“国企条款”的历史演绎与法理逻辑

Historical Deduction and Jurisprudential Logic of “SOEs Clause”

国际经贸协定中的国有企业条款问题是中西方经济交往中的敏感点和疑难点,如今虽常被认为是专门针对中国的定制条款,但实际上其由来已久。该条款诞生于“二战”后期英美两国创建多边贸易体制之际,成型于《哈瓦那宪章》。20世纪的国企条款旨在消除公权力带来的贸易壁垒,具有典型的战时性、妥协性与初级性特征;21世纪的国企条款则以“竞争中立”和“透明度”为主要内容,其完备性和强约束性显著提升。国企条款的历史演绎反映出其规范政府经济行为、加强公平竞争的法理逻辑,具有契合国际市场经济和法治经济要求的正面价值,不宜一概否定。解决好国企条款问题对于中国实现更大范围、更宽领域、更深层次的对外开放具有决定性意义。

How to regulate the state-owned enterprises(SOEs) in international trade agreements is a sensitive and tough issue in economic intercourse between China and the West. Though SOEs clauses are often considered as a tool against China, they have actually been in existence for a long time. The SOEs clauses were proposed in the late World War II when the United Kingdom and the United States attempted to create the multilateral trading system, and were formed in the Havana Charter. The SOEs clauses in the 20th century were aimed to eliminate trade barriers occurred by public power with typical features of warfare, compromise and simplicity. The SOEs clauses in the 21st century develop to be more complete and rigorous with the main rules of competitive neutrality and transparency. The history of the development of SOEs clauses reflect the legal logic of regulating government economic actions and enforcing fair competition which actually have a positive value in conformity with the international market economy and rule-of-law economy that should not be denied partially. To solve the issue of SOEs clauses flexibly and properly is decisive for China to open up to the world in a wider range, field and a deeper level.