Disciplines on State-Owned Enterprises in International Economic Law: Are We Moving in the Right Direction?

Ines Willemyns

Journal of International Economic Law, 2016, vol. 19, issue 3, 657-680

Abstract: State-owned enterprises (SOEs) are a specific kind of enterprise with specific characteristics and inherent competitive advantages. However, they continue to play a considerable role in twenty-first century trade. The first section of this article will address the question of why and how SOEs must be regulated in international economic law. It will shortly review the characteristics of SOEs and link these to the question whether there is a need for specific disciplines to remedy the potentially trade and investment distorting behaviour of SOEs. In the second section of the article, the existing provisions on SOEs in international economic law will be elaborated upon. Several issues surround the currently existing disciplines on SOEs, including the lack of a clear definition and scope, limited specific disciplines, and problems of enforcement. The article will try to answer several questions: How well do currently existing rules address the issues surrounding SOEs? Is the specific chapter in the Trans-Pacific Partnership (TPP) new and groundbreaking? Are current gaps being addressed? What about the negotiations in other mega-regional agreements? This article evaluates the existing rules and the new rules found in TPP regarding five elements that should necessarily be included in any chapter on SOEs: (i) a clear definition and broad scope; (ii) general obligations and rights; (iii) specific disciplines on trade-distortive practices by SOEs and specific exceptions; (iv) provisions to improve transparency; and (v) rules regarding enforceability and dispute settlement.

Date: 2016
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