공기업 지원조치 규제를 위한 새로운 국제규범의 모색 - “비상업적 지원”의 법적 쟁점 및 함의를 중심으로

The Trans-Pacific Partnership (TPP) includes new trading norms in many sectors. One of the unique features of such new trading norms is the regulation of State-Owned Enterprises (SOEs). This is the first attempt to regulate the governmental assistance to and behavior of SOEs in international trade agreements. As much as regulating governmental assistance is concerned, the TPP SOE Chapter borrows the basic scheme of the Agreement on Subsidies and Countervailing Measures (SCM Agreement). The forms of governmental assistance to be regulated are set forth in the TPP SOE Chapter as a definition clause of "Non-Commercial Assistance (NCA)." This clause is a summarized repetition of Articles 1, 2, and 14 of the SCM Agreement. As this is the first legal hurdle in regulating the governmental support for SOEs, the scope and legal meaning of this clause carries important implications for the administration of the entire SOE Chapter. The NCA definition clause includes unique features and ambiguities that deviate from the existing jurisprudence of governmental assistance and international customary law. Nor does it reflect the recent trend of trade disputes mainly involving indirect subsidization. As a consequence, while the new clause in the TPP SOE Chapter breaks a new ground in the regulation of SOEs, it is also likely to entail different views, diverse interpretations and ensuing disputes. In formulating new SOE norms in future trade agreements, the experiments of the TPP shed an important and meaningful light. The outcome of the TPP experiments can be scrutinized and incorporated by future trade agreements.