EU의 ‘초국경 보조금’ 규제의 국제법적 타당성 : 영토적 범위와 귀속의 문제를 중심으로

While China actively lays out overseas expansion strategies based on its ‘Belt and Road Initiative,’ the EU has recently established the practice of imposing countervailing duties on so-called ‘transnational subsidies’ provided by China to companies in a third country. The offsetting measure appears inevitable for the EU, which has struggled to regulate China's bypassed subsidization through the exporting country. It is, however, questionable whether such measures t aken i n circumstances in which t he s ubsidizing country a nd the exporting one are not identical are legitimate under international law. In this regard, this paper focuses on two issues—the first concerns whether transnational subsidies are a viable or permissible concept under the WTO legal regime. The authors examine the text and context of the WTO Agreement on Subsidies and Countervailing Measures (ASCM) and the WTO jurisprudence to confirm whether there is any territorial limit in each component of the countervailable subsidy. We find that the ASCM is based on the premise that the country that provides a countervailable subsidy is normally the exporting country; therefore, the financial contribution conferred by a country other than the exporting country is not subject to countervailing measures against the exporting country. Second, the EU found that China’s provision of subsidies was ‘attributed’ to exporting countries by referring to Article 11 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). In this respect, the authors examine whether this finding is legitimate in light of the text and commentaries of the ARSIWA and related international court rulings. In order to fulfill the criteria under Article 11 of the ARSIWA, clear evidence must be presented to demonstrate any intention of ‘acknowledgment and adoption.’ Furthermore, the entire process from acknowledgment to adoption must also be confirmed clearly through the state’s actions. In today’s international trade environment, where the U.S.-China strategic competition intensifies, states increasingly intervenes in the supply chain, attempting to engage in overseas investment more directly and indirectly. The problem is that a practice of countervailing transnational subsidies might be able to tackle the foreign direct investment irrelevant to the subsidy regulation under the WTO legal regime. There is a need to consider a fundamental approach to the necessity, possibility, and specific normative directions of disciplines on transnational subsidies.