WTO服务贸易紧急保障措施制度中的“国内产业”范围问题——以我国证券服务业为视角的分析

我国证券服务业对外开放的重点是放宽商业存在形式的市场准入,主要依据是我国加入世界贸易组织的承诺和主动实施的对外开放措施。分析表明,我国存在外商控股服务提供者、非外商控股外商投资服务提供者、外资参股中资服务提供者和纯中资服务提供者等四类证券服务提供者,不存在外商独资服务提供者。为维护我国证券服务业的安全和所有服务行业的整体经济利益,建议以中资股东是否拥有实际控制权为标准,适度从宽地划定证券服务业国内产业的范围。此外,在关于国内产业范围的谈判中,应注意坚持根据实质重于形式确定"实际控制权"的衡量标准。

The Definition of Domestic Industry under the Multilateral ESM Regime:An Analysis Based on China's Securities and Futures Industry

As far as the market access to China＇s securities and futures industry is concerned, foreign service suppliers are not permitted to be the controlling shareholders in joint ventures with foreign investment, due to the regulatory requirement of the maximum percent of shareholding. According to our analysis, there are four types of services suppliers currently, i.e. service suppliers with controlling foreign investment, service suppliers with non-controlling foreign investment, service suppliers with minor foreign investment, and service suppliers without foreign investment, but there are not service suppliers wholly owned by foreign investment. It is suggested in this article to define a properly wide scope of domestic industry based on a material-control-by-foreign-investment test, so as to safeguard China＇s securities and futures industry and benefit the whole domestic services industry. The principle of materiality with regarding to the standard of material control in the forthcoming multilateral negotiations is also proposed.