Policy Update 053

Trans-Pacific Partnership Negotiations and Rulemaking to Regulate State-owned Enterprises

KAWASE Tsuyoshi Faculty Fellow, RIETI

Marathon negotiations on the Trans-Pacific Partnership (TPP) held from mid to late February 2014 in Singapore, first at the level of chief negotiators and then at the ministerial level, failed to show any signs of reaching an agreement. In the United States, a main player in the TPP negotiations, the federal government is facing difficulty having the Trade Promotion Authority (TPA) legislation enacted and will have the upcoming midterm elections in the fall. This may cause the entire TPP negotiations to slow down. In Japan, the primary focus is on bilateral bargaining with the United States over the liberalization of Japan's five key agricultural products and the elimination of U.S. tariffs on Japanese auto imports, which will be one of the prospective issues at the forthcoming Japan-U.S. Summit to be held in Tokyo in April between Prime Minister Shinzo Abe and President Barack Obama. However, along with such market access issues, intellectual property rights and competition policies, chiefly those regulating state-owned enterprises (SOEs), have been cited by the media as among the toughest areas to be agreed upon. In particular, negotiations on the issue of SOEs are expected to be tough going. For Vietnam, a socialist country, as well as for Malaysia, whose economic system is akin to state capitalism, this is a matter that concerns the foundation of their economic systems, and, depending on how the negotiations will turn out, they may be forced to change the systems from the roots.

Currently, I am presiding over a RIETI research project that seeks to examine the effectiveness of the existing rules and explore new rules for governing SOEs, defining them as a new regulation target that should be dealt with in the realm of international economic law. Taking a cue from the recent TPP negotiations in Singapore, I would like to share the background of the SOE issue and the aims of our research project with a broad spectrum of readers.

Why are SOEs a problem?

What elements of SOEs are seen as a problem by other countries, i.e., those with a market economy? This question has been discussed extensively with numerous arguments put forward. However, in a nutshell, those arguments boil down to the following: supported by government subsidies and cheap loans, taking advantage of preferential regulatory treatment, and/or against the backdrop of loose corporate governance—not subject to scrutiny by shareholders on a short-term basis—because of being under state ownership, SOEs are prone to engage in economically irrational behavior such as dumping and excessive capital investments or anticompetitive business practices, thereby disrupting the order of fair international competition.

In the area of trade in goods, a significant portion of recent antidumping and countervailing duty investigations and impositions by the United States as well as of recent U.S. complaints to the World Trade Organization (WTO) concern the Chinese SOEs. Affected industries include mineral resources, steel, paper, integrated circuits (ICs), and energy-saving technologies, thus encompassing from the natural resources and materials to high-tech industries, while a broad array of government support measures for SOEs—such as subsidies, export control, and local content requirements—and anticompetitive behavior by SOEs have been pointed out as being problematic (Kawashima, 2012).

Meanwhile, in the area of investment, SOEs have been demonstrating competitiveness in acquiring interests in mineral properties and exploration rights in third countries, as evidenced by a number of specific examples cited by the Ministry of Economy, Trade and Industry (METI) (2013). For instance, China has been investing aggressively in natural resources in Africa, even in countries with high political risks, in pursuit of more than just returns for shareholders. This is driven by its desire to secure energy resources for the motherland, gain access to newly emerging markets, and challenge the Euro-American hegemony in the world (JETRO, 2009). Huge sovereign wealth funds (SWFs)—e.g., the State Administration of Foreign Exchanges (SAFE) of China, Temasek Holdings of Singapore, and the Abu Dhabi Investment Authority (ADIA) of the United Arab Emirates—have been making massive investments using revenue from exhaustible natural resources or foreign reserves as a financial source. On the part of host countries, there is a great deal of suspicion about the true political and strategic intentions behind such investments, particularly in the areas of natural resources and infrastructure.

Sources of SOEs' competitive advantages that enable them to engage in economically irrational behavior and maintain control and strength in the market can be classified as follows (Capobianco & Christiansen, 2011):

1) Outright subsidization
2) Concessionary financing and guarantees by the government and/or governmental financial institutions
3) Preferential treatment in the application of regulations (e.g., exemption from information disclosure requirements, exclusion from the application of monopoly law)
4) Monopolies and advantages of incumbency
5) Captive equity
6) Exemption from bankruptcy rules and information advantages

In all aspects of trade in goods and services as well as investment activities, private-sector companies from advanced market economies are being forced to compete with their SOE rivals equipped with all of those advantages. Thus, the Organisation for Economic Co-operation and Development (OECD) has been calling for ensuring a level playing field between SOEs and private-sector companies (OECD, 2005). "Level playing field" referred to here is synonymous to "competitive neutrality," a concept adopted by Australia and which will be discussed later in this article. In essence, these terms represent the idea that SOEs should not have advantage over their private-sector counterparts solely because of their state ownership status (Capobianco & Christiansen, 2011).

