Green public procurement of pharmaceuticals as a regulatory response to antimicrobial resistance and its compatibility with the WTO Agreement on Government Procurement

Abstract This article examines the compatibility of production‐related environmental criteria in green public procurement with international trade law, specifically the World Trade Organization's Agreement on Government Procurement (GPA). In response to the global health and environmental challenge of antimicrobial resistance (AMR), such measures offer extraterritorial regulation by pharmaceutical purchasing countries where domestic regulation is not forthcoming in pharmaceutical producing countries. The article finds that such green public procurement measures may be compatible with the GPA. The general exceptions of the GPA can be invoked to overcome the potential non‐adherence of these measures to the principle of non‐discrimination between like products (in this case pharmaceuticals) from different importing countries. The provisions of the GPA relating to technical specifications and tender documentation accommodate such green public procurement measures. The provisions relating to conditions for participation in tenders for a public procurement contract and the award criteria for choosing the bidder to whom the contract should be awarded are silent in respect of environmental considerations. However, this may change with the development of domestic regulation on antibiotic effluent and an expansive reading of the term ‘public interest’ in the GPA. For now, international trade law continues to adopt a limited, accommodationist approach towards non‐trade objectives. This approach must be abandoned given the grave implications of failure to address the adverse impacts of global challenges such as AMR. At the same time, compatibility between green public procurement measures and the GPA cannot be taken for granted. The growing interest in domestic or regional drug security, especially in the wake of the COVID‐19 pandemic, may expand the geographical range of pharmaceutical manufacturers, with the possibility that such measures, originally intended to achieve non‐trade objectives, restrict trade.