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When the Leviathan goes to the market: A critical evaluation of the rules governing state-owned enterprises in trade agreements

Published online by Cambridge University Press:  03 February 2020

Leonardo Borlini
Leonardo Borlini*
Affiliation:
University Bocconi, Via Roentgen 1, 20136, Milano, Italy Email: [email protected]
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Abstract

State-owned enterprises (SOEs) have long constituted, and are likely to remain, an important instrument in any government’s toolbox for a variety of economic and societal goals. However, the significant extent of state ownership among the world’s top companies, and the quantitative and qualitative transformation and hybrid nature of SOEs, raises the issue of their impact on international trade flows and the competitive process. This article addresses the question of how international trade agreements regulate SOEs, with a view to furthering the international contestability of markets, while, at the same time, allowing governments to provide support to SOEs as a means of dealing with market failures and the pursuit of public goals. After a brief introduction to contemporary state capitalism, the argument is developed in three main parts. The first part situates SOEs within the GATT and WTO frameworks and elaborates on the findings of previous literature with a view to highlighting the main shortcomings of such discipline. The second part re-examines the notion of ‘competitive neutrality’ by locating contemporary trade agreements within the larger contextual relationships between the state, the market, and the social, and thus reconstructs the normative rationales and general policy implications of the disciplines under examination. Against this background, the third part critically assesses the new disciplines on SOEs in recent preferential trading areas (PTAs). The main conclusion is that the search for binding rules has not led to balanced regimes and, despite the wider scope of the new rules, notable problems that have emerged within the WTO context remain unsolved.

Keywords

international market contestabilitynon-commercial assistancePTAsSOEsWTO law
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 33 , Issue 2 , June 2020 , pp. 313 - 334
Copyright
© Foundation of the Leiden Journal of International Law 2020

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Footnotes

*

Assistant Professor of International Law, Department of Legal Studies/BAFFI CAREFIN (Centre for Applied Research on International Markets, Banking, Finance and Regulation), University Bocconi; Fulbright Research Scholar at the Fletcher School of Law and Diplomacy (Tufts University); PhD (Bocconi), LL.M (Cantab.). An earlier version of the present article was presented at the Workshop of the Interest Group on International Economic Law at the ESIL Annual Conference in Riga on 7 September 2016. The discussion at this event was invaluable. I am indebted to constructive comments from Professors Ming Du, Gary Horlick, Roger O’Keefe, Giorgio Sacerdoti, and Joel Trachtman. Finally, I am grateful to Ms Danielle Yeow (International Affairs Division, Senior State Counsel Attorney-General’s Chambers, Singapore), for the helpful discussions on the TPP’s rules on SOEs, and Professor Claudio Dordi for the illustration of the informal and formal relations between public and private entities in selected jurisdictions of the Pacific Rim.

References

1 F. Fukuyama, ‘The End of History?’, (1989) 16 The National Interest 3.

2 See Musacchio, A. and Lazzarini, S. G., Reinventing State Capitalism: Leviathan in Business, Brazil and Beyond (2014), 45–52CrossRefGoogle Scholar; Bremmer, I., The End of the Free Market: Who Wins the War Between States and Corporations? (2010), 4–5Google Scholar.

3 Chinese SOEs have played a key role in the enormous growth China has experienced over the past three decades and have become more powerful than ever. While, in 2005, there was not a single SOE among the top ten firms of the Fortune Global 500 list, in 2013 there were three SOEs, Sinopec Group, China National Petroleum (two of China’s national oil companies), and State Grid (a Chinese utility), among the top ten (see money.cnn.com/magazines/fortune/global500/2013/full_list/). In 2018, these three companies respectively rank second, third, and fourth (see fortune.com/global500/).

4 SOEs are obviously not limited to China: they are an integral part of the economic structure of several countries both in the Western and Eastern hemisphere. See further OECD, The Size and Sectoral Distribution of SOEs in OECD and Partner Countries (2017).

5 I. Bremmer, ‘The New Rules of Globalization’, (2014) 92(1/2) HBR 103; H. Liang, B. Ren and S. Li Sun, ‘An Anatomy of State Control in the Globalization of State-Owned Enterprises’, (2015) 46(2) JIBS 223.

