FTA에서의 경쟁과 관련된 법적 과제

Legal Issues in Competition Chapter of the FTA

Several recommendations are shown through this paper focusing on the appraisal of the Free Trade Agreements (FTAs) of some countries including USA and Canada. The review of KOR-US FTA can be classified with four parts as follows; ⅰ) competition law and anticompetitive business conduct, ⅱ) designated monopoly and state enterprises which comprise the core of the FTA, ⅲ) differences in pricing and cross-border consumer protection, and ⅳ) procedural regulations including transparency, coordination, consultations, and dispute settlement, and this paper examines every part by comparing with the other FTAs which made by US, Canada, Singapore, Australia, Peru, Chile, EU, EFTA, ASEAN, India and Korea. Firstly, we can recognize the objectives of competition law as the economic efficiency and the consumer welfare in the provisions of the FTA, understand the rules and regulations of the anticompetitive business conduct as general provisions, and admit the enhancement and development of the procedural rights of the persons subject to the imposition of a sanction or remedy for violation of competition laws with the opportunity to seek review of the sanction or remedy in a court or independent of a tribunal. Secondly, there are no different opinions in the definitions of the designated monopoly and state enterprises, though there are some differences in the expression method, and there are also no differences of obligations of those entities which contain the government monopoly and the privately-owned monopoly as follows; (a) acts in a manner that is not inconsistent with the Party's obligations wherever such a monopoly exercises any regulatory, administrative, or other governmental authority that the Party has delegated to it in connection with the monopoly good or service, (b) acts solely in accordance with commercial considerations in its purchase or sale of the monopoly good or service in the relevant market, (c) provides non-discriminatory treatment to covered investments, and (d) does not use its monopoly position to engage including through its dealings with its parent, subsidiaries or other enterprises with common ownership. The FTAs that was done with Korea had no reflection or similarity in contents or formality of the global standards before the KOR-US FTA. Thirdly, charging the different prices of the designated monopoly and the state enterprises are allowed, where such differences are based on normal commercial considerations such as taking account of supply and demand conditions, and it is important to recognize the needs of cooperation in information exchange, notification etc. on matters related to cross-border consumer protection. Fourthly, there are provisions in all of the FTAs concerning the transparency, cooperation, consultations, and the dispute settlement, especially in the FTAs which has been done by US, even though there are some differences in expression mode. Basically, it is indispensible to compare the FTAs of other principal countries with ours to be a better one, and this paper shows what should we do and take actions to enhance and develop the provisions of our FTA in the future.