How do PTAs Address 'Competitive Neutrality' between State and Private Owned Enterprises

States-owned enterprises (SOEs) have for long used as and are likely to remain an important instrument in any government’s toolbox for a variety of economic, public and societal goals. However, the significant extent of state ownership among the world’s top companies raises the issue of its impact on international trade and global competition.
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How do PTAs Address “Competitive Neutrality” between State and Private Owned EnterprisesVNU Journal of Science, Vol. 32, No. 1S (2016) 202-217How do PTAs Address “Competitive Neutrality” betweenState and Private Owned Enterprises?Claudio Dordi*EU-MUTRAP, VietnamReceived 06 October 2016Revised 18 October 2016; Accepted 28 November 2016Abstract: States-owned enterprises (SOEs) have for long used as and are likely to remain animportant instrument in any government’s toolbox for a variety of economic, public and societalgoals. However, the significant extent of state ownership among the world’s top companies raisesthe issue of its impact on international trade and global competition. We address the question ofhow multilateral and preferential trade agreements (PTAs) discipline SOEs with a view toguaranteeing the level playing field between such entities and private enterprises, while, at the sametime, allowing governments to provide support to SOEs that deal with market failures and providepublic goods. The argument is developed in three main parts. The first briefly outlines the reasonswhy SOEs are disciplined by a number of international legal instruments. The second assesses howWTO agreements deal with the potential trade effects of SOEs and highlights the mainshortcomings of the multilateral trade discipline. The third part analyses the chapters on SOEs ofthe Transpacific Trade Partnership (TTP) and the EU-Vietnam FTA (EUVFTA), which represent,respectively, for the US and the EU, the PTAs endowed with the most advanced provisions on thematter. We will conclude with some concise remarks.Keywords: PTAs, SOEs, POEs, competitive neutralityThe research question addressed in ourpaper is expressed above in a straightforwardand beguilingly way, which, however, hides itstrue complexity. One of the reasons of suchcomplexity has to do with the interplay betweenthe use of SOEs by governments to pursue avariety of political and societal goals, themagnitude of state ownership among theworld’s top companies and the potentialtrade/competitive distortions the favorabletreatment SOEs may be benefit from maycause.1. Why state ownership?Often governments have created andinvested in SOEs because markets wereimperfect or unable to accomplish criticalsocietal needs such as effectively mobilizingcapital or building enabling infrastructure foreconomic development e.g. a nationwideelectricity grid or water system. Particularly, theOECD and World Bank have set out a range ofcommonly stated reasons for state-ownership[1] Government traditionally resort to SOEsmight:• Provide public goods (e.g. nationaldefense and public parks) and merit goods (e.g._______Tel.: 84-4-39378472Email: Claudio.dordi@multrap.org.vn202C. Dordi / VNU Journal of Science, Vol. 32, No. 1S (2016) 202-217public health and education), both of whichbenefit all individuals within a society andwhere collective payment through tax may bepreferred to users paying individually.)• Improve labor relations, particularly in‘strategic’ sectors.• Limit private and foreign control in thedomestic economy.• Generate public funds. For instance, thestate could invest in certain sectors and controlentry in order to impose monopoly prices andthen use the resulting SOE revenues as income.• Increase access to public services. Thestate could enforce SOEs to sell certain goodand services at reduced prices to targetedgroups as a means of making certain servicesmore affordable for the public good throughcross-subsidization.• Encourage economic development andindustrialization through:– Sustaining sectors of special interest forthe economy, and in particular to preserveemployment.– Launching new and emerging industriesby channeling capital into SOEs which are, orcan become, large enough to achieve economiesof scale in sectors where the start-up costs areotherwise significant. This might be seen as analternative to regulation, especially where thereare natural monopolies and oligopolies (e.g.electricity, gas and railways).- Controlling the decline of sunsetindustries, with the state receiving ownershipstakes as part of enterprise restructuring.SOEs are likely to remain an importantinstrument in any government’s toolbox forsocietal and public value creation given theright context.2. SOEs, international trade and competitionFrom another angle, the vastness of SOEs’print on the international economy isunquestionable. In a trade policy paper preparedfor the Organization for Economic Cooperation and Development (OECD), Kowalski203and his collaborators demonstrate that 204 outof the world’s 2000 largest publicly listed firmscan be identified as SOEs, representing USD3.6 trillion or 10% of the aggregate of thelargest companies [2]. Similarly, in its 2014World Investment Report, the United NationsConference on Trade and Developmentestimates the ...