6 Over the 2001–2012 period governments acquired more assets through stock purchases (US$1.52 trillion) than they sold through share issue privatizations and direct sales (US$1.48 trillion). Much of this state investment was channelled through SWFs and the vast bulk of these stock purchases were cross-border transactions. See Bortolotti, B., Fotak, V. and Megginson, W. G., ‘The Rise of Sovereign Wealth Funds: Definition, Organization, and Governance’, in Caselli, S., Corbetta, G. and Vecchi, V. (eds.), Public Private Partnerships for Infrastructure and Business Development Principles, Practices, and Perspectives (2015), 295Google Scholar.

7 Zheng, W., ‘State-Owned Enterprises versus the State. Lessons from Trade Law’, in Cheng, T. K., Lianos, I. and Sokol, D. D. (eds.), Competition and the State (2014), 75, 78–9Google Scholar.

8 P. C. Mavroidis and M. E. Janow, ‘Free Markets, State Involvement and the WTO: Chinese State-Owned Enterprises in the Ring’, (2017) 16(4) WTR 571; Matsushita, M., ‘State-Owned Enterprises in the TPP Agreement’, in Chaisse, J., Gao, H. and Lo, C-F. (eds.), Paradigm Shift in International Economic Law Rule-Making TPP as a New Model for Trade Agreements? (2017), 187CrossRefGoogle Scholar.

9 M. Kim, ‘Regulating the Visible Hands: Development of Rules on State-Owned Enterprises in Trade Agreements’, (2017) 58(1) HarvIntlLJ 226, 229–34, 271–2; J. S. Fleury and J-M. Marcoux, ‘The US Shaping of State-Owned Enterprise Disciplines in the Trans-Pacific Partnership’, (2016) 19(2) JIEL 445; I. Willemyns, ‘Disciplines on State-Owned Enterprises in International Economic Law: Are we Moving in the Right Direction?’, (2016) 19(3) JIEL 657.

10 R. Wolfe, ‘Sunshine over Shanghai: Can the WTO Illuminate the Murky World of Chinese SOEs?’, (2017) 16(4) WTR 713, 715.

11 Mavroidis, P. C., The Regulation of International Trade. Volume I: GATT (2016), 403–5CrossRefGoogle Scholar.

12 Jackson, J. H., The World Trading System: Law and Policy of International Economic Relations (1997), 328Google Scholar. Mavroidis and Janow, supra note 8, at 571–2, remember that it was so also for the GATT 1947 (General Agreement on Tariffs and Trade 1947, 55 UNTS 194), the predecessor of the WTO, the assumption being that members of the GATT would be free markets, as opposed to centrally planned economies, or non-market economies (NME for short).

13 M. Du, ‘China’s State Capitalism and World Trade Law’, (2014) 63(2) ICLQ 409, 427.

14 General Agreement on Tariffs and Trade 1994 (GATT), 1867 UNTS 187.

15 1994 Agreement on the Implementation of Article VI of GATT 1994, 1868 UNTS 201.

16 1994 Agreement on Subsidies and Countervailing Measures, 1867 UNTS 14.

17 As detailed below, a different and more intricate issue is whether the SCM agreement applies directly to SOEs.

18 Other GATT provisions that relate either directly or indirectly to STEs are Arts. II (Schedule of Concessions) and XX (General Exceptions). Also, an Interpretative note to Arts. XI, XII, XIII, XIV, and XVIII specifies that throughout these provisions, the term ‘import restrictions’ and ‘export restrictions’ include restrictions made effective through state trading operations.

19 See further Petersmann, E-U., ‘GATT Law on State Trading Enterprises: Critical Evaluation of Article XVII and Proposals for Reform’, in Cottier, T. and Mavroidis, P. C. (eds.), State Trading in the 21st Century (1998), 71, 80–1Google Scholar.

20 A. Mastromatteo, ‘WTO and SOEs: Article XVII of the GATT 1994’, (2017) 16(4) WTR 601.

21 Panel Report Canada–Measures Relating to Exports of Wheat and Treatment of Imported Grain, adopted 6 April 2004, WT/DS276/R, paras. 6.48, 6.50. The panel confirmed that the principle of non-discrimination at Art. XVII includes also the most favoured nation clause, but did not elaborate on the principle of national treatment.

