accelerated” procedural rules)  no/long deadlines “not unproblematic” for contracting entities Literature/legal practice often criticize length of period (argument: no effective challenge possible)

8. © Michael Fruhmann 2014 Fees for introducing remedies 2 basic approaches depending on institutional set up of Public Procurement remedy system – administrative: no fees/fees – “traditional” court systems – generally fees (according to general provisions regarding access to courts)  current discussion (in EU): level of fees as a barrier to access remedy systems

9. © Michael Fruhmann 2014 Safeguards against abuse of the remedy system – in many jurisdictions general provision regarding “abuse” of litigation possibilities  but no cases found!; “practical” difficulty to prove abuse; nevertheless: clause is important as general discouragement of “bad faith” litigants – “automatic suspension” + abuse UNCITRAL Model Law (2011) provides for “automatic suspension (in specific cases), but in majority of reviewed systems not (yet?) implemented

10. Thank you for your attention! Contact: Dr. Michael Fruhmann, Federal Chancellery, Constitutional Service, Republic of Austria michael.fruhmann@bka.gv.at