Coverage and limitations of existing rules

In ensuring a level playing field with SOEs and private-sector companies, existing international economic laws and regulations can be applied as follows:

Trade in goods: Probably the most effective set of rules in this area is the WTO Agreement on Subsidies and Countervailing Measures (SCM Agreement). In its decisions on the United States—Imposition of Countervailing Duties on Certain Hot-rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (2000) and the United States—Countervailing Measures concerning Certain Products from the European Communities (2002), the WTO Appellate Body did not preclude the possibility for WTO members to impose countervailing duties to offset the benefits accrued by companies established through the privatization of state-owned steelmakers in Europe, such as British Steel Corporation (BSC) of the United Kingdom, from the government subsidies that had been granted prior to their privatization. Meanwhile, in the European Communities and Certain Member States—Measures Affecting Trade in Large Civil Aircraft (2011), the Appellate Body ruled that a series of subsidization measures implemented since 1969 by the European Communities (EC) and certain EC member states to help Airbus Group, a company that has been historically state-owned in part, with the development and production of large civil aircrafts (LCAs) constitute a violation of the SCM Agreement. Furthermore, in Canada-Certain Measures Affecting the Renewable Energy Generation Sector (2013), the rulings by the panel and the Appellate Body effectively restricted SOEs' differentiated treatment between domestic and foreign firms in procurement as a violation under Article III:4 of the General Agreement on Tariffs and Trade (GATT). Apart from those, GATT Article XVII (State Trading Enterprises) and the revised WTO Agreement on Government Procurement (GPA), which entered into force on April 6, 2014, can be used as a tool to restrict, to some extent, discriminatory purchasing and sales activities by SOEs.

Trade in services: Meanwhile, the Financial Times' Global 500 ranking of companies by market capitalization in 2013 shows that four Chinese banks, led by the Industrial and Commercial Bank of China (ICBC) in 11th place, were among the top 50 as well as China Mobile in 14th place. As such, the presence of SOEs in the services area can no longer be ignored. As seen in China—Certain Measures Affecting Electronic Payment Services (2012), SOEs' competitive advantage can be contained by means of a member's commitments to the national treatment (i.e., non-discrimination between domestic and foreign service suppliers) and market access under the General Agreement on Trade in Services (GATS), but only in areas where the member has made specific commitments. Currently, no substantive rules are in force to govern subsidies in the services area with rulemaking to that effect left to the Doha Round of negotiations, which is virtually at a halt. In addition, depending on the scope of specific commitments, the Agreement on Government Procurement also can oblige SOEs to comply with the principle of nondiscrimination in procuring and purchasing services.

Outward direct investments: WTO agreements, whose implementation is underpinned by an effective dispute settlement procedure, cannot be applied unless the act or behavior in question impedes trade in goods or services. Overseas investments and business operations are subject to provisions of international investment agreements (IIAs) concluded between home and host countries. Some agreements contain provisions exempting subsidies from their scope (e.g., Article 14 (5) (b) of the 2012 U.S. Model Bilateral Investment Treaty). However, preferential treatment for SOEs that is discriminatory and anticompetitive in nature by host countries may be found to be in non-compliance, for instance, with the principle of national treatment and that of fair and equitable treatment (FET). Furthermore, a foreign investor can bring a claim against the government of its host country under the investor-state dispute settlement (ISDS) provisions of the relevant IIA, if its investment property in the host country suffers damages resulting from SOEs' competition restrictive practices. In Emilio Agustin Maffezini v. The Kingdom of Spain (2000), the arbitration tribunal established under the International Center for the Settlement of Investment Disputes (ICSID) ruled, in accordance with the customary international law of state responsibility, that the wrongful acts and omissions by an SOE, which was acting on behalf of and with the authority of the Kingdom of Spain, are attributable to Spain, the host country, and similar decisions have been made by a series of other ISDS tribunals and international courts over the years (Nakatani, 2013). Furthermore, Article 2 of the 2012 U.S. Model Bilateral Investment Treaty states explicitly that such principles apply to a state enterprise per se when it exercises governmental authority delegated to it.