22 Appellate Body Report Canada–Measures Relating to Exports of Wheat and Treatment of Imported Grain, adopted 30 August 2004, AB-2004-3, WT/DS276/R, paras. 93–106. The AB rejected the argument that Art. XVII:1(b) establishes a separate, general competition-law-type obligation on STEs to follow ‘commercial considerations’ in all of their purchases and sales.

23 Mavroidis, supra note 11, at 410–12, discusses the case law to this effect.

24 Mavroidis and Janow, supra note 8, at 573.

25 Appellate Body Report, supra note 21, para. 157.

26 1994 General Agreement on Trade in Services 1869 UNTS 183.

27 Art. XXVIII(h) GATS elaborates on the concept of ‘monopoly supplier’ stating that the service supplier needs to be ‘authorised or established formally or in effect by that Member as the sole service supplier’, thereby requiring some direct government involvement. The notion of ‘exclusive services provider’ is illustrated in Panel Report China–Certain Measures Affecting Electronic Payment Services, adopted 16 July 2012, WT/DS413R, para. 7.587.

28 SCM agreement, Art. 27.13.

29 Pauwelyn, J. H. B., Guzman, A. T. and Hillman, J. A., International Trade Law, third edition (2016), 510–12Google Scholar.

30 Appellate Report United States–Definitive Antidumping and Countervailing Duties (China), adopted 25 March 2011, WT/DS379/AB/R, para. 317.

31 See also T. J. Prusa and E. Vermulst, ‘United States-Definitive Anti-Dumping and Countervailing Duties on Certain Products from China: Passing the Buck on Pass-Through’, (2013) 12 WTR 197, 227–8; R. Ding, ‘Public Body or Not: Chinese State-Owned Enterprises’, (2014) 48(1) JWT 167, 170–1; Du, supra note 13, at 430–3; M. Wu, ‘The “China Inc.” Challenge to Global Trade Governance’, (2016) 57(2) HarvIntlLJ 261, 300–5; Wang, J., ‘State Capitalism and Sovereign Wealth Funds: Finding a “Soft” Location in International Economic Law’, in Lim, C. L. (ed.), Alternative Visions of the International Law of Foreign Investment (2016), 405, 411–14Google Scholar.

32 Appellate Body Report, supra note 30, para. 319.

33 Appellate Report United States–Countervailing Duty Measures on Certain Products from China, adopted 18 December 2014, WT/DS437/AB/R, paras. 317–22.

34 Du, supra note 13, at 438. For a recent application of the same test see Panel Report United States – Countervailing Duty Measures on Certain Pipe and Tube Products from Turkey, adopted on 18 December 2018, WT/DS523/R & WT/DS523/R/Add.1, paras. 7.34–7.50, a finding that, not surprisingly, was appealed by the US on 25 January 2019.

35 Pauwelyn, Guzman and Hillman, supra note 29, at 507–12.

36 Wu, supra note 31, at 304. See, e.g., Appellate Report United States–Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India, adopted 8 December 2014, WT/DS436/AB/R, para. 4.43.

37 J. Pauwelyn, ‘Treaty Interpretation or Activism? Comment on the AB Report on United States – ADs and CVDs on Certain Products from China, (2013) 12 WTR 235, at 235–7.

38 Appellate Body Report, United States—Countervailing Duty Investigation on DRAMS from Korea, adopted 27 June 2005, WT/DS296/AB/R, para. 113.

39 Ibid., para. 116.

40 See extensively Matsushita, M., Schoenbaum, T. J., Mavroidis, P. C and Hahn, M., The World Trade Organization: Law, Practice and Policy, third edition (2015), 314–15Google Scholar.

41 Appellate Body Report China–Measures Affecting Trading Rights and Distribution Service for Certain Publications and Audiovisual Entertainment Products, adopted 21 December 2009, WT/DS363/AB/R, paras. 133–40.

