Shades of Green: Mapping the Parameters of the GATT Article III:8(a) Government Procurement Derogation in the Renewable Energy Transition
Forthcoming in Journal of World Investment and Trade, 2019
NUS Asia-Pacific Centre for Environmental Law Working Paper 19/01
23 Pages Posted: 11 Apr 2019
Date Written: April 11, 2019
The increasingly pervasive use of trade-related supportive measures in the renewable energy sector has created tensions with the World Trade Organization (WTO) obligations. This tension has led to a number of disputes, and in so doing became a testing ground for the compatibility between trade regime and climate regime. This article aims to add to the literature by focusing on one of the less discussed, but extremely important, WTO provisions relevant in assessing the legality of renewable energy measures – the GATT Article III:8(a). Dormant for more than six decades, Article III:8(a) became a focal point of both the Canada – Renewable Energy and India – Solar Cells disputes. The Appellate Body in both disputes interpreted the so-called government procurement derogation narrowly and in so doing limited the scope of the provision. This article argues that while the ultimate decision reached by the Appellate body was correct, its methodological approach was flawed and could render the provision inapplicable in even paradigm government procurement scenarios. While the methodological approach used by the Panel in Canada – Renewable Energy would be more preferable and closer to the context.
Keywords: World Trade Organization, renewable energy, government procurement, climate change mitigation
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