How preferential trade agreements address market distortions from state enterprises

Annex D. Overview of the OECD methodology for identifying state enterprises disciplines in preferential trade agreements

In earlier work, the OECD mapped and classified the provisions disciplining SEs included in PTAs signed between the 1950s and December 2022 [TAD/TC(2022)9/FINAL]. For this report, the OECD has formalised this mapping exercise by building a dataset covering the period between 1950 to December 2024.1 While this dataset essentially analyses the different types of obligations imposed on both SEs and on governments in relation to their SEs, it also looks at how PTAs deal with specific non-market practices (e.g. forced technology transfers, tendering at abnormally low prices) where SEs may play an active role, following evidence from previous OECD work (OECD, 2024[1]). The analysis is based on information collected on all PTAs currently in force.2 For this purpose, the OECD relied on the WTO database of regional trade agreements3 although the information was cross-checked with certain national or supra national websites, notably those of Australia, Canada, China, Japan, the United States, the European Union, and the United Kingdom. A total of 386 PTAs4 were identified as being in force. In this respect, Table 2 below provides an overview of the different questions contained in the dataset.

The OECD considered that a PTA contains discipline on SEs when it establishes a specific framework regulating the conduct of SEs and, potentially, the relationship of governments with their SEs. It deems PTAs containing at least one of the following three provisions to have an SE discipline in place, namely (i) the obligation for SEs to act “in accordance with commercial considerations”; (ii) the obligation for SEs to accord non differential treatment when purchasing and selling goods or services; (iii) the prohibition of non-commercial assistance provided by governments or SEs to SOEs when causing adverse effects.5 On some occasions, the OECD regarded as including a discipline on SEs those PTAs that contain provisions regulating more broadly the relationship of governments with their SEs.6 It should be noted that additional obligations and transparency requirements often accompany the three main obligations referred to above. These provisions for which the OECD also collected information, complement the main provisions regulating SEs and do not appear as stand-alone obligations.

By contrast, for the purpose of this study, a PTA is not considered to include disciplines on SEs when it only contains either of the two following obligation, namely: (i) a general obligation for Parties to the agreement to comply with the principle of non-discrimination when applying competition laws; or (ii) an obligation to treat all enterprises equally under competition laws, irrespective of their ownership status.7 In that regard, the analysis has adopted a rather conservative approach by classifying as discipline on SEs only the inclusion of specific rules tailored to the issues to which SEs give rise. That is, although the application of general competition laws to SEs may contribute to addressing some of the distortions caused by the conduct and practices of SEs, such provisions do not lay down a framework specifically regulating SEs. The rationale for this conservative approach is that too broad a categorisation would not give sufficient weight to frameworks imposing substantial obligations on both SEs and governments in their relations with SEs.

Table 2. Overview of the database on state enterprise disciplines in preferential trade agreements

I. Information on the agreement

I.a) Is the agreement bilateral or plurilateral?

I.b) Year of signature of the agreement?

I.c) Has the agreement entered into force?

I.d) Year of entry into force of the agreement?

I.e) Has the agreement been notified to the WTO?

I.f) Year of WTO notification?

II. Coverage of state trading enterprises

II.a) Does the agreement include a provision on state trading enterprises?

III. Definition of state enterprises

III.a) Does the agreement contain a definition of state enterprises?

III.b) Under which category (A,B, C, or D) does the definition fall?

IV. Discipline on state enterprises

IV.a) Does the agreement contain a specific discipline on state enterprises?

IV.b) Is the discipline included in a stand-alone chapter dedicated to state enterprises?

IV.c) Is the discipline included in the competition chapter?

V. Substantive obligations on state enterprises

V.a) Does the agreement include a more general provision regulating state enterprises although not including specific substantive obligations on state enterprises?

V.b) Does the agreement include an obligation of non-discriminatory treatment for the purchase or sale of the state enterprise’s good or service?

V.c) What is the scope of this non-discriminatory obligation?

V.d) Does the agreement include an obligation to act consistent with commercial considerations in the purchase or sale of the state enterprise’s good or service

V.e) What is the scope of this obligation to act consistent with commercial considerations?

V.f) Does the agreement include a provision related to non-commercial assistance by SEs to SOEs?

V.g) Does the agreement include an obligation to act consistent with the Party's obligations under the agreement when the state enterprise exercises a regulatory, administrative, or other governmental authority that the Party has delegated to it?

