国有企业商业考虑原则:规则演变与实践

The Principle of Commercial Considerations in Trade Agreements:Evolution and Practice of Rules

十多年来,美国积极推动国有企业及其"竞争中立"原则纳入新一代国际贸易和投资规则,但其主导协定正式文本的国有企业章节却从未界定该原则,而是频繁采用"商业考虑"表述。原因何在?对商业考虑原则在多边、区域和主要国家国内规则中演变和实践的考察表明,首先,该原则在多边贸易体制之初就被美国作为国有企业主导国家参与体制的基本原则,并于上世纪80年代和90年代在美国国内法和其主导的多边和区域贸易协定中得到进一步发展;其次,竞争中立和商业考虑两原则内核一致,前者纠正本国国有企业因所有权所致不公平竞争的原理和方法与基于商业考虑原则的反补贴规则本质相同。

During the past dozen years,the U.S.has been actively promoting the incorporation of the principle of competitive neutrality into the 21st century trade and investment agreements.However,the term“commercial considerations”,instead of“competitive neutrality”,is frequently used in the final text of the SOE chapters of the new-generation FTAs led by the U.S.Why?This paper investigates the evolution and practice of the principle of commercial considerations in multilateral,regional and domestic trade rules and reaches the following conclusions.First,the principle of commercial considerations was used by the U.S.at the launch of the multilateral trading system for the participation of SOE-dominated countries,and has been developed in the GATT/WTO and the FTAs initiated by the U.S.in the 1980s and 1990s.Second,the principles of competitive neutrality and commercial considerations have an identical core;the rationale and methodology of the former to redress domestic SOEs’competitive advantage due to their public ownership are the same as those of countervailing rules based on the commercial considerations.