CPTPP对国有企业的补贴规制与中国因应

A Review on CPTPP Rules of State-owned Enterprises and the Chinese Response

中国已提交加入CPTPP的书面申请。CPTPP第17章“国有企业和指定垄断”构成了国有企业多边规则的实验性先例,它通过对国有企业进行补贴规制,全面限制国有企业参与全球竞争与海外投资。但CPTPP的补贴规制仍带有明确的贸易救济属性,CPTPP借此追求竞争中立政策目标,存在制度目的与调控手段失衡的根本性缺陷。中国在加入谈判后,应以此为切入点,推动并引领构建基于所有制中立的、公平合理的竞争政策多边规则,将跨国私有企业所受的政府补贴及其实施的各种垄断和限制竞争行为都纳入规制范畴,从而为国有企业博弈出公平的制度环境。同时,通过规则澄清与条约保留,尽量消解该章潜在的消极影响,保障国有企业的正常商业地位,突破CPTPP对国有企业投资设立的诸多限制。

CPTPP is regarded as a 21st Century Trade Agreement.China has expressed positive interest in its accession to CPTPP.The Chapter 17 of CPTPP,“State-owned Enterprises and Designated Monopolies”,constitutes an experimental precedent of multilateral rules for state-owned enterprises.There are“three prohibitions”against state-owned enterprises participating in global competition and overseas investment in the Chapter 17 of CPTPP.The first one is to prohibit state-owned enterprises from using subsidies to affect international trade between contracting parties and the export trade from contracting parties to a non-party.The second one is to prohibit state-owned enterprises from using subsidies to displace or impede the domestic sale of a good through an enterprise that is a covered investment.The third one is to prohibit state-owned enterprises from using subsidies from capital-exporting countries to cause injury to the domestic industries of capital-importing countries.Subsidy regulation on SOEs is the main aspect of the above“three prohibitions”.Governmental subsidies are mainly regulated by,among many statutes,international trade law and competition law.Subsidy is not only an unfair trade act in the sense of international trade law,but also an administrative restriction of competition from the perspective of competition law,so it constitutes the intersection of the above two sectoral laws.From the perspectives of title,hierarchy,wording and purpose,Chapter 17 has a strong color of competition rules.However,Chapter 17 has definite characteristics of trade remedy norms if it has been deeply examined in the two aspects of both rule contents and adjustment scope.Chapter 17 also has obvious characteristics of international political instruments instead of impartial legal rules with the purpose of competition neutrality.Chapter 17 of CPTPP does not follow the purpose of“ownership neutrality”and“balance between discipline on both subsidies and countervailing measures”in the SCM Agreement.It pursues the purpose of competition policy by means of trade remedies while ignoring distortive effect of over-regulative measures on subsidy.It imposes discriminatory regulations on state-owned enterprises,while ignoring the overall adjustment of market competition.It aims to safeguard the competitive interests of private enterprises while ignoring the overall increase in market competition.Therefore,it has the fundamental defects of imbalance between purpose and means.Chapter 17 of CPTPP constitutes a double standard in the application of law and will plunge state-owned enterprises into unfair and unreasonable situations of restricted business activity and blocked commercial investment.During the possible accession negotiations in the future,China should advocate the construction of multilateral norms of competition policy based on ownership neutrality,fairness and reasonableness.By such multilateral norms of competition policy,various monopolies and restrictions on competition conducted by transnational private enterprises could be also regulated as well as state-owned enterprises.It is also helpful to resolve the external benchmark dispute which is a long-time suffering issue for Chinese export.Meanwhile,China should make full use of reservation and exception rules during negotiating to reduce the number of regulated state-owned enterprises as less as possible and guarantee the normal commercial status of state-owned enterprises.The explanatory flexibility of the CPTPP definition of commercial activity should be well restrained.Business activities of state-owned enterprises should not be characterized as government acts because of such explanatory flexibility.When a state-owned enterprise acts on the basis of a government commission,it should not be characterized as a business activity and should not be exercised with judicial jurisdiction.Besides,China should insist that established state-owned enterprises are exempt from the standards of private investment practice provided in CPTPP articles 17.1 and 17.6.China should also advocate enriching private investment practices and insist that the commercial motivation should be the criteria when determining whether the investment made by the state-owned investors is consistent with the usual investment practices of private investors.