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Regulatory efforts on both sides of the Atlantic, in anti-corruption and procurement, are become more interdependent, as the two systems, U.S. and European, evolve in parallel. That convergence continued as the European Union finalized its new directives on procurement, and the United States and Europe moved forward in negotiating a comprehensive free trade agreement, the Transatlantic Trade and Investment Partnership (T-TIP), which would (among other things) address barriers to trade in procurement. This piece reviews the T-TIP agreement’s potential impact on procurement, in the near and long term. The European T-TIP negotiators are likely to demand greater access to sub-central (state) procurement markets, in return for reducing barriers to European markets, such as in agriculture. In the longer term, the T-TIP negotiations may well lead to a formalized process for addressing regulatory barriers to trade, including – potentially – barriers raised by procurement regulations. This piece (delivered in February 2014, at the Thomson Reuters Government Contracts Year in Review conference, Washington, D.C.) discusses what were then the pending European procurement directives, focusing, especially, on the “classical” procurement directive, rather than on the proposed directives governing concessions or utilities. The piece reviews some of the more important elements of the draft European procurement directive, assesses whether those elements may have discriminatory impacts on U.S. exporters, and asks whether those discriminatory effects could be mitigated by better cooperation between regulators on either side of the Atlantic.

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GWU Law School Public Law Research Paper No. 2014-15; GWU Legal Studies Research Paper No. 204-15

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