WTO보조금협정 상 경제적 혜택의 평가와 관련한 기본 법리
Legal Principles on the Concept of Benefit under the WTO SCM Agreement
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Subsidy dispute involves severe conflict of interest between parties. In general, the exporting country argues that its subsidy policy forms a part of national economic or industrial policies, thus should be considered as a domestic affair under its jurisdiction. On the other hand, the importing country argues that subsidization can not be justified under the WTO Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) if such subsidy incurred trade distortion by intentionally placing subsidized goods from the exporting country in competitive advantage and causing injuries to domestic industry. The subsidy dispute touches a variety of complex legal issues. In particular, the assessment of benefit requires the application of various legal principles. The basic principles identified through subsidy disputes so far are as follows: the principle of market benchmark, the principle of recipient-perspective approach, the principle of negligence of distorted market, the principle of commercial reasonableness, and the principle of pass-through of benefit. The principle of market benchmark, inter alia, plays a key role of assessment of benefit. According to this principle, the assessment of benefit should be based on relative comparison between conditions of financial assistance through subsidization and the actual prevailing market condition. Thus, the principle of market benchmark conceptually requires the definition of relevant market and the selection of appropriate standard out of that market. The Article 14 of SCM Agreement provides the principle of market benchmark. However, it only focuses on the selection of market standard, not the definition of relevant market. If so, logistical consideration of this principle raises very contradictable question of how the market standard can be selected without relevant market. Non-existence of legislative guidelines for the definition of relevant market inevitably brings about ambiguity of all basic principles on the concept of benefit as mentioned above and ultimately casts serious doubt on validity of benefit assessment conducted by Panel and Appellate Body through WTO dispute settlement procedures up to now. Hopefully, the ongoing Doha Development Agenda negotiation on the amendment of the SCM Agreement should cover in-depth discussion on the relevant market issue.
Abstract
Subsidy dispute involves severe conflict of interest between parties. In general, the exporting country argues that its subsidy policy forms a part of national economic or industrial policies, thus should be considered as a domestic affair under its jurisdiction. On the other hand, the importing country argues that subsidization can not be justified under the WTO Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) if such subsidy incurred trade distortion by intentionally placing subsidized goods from the exporting country in competitive advantage and causing injuries to domestic industry. The subsidy dispute touches a variety of complex legal issues. In particular, the assessment of benefit requires the application of various legal principles. The basic principles identified through subsidy disputes so far are as follows: the principle of market benchmark, the principle of recipient-perspective approach, the principle of negligence of distorted market, the principle of commercial reasonableness, and the principle of pass-through of benefit. The principle of market benchmark, inter alia, plays a key role of assessment of benefit. According to this principle, the assessment of benefit should be based on relative comparison between conditions of financial assistance through subsidization and the actual prevailing market condition. Thus, the principle of market benchmark conceptually requires the definition of relevant market and the selection of appropriate standard out of that market. The Article 14 of SCM Agreement provides the principle of market benchmark. However, it only focuses on the selection of market standard, not the definition of relevant market. If so, logistical consideration of this principle raises very contradictable question of how the market standard can be selected without relevant market. Non-existence of legislative guidelines for the definition of relevant market inevitably brings about ambiguity of all basic principles on the concept of benefit as mentioned above and ultimately casts serious doubt on validity of benefit assessment conducted by Panel and Appellate Body through WTO dispute settlement procedures up to now. Hopefully, the ongoing Doha Development Agenda negotiation on the amendment of the SCM Agreement should cover in-depth discussion on the relevant market issue.
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