VI. Governments' relationships with their state enterprises

VI.a) Does the agreement recognise the right to establish or maintain state enterprises?

VII. Competitive neutrality obligations on state enterprises

VII.a) Does the agreement include an obligation on the Parties to enforce laws and regulations in a consistent and non-discriminatory manner, including with SOEs?

VII.b) Does the agreement include a recognition of the independence and impartiality of regulatory body regulating SOEs?

VII.c) Does the agreement include an obligation on the Parties to treat equally all enterprises (including state enterprises as defined in the agreement) when applying national competition laws?

VII.d) Does the agreement include a reference to international standards, including inter alia OECD Guidelines on Corporate Governance of SOEs or Reference to Competitive Neutrality?

VIII. Transparency obligations on governments with respect to their state enterprises

VIII.a) Does the agreement include a transparency obligation on the Parties to notify a list of their state enterprises?

VIII.b) Does the agreement include a transparency mechanism permitting Parties to request information on state enterprises and/or non-commercial assistance?

VIII.c) Does the agreement include a co‑operation mechanism (e.g., establishment of a committee, contact points, etc.)?

IX. Enforcement of the disciplines on state enterprises

IX.a) Does the agreement subject the disciplines on state enterprises to its dispute settlement mechanism?

X. Subsidies

X.a) Does the agreement include a SCM+ discipline (i.e. a subsidy discipline going beyond the SCM Agreement)?

XI. Competition

XI.a) Does the agreement include a competition chapter or competition provisions?

XI. b) Does the agreement include an obligation to treat equally all enterprises (including state enterprises) when applying national competition laws?

XI.c) How does this obligation refer to state enterprises?

XII. Public Procurement

XII.a) Does the agreement include a chapter on public procurement?

XII.b) Does the obligations regulating public procurement under the public procurement chapter apply to state enterprises?

XII.c) Does the agreement regulate tenders with abnormally low prices?

XII.d) Does the provision regulating tenders with abnormally low prices include a specific reference to subsidies?

XIII. Forced technology transfers

XIII.a) Does the agreement prohibit forced technology transfers?

Notes

← 1.  This OECD study complements the work of other international organisations, such as the World Bank, which has inventoried the provisions on SEs in PTAs signed since 1957 to assess the vertical depth of PTAs. See https://datatopics.worldbank.org/dta/table.html (accessed on 9 March 2026).

← 2.  This includes PTAs that have preliminarily entered into force, such as the Comprehensive Economic and Trade Agreement between the European Union and Canada (CETA), as well as PTAs that have entered into force albeit not for all Parties to the agreement.

← 3.  See https://rtais.wto.org/UI/PublicMaintainRTAHome.aspx (accessed on 25 February 2026).

← 4.  This number covers PTAs, which have recently entered into force, although they have not yet been notified to the WTO. In addition, Protocols to a PTA adding a new chapter on “competition policy” or “state-owned enterprises” have been counted as separate agreements to reflect their date of entry into force. Six instances were found in this respect, namely the upgrade protocols to the FTA between Australia, New Zealand, and the Association of Southeast Asian Nations, the agreement establishing the African continental free trade area, the China-Singapore FTA, the China-New Zealand FTA, the China-Chile FTA, and the protocol amending the Singapore-New Zealand Closer Economic Partnership.

← 5.  Note, as explained above, that the CPTPP, the Australia-Peru FTA, the USMCA, the United Kingdom-New-Zealand, and the United Kingdom-Australia FTA contain disciplines on non-commercial assistance to SOEs provided by governments or by SEs. These agreements thus distinguish between SOEs and SEs. Hence, although this report uses the term SEs, it refers to SOEs when the Agreements under discussion contain two separate definitions of SOEs and SEs.

← 6.  This covers mainly the first-generation EU Association Agreements, which typically contain the following provision: “With regard to public enterprises and enterprises to which special or exclusive rights have been granted, the Association Council shall ensure that, as from the fifth year following the date of entry into force of this Agreement, there is neither enacted nor maintained any measure distorting trade between the [European Community] and [the other party to the Association Agreement] contrary to the Parties’ interests. This provision should not obstruct the performance in law or in fact of the particular tasks assigned to these enterprises” Details are provided in section 2 as to the total number of PTAs containing a discipline on SEs, including in a broader language, and the total number of PTAs containing only one or several of the obligations (i) to (iii).

← 7.  Notwithstanding this approach, relevant data on such provisions were collected.