美国TPP国企条款提案对投资国民待遇的减损

The Impairment of National Treatment for Investments:Selected Issues under the U.S. Proposal for Disciplines on SOEs at TPP Talks

美国借助竞争中立原则所推出的TPP国企条款提案,实质附带减损了协定投资章赋予国企的国民待遇,并可能构成准入阶段的投资壁垒;将管控国企参与境外市场竞争的阶段提前到进入行为发生之前,可以增大国企境外投资的成本与难度,亦可有效规避歧视他国国企投资的嫌疑;把限制待遇仅与国企身份挂钩而与行为撕裂,是对企业的身份歧视,也违背了竞争中立原则,而通过持股比例对国企身份的宽泛认定,又为工具化的投资审查提供了可能与便利。

The U.S. proposal for disciplines on SOEs, which was claimed to be based on the competitive neutrality principle, will substantially impair the national treatment for investments that SOEs should have been entitled under the investment chapter of TPP agreement, and will probably become an investment barrier to entry. By means of bringing the regulation of SOEs＇ participation in overseas market up to the stage of their market entry, it may not only raise SOEs＇ overseas investment costs, but also effectively avoid the accusation of discrimination against the investment of other countries＇ SOEs. This impairment is only linked to the enterprise＇s identity rather than the anti-competition behavior, which essentially violates the principle of competitive neutrality.