Inward direct investments: On the other hand, when a host country deals with strategic investment activities and anticompetitive business practices by foreign SOEs and SWFs, it is effective to apply mutatis mutandis and, within the purview of the OECD Code of Liberalisation of Current Invisible Operations, domestic investment review and blocking processes for the reason of protecting national security and public interests. Leading examples include Articles 26 and 27 of the Foreign Exchange and Foreign Trade Act of Japan and the Exon-Florio amendment of the United States. Though not a case of SOE, in 2008, Japan ordered the Children's Investment Fund Management, a UK-based hedge fund known as TCI, to discontinue its attempt to acquire J-Power, an electricity wholesaler, while in the United States, a presidential order was issued in 2012 to block the acquisition of wind farm project companies in the state of Oregon by Ralls Corporation, a Chinese-owned company. Many IIAs basically do not restrict such investment reviews unless they include liberalization commitments on investment. And even when such commitments are included, most IIAs provide for national security and public order exceptions. Meanwhile, the International Monetary Fund (IMF)'s Santiago Principles and the OECD Declaration on Sovereign Wealth Funds and Recipient Country Policies can be cited as international instruments governing SWF investment activities. However, both are no more than soft law and lack sufficient enforceability. Regarding IIAs, there has been an argument that SOEs should be disqualified as parties to ISDS procedures depending on how the definition of "investors" is interpreted, or that SOEs should not be allowed to limit host countries' regulatory power by means of IIAs.

International enforcement of competition law: The European Commission's antitrust investigation since 2011 into Gazprom, the Russian state-controlled gas company, has opened a new possibility for regulating foreign SOEs' behavior by means of competition law. Gazprom is suspected of having divided up markets and maintaining unfairly high gas prices in the Czech Republic and other countries in Central and Eastern Europe. While preparing a compromise proposal as a possible option, the European Commission was expected to release its investigation findings, which would confirm effectively the illegality of Gazprom's anticompetitive business practices. However, due to the recent developments in Ukraine, the European Commission likely will delay its decision on the case (Note 1). Indeed, the application of competition law to their own SOEs' anticompetitive behavior in their domestic markets is a matter to be determined solely by the governments of their respective home countries. The Gazprom case, on the other hand, is raising the possibility for foreign governments to apply their own competition laws to rectify anticompetitive practices, if their markets are affected adversely by such practices.

In quest of effective SOE rules: The TPP's challenge

As such, the SOEs rules currently in place are a mere patchwork of various international and domestic rules on trade, investment, and competition, rather than being a set of rules established specifically for the purpose of regulating SOEs with their characteristics taken into account, and there exist no established uniform principles by which to regulate SEOs. Consequently, the transparency of information such as the description of business and financial standing, which is a prerequisite for the effective regulation of SOEs, is outside the realm of the existing international law. Also, in cases where non-SOE companies from one country compete with SOEs from another in a third-country market, both as foreign direct investors, (e.g., Japanese private-sector companies competing with a Chinese SOE in Southeast Asian markets), it is difficult enough for the home country government of the non-SOE companies even to identify outright government subsidies paid into the SOEs' investment and operations in the third country market. When it comes to a case where an SOE's strength and anticompetitive behavior are person-oriented, for instance, attributable to close relationships with an influential politician, it would be next to impossible to capture what is happening. Given all of these points, there is no doubt that a new set of SOE rules needs to be established. The United States' attempt to regulate SOEs is not limited to the one with the TPP. It is raising the same issue in negotiating the Transatlantic Trade and Investment Partnership (TTIP) with the European Union (EU) and the Trade in Services Agreement (TiSA), a plurilateral initiative under the auspices of the WTO. Needless to say, China is the target in mind. In particular, the TPP is being focused on as a test case to regulate SOEs in a rather comprehensive manner because its membership is not limited to advanced market economies but includes Vietnam, a socialist state, as well as Singapore and Malaysia, both of which are pursuing an economic system akin to state capitalism.

The state of the TPP negotiations is not revealed due to their highly secretive nature. However, it has been reported that in the Lima round of negotiations in May 2013, Australia proposed an internal audit-like mechanism under which each country would examine and ensure the competitive neutrality between private-sector companies and SOEs within its own economy (Note 2). The Government of Australia, led by its Treasury and the Department of Finance, established and released guidelines for SOEs, thereby putting in place a mechanism for eliminating any unfair competitive advantages enjoyed by SOEs over their private-sector competitors in business activities. The entire scope of preferential measures—not limited to subsidies but including regulatory, taxation, and debt advantages—are subject to neutrality adjustments (Note 3). Furthermore, the Australian Government Competitive Neutrality Complaints Office (AGCNCO), an independent administrative agency, receives complaints from private-sector companies, undertakes independent investigations, and, if necessary, recommends policy changes to the government (Note 4). With a similar scheme for ensuring competitive neutrality put in place in each state, local public enterprises are also subject to the competitive neutrality rules (Note 5). The aforementioned proposal by Australia can be described as an attempt to "export" domestic regulatory systems to other countries party to the TPP negotiations.

