Caroline Nicholas: Public procurement can be a vehicle for economic growth PRINT E-mail
nichols[17/06/2013] Interview with Caroline Nicholas, Senior Lawyer, UNCITRAL

Mrs Caroline Nicholas is a lawyer with the International Trade Law Division of the United Nations Office of Legal Affairs (the Secretariat of the United Nations Commission on International Trade Law (UNCITRAL). She serves as the Secretary to the UNCITRAL Working Group on Procurement, which recently adopted the UNCITRAL 2011 Model Law on Public Procurement.
A member of the Editorial Board of the Public Procurement Law Review and regular contributor to it and to other journals, and regular presenter at international procurement conferences, she is bringing the work of UNCITRAL in modernizing procurement to a wide audience.

 She works with the main international players in procurement and procurement reform (such as the WTO, The World Bank and multilateral development banks such as the ADB, IDB, the OECD, IDLO, and regional trade organizations such as COMESA) to promote harmonization in procurement rules and to support international trade and development. Prior to joining UNCITRAL, Mrs Nicholas advised on claims of the Kuwaiti Government arising from Iraq's 1990 invasion and occupation of Kuwait at the United Nations Compensation Commission, and worked as an internal fraud investigator in the United Nations. She practised in the private sector in the City of London and in Hong Kong, specializing in banking and insolvency litigation.

We used the opportunity to ask Mrs Nicholas few questions regarding the UNCITRAL Model Law and the Public Procurement in the CIS countries and Mongolia:

Q: Public Procurement Initiative in the CIS countries and Mongolia is a common project of UNCITRAL and EBRD. How did the ambitions of UNCITRAL benefit from the cooperation between these two institutions during the past two years?

Caroline Nicholas: The mandate of UNCITRAL is to modernise and harmonise international trade law, through the issue and use of legal texts such as the UNCITRAL Model Law on Public Procurement, with the aim of supporting economic and social development. The Legal Transition Programme of the EBRD aims to contribute to the improvement of the investment climate in the Bank’s countries of operations by helping create an investor-friendly, transparent and predictable legal environment, among other things through the development of legal rules to support market-oriented economies. Hence EBRD and UNCITRAL effectively address two sides of the same coin: enhancing the legal environment for business. The different skills and experience of the two institutions can be combined to maximise their effectiveness towards these shared goals. The increasing emphasis on public procurement as a vehicle for economic growth and development encouraged us to explore how to work together to support reform in this area, with the result that the relatively new Model Law is receiving increased recognition and understanding as a tool for growth and development in the CIS countries and Mongolia, and elsewhere.

Q: How far has the Initiative proceeded in achieving its objectives and what are its next steps in the CIS countries and Mongolia?

Caroline Nicholas: The Initiative is a medium-term project, with two main phases. The first is to introduce and explain the Model Law and how it can support procurement reform, through a series of policy workshops in the CIS countries and Mongolia. These workshops have taken place over the last one and a half years, starting in Armenia in October 2011, and the last in the current series taking place this week in Ulaanbaatar. We are pleased that these workshops have enjoyed a high degree of success in promoting a good understanding of the Model Law – critical to its effective implementation and use. The second phase is country-specific technical assistance projects, for example in Armenia, on e-procurement and focussing on the legal enabling environment, for example, through drafting regulations and decrees. The next steps include capacity-building support: assisting in drafting guidance, standard documents and in training programmes.

Q: What would you quote among the most important success stories of the Initiative in the region to date?

Caroline Nicholas: The programme is a regional one, designed to introduce international best practices, tailored to meet the needs of each country concerned. The process prior to the workshops involved interaction with local experts in each country, so that the diagnostic for each country – although desk-based – focussed on the issues faced on the ground. This meant that the workshops were able to consider the solutions offered by the Model Law to the issues of most importance to the countries themselves. This approach – reflecting the essence of the modern view of aid effectiveness – is critical for effective assistance to development. It is also reflected in the fact that the country projects are designed according to the countries’ own identification of their needs.

Q: Taking into account experience you already have from the region, how difficult it is to incorporate the 2011 UNCITRAL Model Law principles into the legislative systems of the countries in transition. How much easier is it in those countries, which had previously implemented provisions of the 1994 UNCITRAL Model Law?

Caroline Nicholas: UNCITRAL’s working methods involve inter-governmental negotiations, to produce texts through a consensus-building process. This ensures that UNCITRAL texts, including the Model Law, are applicable for all countries, irrespective of level of development, region, legal tradition and so forth. Hence it is generally no more difficult to incorporate the Model Law into economies in transition than elsewhere, but care is needed to ensure that the options envisaged in the Model Law are exercised to reflect local needs. For example, where there is no tradition of commercial transactions between the private and public sectors, a graduated approach to the introduction of some tools available in the Model Law is advisable to increase competition and improve results in the process.

The 2011 Model Law has not deviated from the core principles and procedures in the 1994 Model Law, but has introduced new techniques and practices. While it can be said that it is easier to update a law based on the 1994 Model Law than to start from scratch given familiarity with the main principles and procedures in the Model Law, the reform process is about much more than changing the legal formulation itself. What is needed is to understand the guiding principles of the Model Law, which are also common to many procurement systems, and how to use them in practice. The Initiative is doing well at explaining how the new tools and techniques implement those principles and can improve performance in the system as a whole.

Q: What are the benefits of formulating the national public procurement legislation on the basis of the 2011 UNCITRAL Model Law, instead of drawing inspiration from procurement legislation of particular states? Was the 2011 UNCITRAL Model Law itself inspired by national procurement legislation of particular countries?

Caroline Nicholas: As the brief description of UNCITRAL’s working methods above indicates, the benefit of an international process to develop the Model Law means that experience from a wide variety of states, as well as from international organisations and NGOs, forms the basis of the policies encapsulated in the law. Valuable experience from states and other systems was discussed during that process – often at some length. Thus the UNCITRAL process allows an assessment of how that experience may transfer to other states and systems. The risks that may arise if a solution from state A is tried in state B without sufficient consideration of different circumstances and needs are therefore mitigated where the Model Law is taken as a basis for a law in the national context. In particular, the experience gained in e-procurement, framework agreements and dialogue-based or negotiated procurement were considered in detail during the process to produce the 2011 Model Law.

Interview with Public Procurement Expert was prepared by Ms Martina Kovacova, EBRD UNCITRAL Initiative Coordinator.

The views and opinions expressed herein are solely personal and can in no way be interpreted as the official position of the EBRD or UNCITRAL.

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