42 Protocol on the Accession of the People’s Republic of China, WT/L/432 (23 November 2001).

43 Mavroidis and Janow, supra note 8, at 575.

44 Jackson, J. H., ‘The Impact of China’s Accession on the WTO’, in Cass, D., Williams, B. and Barker, G. (eds.), China and World Trading System (2003), 26Google Scholar.

45 See, e.g., J. Y. Qin, ‘WTO Regulation of Subsidies to State-owned Enterprises (SOEs) – A Critical Appraisal of China Accession Protocol’, (2004) 7(4) JIEL 863; Du supra note 13, at 428–34; P. I. Levy, ‘The Treatment of Chinese SOEs in China’s WTO Protocol of Accession’, (2017) 16(4) WTR 635; G. Sacerdoti, ‘Has China Become “Legally” a Market-economy Country on 11 December 2016 under the WTO Antidumping Agreement? Analyzing an Open Question’, (2017) Y. Int. Inv. L&Pol 2015-2016, 356.

46 The Protocol of Accession supra note 42, paras. 5–6, 9, includes rules specific to China’s state trading regime and price controls. Particularly, it extends the provisions of Art. XVII GATT to cover all ‘state-owned enterprises’ and ‘state-invested enterprises’.

47 Report of the Working Party on the Accession of China, WT/ACC/CHN/49, 1 October 2001, para. 46.

48 Protocol of Accession, supra note 42, para. 10.

49 It is not entirely clear why 2016 was selected as the date when China would no longer be treated as an NME. Levy, supra note 45, at 648 argues that, presumably, WTO members might have thought that between 2001, the year of Chinese accession to the WTO, and 2016, the reforms that were then underway would have translated into a fully functioning market economy, whatever ultimate beneficial ownership may still exist.

50 Qin, supra note 45, at 903.

51 Between 2009 and 2015, China-related cases accounted for 90% of the cases brought by the largest economies against each other. Calculation based on information provided on WTO: Trade Topics: Dispute Settlement: The Disputes, Dispute by Country/Territory, available at www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm.

52 Sacerdoti, supra note 45, at 356.

53 This is the case for the complex web of overlapping networks and relationships, some formal and others informal, between the state, Party, SOEs, private enterprises, financial institutions, investment vehicles, trade associations, etc., which, together, shape China’s economic structure.

54 The case cited supra note 33 suggests that, almost 13 years after China’s accession, the Protocol failed to provide the requisite clarity.

55 Protocol of Accession supra note 42, para. 46.

56 Levy, supra note 45, at 635–7, 648–53; Wu, supra note 31, at 282–5, 300–7.

57 Hoekman, B., ‘Behind-the-Border Policies: Regulatory Cooperation and Trade Agreements’, in Primo Braga, C. A. and Hoekman, B. (eds.), Future of Global Trade Order (2017), 147, at 147–9Google Scholar.

58 For a far-reaching analysis that situates trade law within the politics of global struggles and examines how different legal theories influence its practice see Lang, A., World Trade Law after Neoliberalism. Re-imagining the Global Economic Order (2011)CrossRefGoogle Scholar.

59 See, ex multis, J. Pauwelyn and R. J. Hamilton, ‘Exit from International Tribunals’, (2018) 9(4) JIDS, 679.

60 The OECD, ‘Guidelines on Corporate Governance of State-Owned Enterprises. 2015 Edition’, Sec. III, contains the conceptual basis of the notion.

61 Cf., respectively, US State Department ‘State Capitalism and Competitive Neutrality’, 2 March 2012, available at www.state.gov/e/eb/rls/rm/2012/181520.htm; ‘Commonwealth Competitive Neutrality Policy Statement’, 1 April 1999, available at treasury.gov.au/publication/commonwealth-competitive-neutrality-policy-statement.

62 A. Capobianco and H. Christiansen, ‘Competitive Neutrality and State-Owned Enterprises: Challenges and Policy Options’, (2011) (1) OECD Corporate Governance Working Papers; P. Kowalski et al., ‘State-Owned Enterprises: Trade Effects and Policy Implications’, (2013) 147 OECD Trade Policy Paper.

