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Environmental Subsidies

Subsidies will raise issues under GATT 1994, the Agreement on Agriculture and the SCM Agreement. The SCM Agreement applies cumulatively with GATT Articles VI and XVI. If the subsidies apply to agricultural goods, they may raise issues under the SCM Agreement or the Agreement on Agriculture, or both. In general, panels examine claims under the more specific agreement on trade in goods before examining claims under the GATT 1994, because a provision of the more specific agreement prevails over a GATT 1994 provision in the event of a conflict.20 However, the SCM Agreement does not preclude action “under other relevant provisions of GATT 1994, where appropriate.”21 Moreover, while claims regarding agricultural subsidies are examined first under the Agreement on Agri- culture,22 some are also subject to the disciplines of the SCM Agreement.

An export subsidy that violates Articles 3.3 and 8 of the Agreement on Agriculture also violates SCM Agreement Article 3.1(a).23 However, it seems less likely that an export subsidy that is consistent with the Agreement on Agriculture could be impugned under SCM Agreement Article 3.1(a). Since the former agreement permits certain export subsidies and the latter prohibits all export subsidies, there appears to be a conflict.24 Given the conflict, the more specific provisions of the Agreement on Agriculture should prevail.25 Not everyone agrees with this conclusion. However, the inconsistency between the two agreements is such that it would be difficult to reconcile through interpretation. If the application of the SCM Agreement means that the right to employ certain export subsidies in accordance with the Agreement on Agriculture is denied, the relevant provisions of the Agreement on Agriculture would not be effective. This result would run counter to the rule of effective treaty interpretation. Both agreements define export subsidies as being contingent upon export performance.26 Nevertheless, this issue will become moot if WTO Members eliminate all agricultural export subsidies, as they

Products, DS365 (panel established December 17, 2007 but not composed) (accessed December 21, 2012).

  • 20 General interpretative note to Annex 1A.
  • 21 SCM Agreement note 56.
  • 22 SCM Agreement art. 3.1.
  • 23 Appellate Body Report, United States—Subsidies on Upland Cotton (US—Upland Cotton), WT/ DS176/AB/R, adopted 21 March 2005, paras. 582—4.
  • 24 In this situation, there is a conflict of norms in the sense that the exercise of rights under one norm constitutes a breach under the other norm. See Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (Cambridge University Press, Cambridge 2003) 275.
  • 25 Agreement on Agriculture art. 1.
  • 26 Agreement on Agriculture art. 1(e); SCM Agreement art. 3.1(a); Luis Yahir Acosta Perez, “La Relacion entre el Acuerdo sobre Agricultura y el Acuerdo sobre Subvenciones y Medidas Compensa- torias” (August 2009), Documento de trabajo no. 9 (accessed December 21, 2012); Bradly J. Condon, El Derecho de la Organizacion Mundial de Comercio: Tratados, Jurisprudenciay Practica (Cameron May, London 2007) 278.

agreed to do at the Ministerial conference in Hong Kong.[1] In contrast, even if WTO Members comply with their obligations regarding domestic support commitments in the Agreement on Agriculture, they could still violate Article 3.1(b) of the SCM Agreement if those domestic subsidies are made contingent on the use of domestic goods.[2]

Subsidies are also subject to Part III (actionable subsidies) and Part V (countervailing measures) of the SCM Agreement. Countervailing measures can be applied to imports to counter the effect of subsidized products where the subsidy causes injury to the domestic producers of like products. Part III can be used to attack subsidies that cause adverse effects in third country markets, for example due to lost sales and price suppression. Unlike countervailing measures, there is no obligation in the SCM Agreement to quantify the precise amount ofthe subsidy for purposes of an adverse effects claim.[3] Agricultural subsidies are also subject to these Parts of the SCM Agreement.[4] Thus, subsidies related to climate change policies could be subject to multilateral action under Part III or unilateral action under Part V.

In addition to more obvious subsidies, carbon taxes could be structured in a manner that violates provisions of the SCM Agreement (for example, differential taxation of “carbon-friendly” products). Since the SCM Agreement and GATT Article III:2 are not mutually exclusive, such measures could be subject to both sets of obligations. These two sets of provisions can apply cumulatively to different aspects of the same measure.[5] The same logic would apply to the relationship between the SCM Agreement and GATT Article I:1.

