Abstract：Legally definitional criteria of subsidy， which require a finding of a financial contribution by a government actor and a benefit subsequently conferred， are employed in the SCM Agreement of the WTO. Compared with the concept of a financial contribution which is amplified by four explanatory sub-paragraphs， the content of benefit seems more unclear and controversial when it comes to the details. Although the Appellate Body confirmed the Panels finding in Canada-Aircraft that a ″benefit″ would only be conferred if a financial contribution was provided on terms that are more advantageous than those that would have been available to the recipient on the commercial market， along with Article 14 which constitutes relevant context for the interpretation of ″benefit，″ the concept of a benefit remains ambiguous especially in complex disputes where the ″commercial market″ is not easily identifiable． Government provision of equity capital is one typical type of such financial contributions. According to Article 14（a） of the SCM Agreement， usual investment practice of private investors is regarded as the benchmark for determining whether the subsidized benefit has been conferred by governmental equity infusion. The decision to make equity infusion depends， to a large extent， on personal subjective judgment of each investor on the future. Therefore， the benchmark of usual investment practice of private investors is quite flexible but still needs to be predictable as a legal norm. However， there are no provisions in the SCM Agreement regarding how to ascertain such usual investment practices of private investors in specific disputes． Meanwhile， the Dispute Settlement Body of WTO has established the basic frame for the benchmark of usual investment practice of private investors by means of making interpretations in some subsidy disputes. In Japan-DRAMs（Korea）， the panel and Appellate Body accept that two types of evidences are relevant in determining the existence of benefit: one is evidence of the terms that the market would have offered; the other is evidence about whether or not the financial contribution is provided on the basis of commercial considerations． The price which a private investor needs to pay for the same or comparable equity in the investment market shall be chosen in first priority as the benchmark of usual investment practice of private investors. A prerequisite of equity ratio should not be required since it is irrelevant with the issue whether the above price is from unconstrained exchange in the relevant market. Meanwhile， neither prices of inside investors confined to sunk-cost effects nor constructed prices should be chosen as benchmarks. The criterion of rational investors advocated by the Appellate Body in Japan-DRAMs （Korea）， is essentially the criterion of outside investors. There is also no feasibility and necessity for the constructed prices of the same or comparable equity． If there exists no private investor price， commercial consideration of governmental investment could be reviewed instead. A private investor with commercial consideration only focuses on anticipated commercial profit for its equity infusion. The expected profit is the sum of the probabilities of each possible outcome times the value of each of those outcomes. The hypothetical private investor needs neither to pursue the most profitable investment or maximize returns， nor pursue short-term profits. It is acceptable that the rate of profit or the return is on par with the average in the particular sector where the investment takes place， without running excessive risks in relation to other investors in comparable situations. The onus of proof about the commercial consideration is on the investigated party. Uncorroborated claims， speculations or hunches cannot be accepted as proofs because it is unreasonable for the government using public money to act without due prudence， gamble and make risky bets. What is reasonable in this context is that the rest of the market believes. A relevant， independent， logical and professional report issued by accounting firms， independent banks， venture capital companies and consultants will be the preferred evidence for commercial consideration．
蒋奋. 论判定补贴利益的私人投资基准： 法解释学与法经济学的视角[J]. 浙江大学学报(人文社会科学版), 2016, 2(5): 190-.
Jiang Fen. A Review on Benchmarks of Private Investor for Determining Subsidized Benefit: From the Perspective of Hermeneutics of Law and Economics of Law. JOURNAL OF ZHEJIANG UNIVERSITY, 2016, 2(5): 190-.