63 Cf., e.g., 2004 Australia-United States of America Free Trade Agreements, (2004) 43 ILM, 1248, Art. 14.4.

64 Capobianco and Christiansen, supra note 62, at 3.

65 Orford, A., ‘Theorizing Free Trade’, in Orford, A. and Hoffmann, F. (eds.), The Oxford Handbook of the Theory of International Law (2016), 701Google Scholar, 702.

66 See, among others, OECD, ‘State-Owned Enterprises as Global Competitors: A Challenge or an Opportunity?’ (2016), 15–17CrossRefGoogle Scholar and the arguments raised, among others, by S. Lester, ‘The TPP’s Contribution to Public International Law’, (2015) 19(26) ASIL Insights; Fleury and Marcoux, supra note 9, at 446–7; Willemyns, supra note 9, at 659.

67 Willemyns, ibid., for instance, even describes competitive neutrality as a ‘principle’.

68 As noted by Lang, supra note 58, at 12–13, any historical account is, at last, an interpretative and constitutive act.

69 See, e.g., D. Scissors, ‘Why the Trans-Pacific Partnership Must Enhance Competitive Neutrality’, The Heritage Foundation, 6 June 2013, available at www.heritage.org/trade/report/why-the-trans-pacific-partnership-must-enhance-competitive-neutrality.

70 Kim, supra note 9, at 229–30.

71 Du, supra note 13, at 421–6.

72 Wu supra note 31, at 316 and, with arguments the present work partly challenges, Kim, supra note 9, at 242–4, 247–54.

73 Wolfe, supra note 10, at 714–15.

74 United States, Bipartisan Congressional Trade Priorities and Accountability Act of 2015, Pl 114-26, Title I, Sec. 102.

75 UNMCA, available at ustr.gov/trade-agreements/free-trade-agreements/united-states-mexico-canada-agreement/agreement-between.

76 Ibid., Art. 22.1.

77 Signed in Santiago, Chile, on 8 March 2018. The TPP-11 is a separate treaty that incorporates, by reference, the provisions of the original Trans-Pacific Partnership (TPP), defunct after the United States withdrew its signature, available at www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/index.aspx?lang=eng. The chapter on SOEs remained identical after the US withdrew.

78 European Commission, Concept Paper on WTO Modernization, 18 September 2018, at 2, available at trade.ec.europa.eu/doclib/docs/2018/september/tradoc_157331.pdf.

79 On the work of theory as involving the attempt to rearrange what is already visible see A. Orford, ‘In Praise of Description’, (2012) 25 LJIL, 609.

80 Orford, supra note 65, at 707.

81 Ibid., 708–9, 735–6. See also L. Magnusson, The Tradition of Free Trade (2004), 4–14 and, from different angles, J. P. Trachtman, ‘Functionalism, Fragmentation and the Future of International (Trade) Law’, SSRN, 13 October 2018, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=3252637.

82 According to Renato Ruggero, then General Director of the WTO, the introduction of a set of rules dedicated to the ‘international contestability of markets’ was one of the needed developments of the WTO not considered during the 1986–1994 Uruguay Round. Cited in T. J. Schoenbaum, ‘The Concept of Market Contestability and New Agenda of the Multilateral Trading System’, (1996) 1(2) ASIL Insights.

83 W. J. Baumol, ‘Contestable Markets: An Uprising in the Theory of Industry Structure’, in (1982) 72 AmEcRev 1.

84 A. Beviglia Zampetti and P. Sauvé, ‘Onwards to Singapore: The International Contestability of Markets and the New Trade Agenda’, (1999) 19(3) World Econ. 333, at 334, emphases added.

85 For a similar reading see Matsushita, supra note 8, at 199.

86 Trebilcock, M., Howse, R. and Eliason, A., The Regulation of International Trade (2013), 364Google Scholar.

87 Matsushita, supra note 8, at 189.

88 See, e.g., Willemyns, supra note 9, at 659–60.

89 S. Puig, ‘The United States-Mexico-Canada Agreement: A Glimpse into the Geoeconomic World Order’, (2019) 113 AJIL Unbound 56.

90 See, e.g., Matsushita, supra note 8, at 190–202; Kim, supra note 9, at 235–52.

91 H. Horn, P. C. Mavroidis and A. Sapir, ‘Beyond the WTO: An Anatomy of the EU and US Preferential Trade Agreements’, (2010) 33(11) World Econ. 1565.