While some have argued in favor of imposing countervailing duties against products from countries that do not require emissions reductions, the definition of subsidy would likely preclude such actions unless, for example, a country applied a general carbon tax but then subsidized a specific industry by not collecting the tax.[6] The SCM Agreement only applies to a measure if it constitutes a subsidy within the meaning of SCM Agreement Article 1.1. A “financial contribution” and a “benefit” are two separate legal elements in Article 1.1, which together determine whether a subsidy exists.[7] The differential application of carbon taxes could constitute a “financial contribution by a government” within the meaning of Article 1.1(a)(1)(ii). The two principal cases on this point held that there was a subsidy within the meaning of SCM Agreement Article 1.1(a)(1)(ii) in the following situations: (1) different tax treatment for income from foreign and domestic sales (USFSC) and (2) an exemption from payment of an MFN import duty that would otherwise apply to auto imports, conditional upon domestic production requirements (CanadaAutos).

The source of a subsidy affects the evidence required and the difficulty to prove that the subsidy is subject to the SCM Agreement. The SCM Agreement distinguishes between subsidies made by “a government or any public body” and those made by a “private body.” Financial contributions from a private body are only subject to the SCM Agreement if there is an affirmative demonstration of the link between the government and the specific conduct of the private body, an element that does not need to be demonstrated in the case of a governmental entity. In the SCM Agreement, unlike Article 5 of the International Law Commission (ILC) Articles on State Responsibility, the question of attribution of conduct to a State requires an examination of both the particular conduct and the type of entity. A public body’s conduct can be attributed directly to the State, whereas a private body’s conduct can be attributed to the State only indirectly. A public body within the meaning of Article 1.1(a)(1) of the SCM Agreement must possess, exercise or be vested with governmental authority. The question of whether an entity is public or private depends on whether an entity is vested with authority to exercise governmental functions. However, apart from an express delegation of authority in a legal instrument, the existence of mere formal links between an entity and government is insufficient to establish the necessary possession of governmental authority. For example, the mere fact that a government is the majority shareholder of an entity does not demonstrate that the government exercises meaningful control or has bestowed it with governmental authority. However, where the evidence shows formal government control, and that such control has been exercised in a meaningful way, the evidence may permit an inference that the entity concerned is exercising governmental authority.[8]

According to the Appellate Body, “the mere fact that revenues are not ‘due’ from a fiscal perspective does not determine that the revenues are or are not ‘otherwise due’ within the meaning of Article 1.1(a)(1)(ii) of the SCM Agreement.”[9] A “financial contribution” does not arise simply because a government does not raise revenue which it could have raised. The term “otherwise due” implies a comparison with a “defined normative benchmark,” as established by the tax rules applied by the Member in question.[10] The determination of “whether revenue foregone is otherwise due must allow a comparison of the fiscal treatment of comparable income, in the hands of taxpayers in similar situations.”[11]

If a country taxes products according to their carbon footprint, the most probable result is that different products will be subject to different tax rates. One example is where fossil fuels are subject to a sales tax that is not applied to other products, as is already the case in some jurisdictions. For example, the Canadian province of British Columbia introduced a carbon tax on fossil fuels in 2008. A more elaborate scheme might apply different levels of sales taxes to different categories of products based on different ranges of carbon footprints, taking into account the production of carbon emissions during the lifecycle of the products. If such schemes are designed so that domestic products are subject to a lower tax than imported products, then the lower tax rate might constitute revenue foregone that is otherwise due. If both the domestic and imported products are substitutable inputs for domestic production (as is the case with fuels) and the foregone revenue confers a benefit, then there could be a violation of SCM Agreement Article 3.1(b). This could be the case if countries diverge in their regulation and reduction of carbon emissions, so that some countries engage in less carbon-intensive production than others. Moreover, such divergences in the carbon intensity of production would probably lead to differential treatment of imports, thereby raising issues regarding MFN treatment. The reference in footnote 1 to “the exemption of an exported product from duties or taxes borne by the like product” could indicate that Article 1.1(a)(1)(ii) is intended to apply to other cases where like products receive different consumption tax treatment. In this regard, the Appellate Body has stated: “The tax measures identified in footnote 1 as not constituting a ‘subsidy’ involve the exemption of exported products from product-based consumption taxes.”[12] However, revenue is not otherwise due just because certain revenue is not taxed (or not taxed at as a high a level as it could be); a WTO Member is “free not to tax any particular categories of revenues.”[13] Thus, it is not clear in which circumstances differential taxation of products based on their carbon footprints might constitute a “financial contribution by a government” within the meaning of the SCM Agreement.

