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Canada – Renewable Energy: Implications for WTO Law on Green and Not-so-Green Subsidies

36 Pages Posted: 9 Dec 2014  

Steve Charnovitz

George Washington University - Law School

Carolyn Fischer

Resources for the Future

Multiple version iconThere are 2 versions of this paper

Date Written: December 2014

Abstract

In the first dispute on renewable energy to come to WTO dispute settlement, the domestic content requirement of Ontario’s feed-in tariff was challenged as a discriminatory investment-related measure and as a prohibited import substitution subsidy. The panel and Appellate Body agreed that Canada was violating the GATT and the TRIMS Agreement. But the SCM Article 3 claim by Japan and the European Union remains unadjudicated, because neither tribunal made a finding that the price guaranteed for electricity from renewable sources constitutes a ‘benefit’ pursuant to the SCM Agreement. Although the Appellate Body provides useful guidance to future panels on how the existence of a benefit could be calculated, the most noteworthy aspect of the new jurisprudence is the Appellate Body’s reasoning that delineating the proper market for ‘benefit’ analysis entails respect for the policy choices made by a government. Thus, in this dispute, the proper market is electricity produced only from wind and solar energy.

Keywords: Renewable energy, subsidies, environment, WTO, dispute settlement

Suggested Citation

Charnovitz, Steve and Fischer, Carolyn, Canada – Renewable Energy: Implications for WTO Law on Green and Not-so-Green Subsidies (December 2014). Robert Schuman Centre for Advanced Studies Research Paper No. 2014/109. Available at SSRN: https://ssrn.com/abstract=2535217 or http://dx.doi.org/10.2139/ssrn.2535217

Steve Charnovitz (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Carolyn Fischer

Resources for the Future ( email )

1616 P Street, NW
Washington, DC 20036
United States
202-328-5012 (Phone)
202-939-3460 (Fax)

HOME PAGE: http://www.rff.org/~fischer

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