92 Cf., e.g., 2015 Free Trade Agreement between the Government of Australia and the Government of the People’s Republic of China, (2015), ATS 15. Currently, the negotiations of the Asian Regional Comprehensive Economic Partnership (RCEP), of which China is a part, are not considering rules on the regulation and transparency of SOEs. See ‘TPP, RCEP and the Liberal Economic Order’, The Diplomat, 2 September 2018.

93 1980 South Pacific Regional Trade and Economic Co-operation Agreement, 1240 UNTS 66.

94 Cf., e.g., 2007 Agreement on Comprehensive Economic Partnership among Japan and Members of the Association of Southeast Asian Nations, available at www.mofa.go.jp/policy/economy/fta/asean.html; 2018 Agreement Establishing the African Continental Free Trade Area, available at au.int/en/treaties/agreement-establishing-african-continental-free-trade-area.

95 1992 North American Free Trade Agreement, (1993) 32 ILM 289, Arts. 1502 and 1503.

96 EU-Singapore Free Trade Agreement, authentic text as of April 2018, (EUSFTA), available at trade.ec.europa.eu/doclib/docs/2013/september/tradoc_151764.pdf, Art. 11.3.

97 This is the obligation included, for example, in the 2003 USA-Chile FTAs, 42 ILM 1026, Ch. 16.

98 EU-Canada Comprehensive trade and economic agreement (CETA), Art. 18.4. The European Parliament voted in favour of the agreement on 15 February 2017. CETA entered into force provisionally on 21 September 2017. Available at ec.europa.eu/trade/policy/in-focus/ceta/.

99 After the NAFTA, SOEs disciplines have consistently been present in the US-driven trade corpus and subsequently included, inter alia, in the 2003 US-Singapore FTA, 42 ILM 1026, Ch. 12; US-Australia FTA, Ch. 14; 2012 USA-Republic of Korea FTA, 46 ILM 642, Ch. 16.

100 Cf. 2018 EU-Japan economic partnership agreement (EUJEPA), entered into force on 1 February 2019, available at trade.ec.europa.eu/doclib/press/index.cfm?id=1684, and the text resulting from the end of the negotiations for a EU-Vietnam free trade agreement (EUVFTA), available at trade.ec.europa.eu/doclib/press/index.cfm?id=1437, Ch. 11.

101 Cf. also 2008 Australia-Chile FTA, (2009) ATS 6, Ch. 14; 2008 Canada-Peru FTA, (2009) CTS 15, Ch. 13; 2014 Canada-Republic of Korea FTA, (2015) CTS 20, Ch. 15.

102 Leaked texts are respectively available at trade-leaks.org/tisa/, and trade-leaks.org/mercosur-leaks/.

103 2003 Singapore-Australia free trade agreement, as last amended in 2017, available at dfat.gov.au/trade/agreements/in-force/safta/Pages/singapore-australia-fta.aspx, Art. 12(4).

104 2014 FTA between the Government of the Republic of Korea and the Government of Australia, (2014) ATS 43, Art. 14(4).

105 2015 Agreement between Japan and Australia for an Economic Partnership, (2015) ATS 2, Art. 15(4). While, for Australia, it is the third agreement to incorporate rules on competitive neutrality, this agreement is notable for Japan as it is its first trade agreement that explicitly introduced a provision intended to regulate SOEs.

106 2005 Korea-Singapore FTA, www.fta.go.kr/webmodule/_PSD_FTA/sg/1/KSFTA.pdf, Art. 15(4).

107 In embracing the concept of ‘competitive neutrality’, the parties of the above-referred treaties are invited to adopt reasonable measures to ensure a level playing field of enterprises in their domestic markets. While such model encapsulates a flexible approach that encourages an ex-ante resolution before the infliction of actual harm, the language is largely hortatory; the relevant provisions are weak and employ subjective standards. These flaws make the model at issue unequipped to address the loopholes in the WTO system and offer a comprehensive treatment of the anticompetitive situations created by SOEs.