In CanadaAircraft, the Appellate Body interpreted the term “benefit” under Article 1.1(b) as follows: “a financial contribution will only confer a ‘benefit’, i.e., an advantage, if it is provided on terms that are more advantageous than those that would have been available to the recipient on the market.”[14] “A ‘benefit’... must be received and enjoyed by a beneficiary or a recipient” and “calls for an inquiry into what was conferred on the recipient”; the measurement of the benefit is not whether there was a cost to the government.[15] The person or entity receiving the benefit does not have to be the same as the one who received the financial contribution.[16] The assessment of benefit must examine the terms and conditions of the challenged transaction at the time it is made and compare them to the terms and conditions that would have been offered in the market at that time.[17] Thus, Article 1.1(b) could require an analysis of whether a benefit is obtained from differential carbon tax rates, by whom, whether such a benefit could have been otherwise obtainable in the marketplace, and what the relevant marketplace is.

The Panel Reports in Canada—Renewable Energy and CanadaFeed-In Tariff Program indicate that the issue of benefit might be used to exclude clean energy subsidies from the application of the SCM Agreement. The issue was which market provides the most appropriate benchmark in determining the existence and magnitude of a subsidy benefit for solar and wind power producers, in particular the extent to which the wholesale market for electricity in Ontario should be the appropriate focus of the benefit analysis.[18] In the absence of Ontario’s feed-intariff (FIT) program, a competitive wholesale market for electricity in Ontario could not support commercially viable operations of solar and wind power produ- cers.[19] The Panel rejected the complainants’ argument that the analysis of benefit should compare the terms and conditions ofparticipation in the FIT Program with those that would be available to generators participating in a wholesale electricity market where there is effective competition. The evidence indicated that competitive wholesale electricity markets will rarely operate to remunerate adequately the mix of generators needed to secure a reliable electricity system that pursues human health and environmental objectives through the inclusion of facilities using solar photovoltaic and wind technologies into the supply-mix. However, the Panel also rejected Canada’s argument that the relevant market comparator must be the market for electricity produced from wind and solar power technologies. The majority held that none of the alternatives that had been advanced by the complainants or Canada could be used as appropriate benchmarks against which to measure whether the FIT Program conferred a benefit within the meaning of Article 1.1(b) of the SCM Agreement.[20] However, in a dissenting opinion, one panelist concluded that there was a benefit. By bringing these high cost and less efficient electricity producers into the wholesale electricity market, when they would otherwise not be present, Ontario’s purchases of electricity from solar and wind power generators under the FIT Program conferred a benefit.[21] On appeal, the Appellate Body agreed that none of the benchmarks were appropriate, but for different reasons. The absence of a general environmental exception in the SCM Agreement makes the role of the benefit analysis important in saving clean energy subsidies from violating the SCM Agreement. The Appellate Body’s analysis suggests that the appropriate comparison is between different renewable energy prices, not between renewable energy prices and fossil fuel prices. What are the implications for clean energy subsidies made under the Clean Development Mechanism?

In Canada—Renewable Energy and CanadaFeed-In Tariff Program the FIT Program imposed domestic input requirements on the recipients. The Appellate Body found this to be a violation of GATT Article III:4 and Article 2.1 of the Agreement on Trade-Related Investment Measures (TRIMS Agreement). Paragraph 1(a) of the Illustrative List in the Annex to the TRIMS Agreement provides that TRIMS are inconsistent with GATT Article III:4 when compliance is necessary to obtain an advantage and requires the purchase or use by an enterprise of products of domestic origin. GATT Article III:8(a) did not exclude the FIT Program from the application of Article III:4 because the generation equipment was not in a competitive relationship with the product purchased by the government (electricity).[22] Thus, while the benefit analysis saved the FIT Program from a finding of inconsistency with Article 3.1(b) of the SCM Agreement, it remains inconsistent with WTO law. However, a finding of inconsistency with GATT Article III:4 leaves open the possibility of justification under GATT Article XX, which is unlikely to be a possibility in the event of a violation of the SCM Agreement. Thus, the approach to the analysis of this issue in Canada—Renewable Energy and CanadaFeed-In Tariff Program leaves open the possibility that nondiscriminatory clean energy subsidies could survive a WTO challenge.

