Study Of Commercial Presence In Trade In Telecommunication Services, A Number Of Legal Issues

Since the end of 1970s, the development of China's telecommunication service industry is a process of introducing foreign technologies, facilities, management methods and business philosophies. Accordingly, the legal system building of the industry is a process of transplanting foreign laws. To cope with the accession to the WTO and for the consistence with the WTO rules and China's commitments, the government has reformed the state-owned telecommunication service enterprises, issued numerous laws and regulations. The government and the state-owned enterprises have spent a lot of money and time in learning foreign advanced practices, so they are not unfamiliar with the regulatory legal systems of other countries and the international society at all. The key point is that we should analyze and predict the effects of applying those rules in our country. Good laws are those that can balance the interests of all concerned parties and promote the harmonious development of the whole industry.From China's perspective, the legal issues of trade in telecommunication services in the mode of commercial presence are the legal issues concerning foreign capitals entering China's telecommunication service market. There are three levels of legal issues: international law, domestic law and the conflicts between them. This dissertation is not a panorama research and it just focuses on three main issues which will arise when foreign capitals enter China's telecommunication service market in the mode of commercial presence. The three main issues are market access, interconnection and competitive safeguards.This dissertation is mainly divided into four parts and each part is a chapter.The first chapter outlines the trade in telecommunication services and the legal system thereof, interprets the concepts of trade in telecommunication services and commercial presences, and analyzes the history and status quo of foreign capitals in China's telecommunication service market. This chapter holds that the purpose of identifying foreign capitals' commercial presence in China is to supervise them specifically, and the criterion to determine whether a company is commercial presence is who actually controls it.The second chapter discusses the market access issues. In this chapter, the related parts of the panel report on Mexico-Measures affecting telecommunications services are reviewed thoroughly and the viewpoints of the panel are revealed. This chapter also points out a defect in China's commitments and reviews the related domestic laws. It also proposes that China's law should define an examination and approval criteria for foreign capitals investing in China's telecommunication enterprises.The third chapter discusses the issues of interconnection. In this chapter, the author analyzes the relevant WTO rules and is convinced that these rules are favorable to the developed countries because they impose the same obligations on every party concerned. Additionally, the chapter discusses the interconnection issues in Mexico telecommunications case. As to the interconnection issues in China, the author holds that the fundamental cause of the problems is the unreasonable approach of interconnection charges which is not consistent with the WTO rules. The dissertation recommends that the incumbent operator should be affirmed reasonably and a cost-oriented rate system should be built.The fourth chapter discusses the issues of competitive safeguards. The chapter reviews the Reference Paper in the Agreement of Basic Telecommunications and the competitive safeguards issues in Mexico telecommunications case. Telecommunication service industry is an industry of natural monopolies but it does not means there is no competition in it. The chapter makes a study of the application of China's Anti-monopoly Law to the telecommunication service industry and the implementation effects of some asymmetrical regulation measures. It is not suitable for the government to issue mandatory measures on sharing of telecommunication infrastructures otherwise the commercial presence of foreign capitals will gain free-rider benefits.