108 European Commission, EU Negotiating Text in TTIP, available at trade.ec.europa.eu/doclib/press/index.cfm?id=1230.

109 E.g., CETA, Ch. 17; CPTPP Ch. 16; USMCA, Ch. 21.

110 As competition law is still very much an area of domestic concern, applying national competition law to SOEs will likely result in more fragmented rules on SOEs, instead of the desired predictability and consistency.

111 E.g., CETA, Art. 18(1)–(2).

112 E.g., NAFTA, Arts. 1503.2, 1505.

113 E.g., US-Korea FTA, Art. 16(3)1(a); US-Australia FTA, Art. 14(4).

114 E.g., KAFTA, Art. 12(3) and 14 (4); SAFTA, Art. 10(4); EUSFTA, Art. 11(3).

115 Cf. CPTTP, Art. 17(1)(13) and also, the definitions contained in the proposed texts of the EU-Mercosur FTA, TiSA and TTIP.

116 Cf. also EU-Vietnam FTA, Art. 11(1)(g).

117 The definition of ‘government enterprise’ contained in Art. 12.8 US-Singapore FTA is asymmetric, as for the US it refers to the control/ownership test.

118 Cf., e.g., CPTTP, Art. 17(2)(2). See also UNMCA, Art. 22(13)(5).

119 Matsushita, supra note 8, at 200–2.

120 Cf., e.g., US-FTA, Arts. 10(1)(3)(a), 10(10)(2).

121 European Commission, supra note 108.

122 USMCA, Annex IV. By contrast, Art. 13(8) of the EUJEPA extends the scope of public policy interventions that parties can implement through SOEs, incorporating the general exceptions established by Art. XX GATT 1994 and Art. XIV GATS mutatis mutandis.

123 To the same effect see also, inter alia, UNMCA Art. 22(2)(4), (6); EUJEPA, Art. 13(2)(4); CETA, Art. 18(2)(2); EUVFTA, Art. 11(2)(7).

124 Advocates of market-oriented reforms of the trade rules on SOEs suggest that the only justifications to be maintained should respond to efficiency and distributive objectives, and even these should no longer be available to states when they do not pass strict balancing tests, such as whether granting advantages to SOEs is the best way to achieve the relevant objective; cost-benefit analysis; and proportionality test. See Wu, Y., Reforming WTO Rules on State-Owned Enterprises (2019), 195CrossRefGoogle Scholar.

125 This considerably limits the scope of the agreement as many countries have numerous sub-central SOEs that are equally capable of distorting international trade and competition within their territory. To the same effect see UNCMA, Art. 22(9)(2) and Annex 22-D.

126 CPTTP, Art. 17(2)(4)–(6), and Annex 17D. See also UNMCA, Art. 22(2)–(3).

127 Kim, supra note 9, at 260.

128 Ibid., Art. 17(6)(4).

129 Trebilcock, Howse and Eliason, supra note 86, at 477.

130 V. Barreto and D. Chavez, ‘TiSA and State-owned Enterprises’, TNI, 18 April 2017, available at www.tni.org/en/publication/tisa-and-state-owned-enterprises.

131 CPTPP, Art. 17(4); USMCA, Art. 22(4); CETA, Arts. 18(4), 18(5); EUJEPA, Art. 13(5); EUVFTA, Art. 11(4). See also US-Singapore FTA, Art. 12(3) and EUSFTA, Art. 11(3), where the obligation of commercial considerations applies only to Singaporean SOEs.

132 E.g., CPTPP, Art. 17(4)(1); USMCA, Art. 22(4)(1); CETA, Arts. 18(4), 18(5).

133 Thus, for a given level of quality, the commercially motivated enterprise will purchase the least expensive input, no matter the source. It will set prices so as to maximize its profit and so on. See the identical definitions in CPTPP, Art. 17(2); USMCA, Art. 22(1); EUJEPA, Art. 13(1).

134 CPTTP, Art. 17(4)(3). To the same effect, see USMCA, Art. 22(4), (3); CETA, Art. 18(4)(2); EUJEPA, Art. 13(5)(2).

135 C. Picker, ‘The Coherent Fragmentation of International Economic Law: Lessons from the Transpacific Partnership Agreement’, in Chaisse, Gao and Lo, supra note 8, at 21, 39.

