Article 1 of the SCM Agreement is about the definition of a subsidy. A subsidy is a financial contribution from the government or public institution that a benefit is thereby conferred. Therefore, this study first examined whether the measures of Kore ...
Article 1 of the SCM Agreement is about the definition of a subsidy. A subsidy is a financial contribution from the government or public institution that a benefit is thereby conferred. Therefore, this study first examined whether the measures of Korea satisfy the requirements of Article 1 of the Agreement.
The main issue in the Canada — Aircraft (DS70) case concerns the interpretation of Article 1 of the SCM Agreement. In conclusion, the panel found that a ‘benefit’ should be regarded as having been granted if, due to financial contributions, the beneficiaries were provided with more favorable conditions than those that could be obtained in the general market.
In addition, even if it is a private institution, if it is a government delegation and direction, it is recognized as a government action, so the interpretation of the government's delegation and direction is important. The main issue of EC — Countervailing Measures on DRAM Chips (DS299) case is that in order for the financial support measures of general banks, not the government or public institutions, to be subsidized, there must be a delegation or instruction from the government. Although it was argued that there must be explicit and assertive action by the government, the panel interpreted that it is clear that the government's action must be assertive, but not necessarily explicit. In other words, it is interpreted that a specific act can be delegated or instructed even in an implicit or informal way.
Article 2 of the Agreement is a provision on specificity. Specificity refers to affecting normal competition conditions by providing subsidies only to specific industries or companies, unlike the country's general social security. Specificity includes Legislative specificity and de facto specificity. Legislative specificity is “Where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such subsidy shall be specific.”(Article 2(1)(a) of the SCM Agreement). In United States — Continued Dumping and Subsidy Offset Act of 2000 (DS217) case, the panel found that measure taken by a government or local government, or by order of a government or local government, expressly limits access to subsidies to certain entities was interpreted as being applicable to this. The de facto specificity is “If, notwithstanding any appearance of non-specificity resulting from the application of the principles laid down in subparagraphs (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises, predominant use by certain enterprises, the granting of disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy”(SCM Agreement Article 2 Paragraph 1 (c)). In other words, even if the conditions for receiving subsidies are neutral under the law, in reality only certain companies enjoy the benefits of subsidies.
Lastly, it must be proved that related industries in Japan have been adversely affected or serious prejudice due to the above measures in Korea. In Korea-Commercial Vessels (EC)(DS273) case, The EC argued that subsidies to Korean shipbuilders had serious prejudice its interests. In particular, it argued that damage occurred in the form of suppression of price increases and reductions in prices. After determining whether subsidized and built ships had an impact on international market prices, the panel found that the number of such ships was insignificant compared to the total number of ships and that the calculated price effect did not affect world ship prices. Accordingly, the panel found that no serious prejudice had been caused to the interests of the EC.