Study On The Specification Attributes Of The TPP's Rules Of State-owned Enterprises

The rules of state-owned enterprises(SOEs)in TPP set a historical precedent for systematic regulating the SOEs' multinational business practices in a multilateral free trade agreement,which would have a foreseeable important impact on the conclusion of future international trade agreements and SOEs' competition behavior in the global market.The U.S.claims that the TPP rules of SOEs is based on the principle of competitive neutrality.In the view of domestic law,competitive neutrality is an economic policy which is designed to adjust the relationship between SOEs and their government by the means of eliminating the distorted competition advantages.It requires government to play a neutral role in the competitive market and enterprises to keep their independence of business operations.Together,they could jointly establish and maintain a level playing field in the market.While from the perspective of international law,competitive neutrality is widely acknowledged as the objective and the deserved result of SOEs' modern cooperation governance.It can also be found in some clauses of international trade treaties and agreements which are often related to the SOEs' monopoly behavior.In the OECD's point of the view,it is difficult to give a common analysis of the patterns of all these different administrative regulations.The analysis is meaningless to elaborate the theoretical core of competitive neutrality if it relays on a specific case.Therefore OECD adopts another approach by analyzing the internal behavior constraints of SOEs,especially the cooperation governance which is a concept generally accepted by all countries.Substantially,the rules of SOEs in TPP merely make use of the concept of competitive neutrality and several elements of the guide of OECD's framework.TPP's rules are positioned as the systematized rules which mainly regulate SOEs' commercial competitive behavior in a multinational market.As a regional agreement which dominated by the U.S.,the rules of SOEs in TPP are entangled with so many problems,such as political,economy,social and legal ones.In consequence,the core clauses of the so-called "SOEs Chapter" present more utility oriented and non-principal features,which is more prefer competition rather than neutrality.They are deeply affected by the value orientation of the whole trade agreements.A level playing field is the lifeblood and an essential feature of the market economy.It is also the internal fundamental requirement of the modern social development.Competitive neutrality is based on the legal basis of fair competition right,therefore it is the derived right of the fair competition right.The normative value of competitive neutrality is to provide the opportunities of fair competitions between all market participants.By the rules of SOEs,the regulating stage of SOEs' anti-competitive behaviors is advanced from the afterwards remedy to beforehand regulation,and the rights and obligations of SOEs are split.The rules of SOEs are completely deviated from the normative value of competitive neutrality that they should not be called"competitive neutrality" rules.SOEs issue is one of the so-called horizontal issues in TPP so that once the related provisions are formed they can be cross-cutting applied.Therefore these provisions will cause problems in other sections.Non-commercial aid,non-discrimination treatment and transparency are the core clauses of the rules of SOEs in TPP.They all have a obviously meaning of status discrimination through the strict standards and heavy obligations.All the supports or aids except the commercial behavior are forbidden in the name of non-commercial aids,including the reasonable compensation for the public interest.The non-discrimination treatment requires that when the SOEs purchase or sell goods or services to the other contracting party,the treatment provided by SOEs to the other contracting party should not be less than the treatment of the like goods or services to the contracting party,any other contracting parties,or any parties without contracts.Transparency requires that the provisions on whether the SOEs break the rules or regulations of the Chapter should be classified and published.All of these are the clauses which can not be accepted by the most enterprises,and would seriously restrain the SOEs' ability in international commercial operation and competition.TPP is a new progress of the international economic law,but it exacerbates the differences and deconstruction of the existing international economic legal system,weakens the construction and improvement of the global market,which is particularly reflected in the rules of SOEs.All international treaties have both law-making and contractual nature.Law-making and contractual treaties have the legal effect of creating international laws only on the basis of objectivity,international democracy,international cooperation and international nomocracy.To the outsiders,the rules of SOEs are with strong directivity and repellency,while to its member countries it basically creates a closed space.From the view of general and conventional international laws,due to the deficiency of universal applicability and it achieves the so-called "consensus" by strength rather than agreement,the SOEs chapter at most is a game of interest rather than a making-law behavior.While criticizing the discriminative nature of TPP's restrictive policy on SOEs,it should be also noted that the Chinese SOEs do have some behaviors that could distort a fair competition in the market.On the other hand,it can be considered as a internal demand to carry on the reforms of the SOEs of China,especially in three areas:the market-oriented classification,the composite-ownership system,and the cooperation governance.Meanwhile,China needs a legal system which presents the spirit of competitive neutrality in order to create a domestic market environment with fair competition.This is also the inevitably demand of the law-based governance in China today.