Could environmental subsidies that are inconsistent with the SCM Agreement or the Agreement on Agriculture be justified under GATT Article XX? Marceau and Trachtman have suggested that it would require a “heroic approach to interpretation” to extend the application of GATT Article XX to justify a violation under another agreement of Annex 1A.[23] However, in US—Shrimp (Thailand) and US—Customs Bond Directive, the Appellate Body declined to express a view on whether a defense under GATT Article XX(d) was available to justify a measure found to constitute a “specific action against dumping” under Article 18.1 of the Antidumping Agreement.[24] Article 18.1 of the Anti-Dumping Agreement provides that “[n]o specific action against dumping of exports from another Member can be taken except in accordance with the provisions of the GATT 1994, as interpreted by this Agreement.” Having found that the enhanced continuous bond requirement constituted “specific action against dumping” and that it was not a “reasonable security” under the Ad Note to Article VI of the GATT 1994, and thus was not “in accordance with the provisions of the GATT 1994, as interpreted by the

[Anti-Dumping] Agreement,” the Panel in that case examined the United States’ defense under Article XX(d) of the GATT 1994, but found that the measure could not be justified as necessary.

The chapeau of GATT Article XX indicates that the general exceptions apply to “this Agreement.” This appears to exclude the application of Article XX beyond the provisions of the GATT itself. However, the provisions of the GATT serve as the starting point for the majority of the multilateral agreements on trade in goods.

In China—Publications and Audiovisual Products, the Appellate Body concluded that China could invoke GATT Article XX as a defense against a violation of section 5.1 of its Protocol of Accession.[25] In China—Raw Materials, both the Panel and the Appellate Body concluded that China could not invoke GATT Article XX as a defense against a violation of section 11.3 of its Protocol of Accession.[26] After observing that the WTO Agreement contains no general exception, the Panel concluded that the reference in the chapeau of Article XX to “this Agreement” indicates that its general exceptions apply only to the GATT, and not to other WTO Agreements. The Panel further noted that WTO Members had incorporated Article XX by reference, in the TRIMS Agreement, and that other WTO Agreements contained their own general exceptions, such as GATS Article XIV.[27] However, the Appellate Body limited its analysis to why GATT Article XX could not apply to section 11.3 of China’s Protocol of Accession. The Appellate Body considered that Article XX could not be invoked to justify the violation of an obligation that was not regulated by the GATT. The obligation emanated exclusively from the Protocol. It also observed, as did the Panel, that section 11.3 made no reference to Article XX, even though it referred expressly to GATT Article VIII. Unlike sections 11.1 and 11.2, section 11.3 contained no obligation to ensure conformity with GATT. Moreover, unlike section 5.1 of the Protocol in ChinaPublications and Audiovisual Products, section 11.3 made no reference to the right of China to regulate trade in a manner compatible with the WTO Agreement.[28] The Appellate Body’s reasoning in these cases indicates that the applicability of the general exceptions of GATT Article XX to other WTO Agreements depends on the specific provision and its context.

In the case of subsidies, GATT Articles VI (countervailing duties) and XVI (subsidies in general) apply together with the provisions of the SCM Agreement. Indeed, the principal object and purpose of the SCM Agreement is to augment and improve GATT disciplines regarding the use of subsidies and countervailing measures.[29] Also note that the name of the SCM Agreement (Agreement on Subsidies and Countervailing Measures), in contrast to that of the Antidumping Agreement (Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994), does not indicate that it serves merely to interpret and apply GATT provisions. It would be odd if GATT Article XX could be applied to GATT Articles VI and XVI, but not to the SCM Agreement itself, absent evidence of a contrary intention (which SCM Agreement Article 8 might provide). This assumes that GATT Article XX could be applied to GATT Articles VI and XVI. However, it is not at all clear how this would work in the case of countervailing measures. Would environmental subsidies that meet the requirements of GATT Article XX be non-actionable and thus not subject to countervailing duties under Part V or multilateral action under Part III of the SCM Agreement? This was the case for a limited range of environmental subsidies before the expiry of SCM Agreement Article 8.[30] Since negotiators developed specific exceptions and language to address the issue of environmental subsidies, and did not incorporate the language of Article XX or incorporate Article XX by reference, it seems unlikely that GATT Article XX could be invoked to preclude action under Parts III and V. Moreover, in the case ofactionable subsidies under Part III, negotiators specified that Articles 5 and 6 would not apply to subsidies maintained on agricultural products as provided in Article 13 of the Agreement on Agriculture.[31] While Article 13 has since expired, this indicates that negotiators turned their minds to the issue of whether to exclude certain types of subsidies from the application of Part III. Similarly, in Part V the non-actionability of certain types of subsidies, including environmental subsidies, was carefully circumscribed.[32]

