수출보조금 및 구조조정보조금에 관한 몇 가지 쟁점

Abstract

The WTO dispute settlement proceeding (DS 273) between Korea and EC dealt with the alleged subsidies granted to the Korean shipbuilders since the Financial Crisis in 1997. This case raised a number of legal issues on subsidies granted in the context of domestic insolvency proceedings or other corporate restructuring (workout) procedure. As a horizontal issue relevant to all WTO subsidy cases, the panel first addressed the issue of a "public body" referred to in Article 1.1 of the Agreement on Subsidies and Countervailing Measures (ASCM) and introduced a "control by the government" test to determine a public body. In addition, the panel analyzed the meaning of the "entrusted or directed private bodies"in the context of an indirect subsidy envisaged in Article 1.1(a)(1)(iv) of the ASCM. Also, the Panel reaffirmed that a domestic law must be mandatory in order to constitute a "measure" that can be challenged in the WTO dispute settlement proceedings. Most importantly, in connection with the "benefit" standard applicable to the debt restructuring or debt-for-equity conversion for an insolvent company, the Panel applied a "commercial reasonability" test, which marks a significant variation from the typical "market benchmark" standard. Finally, the panel ruled that a "serious prejudice" referred to in Article 6 of the ASCM is established once a significant price undercutting, price suppression or depression has been found to exist, and does not require other additional factors to find the serious prejudice. The panel also clarified various issues related to the serious prejudice, such as causation for which the panel applied "but-for" approach.