136 See also Levy, supra note 45, at 639.

137 E.g., CPTPP, Art. 17(5); USMCA, Art. 22(5).

138 Fleury and Marcoux, supra note 9, at 459.

139 CPTPP, Art. 17(1); USMCA, Art. 22(1).

140 For a thorough illustration of the CPTPP NCA rules see Matsushita, supra note 8, at 194–8.

141 See further CPTPP, Arts. 17(7), 17(8); USMCA, Arts. 22(7), 22(8).

142 USMCA, Art. 22(6)(1). The forms of unconditionally banned NCA are: loans or loans guarantees provided by governmental enterprises to an uncreditworthy SOE; any form of NCA provided when the recipient is insolvent or on the brick to insolvency without a credible reconstructing plan; conversion by a party or its state enterprises of the outstanding debt of a SOE to equity.

143 See further CPTPP, Art. 17(15) and Annex 17-B; USMCA, Art. 22(15) and Annex 22-B.

144 CPTPP, Art. 28(20)(3); USMCA, Art. 31(19)(1).

145 SCM Agreement, Arts. 4(10), 7(9).

146 CPTPP, Art. 17(6)(1); USMCA, Art. 22(6)(2)-(4), (6).

147 CPTPP, Art. 17(6)(2); USMCA, Art. 22(6)(5).

148 CPTPP, Art. 17(7)(1)(b)(i) contemplates only the situations where sales of covered investments or imports from a third party, but not product of the domestic industry of an importing party, are displaced or impeded from the markets of the party importing assisted products. See also USMCA, Art. 22(7)(1)(a).

149 The importing party can only react to the importing of goods produced by assisted SOEs where the assistance leads to a significant price undercutting, significant price suppression, price depression or the phenomenon of lost sales: Art. 17(7)(1)(c)(i) CPTPP, in fact, refers to ‘the market of the Party’ (and ‘in the same market’) with no limitation upon what constitutes the affected market.

150 E.g., CPTPP, Arts. 17(6)(4), 17(7)(5)–(6).

151 Reisman, W. M., Folded Lies: Bribery, Crusades and Reforms (1979), 29Google Scholar, writes that lex imperfecta is often ‘a conscious operator or elite design for dealing with aggravated myth system and operational code discrepancies’.

152 R. R. Cover, ‘Foreword: Nomos and Narrative’, (1983) 97 HLRev 4, 53.

153 R. Baldwin, ‘Multilateralising Regionalism: Spaghetti Bowls as Building Blocs on the Path to Global Free Trade’, (2006) 29(11) World Econ. 145.

154 Wu, supra note 31, at 322.

155 Sekine, T., ‘The China–Australia FTA and Australia’s FTAs with Other Asian Countries: Their Implications for Future SOEs Regulation’, in Picker, C., Wang, H. and Zhou, W. (eds.), The China-Australia Free Trade Agreement A 21st-Century Model (2017), 79, 95–8Google Scholar.

156 J. P. Trachtman, ‘US-Chinese Trade: Interface and Lawfare’, EUI Working Paper RSCAS 2017/11, at 13–14, suggests that the spirit of free trade, which benefits both China and the US, may stimulate the two powers to lead the world in formulating and using WTO law, and China to accept special arrangements for its SOEs.

157 European Commission, supra note 78, at 2. The US, EU, and Japan have indeed very recently ramped up pressure on Beijing over its model of state-sponsored capitalism, calling for tougher WTO regulation on government subsidies. In a rare example of the Trump administration turning to allies for help in solving trade problems, the three issued a joint statement on 14 January 2020 on a proposal for more stringent rules to prevent Chinese companies relying on state support to gain advantage over foreign rivals. The US, Japan, and EU are hoping to implement the plans through a ‘plurilateral’ deal that would bring together the world’s biggest subsidies and economic powers. Brunsden, J., ‘US, Japan and EU Target China with WTO Rule Change Proposal’, Financial Times, 14 January 2020, available at www.ft.com/content/8271be9a-36d6-11ea-a6d3-9a26f8c3cba4Google Scholar.

158 See further Pauwelyn, supra note 37, at 236–7.

159 See Wolfe, supra note 10, at 721–3.