Environmental subsidies could be non-actionable under Parts III and V of the SCM Agreement if differences in carbon footprints can be used to conclude that products are not “like” as that term is used in the SCM Agreement. The SCM Agreement uses the term “like products” for a variety of purposes. It is a pivotal issue in Part V regarding the initiation of countervailing duty investigations (Articles 11.2(i), 11.4, 16.1) and the determination of injury (Articles 15.1, 15.2, 15.3, 15.6) and, in Part III, regarding the determination of serious prejudice in paragraphs (a), (b), and (c) of Article 6.3.[33] In addition, environmental subsidies could be designed so as to not be specific to an enterprise or industry under SCM Agreement Article 2 and thereby be non-actionable under Parts III and V. However, if the importing Member produces environmental products that are like those that benefit from the subsidy in the exporting Member, the subsidies could be actionable under Parts III and V. Recent WTO disputes in this category relate to solar panel, wind power equipment and feed-in tariffs programs for the renewable energy sector.[34]

What about prohibited subsidies (export subsidies and subsidies contingent on the use of domestic goods)? Such subsidies are deemed to be specific under Article 2.3. SCM Agreement Article 32.1 provides that “[n]o specific action against a subsidy of another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.” SCM Agreement note 56 provides that “[t]his paragraph is not intended to preclude action under other relevant provisions of GATT 1994, where appropriate.” However, SCM Agreement Article 3.1 indicates that export subsidies and subsidies contingent on the use of domestic goods are prohibited “[e]xcept as provided in the Agreement on Agriculture.” This could be interpreted as precluding the application of any other exceptions to SCM Agreement Article 3.1, including the general exceptions of GATT Article XX, which would make it difficult for export subsidies to be found consistent with WTO law, even those designed to address competitive disadvantages from domestic carbon taxes or other climate change measures with similar effects.

However, the preamble of the Agreement on Agriculture refers to “the need to protect the environment” and Article 14 of the Agreement on Agriculture indicates that the Agreement on the Application of Sanitary and Phytosanitary Measures[35] applies cumulatively to the Agreement on Agriculture. The preamble of the SPS Agreement indicates that it elaborates on GATT rules, in particular Article XX(b). Thus, the argument could be made that the Agreement on Agriculture opens the door to the application of GATT Article XX(b). However, the Agreement on Agriculture only applies to the “agricultural products” listed in Annex 1 of the Agreement on Agriculture.[36] Thus, even if one were to accept the foregoing argument, the application of GATT Article XX(b) to SCM Agreement Article 3.1 could be limited to measures affecting these agricultural goods. The more likely conclusion is that Article XX is not available to justify a violation of the Agreement on Agriculture. Rather, environmental subsidies that applied to agricultural products would have to comply with the commitments in the schedules of WTO Members. As with environmental subsidies for non-agricultural products, environmental subsidies for agricultural products could be non-actionable under Parts III and V of the SCM Agreement either because they are not specific or because differences in carbon footprints are relevant in the like products analysis, as noted above.

