‘서비스 구매(Purchase of Services)’에 대한 보조금 협정의 규율

One of the contentious issues raised in the United States-Large Civil Aircraft is whether “purchase of service” should be included in the scope of Article 1.1(a)(1)(iii)of the SCM Agreement. The controversy was caused by the absence of the term “purchase of service” in the provision. In fact, sub-paragraph (iii) stipulates three items as instances of financial contribution by a government in the form of “in-kind”assistance: they are provision of goods, provision of services and purchase of goods. Interestingly, the term “purchase of service” has been explicitly excluded from the paragraph. The question raised in this dispute, therefore, is how to interpret the provision when it comes to purchase of service. In the panel proceeding, the EU presented a contextual approach as an appropriate way of interpretation of this provision. It argued that despite the absence of specific language, the provision should be interpreted to include the term “purchase of service”because the provision would otherwise create a massive loophole in the administration of the SCM Agreement. The United States, in turn, argued that the exclusion by the drafters was purposeful and the Members cannot insert a new language into an agreement simply for the sake of the alleged effectiveness. As this issue poses a novel question, the jurisprudence on this issue will bring about significant impact on the formulation of national assistance policies of WTO Members. Thus, it requires a careful analysis. First, in any event, the interpretation principle of “ordinary meaning” as codified in Article 31 of the Vienna Convention leaves us few choices when a provision lists certain items and omits others in no uncertain terms. If a particular item is missing, that means the negotiators wanted to exclude the item from the scope of the application. General reference to the object and purpose of a treaty alone may not be sufficient to overcome the clear absence of the item. Second, other covered agreements indicate that the omission of the term “purchase of services” is a deliberate choice of the negotiators. It is particularly noteworthy that the Agreement on Government Procurement (“GPA”) covers both “purchase of products”and “purchase of services.” If the negotiators envisioned that both purchase of goods and purchase of services would be covered by the GPA, while excluding the purchase of service from the ambit of the SCM Agreement, such exclusion should be regarded as an intended choice rather than a clerical mistake. A very persuasive argument with concrete evidence would be required to overcome such presumption. Third, then one may wonder why the negotiators decided to exclude the term “purchase of service” from Article 1.1(a)(1)(iii). Even if it is not entirely clear,perhaps the negotiators may have thought that the purchase of service requires a service provision contract under which a transaction in question takes place. Even if a governmental subsidization scheme is in operation, the intended beneficiary in this context would be the private service provider in question as opposed to a manufacturer of goods. In other words, a provision of subsidy by a government arising from such a transaction may probably cause distortive effects on trade in services, but it is supposed to be covered by Article XV of the General Agreement on Trade in Services (“GATS”). On the other hand, the “provision of services,”which is included in Article 1.1.(a)(1)(iii) of the SCM Agreement, most of the time involves a “unilateral undertaking” on the part of the government for the benefit of a recipient, and the recipient in that instance may well be a manufacturer of goods. If the intended beneficiary is the goods manufacturer, such a governmental measure should remain to be covered by the SCM Agreement. Korea is of the view that this line of thinking may have caused the negotiators to delete the term “purchase of service” from Article 1.1(a)(1)(iii) of the SCM Agreement. Overall, it seems that the decision of the WTO panel in this dispute is generally appropriate. There are, however, areas that require further clarification and discussions so as to provide reliable guidance to the WTO Members. The final decision of the Appellate Body, expected early 2012, may provide further guidance on this issue. In the meantime, the development indicates that Korea also may want to consider adjusting its R&D policies and programs in a way where a format of purchase of services is utilized. That way, Korea could attempt to gain another layer of shield of its assistance policies from the subsidy allegations and litigations.