In contrast, the U.S. proposal put forward in another round in Lima, Peru held in October 2011 (Note 6)—which is believed to be based on a February 2011 recommendation put forward by the Coalition of Services Industries and the U.S. Chamber of Commerce (Note 7)—calls for, inter alia, regulating a broader range of enterprises including those that are effectively government-controlled, eliminating all preferential measures granted to SOEs that would nullify or impair market access, prohibiting financial support to SOEs, and ensuring non-discriminatory treatment between SOEs and their private-sector competitors with respect to goods and investments. Also, calling for the enforcement of all of those measures by means of an effective dispute settlement system, this is a very ambitious proposal. In addition, the United States has been proposing the introduction of benchmarks by which to determine whether or not to require the suspension and repayment of financial supports retrospectively depending on the degree of damage suffered by relevant private-sector companies (Note 8).

The internal audit-like approach to ensuring competitive neutrality, such as the one proposed by Australia, is premised on the penetration and acceptance of the basic concept of the market economy and supported by the national consciousness of the need to prevent government businesses from putting an excessive squeeze on private-sector businesses. This approach also involves significant administrative know-how for the implementation of laws and regulations similar to competition laws. Given this, it would be difficult for Vietnam and Malaysia to introduce the same or similar system immediately. At the Kota Kinabalu round held in July 2013, a consolidated text, which compares the U.S. and Australian proposals on SOE rules, was tabled, but Australia seems to have given up effectively on its proposal due partly to strong opposition from the United States (Note 9).

In addition to such compromise on the basic mechanism of regulation, TPP countries have narrowed their differences over the scope of application as well. At their talks in Singapore in February 2014, ministers reportedly agreed to exempt service providers operating only within their respective domestic jurisdiction, such as those in the areas of financial services, telecommunication services, and education. As a result, the Japan Post Group may be exempted from the SOE provisions of the TPP, removing one of the major issues of concern for Japan. The Malaysian minister in charge of the TPP also welcomed this outcome (Note 10).

However, as the actual draft text is not disclosed, questions remain concerning the detailed design of the regulation mechanism. The U.S. proposal would introduce provisions similar to those of the current SCM Agreement if it simply were to regulate subsidies and loans. However, when it comes to regulating a broader range of measures including preferential regulatory treatment, the mechanism must be designed specifically, for instance, as to how such regulatory preferential treatment should translate into cost differences as a means of converting regulatory advantages into economic advantages. Regarding this point, Article 12.3.2 of the U.S.-Singapore Free Trade Agreement sets forth detailed provisions to regulate SOEs, particularly those in Singapore, quite unilaterally. In substance, however, those provisions go no further than setting general rules requiring Singapore to ensure that any purchases and sales of goods by SOEs be made in accordance with commercial considerations and that SOEs do not act in any way to retrain or lessen competition, and prohibiting any government intervention in the decision making of SOEs. Meanwhile, the SOE provisions of the United States' more recent FTAs with South Korea and Colombia are much simpler, calling for ensuring the agreement-consistent behavior of SOEs and the national treatment of companies established through direct investments from the other party in transactions with SOEs. It is believed that the United States is assuming far more ambitious SOE provisions for inclusion in the TPP.

The definition of SOE is another difficult issue to agree upon. Should the term "state-owned" be taken literally as meaning 100% government ownership? Or should a corporation be presumed to be state-owned when the government holds more than 50% of its voting shares and has effective control over it, or when the government maintains a level of ownership enough to warrants minority shareholders' rights as defined under the Commercial Code of Japan (e.g., a 3% ownership of voting shares provides the right to demand the dismissal of officers)? Different countries have different definitions of SOE. For instance, Article 12.8 of the U.S.-Singapore FTA sets more than 50% state ownership of the voting shares as the basic criteria for determining the presence of "effective influence" but also provides that such influence is presumed to exist even where the state owns 50% or less but more than 20%. And "state ownership" in this context is rather complex, referring to the combined total of voting shares directly held by the government and those indirectly held through state-owned holding companies and various other types of SOEs (Note 11). In the case of negotiating an agreement involving a large number of countries, how to define these critical terms is one of the key elements that determine the effectiveness and enforceability of resulting SOE provisions as the corporate laws differ from one country to another.