A more general argument might be raised regarding the applicability of GATT Article XX to all Agreements in Annex 1A, including the SCM Agreement, based on the argument that all WTO Agreements are cumulative and apply simultaneously and that the effective interpretation principle requires that both rights (such as those in Article XX) and obligations are cumulative.[37] However, the foregoing analysis suggests that the applicability of GATT Article XX to the other agreements in Annex 1A would have to be considered one agreement at a time and one provision at a time. This approach is consistent with the view of the Appellate Body that the relationship between the GATT 1994 and the other agreements in Annex 1A must be considered on a case-by-case basis.[38] It is also consistent with China—Raw Materials, in which the Appellate Body found that China could not invoke Article XX as a defense under section 11.3 of its Protocol of Accession.[39] In China—Publications, the Appellate Body reasoned that Article XX could be invoked when the measure could be inconsistent with a GATT provision or a provision related to goods in another WTO agreement. Otherwise, a complainant could deprive a respondent of its rights under Article XX by avoiding claims under the GATT. In China—Raw Materials, the Appellate Body placed greater emphasis on the wording and the context of the specific provision. Taken together, these two cases suggest that, in order to invoke Article XX, a provision outside the GATT would have to contain a reference to Article XX, a right to regulate trade or other reference to the GATT. Nevertheless, where a provision contains no such reference, but incorporates language from Article XX, it might be interpreted in a manner that is consistent with Article XX, as the Appellate Body did in USClove Cigarettes with respect to TBT Agreement Article 2.1.[40] The foregoing series of Appellate Body reports, together with our analysis of the text of the SCM Agreement, indicate that Article XX could not be invoked as a defense under the SCM Agreement.

