WTO체제 하 보조금의 양면적 속성에 관한 통섭적 고찰
Exploring Ambivalent Characteristics of Subsidy -The Consilience of Economic and Legal Approaches-
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It is noteworthy that subsidy functions as market-distortive or market-corrective measure. Unlike general understanding that the subsidy always distorts the prevailing market condition or practice, in many cases it plays a significant role of correcting market failure resulted from non-rivalry or non-excludability, external effect, and imperfect or uncertain information, and so forth. Indeed, various domestic practices of subsidization in many countries today show that in many cases the subsidy, irrespective of de facto intention of the government, has a positive characteristic of correcting market failure and even enhancing domestic economic welfare which is a yardstick for measuring market efficiency. This is particularly so given the fact that market intervention by a government usually targets key industries and economies by aiming at fostering industrial and economic development, or bailing out ailing industries. Such ambivalent characteristics of subsidy is intrinsically embodied in Article 14of the WTO Agreement on Subsidies and Countervailing Measures ("SCM Agreement")concerning the assessment of benefit. Article 14 provides general guidelines for the Investigation Authority ("IA") to comply with in determining whether or not financial contribution by a government eventually makes the recipient better off. The preamble of Article 14 provides that such guidelines are binding the IA, even if the Investigation Authority has comprehensive discretion to adopt the proper methodology regulated in its own domestic law. Here, what is important is that Panel and Appellate Body in key subsidy disputes have found that the trade-distorting potential of a financial contribution can be identified by determining existence of benefit to the recipient according to Article 14. In other words, financial contribution by a government can be evaluated as being detrimental to international trade only when it is really beneficial to private company. Assumably, the SCM Agreement seems that it does not treat all forms of market intervention by a government as illegal subsidies. In turn, the assessment of benefit requires the application of various legal principles. In particular, so-called market benchmark jurisprudence plays a key role of assessment of benefit. According to this jurisprudence, the assessment of benefit should be based on relative comparison between transactional terms artificially manipulated through subsidization and the actual market conditions which are currently prevailing in the real market or could be obtained by the recipient absent the subsidy. Thus, the market benchmark jurisprudence conceptually requires sequential approaches of definition of relevant market and selection of appropriate standard out of that market. It is a well-known fact that Article 14 stipulates market benchmark jurisprudence. However, this provision only focuses on selection of market standard, the second phase of market benchmark jurisprudence, not definition of relevant market, the first phase of that jurisprudence. In this reason,logistical consideration of this key principle raises very contradictable question of how the market standard can be selected without relevant market. Absence of legislative guidelines for the definition of relevant market inevitably brings about ambiguity of basic legal principles on the concept of benefit and ultimately casts serious doubt on validity of benefit assessment conducted by Panel and Appellate Body in many disputes so far. Hopefully, the ongoing Doha Development Agenda negotiation on the amendment of the SCM Agreement should cover in-depth discussion on the relevant market issue, and therefore elaborate market benchmark jurisprudence which embodies ambivalent characteristics of subsidy underlying the SCM Agreement.
Abstract
It is noteworthy that subsidy functions as market-distortive or market-corrective measure. Unlike general understanding that the subsidy always distorts the prevailing market condition or practice, in many cases it plays a significant role of correcting market failure resulted from non-rivalry or non-excludability, external effect, and imperfect or uncertain information, and so forth. Indeed, various domestic practices of subsidization in many countries today show that in many cases the subsidy, irrespective of de facto intention of the government, has a positive characteristic of correcting market failure and even enhancing domestic economic welfare which is a yardstick for measuring market efficiency. This is particularly so given the fact that market intervention by a government usually targets key industries and economies by aiming at fostering industrial and economic development, or bailing out ailing industries. Such ambivalent characteristics of subsidy is intrinsically embodied in Article 14of the WTO Agreement on Subsidies and Countervailing Measures ("SCM Agreement")concerning the assessment of benefit. Article 14 provides general guidelines for the Investigation Authority ("IA") to comply with in determining whether or not financial contribution by a government eventually makes the recipient better off. The preamble of Article 14 provides that such guidelines are binding the IA, even if the Investigation Authority has comprehensive discretion to adopt the proper methodology regulated in its own domestic law. Here, what is important is that Panel and Appellate Body in key subsidy disputes have found that the trade-distorting potential of a financial contribution can be identified by determining existence of benefit to the recipient according to Article 14. In other words, financial contribution by a government can be evaluated as being detrimental to international trade only when it is really beneficial to private company. Assumably, the SCM Agreement seems that it does not treat all forms of market intervention by a government as illegal subsidies. In turn, the assessment of benefit requires the application of various legal principles. In particular, so-called market benchmark jurisprudence plays a key role of assessment of benefit. According to this jurisprudence, the assessment of benefit should be based on relative comparison between transactional terms artificially manipulated through subsidization and the actual market conditions which are currently prevailing in the real market or could be obtained by the recipient absent the subsidy. Thus, the market benchmark jurisprudence conceptually requires sequential approaches of definition of relevant market and selection of appropriate standard out of that market. It is a well-known fact that Article 14 stipulates market benchmark jurisprudence. However, this provision only focuses on selection of market standard, the second phase of market benchmark jurisprudence, not definition of relevant market, the first phase of that jurisprudence. In this reason,logistical consideration of this key principle raises very contradictable question of how the market standard can be selected without relevant market. Absence of legislative guidelines for the definition of relevant market inevitably brings about ambiguity of basic legal principles on the concept of benefit and ultimately casts serious doubt on validity of benefit assessment conducted by Panel and Appellate Body in many disputes so far. Hopefully, the ongoing Doha Development Agenda negotiation on the amendment of the SCM Agreement should cover in-depth discussion on the relevant market issue, and therefore elaborate market benchmark jurisprudence which embodies ambivalent characteristics of subsidy underlying the SCM Agreement.
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