The US Shaping of State-Owned Enterprise Disciplines in the Trans-Pacific Partnership

Julien Sylvestre Fleury and Jean-Michel Marcoux

Journal of International Economic Law, 2016, vol. 19, issue 2, 445-465

Abstract: The involvement of states as commercial actors in the marketplace can potentially distort trade and investment patterns. This article addresses the inclusion of a chapter on state-owned enterprises (SOEs) and designated monopolies in the Trans-Pacific Partnership (TPP) in light of the avowed intent of the USA to elaborate a 21st-century free trade agreement template. More specifically, it argues that the outcome of the negotiations reflects the role of the USA as a norm entrepreneur to shape an innovative set of SOE disciplines. Publicly available statements made during the course of the TPP negotiations illustrate this role of the USA. Moreover, a comparison with the provisions of other free trade agreements signed by the USA suggests that the SOE disciplines found in the TPP extensively build on the previous practice of the USA, as well as the position advanced by this negotiating Party. Provisions pertaining to the definition of entities covered by this chapter, scope and exclusions, commercial considerations, non-discrimination, regulatory discretion, non-commercial assistance, exceptions, transparency, and dispute settlement support this argument.

Date: 2016
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