Hiệp định TPP - Chương 17: Các doanh nghiệp nhà nước và các đơn vị độc quyền

CHAPTER 17

STATE-OWNED ENTERPRISES AND DESIGNATED MONOPOLIES

Article 17.1:  Definitions

For the purposes of this Chapter:

Arrangement means the Arrangement on Officially Supported Export Credits, developed within the framework of the Organization for Economic Co-operation and Development (OECD), or a successor undertaking, whether developed within or outside of the OECD framework, that has been adopted by at least 12 original WTO Members that were Participants to the Arrangement as of January 1, 1979;

commercial activities means activities which an enterprise undertakes with an orientation  toward profit-making ¹  and  which  result  in the production  of a good  or supply of a service that will be sold to a consumer in the relevant market in quantities and at prices determined by the enterprise;²

commercial considerations means price, quality, availability, marketability, transportation, and other terms and conditions of purchase or sale, or other factors that would normally be taken into account in the commercial decisions of a privately owned enterprise in the relevant business or industry;

designate means to establish, designate or authorise a monopoly, or to expand the scope of a monopoly to cover an additional good or service;

designated monopoly means a privately owned monopoly that is designated after the date of entry into force of this Agreement and any government monopoly that a Party designates or has designated;

government monopoly means a monopoly that is owned, or controlled through ownership interests, by a Party or by another government monopoly;

independent pension fund means an enterprise that is owned, or controlled through ownership interests, by a Party that:

 (a)       is engaged exclusively in the following activities:

(i)           administering or providing a plan for pension, retirement, social security,   disability,   death   or   employee   benefits,   or   any

combination thereof solely for the benefit of natural persons who are contributors to such a plan and their beneficiaries; or

 (ii)         investing the assets of these plans;

 (b)       has a fiduciary duty to the natural persons referred to in subparagraph

(a)(i); and

 (c)       is free from investment direction from the government of the Party;³

market means the geographical and commercial market for a good or service;

monopoly means an entity, including a consortium or government agency, that in any relevant market in the territory of a Party is designated as the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of the grant;

non-commercial assistance⁴ means assistance to a state-owned enterprise by virtue of that state-owned enterprise’s government ownership or control, where:

 (a)       “assistance” means:

 (i)          direct transfers of funds or potential direct transfers of funds or liabilities, such as:

 (A)      grants or debt forgiveness;

 (B)    loans, loan guarantees or other types of financing on terms more favourable than those commercially available to that enterprise; or

(C)     equity  capital  inconsistent  with  the  usual  investment practice,  including for the provision  of risk  capital,  of private investors; or

 (ii)         goods  or  services  other  than  general  infrastructure  on  terms more favourable than those commercially available to that enterprise;

 (b)      “by virtue of that state-owned enterprise’s government ownership or control” ⁵ means that the Party or any of the Party’s state enterprises or state-owned enterprises:

 (i)        explicitly  limits  access  to  the  assistance  to  the  Party’s  state- owned enterprises;

 (ii)       provides assistance which is predominately used by the Party’s

state-owned enterprises;

 (iii)      provides a disproportionately large amount of the assistance to the Party’s state-owned enterprises; or

 (iv)      otherwise favours the Party’s state-owned enterprises through the use of its discretion in the provision of assistance;

public service mandate means a government mandate pursuant to which a state-owned enterprise makes available a service, directly or indirectly, to the general public in its territory;⁶

sovereign wealth fund means an enterprise owned, or controlled through ownership interests, by a Party that:

 (a)       serves solely as a special purpose investment fund or arrangement⁷ for asset  management,  investment,  and  related  activities,  using  financial assets of a Party; and

(b)       is a Member of the International Forum of Sovereign Wealth Funds or endorses  the  Generally  Accepted Principles  and  Practices  (“Santiago Principles”) issued by the International Working  Group of Sovereign Wealth Funds, October 2008, or such other principles and practices as may be agreed to by the Parties,