Howse: Official Business: International Trade Law and the Resurgence (or Resilience) of the State as an Economic Actor

Robert L. Howse (New York Univ. - Law) has posted Official Business: International Trade Law and the Resurgence (or Resilience) of the State as an Economic Actor (University of Pennsylvania Journal of International Law, forthcoming). Here's the abstract:

The end of the 20th century was a time of privatization; so far, the new millennium has heralded a resurgence of state capitalism. China is doubtless Exhibit A. The notion that state enterprises engage in unfair competition is now a common refrain. It is conventional wisdom that the World Trade Organization has not held up on this front, and that the WTO needs new rules to reign in state enterprises. This Article challenges that point of view. Governments should not be able to circumvent existing WTO rules through state enterprises but putting the state sector under new special constraints is unjustified. State enterprise can be a legitimate tool of public policy. Focusing complaints about anti-competitive behavior on the state sector is unwarranted: private firms may also engage in unfair competition and abuse market power. Carefully examining the case law in the WTO, this Article argues that there is a strong basis in existing jurisprudence for holding governments accountable for the conduct of state firms, despite one often-cited decision anomalous tribunal decision. The Article advocates greater transparency & dialogue in the WTO about how ownership structure affects competition and trade-but applied equally to both public & private entities.