  • [1] Hong Kong Ministerial Declaration, WT/MIN(05)/DEC, adopted December 18, 2005, para. 6.
  • [2] Appellate Body Report, US—Upland Cotton para. 550.
  • [3] Appellate Body Report, United States—Measures Affecting Trade in Large Civil Aircraft—SecondComplaint (US—Large Civil Aircraft (2nd complaint)), WT/DS353/AB/R, adopted 23 March 2012,para, 697.
  • [4] Condon, El Derecho de la Organizacion Mundial de Comercio 334.
  • [5] Panel Report, Indonesia—Certain Measures Affecting the Automobile Industry (Indonesia—Autos),WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, adopted July 23, 1998, paras. 14.36,14.97-14.99.
  • [6] Tarasofsky “Heating Up International Trade Law” 14.
  • [7] Appellate Body Report, Brazil—Export Financing Programme for Aircraft (Brazil—Aircraft),WT/DS46/AB/R, adopted August 20, 1999, para. 156.
  • [8] Appellate Body Report, United States—Definitive Anti-Dumping and Countervailing Duties onCertain Products from China (US—Anti-Dumping and Countervailing Duties (China)), WT/DS379/AB/R, adopted March 25, 2011, paras. 284—322.
  • [9] Appellate Body Report, United States—Tax Treatment for “Foreign Sales Corporations ” (Article21.5—EC) (US—FSC (Article 21.5—EC)), WT/DS108/AB/RW, adoptedJanuary29, 2002, para. 88.
  • [10] Appellate Body Report, United States—Tax Treatment for “Foreign Sales Corporations” (US—FSC), WT/DS108/AB/R, adopted March 20, 2000, para. 90.
  • [11] Appellate Body Report, US—FSC (Article 21.5—EC) para. 98.
  • [12] Appellate Body Report, US—FSC para. 93.
  • [13] Appellate Body Report, US—FSC para. 90.
  • [14] Appellate Body Report, Canada—Measures Affecting the Export of Civilian Aircraft (Canada—Aircraft), WT/DS70/AB/R, adopted August 20, 1999, para. 149.
  • [15] Appellate Body Report, Canada—Aircraft para. 154.
  • [16] Appellate Body Report, United States—Countervailing Measures Concerning Certain Productsfrom the European Communities, WT/DS212/AB/R, adopted January 8, 2003, para. 110.
  • [17] Appellate Body Report, European Communities—Measures Affecting Trade in Large Civil Aircraft(EC and certain member States—Large Civil Aircraft), WT/DS316/AB/R, adopted June 1, 2011, para.838; Appellate Body Report, United States—Large Civil Aircraft (2nd complaint), WT/DS353/AB/R,adopted March 23, 2012, para. 636.
  • [18] Panel Report, Canada—Certain Measures Affecting the Renewable Energy Generation Sector(Canada—Renewable Energy), WT/DS412/R and Canada—Measures Relating to the Feed-in TariffProgram (Canada—Feed-In Tariff Program), WT/DS426/R, adopted May 24, 2013, para. 7.270. Seealso Appellate Body Report, WT/DS/426/AB/R, adopted May 24, 2013, paras. 5.79, 5.219.
  • [19] Panel Reports, Canada—Renewable Energy and Canada—Feed-In Tariff Program paras.7.276-7.277.
  • [20] Panel Reports, Canada—Renewable Energy and Canada—Feed-In Tariff Program paras. 7.309-7.319.
  • [21] Panel Reports, Canada—Renewable Energy and Canada—Feed-In Tariff Program para. 9.23.
  • [22] Appellate Body Report, Canada—Renewable Energy and Canada—Feed-In Tariff Program, WT/DS/426/AB/R, adopted May 24, 2013, para. 5.79.
  • [23] Gabrielle Marceau and Joel Trachtman, “The Technical Barriers to Trade Agreement, theSanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade”(2002) 36 Journal of World Trade 811, 874.
  • [24] Appellate Body Report, United States—Shrimp (Thailand) and United States—Customs BondDirective, WT/DS343/AB/R, WT/DS345/AB/R, adopted August 1, 2008, paras. 310, 319.
  • [25] Appellate Body Report, China—Measures Affecting Trading Rights and Distribution Services forCertain Publications and Audiovisual Entertainment Products (China—Publications and AudiovisualProducts), WT/DS363/AB/R, adopted January 19, 2010; Bradly J. Condon, “Comentario sobreChina—Publicaciones y productos audiovisuales, Informe del Organo de Apelacion” (2010) (accessedDecember 21, 2012).
  • [26] Appellate Body Report, China—Measures Related to the Exportation of Various Raw Materials(China—Raw Materials), WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R, adoptedFebruary 22, 2012.
  • [27] Panel Report, China—Measures Related to the Exportation ofVarious Raw Materials (China—RawMaterials,), WT/DS394/R, WT/DS395/R, WT/DS398/R, adopted February 22,2012, paras. 7.150-7.154.
  • [28] Appellate Body Report, China—Raw Materials paras. 290-303.
  • [29] Appellate Body Report, United States—Countervailing Duties on Certain Corrosion-ResistantCarbon Steel Flat Products from Germany, WT/DS2133/AB/R, adopted December 19, 2002, para.73; Appellate Body Report, United States—Final Countervailing Duty Determination with Respect toCertain Softwood Lumber from Canada, WT/DS257/AB/R, adopted February 17, 2004, para. 64;Appellate Body Report, Brazil—Measures affecting Desiccated Coconut (Brazil—Desiccated Coconut),WT/DS22/AB/R, adopted March 20, 1997, 15.
  • [30] SCM Agreement arts. 8.1, 8.2 (c), 8.3, 10, 31.
  • [31] SCM Agreement arts. 5, 6.9.
  • [32] SCM Agreement arts. 8, 10 fn. 35.
  • [33] Condon, El Derecho de la Organizacion Mundial de Comercio 331—2.
  • [34] United States—Countervailing Duty Measures on Certain Products from China, WT/DS437, Panelestablished September 28, 2012 (accessed December 21, 2012); China—Measures Concerning Wind Power Equipment, WT/DS419, in consultations December 22, 2010 (accessed December 21, 2012); Panel Reports, Canada—Renewable Energy, Canada—Feed-In Tariff Program; European Union and certain Member States—Certain Measures Affecting theRenewable Energy Generation Sector, in consultations November 5, 2012, WT/DS452, (accessed December 21, 2012).
  • [35] Agreement on the Application of Sanitary and Phytosanitary Measures, GATT Secretariat, TheResults of the Uruguay Round of Multilateral Trade Negotiations, the LegalTexts (Geneva, 1994) 59(SPS Agreement).
  • [36] Agreement on Agriculture art. 2.
  • [37] Marceau and Trachtman “The Technical Barriers to Trade Agreement” 874—5.
  • [38] Appellate Body Report, Brazil—Desiccated Coconut 13.
  • [39] Appellate Body Report, China—Raw Materials paras. 290—1.
  • [40] Danielle Spiegel Feld and Stephanie Switzer, “ Whither Article XX? Regulatory Autonomy UnderNon-GATT Agreements After China—Raw Materials” (2012) 38 Yale Journal of International Law16, 29—30; Appellate Body Report, United States—Measures Affecting the Production and Sale of CloveCigarettes (US—Clove Cigarettes), WT/DS406/AB/R, adopted April 24, 2012, para. 182.
 
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