Furthermore, as seen from the case of Australia, enterprises owned by sub-national governments—whether referred to as states, provinces, or else—in countries with the federal system of government can be made subject to SOE provisions. Countries are split on this point, according to a memo (Note 12) on their negotiation positions in the Salt Lake City round of talks in November 2013, which has been obtained and revealed by the Huffington Post and WikiLeaks.

Meanwhile, full consideration should be given to the positive roles of SOEs, as observed in some network industries where a monopoly generates efficiency (e.g., electricity, water) as well as in areas where significant spillover effects can be expected but private-sector investment is not forthcoming because of the huge amount of capital and high risks involved (e.g., high-tech, aeronautics) (Chang 2007; Kowalski et al. 2013). It has been long pointed out that SOEs can play an important role in promoting economic development, particularly, in developing countries for various economic and social reasons, for instance, by creating employment, mobilizing domestic savings for productive investment, and promoting decentralization (Gillis 1980). For that matter, even in the United States, SOEs such as Fannie Mae and USPS exist. Also the U.S. federal government rescued General Motors Company in the aftermath of the collapse of Lehman Brothers by nationalizing the automobile giant, where an SOE system was being utilized effectively as a policy tool in overcoming recession. The U.S.-Singapore FTA imposes extensive restrictions on SOEs but explicitly recognizes the rights of each party to grant a monopoly and establish SOEs. Also, when we look at the situation in China, we can see that not all SOEs are inefficient and competition-restrictive. Indeed, there are areas where they compete with their private-sector counterparts. In particular, those Chinese SOEs listed among the Fortune 500 companies are perceived to be comparable in performance to Japanese private-sector companies in the same trade (Note 13). Thus, rather than seeking to impose stricter restrictions single-mindedly by assuming that SOEs are inherently evil as insisted by American industries, we should explore rules that can effectively regulate SOEs based on a thorough understanding of their anti-competitive nature as well as of their positive social and economic functions. It is a mission for those of us, international economic law scholars, to research SOEs and relevant issues from various angles and find out what would constitute an ideal code of conduct for them.

The original text in Japanese was posted on March 17, 2014.

April 22, 2014

  1. ^ "EU Said to Review Gazprom Complaint Amid Ukraine Crisis," Bloomberg News, March 6, 2014, retrieved from http://www.bloomberg.com/news/2014-03-05/gazprom-complaint-said-to-be-reviewed-by-eu-amid-ukraine-crisis.html; "Endgame Nears in EU's Antitrust Showdown with Gazprom," Radio Free Europe / Radio Liberty, February 11, 2014, retrieved from http://www.rferl.org/content/eu-gazprom-antitrust-showdown/25260390.html; "Almunia Says 'Plan A' Is to Send Gazprom EU Antitrust Complaint," Bloomberg News, January 15, 2014, retrieved from http://www.bloomberg.com/news/2014-01-15/almunia-says-plan-a-is-to-send-gazprom-eu-antitrust-complaint.html
  2. ^ Inside U.S. Trade, June 7, 2013.
  3. ^ For an outline of the mechanism and relevant documents, refer to the "Competitive Neutrality" page of the Department of Finance, Government of Australia. Retrieved from http://www.finance.gov.au/financial-framework/financial-management-policy-guidance/competitive-neutrality.html
  4. ^ For an outline of the mechanism and relevant documents, refer to the website of the Australian Government Competitive Neutrality Complaints Office (AGCNCO), an autonomous unit within the Productivity Commission, Government of Australia. Retrieved from http://www.pc.gov.au/agcnco
  5. ^ For an outline of the Government of South Australia's competitive neutrality scheme, as an example of state-level initiatives, and relevant documents, refer to the "National Competition Policy" page of the Department of the Premier and Cabinet, Government of South Australia. Retrieved from http://www.dpc.sa.gov.au/national-competition-policy
  6. ^ Inside U.S. Trade, Sept. 29, 2011.
  7. ^ See "State-Owned Enterprises: Correcting a 21st Century Market Distortion." Retrieved from http://www.esf.be/new/wp-content/uploads/2011/09/Global-Services-Summit-2011-Paper-on-21st-Century-Trade-Issues.pdf
  8. ^ Inside U.S. Trade, May 11, 2012.
  9. ^ Inside U.S. Trade, Aug. 8, 2013.
  10. ^ Inside U.S. Trade, Feb. 28, 2014.
  11. ^ Annex 12A to the U.S.-Singapore Free Trade Agreement provides an illustrative chart showing the scope of those presumed to be SOEs through indirect government ownership.
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April 22, 2014